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Jun 052014
 

Many victims of sexual abuse and sexual assault avoid filing criminal or civil cases due to fear that their pasts will come under a microscope. Given the deeply personal nature of sexual abuse and assault, victims have every right to worry about their privacy. However, Pennsylvania law specifically prohibits a criminal defendant from seeking to admit evidence about the victim’s past sexual conduct. This is known as Pennsylvania’s Rape Shield Law, which was passed almost 40 years ago.

Pennsylvania’s Rape Shield Law – The Statute

18 Pa.C.S. § 3104 prevents defendants in a criminal sexual assault case from introducing evidence about the victim’s past sexual conduct. That law provides:

§ 3104.  Evidence of victim’s sexual conduct.

(a)  General rule.–Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

(b)  Evidentiary proceedings.–A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).

Under this law, defendants in a criminal sex assault case cannot admit evidence of the following:

  • the victim’s past sexual conduct,
  • opinion evidence about the victim’s past sexual conduct, and
  • reputation evidence about the victim’s past sexual conduct.

There is a limited exception. In cases where consent is an issue, the victim’s past sexual conduct with the defendant may be admissible. This exception often arises in sexual assault cases involving individuals who had a prior relationship, such as boyfriend-girlfriend, husband-wife, friends, etc.

More: What You Can Do About Sexual Abuse

The Rape Shield Law clearly protects a sex assault/abuse victim’s right to privacy with respect to past sexual history and conduct. However, the law only applies to criminal prosecutions, as indicated in section (a). Despite this limitation, judges in civil sex abuse/assault cases are generally unwilling to allow a defendant to admit evidence about the victim’s unrelated sexual history. For instance, in a school sex abuse case where a teacher sexually assaulted a student, evidence that the victim/student had a sexual relationship with another student would be not be admissible.

Sex Abuse & Assault Lawyer

Brian Kent is a former sex crimes unit prosecutor who now handles civil sex abuse cases. Please contact Mr. Kent for a free case assessment. 800.220.7600

 Posted by on June 5, 2014 Sexual Abuse