Criminal Defense

What are Rape Shield Laws?

April 29, 2022 by Ray Chao in Criminal Defense  
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What are Rape Shield Laws?

California is one of 48 states that have enacted a Rape Shield Law. Primarily designed to protect the rights of complaining witnesses in sexual assault cases, any person accused of a sex crime must be aware of how the law works and the impact on the evidence that may or may not be admissible at trial.

Not surprisingly, the law is complicated, and an experienced criminal defense attorney will be needed to help explain the law as well as evaluate the facts of the case to determine what extent the law will apply.

Rape Shield Laws are actually laws of evidence, and as such will vary depending on the applicable state rules of evidence. There is a Federal Rape Shield Law that is part of the Federal Rules of Evidence, but is not applicable to state cases.

The basic purpose of Rape Shield Laws is to limit types of cross-examination questions that may be asked about a complaining witness’s sexual history. As such, the criminal defense attorney may be prohibited from asking certain questions in a criminal trial for a sex crime that could prove consent by the complaining witness.

The various justifications for these laws include the need to reduce intimidation or embarrassment of the complaining witness; excluding irrelevant testimony; and the public policy of enacting procedures that promote the cooperation of complaining witnesses. Of course, the Rape Shield Law should not be unfair to the defendant.

The California Rape Shield Law

The California Rape Shield Law is found under Evidence Code sections 1103 and 782 of the California Evidence Code (CEC). The CEC outlines what evidence is inadmissible under the law, as well as the limited circumstances that evidence of a complaining witness’s sexual history is admissible.

Needless to say, the California Rape Shield Law can have an important role in a criminal trial, and an experienced criminal defense attorney is critical to ensure the court applies the law correctly and fairly to protect not only the rights of the complaining witness, but the rights of the accused.

As a general rule, the CEC prohibits the use of “character evidence” to prove a person acted a particular way on a specific occasion. Character evidence is broadly defined as evidence of a person’s personality or propensities, and may include a person’s moral character as well as a person’s moral standing in the community. The CEC does not allow the use of character evidence to show a person acted in accordance to that trait on a particular occasion because character evidence can be prejudicial.

However, character evidence is admissible under EC 1101 if offered for a number of other reasons including motive and opportunity.

Additionally, there is a particularly relevant exception under EC 1101(b) that allows a defendant accused of a sex crime to offer character evidence of the complaining witness’s sexual history to support a defendant’s reasonable and good faith belief that the sex act was consensual.

The Exception to the Exception

The exception to the rule against character evidence under EC 1101 (b) to prove a defendant’s argument that there was a reasonable, good faith belief that there was consent was criticized as being overly prejudicial to complaining witnesses in sex crimes. As a result, EC 1103 serves as an “exception to the exception.” In other words, EC 1103 was written to limit the scope of the exception under 1101 allowing character evidence to support consent.

Broadly, EC 1103 allows character evidence by way of opinion, reputation or specific instances, to show a victim’s conduct is in conformity with the characteristic or trait. In other words, the California Legislature is drawing a fine line between sections 1101 (character evidence) and 1103 (conformity) which determines whether a complaining witness’s sexual history is admissible in a sex crime.

Specifically, Evidence Code 1103 EC prohibits a defendant in a sex crime to introduce evidence of the complaining witness’s sexual history except in certain circumstances. In other words, a complaining witness’s sexual past is not admissible to prove consent to the particular sex act of the case except in very limited circumstances.

Notably, the California Rape Shield Law applies to a broad range of sex crimes including:

  • Rape (PC 261)
  • Spousal and marital rape (PC 262)
  • Sodomy (PC 286)
  • Oral copulation by force (PC 288(a))
  • Forcible penetration with a foreign object (PC 289)

Furthermore, under the California Rape Shield Law, the following evidence is inadmissible to show consent:

  • character evidence of the complaining witness (EC 1103(c)(1))
  • the manner of dress of the complaining witness (EC 1103(c)(2))

However, Evidence Code 1103 EC also identifies particular circumstances that a defendant is permitted to offer evidence of a complaining witness’s sexual history in the following situations:

  • when the complaining witness and the defendant have a history of past sexual contact (EC 1103(c)(3))
  • cross examination to rebut testimony by a complaining witness regarding the complaining witness’s sexual history (EC 1103(4)

An Exception to the California Rape Shield Law

Evidence Code 782 EC is an exception to the California Rape Shield Law that allows a defendant in a sex crime to challenge a complaining witness’s credibility with evidence of the complaining witness’s sexual history. Certainly, the credibility of any witness, including the complaining witness in a sex crime is relevant and important in any trial.

In order for a defendant to introduce this evidence, however, a written motion must be filed under seal. Moreover, a hearing will be conducted in order for the judge to determine whether the evidence should be admissible. There are additional procedural requirements that must be followed, so the assistance of an experienced criminal defense attorney is crucial.

For example, the written motion must include an affidavit stating an offer of proof. Many aspects of criminal procedure are highly technical and complicated, so be sure to retain an experienced attorney.

Being accused of any crime, particularly a sex crime, is obviously stressful. You should hire an experienced criminal attorney as soon as you are arrested so that your lawyer can advocate for you immediately.

Moreover, an attorney will ensure that your constitutional rights are protected during the arrest, investigation, and trial. Your attorney can also evaluate the evidence and explain the charges against you. Most importantly, your attorney will listen to your side of the story and make sure that the prosecutor is aware of your version in hopes of persuading the prosecutor to reduce the charges or drop the charges altogether.

Finally, an experienced criminal defense attorney will be in regular contact with the prosecutor regarding discover, motions, and possible plea deals.

We Want to Help

If you have been charged with a Sex Crime, it is important to contact a skilled criminal defense attorney right away. Seppi Esfandi is an Expert Los Angeles Criminal Defense Attorney who has over 20 years of practice defending a variety of criminal cases, and the California Rape Shield Law.

Need a Criminal Defense Attorney? CALL NOW: 310-274-6529

Seppi Esfandi is an Expert Criminal Defense Attorney who has over 20 years of practice defending a variety of criminal cases.

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Lara S.
December 3, 2019
Seppi had my case reduced to just an infraction, and thanks to him I was able to keep my job. Jorge was extremely helpful too, the reason I went with this law firm. Overall pleased.

How to Win Your Case

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