The Georgia Evidence Code includes rape shield provisions. Rape shield provisions limit the use of certain evidence of an alleged victim's past behavior.
Evidence for past sexual behavior is now admissible when the complaining victim provides:
- Evidence of specific instances of a victim's or complaining witness's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury or other physical evidence;
- Evidence of specific instances of a victim's or complaining witness's sexual behavior with respect to the defendant if it supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution;
- Evidence of specific instances of a victim's or complaining witness's sexual behavior with respect to the defendant or another person if offered by the prosecutor; and
- Evidence whose exclusion would violate the defendant's constitutional rights.
In order for a party to make use of such evidence for one of these four allowable purposes, the party must file a motion that specifically describes the evidence and the purpose for which it will be offered at least three days prior to trial. The court will then conduct an in camera hearing to examine the merits of the motion.
The most interesting of these allowable persons is #4. It basically allows the prosecution to offer evidence of the alleged victim's sexual behavior whenever they want. So, it is not so much a purpose as a party which now has unlimited authority to present such evidence in the trial. One wonders what the ex parte hearing will be like.
Judge: So, you want to introduce this evidence?
Prosecutor: Yes, I do.
Judge: And you are the prosecutor?
Prosecutor: Yes, I am.
Judge: Well, alright, then.
It certainly seems to create an unbalanced and unfair trial situation.
Interestingly, early indications are that prosecutors are attempting to use the provision not to show sexual behavior with respect to a defendant or another person but to show a lack of sexual behavior. In that circumstance it does not seem like the prosecution can identify any specific instances of sexual behavior.
Such evidence should still be subject to relevance consideration under 24-4-403. Generally, a victim's sexual history or lack thereof should not be relevant to the question of whether a sexual assault occurred.
In addition, one might wonder whether the State offering evidence that the alleged victim is a virgin would open the door to evidence that the victim had engaged in past sexual behavior which would not otherwise be admissible.
2019- 2020 Georgia HB 424