Under California's so-called “rape shield law,” a defendant in a California rape case is not allowed to introduce evidence about the alleged “victim's" past sexual conduct in order to prove that she (or he) consented to the sexual act.1
However, another section of the rape shield law provides that a defendant can introduce evidence about the victim's past sexual conduct in order to show that her (or his) testimony is not trustworthy.2
But before doing so, the defendant must follow certain specified procedures—and get permission from the judge in his California criminal jury trial.3
This important California evidence rule—set forth in Evidence Code 1103 EC and Evidence Code 782 EC—affects defendants in all sorts of California sex crime cases. It applies not only to Penal Code 261 PC rape but also to crimes like Penal Code 286 PC sodomy and Penal Code 289 PC forcible acts of sexual penetration.4
Here are some examples of how the California rape shield law works in practice:
- A defendant accused of California rape admits that he had sex with his accuser; his legal defense is that the sex was consensual. He is not allowed to introduce evidence that his accuser is sexually promiscuous in order to prove that she consented.
- A male defendant accused of California sodomy by another male is arguing that he never engaged in a sexual act with his accuser. With the permission of the judge in his case, he is able to offer evidence about his accuser's homosexual activity with other individuals in order to undermine his accuser's account of events.
In order to help you better understand California's rape shield laws, our California criminal defense attorneys5 will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California Criminal Jury Trials; California Evidence Rules; California Sex Crimes; Penal Code 261 PC Rape; Penal Code 286 PC Sodomy; Penal Code 289 PC Forcible Acts of Sexual Penetration; Common Legal Defenses to California Crimes; How California Sex Offender Registration Works; Spousal/Marital Rape Under Penal Code 262 PC; Penal Code 288a PC Oral Copulation By Force; The California Pretrial Process; The California Character Evidence Rule; California “Assault & Battery” Laws Penal Code 242 PC; and the California Hearsay Rule.
Under California's rape shield law, as set forth in Evidence Code 1103 EC and Evidence Code 782 EC, the defendant in certain sex crimes cases is not automatically allowed to introduce evidence about his accuser's past sexual behavior.6
This may be somewhat surprising. Since the California rape shield law covers sex crimes that can land you the “life sentence” of the California sex offender registration requirement,7 you would think that the law would provide more opportunities for these defendants to defend themselves—not less.
The reason the rape shield law exists is that the California legislature believes that victims of California sex crimes require extra protection against
- Surprise during trial,
- Harassment, and
- Unnecessary invasion of privacy.8
According to Torrance criminal defense lawyer Neil Shouse9:
“The specific way in which the rape shield law works depends on the purposes for which you want to introduce evidence about your accuser's sexual behavior. In other words, it depends on what you are trying to prove with that evidence.”
Under Evidence Code 1103 EC, a defendant in a rape or similar case may not—under any circumstances—introduce evidence about the alleged victim's past sexual conduct, or sexual reputation, in order to prove that s/he actually consented to the sex act.10
This portion of the rape shield law applies to the following crimes:
- Rape under Penal Code 261 PC,
- Spousal/marital rape under Penal Code 262 PC ,
- “Rape in concert” under Penal Code 264.1 PC,
- Penal Code 286 PC sodomy,
- Penal Code 288a PC oral copulation by force , and
- Penal Code 289 PC forcible penetration with a foreign object.11
Example: Ted and Peggy go out on one date and engage in sexual activity. A few months later, Peggy goes to the police and accuses Ted of forcing her to have oral sex with him. Ted is charged with Penal Code 288a PC oral copulation by force.
All the sexual activity Ted and Peggy engaged in was consensual, and Ted would like to prove this for his defense case. He knows several other men who can testify that Peggy had sex, including oral sex, with them on their first dates. He thinks this testimony will help convince the jury that that's what happened on his own date with Peggy.
But Ted's criminal defense lawyer informs him that he won't be able to introduce these men as witnesses for this purpose—because California's rape shield law bars evidence of the accuser's past sexual conduct to prove consent.
Prior sexual activity with the defendant
However, the rape shield rule does not apply to evidence about the accuser's past sexual conduct with the defendant. That sort of evidence IS admissible to prove consent.12
Example: Let's return to Ted and Peggy from the above example. Suppose that the alleged oral copulation by force is supposed to have taken place on their fourth date, and Ted and Peggy had oral sex on each of the prior three dates—which Peggy admits was consensual.
