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What is the Rape Shield Law?

Posted by Dmitry Gorin | Mar 09, 2022

California Rape Shield Law - Evidence Code 1103 & 782

Rape shield laws exist across the country to prevent an alleged victim of sexual assault from having evidence of their past sexual conduct introduced at trial to demonstrate consent.

The purpose of a rape shield law is to prevent an alleged sexual assault victim's sex life from being put on trial. In California, the state legislature determined that it is essential to protect an alleged victim from surprise, harassment, or an unnecessary invasion of privacy.

Rape Shield Law in California
The rape shield law prohibits introducing evidence of victims past sexual conduct to prove consent.

However, the law is not absolute as a few different reasons would allow an alleged victim's sexual history to be discussed and examined at trial.

In other words, there are sections of the law that provide a defendant an opportunity to introduce evidence about the victim's past sexual behavior to show their testimony is not trustworthy.

Before this can occur, however, the defendant has to follow specific procedures and obtain permission from the judge in their criminal trial. These procedures impact defendants in all types of sexual-related cases, such as rape, sodomy, and forcible sexual penetration with a foreign object.

A typical example of how the rape shield law works is when a man is accused of rape. Still, he claims the sex was consensual and wants to present evidence the alleged victim is sexually promiscuous. The law will not the introduction of this evidence.

These situations are described within the California Evidence Code at 1103 & 782. Our Los Angeles criminal defense attorneys will review this topic further below.

Evidence Code 1103 Explained

Evidence Code 1103 states that a defendant in a sexual assault case is prohibited from presenting evidence or testimony regarding the alleged victim's prior sexual conduct or sexual reputation to prove whether consent was given.

A defendant is also prohibited from introducing evidence regarding how an alleged victim was dressed before the sexual activity to demonstrate consent.

Example: Michelle and Paul go out dancing and go home together after drinking several drinks each. They have sex, and Michelle later reports to the police that she did not willingly give consent. Paul has several friends that have also taken Michelle out dancing and later had sex with her.

Even if all of that is true, Paul cannot present any of this evidence or these witnesses under Evidence Code 1103 to demonstrate that Michelle consented to sexual activity with him. Evidence Code 1103 applies to the following sexual assault crimes in California:

  • Penal Code 261 PC - Rape,
  • Penal Code 262 PC - Marital rape,
  • Penal Code 264.1 PC - Rape in concert
  • Penal Code 286 PC - Sodomy,
  • Penal Code 287 PC – Forced oral copulation,
  • Penal Code 289 PC - Forcible penetration with a foreign object.

There are two main exceptions to Evidence Code 1103. The first is introducing evidence of prior sexual activity between the parties. If the parties engaged in sexual activity on previous occasions, then the defendant may present evidence regarding these prior occasions to prove consent.

Example: Michelle and Paul have gone out on several dates and have engaged in sexual activity together multiple times. Michelle and Paul go out dancing and go home together after drinking several drinks each. They have sex, and Michelle later reports to the police that she did not willingly give consent. Paul can introduce evidence about their prior sexual activity to prove consent.

When the alleged victim brings up evidence of an alleged victim's sexual past in court, if an accuser testifies about their sexual history, then a defendant may cross-examine the accuser about this information and introduce evidence to rebut the accuser's testimony.

Example: Michelle and Paul go out and later engage in sexual activity. Michelle reports to the police that she did not give Paul consent. Michelle also tells the police that she is a virgin and would never consent to sex with anyone until she is married.

Paul can introduce witnesses who would testify that they engaged in sexual activity with Michelle and disprove her virgin claims. This evidence is allowed because Michelle offered this information, and Paul can rebut Michelle's claims under the Evidence Code.

Victim's Clothing and Instruction of Evidence Explained

Under Evidence Code 1103 EC, any evidence about how the alleged victim was dressed at the time of the alleged rape crime is not typically allowed if that evidence is introduced in an attempt to prove they gave sexual consent.

However, exceptions could be made to this section of the rape shield law. For example, a judge might decide to allow this type of evidence if it's relevant to the case and would serve justice's best interests. Further, a defendant could present evidence about the alleged victim's sexual reputation if they first introduce the issue.

In other words, if the person making the accusations introduces evidence about their sexual history, the defendant's lawyer could cross-examine any witness for the prosecution who gave testimony, and they can present relevant evidence to challenge the prosecutor's evidence being used against them.

Evidence Code 782 Explained

The primary focus of Evidence Code 1103 deals with evidence that is introduced to prove whether the accuser gave consent. Evidence Code 782 differs as it focuses on admitting evidence to challenge the accuser's credibility. Evidence can be permitted against an accuser to challenge the accusers:

  • Ability to remember the events correctly,
  • Character for truthfulness,
  • Alleged bias or motive to not tell the truth,
  • Testimony with prior inconsistent statements or previous testimony.

A special hearing must occur where the defendant must obtain permission from the court to introduce evidence under Evidence Code 782.

The defendant must request this hearing in a written motion, and the judge will determine whether the evidence is relevant and whether the evidence can be presented to a jury. Judges will base their decision on the following factors:

  • If the evidence is relevant to the accuser's credibility,
  • If the value of the evidence is not as significant as how long it would take to present and the risk, it would cause undue prejudice or mislead the jury.

Under Evidence Code 782, the defendant might be able to use evidence of the accuser's past sexual conduct with others if it's relevant to the issues listed above.

What California Evidence Rules Are Related to Rape Shield?

The California evidence rules that are associated with rape shield include the following:

  • Character evidence rule – Evidence Code 1101,
  • Hearsay – Evidence Code 1200.

It is common for these rules to apply in rape cases as testimony can be admitted or prohibited for several reasons.

Contact Eisner Gorin LLP for Help
Contact our law firm to review your situation.

Character evidence about someone's past behavior or criminal convictions is not admissible to show that someone acted in accordance with their character on a particular occasion. Still, defendants can introduce evidence about the alleged victim's character or past acts.

The hearsay rule says, with exceptions, that evidence is not admissible in a criminal trial for any statements that were not made by a witness testifying at the trial.

The hearsay rule applies to the rape shield law when a rape case defendant wants to present a secondhand account of the past sexual conduct of their accuser.

Eisner Gorin LLP is a Los Angeles-based criminal law firm. You can contact us for an initial consultation by calling (877) 781-1570 or filling out our contact form.

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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