While each state’s rape shield law and the exceptions to it vary, there are common themes among these laws. Many states’ rape shield laws, and the Federal Rules of Evidence, have catch-all exceptions which allow for evidence of prior consensual sexual activity of the complainant when excluding that evidence would violate the constitutional rights of the defendant.¹ Additionally, in many states and the Federal Rules of Evidence the existence of a prior consensual sexual relationship between the victim and defendant will be allowed as evidence.² Exceptions to the rape shield laws are not absolute. As explained on the previous page, a judge must permit evidence of a victim’s prior consensual sexual history after find the defendant has presented sufficient reason for allowing it. These motions by defense should be challenged by the prosecution, and/or the victim’s attorney. Module 8 will discuss issue spotting for when a victim may need civil legal representation during the criminal case.

Here is a brief illustration of when evidence of a victim’s prior consensual sexual history may be allowed in a sexual assault trial despite the existence of a rape shield law. This example relates to another common rape shield law exception, which allows evidence of prior consensual sex to show that someone other than the defendant is the source of injury observed on the victim.

Example: A few hours before the defendant sexually assaulted the victim, the victim engaged in consensual sexual intercourse with her boyfriend (not the perpetrator of the alleged sexual assault). The victim sought medical treatment and consented to the collection of forensic evidence within 12 hours of the sexual assault. During the medical forensic sexual assault examination, the SANE observed and documented a superficial laceration to the victim’s posterior forchette, an area of the female genitalia. A trial court would most likely grant a defendant’s application to question the victim regarding her consensual sexual activity with her boyfriend because the defendant could argue that the injury could have been caused during the consensual sexual encounter in close proximity to the alleged sexual assault. This questioning should be limited, however, to the fact that the consensual act occurred close in time to the alleged sexual assault with no greater detail.

Consult your agency’s state-specific supplemental guide regarding the specific rape shield law exceptions in your state.