Prior sexual historyMany sex crimes cases are a matter of he said, she said. When these cases go to trial, it is up to a jury to decide if the alleged victim or the defendant is telling the truth. These cases are often decided based on whether the jury finds the victim to be believable. So what can you do if you are accused of crime and there is a lack of physical evidence?

You should speak to an experienced sex crimes attorney immediately. Your attorney may be able to use the alleged victim’s prior sexual conduct as a way to show that his or her words may not be true.

California Rape Shield Laws and Prior Sexual Conduct

The “rape shield law” is a set of laws in California that prohibit a defendant in a rape case from introducing certain types of evidence about the alleged victim, such as that person was wearing promiscuous clothing. However, evidence of the alleged victim’s actual conduct can be introduced, and your attorney may be able to use the person’s prior sexual conduct as a way to attack the alleged victim’s credibility.

Prior Sexual Conduct as Evidence of Consent

Under California Evidence Code 1103, your attorney can’t use the alleged victim’s sexual history to prove that sex was consensual. So, introducing evidence that your accuser had previously performed this act with others is not a defense in your case.

However, this law does not apply to past sexual conduct between you and the accuser. For example, if the alleged victim is an ex-girlfriend or ex-boyfriend who accuses you of oral copulation by force (PC 288a), your attorney may introduce prior encounters involving oral sex between you two as evidence to prove that your accuser consented to the act in question.

Prior Sexual Conduct as Evidence of Lack of Credibility

California Evidence Code 782 allows for the introduction of the accuser’s prior sexual conduct for the purpose of undermining his or her credibility. This is typically used in a he said, she said type of case.

Your defense lawyer may be able to attack the credibility of the alleged victim by showing that:

  1. The alleged victim lacks the capacity to remember what happened;
  2. Has a propensity to be dishonest;
  3. Has a bias, interest, or motive to lie; or
  4. Has made statements that are inconsistent with his or her testimony.

If your accuser’s prior sexual conduct is relevant to proving one or more of these factors, the court may allow your attorney to introduce this evidence.

Prior Sexual Conduct to Undermine the Physical Evidence

In addition, when the alleged victim’s sexual history may be able to prove another person is responsible for the crime of which you are accused, your attorney is allowed to introduce prior sexual conduct as evidence.1

For example, you broke up with your boyfriend or girlfriend because he or she was cheating on you. That person later accuses you of rape. Under these circumstances, the court may allow your attorney to show that the alleged victim had sex with someone else on the day the alleged crime took place.

This could show that any injuries your accuser received were not caused by you, or that any bodily fluids discovered on the alleged victim’s person were not yours. Having another possible suspect could go a long way in convincing a jury that you did not commit the crime.

Contact the Sex Crimes Defense Attorneys at Wallin & Klarich

While rape shield laws have laudable goals that encourage victims to come forward when a crime occurs, they also can inadvertently play a role in sending innocent people to prison. At Wallin & Klarich, our attorneys have over 35 years of experience fighting for people like you who have been accused of sex crimes. We know how to work within the rape shield laws to investigate your accuser’s background and how to present a case that will create the doubts about his or her credibility.

With offices in Orange County, Los Angeles, San Bernardino, Riverside, Ventura, Victorville, West Covina, San Diego, Torrance and Sherman Oaks, there is an experienced Wallin & Klarich attorney available near you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.

1.See People v. Fontana (2010) 49 Cal.4th 351. href=”#ref1″>↩

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