Ted is allowed to testify regarding his and Peggy's prior sexual relationship in order to rebut her assertion that she didn't consent to have oral sex with him on their fourth date.
Evidence about the victim's clothing
Under Evidence Code 1103 EC, evidence about the way the alleged victim was dressed at the time of the alleged rape is also off-limits in most cases, if that evidence is introduced to try to prove that she (or he) consented to the sexual activity.13
But exceptions may be made to this part of the California rape shield law. Judges may decide to allow in evidence about what the accuser was wearing if it is relevant to the case and in the best interests of justice.14
When introduced by the accuser first
Also, the defendant may introduce limited evidence about his accuser's sexual reputation and behavior if the accuser brings up those issues first. Specifically, if the accuser introduces evidence about her own sexual past, the defendant may
- Cross-examine any witness for the prosecution who gives testimony on this point, and
- Introduce relevant evidence that is limited to rebutting the prosecution's evidence.15
Example: Ruth is accusing her acquaintance Matt of raping her. Matt admits to having sex with Ruth but insists that it was consensual.
The prosecutor argues that Ruth is a devout Christian who believes sex before marriage is wrong, and calls to the stand the pastor of Ruth's church, who testifies to this.
Matt's criminal defense lawyer cross-examines the pastor, confronting him with evidence that Ruth went to church only once in a while and isn't really as religious as he claims. Matt's lawyer also introduces a witness who testifies that Ruth has had sex with him outside of marriage. This evidence is allowed because it is introduced to rebut the prosecution's claims about Ruth.
In addition to Evidence Code 1103 EC, which covers evidence introduced to prove consent, California's rape shield law includes Evidence Code 782 EC. This section of the law says that it may be permissible to introduce evidence about the accuser's sexual past that is used to challenge the accuser's credibility.16
As a general matter, parties to a California litigation may introduce evidence that is designed to help the jury determine whether a given witness—including an alleged crime victim—should be believed.17
In a criminal case that is covered by the rape shield law, this may include evidence about the alleged victim's
- Capacity to recall what s/he is testifying about,
- Character for honesty or dishonesty,
- Bias, interest, or other motive, or
- Statements that are inconsistent with his/her testimony.18
Evidence about the accuser's past sexual conduct may be introduced if it is relevant to these sorts of issues.19
Example: Stephen is on trial for raping Teresa. Teresa also claims that the rape left her pregnant and that she had an abortion. Stephen contends that he has never had sex with her.
Stephen's defense attorney has helped uncover evidence that Teresa had sex with another man, Richard, around the time she claims to have been raped by Stephen. Stephen's attorney comes up with the theory that Teresa is accusing Stephen of rape in order to explain her pregnancy while also covering up her sexual relationship with Richard.
This evidence creates a potential motive for Teresa to (falsely) accuse Stephen of rape. Therefore, it may be admissible under Evidence Code 782 EC.
But before introducing this evidence, the defendant must make a written motion to the court that will be filed under seal, possibly as part of the California pretrial process. The judge will then hold a hearing and decide whether to admit the evidence.20
The judge will base his/her decision on
- Whether the evidence is actually relevant to the accuser's credibility, and
- Whether the value of the evidence is substantially outweighed by either:
a. the probability that it would take too much time to present, or
b. the risk that it would either cause undue prejudice, confuse the issues, or mislead the jury.21
In addition to proving consent, or challenging the accuser's credibility, defendants in rape and other sex crimes cases sometimes want to introduce evidence of the accuser's sexual conduct or history for other reasons.
California courts have held that you may introduce evidence of an accuser's past sexual behavior in order to provide an alternative explanation for any physical evidence she (or he) puts forward to corroborate the story that s/he was raped.22
Example: Sarah accuses Lewis of raping her. She has injuries to her genitals that support the story that she was raped.
However, Lewis is able to obtain evidence that Sarah actually had sex with her boyfriend earlier on the day when the rape is supposed to have occurred. And a medical expert will testify that her injuries could have been caused by consensual sexual intercourse.
Despite California's rape shield law, Lewis may introduce this evidence—since it is not offered to prove consent.23
California courts have also dealt with the question of whether a defendant may introduce evidence that the accuser has accused other people of rape in the past—a not uncommon situation!
The rule is that this evidence may be introduced if the prior complaints were definitely false. But if it is not clear that they were false, the evidence is likely to be excluded.24
California's rape shield law is only one of several important California evidence rules that criminal defendants should be aware of.
