In some cases, your sexual history may be introduced at trial.
If you are a victim of sexual assault, then you know firsthand how difficult it can be to achieve justice. According to statistics from the Rape and Incest National Network (RAINN), the vast majority of perpetrators will never go to jail for their crime. For every 1,000 sexual assaults, just 230 are reported to police, and only 4.6 abusers will be incarcerated.
There are many reasons why victims may choose to not report their sexual assault to the police, such as thinking that no one will believe them. For some, the thought of going to trial and talking publicly about their rape is overwhelming. They may also fear being embarrassed in court if their abuser brings up their sexual history or claims that they are promiscuous.
According to an Irvine victims’ rights attorney, California’s rape shield law protects victims of sexual assault in several important ways. Under this law, defendants in certain sex crimes cases are not automatically introduce evidence about their victims’ past sexual behavior. The purpose of this law is to protect victims from unnecessary invasion of privacy, surprise during trial, and harassment. After all, very few victims would want to move forward with a rape case if they believed that their sex life would be put on trial.
California’s rape shield laws are contained in the Evidence Code. These rules specify when — and for what purpose — evidence of the victim’s sexual contact can be introduced. First, under Evidence Code 1103, a defendant in a sexual assault case is prohibited under any circumstances from introducing evidence about the victim’s past sexual conduct or sexual reputation to prove that the victim actually consented to sex. Under this rule, evidence about the victim’s clothing cannot be introduced either to prove that they consented to sexual activity. In other words, a defendant cannot argue that because a victim was wearing a short skirt, she was “asking for it.” Importantly, this rule does not apply to past sexual activity with the defendant. This type of evidence is admissible to prove consent.
Another exception to this rule is if the victim brings up the issue first. In that situation, the defendant is permitted to cross examine any witness who gave testimony on that subject and to introduce evidence to rebut the claim. For example, Mary claims that she was raped by Robert; he argues that they had consensual sex. If Mary testifies on the stand that she is a virgin and that she believes that sex before marriage is wrong, Robert may introduce evidence to prove that Mary is not a virgin or that she has had sex with others before marriage. A skilled Irvine victims’ rights attorney can work with you to ensure that this type of evidence is not inadvertently allowed.
Similarly, under Evidence Code 702, a defendant can introduce evidence of a victim’s sexual past when that information is used to challenge the victim’s credibility. This may include evidence about the victim’s bias, interest or other motive, inconsistent statements, character for honest or dishonesty, or capacity to recall what they are testifying about. For example, Chris is accused of forcing Bill to perform oral sex on him. Chris states that the sexual activity was consensual, while Bill states that he did not consent, and what’s more, he is not gay and has never engaged in sexual activity with another man. In this situation, Chris may be able to introduce evidence that Bill has had sex with other men in the past.
In order to introduce this evidence, the defendant must first ask the court through a written motion. The court will make a decision about whether to allow the evidence based on whether it is relevant to the victim’s credibility, and whether the value of the evidence is outweighed by the risk that it would be misleading, confusing or prejudicial, or that it would take too much time to present. This type of motion is filed during the pretrial stages. An experienced Irvine victims’ rights attorney can make an argument on your behalf that this evidence should not be admitted.
Finally, in some cases, evidence of past sexual activity may be introduced for limited other reasons, such as to show another way that a victim received an injury. In some cases, evidence that a victim has falsely accused someone else of rape in the past may be introduced. As with other types of evidence related to sexual history, your lawyer can advocate for you when the issue comes up in court.
In criminal cases, the prosecutor represents the state— not the victim. While in many situations, the interests of the state and the victim align, that is not always true. By working with an Irvine victims’ rights attorney, you can ensure that your rights are protected throughout the criminal justice process.
At Justice 4 Crime Victims, we are dedicated to helping California crime victims and their families. Contact us today at 949-585-9055 or mfell@fellesq.com to schedule a free initial consultation with a member of our team.
