California Evidence Code § 1103 permits the defendant in a criminal case to introduce evidence attacking the victim’s character to prove that the victim’s conduct aligns with their character. Though defendants in sex assault cases cannot introduce evidence of victims’ sexual past as proof that they consented to the sex acts.
The full text of the statute reads as follows:
1103. (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).
(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).
(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 or 264.1 of the Penal Code, or under Section 286, 287, or 289 of, or former Section 288a 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 is not admissible when offered by either party on the issue of consent in any prosecution for an offense specified in paragraph (1). 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) does not apply 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) This subdivision does not make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782.
(6) As used in this subdivision, “complaining witness” means the alleged victim of the crime charged, the prosecution of which is subject to this subdivision.
California Evidence Code 1103(a) permits defendants in criminal cases to admit evidence to attack the victim’s character. Then if defendants use character evidence to show that the victim was violent, EC 1103(b) permits prosecutors to rebut this with evidence that a defendant is a violent person.1
California Evidence Code 1103(c) comprises the heart of the Rape Shield Law. It prohibits defendants charged with rape from introducing evidence of the accuser’s sexual past as proof that the accuser consented. If jurors were to hear evidence that an accuser was allegedly promiscuous, they may be less likely to believe their testimony.
Though there are exceptions. Defendants can introduce evidence about the accuser’s past sexual conduct with the defendant in an effort to prove consent. Also, when accusers introduce evidence about their own sexual past, then the defendant may cross-examine the witnesses who gave this testimony and introduce evidence to rebut the accusers’ testimony.2
EC 1103(c) applies to criminal cases where defendants face charges for either:
- Rape (PC 261)
- Spousal/marital rape (PC 262)
- “Rape in concert” (PC 264.1)
- Sodomy (PC 286),
- Oral copulation by force (PC 287)
- Forcible penetration with a foreign object (PC 289)3
When can a rape victim’s sex life be used against them as evidence?
When a defendant is on trial for rape in California, EC 1103 generally allows the defendant to introduce evidence that the defendant and accuser had past consensual sexual encounters as evidence of consent.
However, even if evidence of past sexual conduct is admitted, the jury can still find the defendant guilty of rape if the prosecution proves that the victim did not consent to the sexual activity at the time in question. The past sexual conduct may be just one factor that the jury considers in making its determination, but it is not determinative in and of itself.
Can how a rape victim dresses be used against them as evidence?
California Evidence Code 1103(c) generally prohibits defendants from introducing evidence of how the accuser was dressed as evidence of consent.
The purpose of this rule is to prevent the defendant from using the accuser’s clothing or appearance as a justification for their conduct. This is commonly known as the “she was asking for it” defense.
In short, this rule aims to prevent the use of irrelevant and potentially prejudicial evidence that could shift the focus of the trial away from the defendant’s conduct and onto the victim’s behavior or appearance.
What if the prosecution introduces evidence about the rape victim’s sexual past?
Whenever a prosecution witness introduces evidence regarding the accuser’s sexual past, the defense can then cross-examine that witness about it. Furthermore, the defense can introduce evidence to rebut the witness’s testimony.
See our related article on California Evidence Code 782 EC, which gives sex crime defendants the possibility of using evidence of the accusers’ sexual pasts to attack their credibility.
- California Evidence Code 1103(a) & (b) – Evidence of character of victim of crime.
- California Evidence Code 1103(c). See also People v. Mestas (Cal. App. 3d Dist., 2013), 217 Cal. App. 4th 1509. See also People v. Fontana (Cal. 2010), 49 Cal. 4th 351.