The rape shield law is closely connected to the California character evidence rule.
In general, so-called “character evidence”—evidence about a person's past behavior or past criminal convictions—is not admissible to show that s/he acted in accordance with his/her character on a particular occasion.25 But criminal defendants ARE allowed to introduce evidence about the alleged victim's character or past acts.26
Thus, the rape shield law is an “exception to the exception.” Whereas a defendant in, say, a California assault & battery case can freely introduce evidence that the alleged victim is himself a violent person,27 a defendant in a rape case cannot freely introduce evidence that his accuser is promiscuous.28
The California hearsay rule provides that—with many exceptions—so-called hearsay evidence is not admissible in California criminal trials.29 Hearsay is defined as
- any statement that was not made by a witness testifying at the trial,
- that is offered for the truth of its content.30
The California hearsay rule can intersect with the rape shield law—if, for example, the defendant in a rape case wants to offer a secondhand account of the past sexual behavior of the person who has accused him of rape.
Call us for help…
If you or loved one is in need of help with Evidence Code 1103 and 782 EC rape shield law and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
1 Evidence Code 1103 EC – Character evidence of crime victim to prove conduct; evidence of defendant's character or trait for violence; evidence of manner of dress of victim; evidence of complaining witness' sexual conduct [rape shield law section: proving consent]. (“(c)(1) Notwithstanding any other provision of this code to the contrary, and except as provided in this subdivision, in any prosecution under Section 261, 262, or 264.1 of the Penal Code, or under Section 286, 288a, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit a crime defined in any of those sections, except where the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4, or in a state prison, as defined in Section 4504, opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness' sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness. (2) Notwithstanding paragraph (3), evidence of the manner in which the victim was dressed at the time of the commission of the offense shall not be admissible when offered by either party on the issue of consent in any prosecution for an offense specified in paragraph (1), unless the evidence is determined by the court to be relevant and admissible in the interests of justice. The proponent of the evidence shall make an offer of proof outside the hearing of the jury. The court shall then make its determination and at that time, state the reasons for its ruling on the record. For the purposes of this paragraph, “manner of dress” does not include the condition of the victim's clothing before, during, or after the commission of the offense. (3) Paragraph (1) shall not be applicable to evidence of the complaining witness' sexual conduct with the defendant. (4) If the prosecutor introduces evidence, including testimony of a witness, or the complaining witness as a witness gives testimony, and that evidence or testimony relates to the complaining witness' sexual conduct, the defendant may cross-examine the witness who gives the testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the prosecutor or given by the complaining witness. (5) Nothing in this subdivision shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782. (6) As used in this section, “complaining witness” means the alleged victim of the crime charged, the prosecution of which is subject to this subdivision.”)
2 Evidence Code 782 EC – Sexual offenses; evidence of sexual conduct of complaining witness; procedure for admissibility; treatment of resealed affidavits [rape shield law section: attacking credibility]. (“(a) In any of the circumstances described in subdivision (c), if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed: (1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness. (2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated. The affidavit shall be filed under seal and only unsealed by the court to determine if the offer of proof is sufficient to order a hearing pursuant to paragraph (3). After that determination, the affidavit shall be resealed by the court. (3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant. (4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court. (5) An affidavit resealed by the court pursuant to paragraph (2) shall remain sealed, unless the defendant raises an issue on appeal or collateral review relating to the offer of proof contained in the sealed document. If the defendant raises that issue on appeal, the court shall allow the Attorney General and appellate counsel for the defendant access to the sealed affidavit. If the issue is raised on collateral review, the court shall allow the district attorney and defendant's counsel access to the sealed affidavit. The use of the information contained in the affidavit shall be limited solely to the pending proceeding. (b) As used in this section, “complaining witness” means: (1) The alleged victim of the crime charged, the prosecution of which is subject to this section, pursuant to paragraph (1) of subdivision (c). (2) An alleged victim offering testimony pursuant to paragraph (2) or (3) of subdivision (c). (c) The procedure provided by subdivision (a) shall apply in any of the following circumstances: (1) In a prosecution under Section 261, 262, 264.1, 286, 288, 288a, 288.5, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit any crime defined in any of those sections, except if the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4 of the Penal Code, or in the state prison, as defined in Section 4504. (2) When an alleged victim testifies pursuant to subdivision (b) of Section 1101 as a victim of a crime listed in Section 243.4, 261,261.5, 269, 285, 286, 288, 288a, 288.5, 289, 314, or 647.6 of the Penal Code, except if the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4 of the Penal Code, or in the state prison, as defined in Section 4504 of the Penal Code. (3) When an alleged victim of a sexual offense testifies pursuant to Section 1108, except if the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4 of the Penal Code, or in the state prison, as defined in Section 4504 of the Penal Code.”)
