California Rape Shield Law (Evidence Code 1103 & 782)

Under California’s rape shield law, a defendant in a rape case is not allowed to introduce evidence into trial about the alleged victim’s past sexual conduct in order to prove that they consented to the sexual act.¹

Here are three key things to know:

1. California’s Rape Shield Law is codified in Evidence Code 1103 EC and Evidence Code 782 EC.²
2. A defendant can introduce evidence about the victim’s sexual past to show their testimony is not trustworthy.³
3. The Rape Shield law applies to all sorts of sex crime cases such as rape (PC 261), sodomy (PC 286) and forcible acts of sexual penetration (PC 289).⁴

Examples

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:

• 1. California’s Rape Shield Law
  • 1.1. Evidence Code 1103 EC – evidence of accuser’s sexual conduct to prove consent
  • 1.2. Evidence Code 782 EC – evidence of accuser’s sexual conduct to undermine credibility
  • 1.3. Evidence of accuser’s sexual conduct introduced for other reasons
• 2. California’s Rape Shield Law and other California evidentiary rules
  • 2.1. Character evidence rule
  • 2.2. Hearsay rule
• Additional reading

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. California’s Rape Shield Law

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 their 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.”

1.1. Evidence Code 1103 EC – evidence of accuser’s sexual conduct to prove consent

Under Evidence Code 1103 EC, a defendant in a rape case 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 they 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 287 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 knows other men who can testify that Peggy had oral sex with them on their first dates.

However, 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 they consented to the sexual activity.¹³

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 their accuser’s sexual reputation and behavior if the accuser brings up those issues first. Specifically, if the accuser introduces evidence about their own sexual past, the defendant may

1. Cross-examine any witness for the prosecution who gives testimony on this point, and
2. 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.

1.2. Evidence Code 782 EC – evidence of accuser’s sexual conduct to undermine credibility

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 they are testifying about,
• Character for honesty or dishonesty,
• Bias, interest, or other motive, or
• Statements that are inconsistent with their 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 their decision on

1. Whether the evidence is actually relevant to the accuser’s credibility, and
2. 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

1.3. Evidence of accuser’s sexual conduct introduced for other reasons

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 they were 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. Though if it is not clear that they were false, the evidence is likely to be excluded.²⁴

2. California’s Rape Shield Law and other California evidentiary rules

California’s rape shield law is only one of several important California evidence rules that criminal defendants should be aware of.

2.1. Character evidence rule

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 they acted in accordance with their character on a particular occasion.²⁵ Though 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 a violent person,²⁷ a defendant in a rape case cannot freely introduce evidence that their accuser is promiscuous.²⁸

2.2. Hearsay rule

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 them of rape.

Additional reading

For more in-depth information, refer to these scholarly articles:

• No Means No: An Argument for the Expansion of Rape Shield Laws to Cases of Nonconsensual Pornography – William & Mary Journal of Race, Gender, and Social Justice.
• From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law – George Washington Law Review.
• Sliding Backwards: The Impact of California Evidence Code Section 1108 on Character Evidence, Rape Shield Laws and the Presumption of Innocence – Hasting Women’s Law Journal.
• Rape Victim Shield Laws and the Sixth Amendment – University of Pennsylvania Law Review.
• Sexual Abuse in California Prisons: How the California Rape Shield Fails the Most Vulnerable Populations – UCLA Women’s Law Journal.

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