July 20, 2022 By Stephen Klarich

Despite any prior consensual sexual relations, a defendant can still be found guilty of rape in a subsequent sexual interaction. When there is little physical proof, the strength of the evidence depends on which side is more credible. If you have been accused of rape, you may be wondering if you can use the alleged victim’s sexual history as evidence of consent in order to acquit yourself. However, California law prohibits using another’s sexual history against him or her in most cases. 

California’s Rape Shield Law 

California, like many other states, has a rape shield law that aims to protect victims of sex crimes from harassment or invasion of privacy. Although it is important in helping to protect vulnerable victims, the law can also make it especially tough for an innocent defendant who has been falsely accused to come up with the necessary evidence for acquittal. Under California Evidence Code Section 1103, a defendant may not admit as evidence specific instances or history of the alleged victim’s sexual conduct as evidence of consent. This means that you cannot claim that accuser has a history of sleeping with many people and use that as evidence against him or her. The code section applies to rape, spousal rape, rape in concert, sodomy, oral copulation by force, and forcible penetration with a foreign object. 

While the law prohibits evidence of the accuser’s sexual history with other partners, it does not apply to past sexual conduct between the accuser and the defendant. For example, if the alleged victim is an ex-girlfriend who accuses you of oral copulation by force, your attorney may provide as evidence any prior history involving oral sex between you and your ex in order to convince the court that the accuser consented to the act in question. 

Rape Shield Law Exceptions 

In some instances, California allows for exceptions to its Rape Shield Law. Under California Evidence Code Section 782, the defendant may bring up the accuser’s sexual history if the evidence is used to challenge the accuser’s credibility. This can include evidence that speaks to the alleged victim’s character for honesty or dishonesty, his or her capacity to accurately recall the events, or any biases or motives that he or she may have against the defendant. Additionally, the defense may bring up any statements regarding prior sexual relations that are inconsistent with the accuser’s original testimony. 

To admit this kind of evidence, your attorney should make a written motion stating that you have proof of the relevancy of evidence in attacking the credibility of the accuser. This written motion will be accompanied by a sealed affidavit which is only unsealed by the court in a hearing. At the hearing, the court will decide whether the proposed prior sexual conduct is relevant, and if so, the defendant may then offer the information as evidence in court. 

In addition to using the accuser’s sexual history to challenge credibility, California also allows defendants to present such evidence in order to prove that another person actually committed the crime. For example, if you can use the alleged victim’s sexual history in order to provide an alternative explanation regarding any physical evidence of a rape, then your attorney may introduce this prior sexual conduct as evidence. This could be done to show that any bodily fluids on the victim were not yours, or that any injuries were not caused by you. 

Contact Wallin & Klarich Today 

If you have been falsely accused of a sex crime, not all hope is lost. Contact Wallin & Klarich as soon as possible to see how we can help. With 40+ years of experience, Wallin & Klarich is your best choice amongst Southern California criminal defense firms. Our attorneys have helped thousands of clients defend against sex-related crimes, and we understand how upsetting and tough these cases can be. However, we have the skills and resources to secure the best outcome for you. You can place your trust in us. 

With offices in Orange County, Riverside, San Bernardino, Victorville, Torrance, West Covina, Los Angeles, and San Diego, you are sure to find an available and convenient attorney near you. Discover how our team can assist you. Contact us today, toll-free at (877) 4-NO-JAIL or (877) 466-5245 for a free consultation with a skilled defense attorney.

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