3 See same.
4 Evidence Code 1103 EC – Rape shield law section: proving consent, endnote 1, above.
Evidence Code 782 EC – Rape shield law section: attacking credibility, endnote 2, above.
5 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
6 Evidence Code 1103 EC – Rape shield law section: proving consent, endnote 1, above.
Evidence Code 782 EC – Rape shield law section: attacking credibility, endnote 2, above.
7 Penal Code 290 PC – Registration as a sex offender [for crimes covered by rape shield law]. (“(c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses.”)
8 People v. Fontana (2010) 49 Cal.4th 351, 370. (“In addition, the Legislature has determined that victims of sexual assault require greater protections beyond those afforded other witnesses against surprise, harassment, and unnecessary invasion of privacy . . . .”)
10 Evidence Code 1103 EC – Rape shield law section: proving consent, endnote 1, above.
11 See same.
12 See same.
13 See same.
14 See same.
15 See same.
16 Evidence Code 782 EC – Rape shield law section: attacking credibility, endnote 2, above.
17 Evidence Code 780 EC – Testimony; proof of truthfulness; considerations [relevant to California rape shield law]. (“Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: (a) His demeanor while testifying and the manner in which he testifies. (b) The character of his testimony. (c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies. (d) The extent of his opportunity to perceive any matter about which he testifies. (e) His character for honesty or veracity or their opposites. (f) The existence or nonexistence of a bias, interest, or other motive. (g) A statement previously made by him that is consistent with his testimony at the hearing. (h) A statement made by him that is inconsistent with any part of his testimony at the hearing. (i) The existence or nonexistence of any fact testified to by him. (j) His attitude toward the action in which he testifies or toward the giving of testimony. (k) His admission of untruthfulness.”)
18 See same.
19 Evidence Code 782 EC – Rape shield law section: attacking credibility, endnote 2, above.
20 See same.
21 See same.
See also Evidence Code 352 EC – Discretion of court to exclude evidence [about accuser's sexual history]. (“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”)
22 People v. Fontana, endnote 8, above, at 363. (“The parties agree that Evidence Code section 1103, subdivision (c)(1) [California's rape shield law] does not bar evidence of the complaining witness's prior sexual conduct when offered to explain injuries the prosecution alleges were the result of the defendant's conduct. The parties further agree that such evidence may be admissible under section 782, provided that the evidence of the complaining witness's prior sexual conduct is relevant under section 780 and is not barred by section 352. We concur. In such circumstances, “it is not the fact of prior sexual activity as such that is important, but something about the special circumstances under which that prior sexual activity took place that renders it important.” (Letwin, supra, 54 So. Cal. L.Rev. at p. 71.) Where the prosecution has attempted to link the defendant to physical evidence of sexual activity on the complainant's part, “the defendant should unquestionably have the opportunity to offer alternative explanations for that evidence, even though it necessarily depends on evidence of other sexual conduct.” ( Id. at p. 81, fn. omitted.)”)
23 Loosely based on the facts of the same.
24 People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457-58. (“Defendant's problem in showing that the trial court abused its discretion in excluding the evidence concerning the prior rape complaints [under the rape shield dlaw] is that it is not readily apparent that those prior complaints were false. While a prior false complaint establishes an instance of dishonesty on the very issue hotly disputed in this case, that is, whether R.C. consented to the sexual acts, a prior complaint not proven to be false has no such bearing.”)
25 Evidence Code 1101 EC – Evidence of character to prove conduct [character evidence rule; compare with rape shield law]. (“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”)
26 Evidence Code 1103 EC – Rape shield law section: proving consent, subsection (a). (“(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).”)
27 Evidence Code 1103 EC – Rape shield law section: proving consent, subsection (b). (“(b) In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).”)
28 Evidence Code 1103 EC – Rape shield law section: proving consent, endnote 1, above.
29 Evidence Code 1200 EC – The hearsay rule [compare with rape shield law]. (“(a) “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible.”)
30 See same.