In Georgia, there is not a more evidentiary form of protection for alleged victims of crimes than the Rape Shield statute. It supersedes all other evidentiary exceptions, except when evidence is introduced to explain events surrounding an alleged crime. (This is called res gestae.) The statute is currently codified by OCGA 24-2-3. However, beginning January 1, 2013, a new Rape Shield statute will come into effect. The new law will be found under OCGA 24-4-412.
From a practical standpoint, the new law is really no different than the old one. The purpose of the Rape Shield statute is to protect the complaining witness (alleged victim) by excluding evidence that might reflect on the character of the alleged victim without contributing materially to the issue of guilt or innocence of the accused. The statute is supposed to assist the truth-seeking process by preventing the jury from becoming inflamed or impassioned and deciding the case on irrelevant and prejudicial evidence. There are widely varying opinions on whether the statute is fair and actually accomplishes its goal.
Mechanically, the new law generally prohibits the admission of reputation or opinion evidence of the past sexual behavior of the alleged victim under any circumstances. This includes, but is not limited to, the alleged victim’s marital history, style of clothing, reputation for promiscuous behavior or sexual preferences that are out of line with the standards of the community. Additionally, evidence regarding the alleged victim’s “nightlife” and “partying” cannot be admitted into evidence.
In enacting the Rape Shield statute, the General Assembly and the Governor had public policy at the forefront. The concern was that if the above mentioned evidence were to be admissible in court, then victims of sexual assaults would be discouraged from reporting such crimes because the trial could potentially be focused on their own sexual misconduct or history rather than the defendant’s alleged crime.
However, as with almost every law on the books, there are exceptions. The main exception to the Rape Shield statute deals with the issue of consent. The defendant may introduce evidence relating to the past history of the alleged victim when the defendant claims that the alleged victim consented to the sexual act in question.
In considering such evidence, the trial judge will conduct a separate hearing to determine whether the evidence being sought to be admitted violates the Rape Shield statute.
I generally view the Rape Shield statute as a beneficial law that protects victims of sexual assault. However, I have also seen the statute used in such a stringent way that a defendant is denied the right to a fair trial. When dealing with the issue of consent, you open up a broad area of evidence that can be arguably admissible under the statute. Many courts severely limit evidence sought to be introduced by a defendant by holding that it would violate the Rape Shield statute. This is where most of the litigation concerning the statute has originated.
Disturbingly, more women in the United States are sexually assaulted than you probably realize. As a society, we must protect these victims of such vicious crimes. But, we cannot make attempts to usurp the constitutional rights of citizens and defendants to obtain a fair trial in a criminal case. This includes the right to introduce relevant evidence.
As with most things in life, it is simply a balancing act. We must carefully balance a defendant’s rights versus a victim’s rights. At this point, our courts seem to have tilted a bit toward an alleged victim in interpreting the Rape Shield statute. We will see how this balancing act ebbs and flows as the slow wheels of justice turn in our great state.
Swindle is a local attorney at law.