Presiding Justice David Nahmias, Supreme Court of Georgia (Photo: John Disney/ALM)

Defense attorneys for a man convicted of raping and molesting children are in the unusual position of using Georgia's rape shield law—which protects the privacy of victims—to demand a reversal.

And they may have a chance to win, based on questions from the Georgia Supreme Court during oral arguments last week.

“Does the rape shield statute apply to the state?” Andrew Fleischman of Ross and Pines asked the justices. “I believe it does.”

Fleischman and partner Noah Pines represented Charles White on appeal. A Newton County Superior Court jury convicted White in November 2014 of three counts of rape, one count of statutory rape, 10 counts of child molestation, three counts of aggravated sodomy, three counts of incest and one count of enticing a child for indecent purposes.

The appeal hinges on the testimony of one of the alleged victims, who was prosecuted herself for repeating the same kind of abuse against other children.

“The state used the sexual history of a twelve-year-old girl to establish that she had been molested. It informed the jury that she had molested two other children,” Fleischman and Pines said in their brief. “The Rape Shield statute should spare victims from shame, humiliation and embarrassment.”

White's attorneys argued that the trial court was wrong to allow the prosecutor to question the girl about her abuse of other children and that the Georgia Court of Appeals erred by upholding the conviction.

They said the case “discourages victims from coming forward by leaving them uncertain of whether their sexual histories will remain private. Because of that uncertainty, half a shield is worse than none at all. We request a new trial.”

Fleischman asked the justices for a reversal as a lesson that would be taught at every Prosecuting Attorneys' Council of Georgia conference “for years to come.”

Said Fleischman, “The state learns when it loses.”

Alcovy Judicial Circuit District Attorney Layla Zon prosecuted White's case herself and handled the appeal. She accused White of manufacturing an issue in an attempt to hijack the rape shield law for his own purposes.

In her brief, Zon said White's “fake outrage concerning the victim's 'shame, humiliation, and embarrassment' from the state's introduction of this evidence is simply a thinly veiled argument against the admissibility of relevant evidence” that was damning to him at trial.

Fake or not, White's issue put Zon on the hot seat at oral arguments.

“You may have done it for nice reasons toward a noble goal, but you made a child talk about her prior sexual history—and not just a general sexual history but a criminal sexual history,” Presiding Justice David Nahmias said.

“With all due respect, Justice, I disagree with your characterization,” Zon answered, adding her examination of the witness wasn't malicious.

“I'm not suggesting it was malicious,” Nahmias said. But he added, “The purpose (of the rape shield law) was to have people who have suffered sexual abuse—allegedly—not to have to go to court and have their prior sexual behavior paraded in front of their neighbors.”

Other justices also questioned Zon more rhetorically about the absence from the law of the exception she claimed for the state in bringing up prior sexual behavior of a victim. “Can you make exceptions whenever you want?” Justice Charlie Bethel asked.

“Is this something the General Assembly could fix?” Justice Sarah Warren asked.

Nahmias called Zon's argument “spin.”

Zon moved on, saying she could tell her argument “is not very persuasive.”

“Lucky for me, the defense fails the plain error test,” Zon continued. “The legal error must be clear and obvious rather than subject to dispute.”

And Zon argued that White would have been convicted anyway—even without the testimony about one of his victims going on to abuse others—because of the two other victims.

Having saved some time for rebuttal, Fleischman was able to ask the justices again for a reversal—selling it as a protection for victims.

“People need to know what their laws say,” Fleischman said. “Victims should have a say, and we all should.”

The case is White v. State, No. S18G0365.