Rape Shield Statute Applies to Georgia’s Prosecutors

The Rape Shield Statute is generally believed to protect victim’s of rape from having their sexual histories put on display during a trial of the alleged rapist. This is generally true, however, the ‘Rape Shield’ statute is applicable in an array of sex crimes. Furthermore, while the shield protects defense attorney’s from examining an alleged victim’s sexual history during trial and in defense of their client, the defense does have an exception of which it may avail itself, the state, however, has no such benefit.

What happens though when a prosecutor tries to circumvent the law and expose a victim’s sexual history for their own prosecutorial gain. The defense should object to any testimony of that kind. The Georgia Supreme Court made clear in February of 2019 that there is no rape shield exception for prosecutors.

In February’s case from the Supreme Court, White v. State, the Georgia Supreme Court answered two important evidentiary questions.

  1. Can a defendant invoke Georgia’s Rape Shield Statute (OCGA § 24-4-412), by objecting, in order to prohibit the admission of evidence of a witness’s past sexual behavior offered by the State?
  2. Is evidence of a complaining witness’s past sexual behavior
    admissible if that evidence is relevant to an issue other than
    consent?

1.Can a defendant invoke the Rape Shield Statute in order to prohibit
the admission of evidence of a witness’s past sexual behavior
offered by the State?

Yes. Evidence of an alleged victim’s past sexual behavior may not be introduced by any party at a trial involving a prosecution for certain sexual crimes unless such evidence falls under the one specific exception contained in the statute itself.

Up until the court rendered its opinion in White there were two competing lines of cases from the Georgia Court of Appeals regarding whether or not the government, through its prosecutors, could introduce evidence of the complaining witness’s past sexual behavior.

In 1978, the Georgia’s Court of Appeals, in Johnson v. State, 146 Ga. App. 277 (1978) correctly held that the Rape Shield Statute prevented the government from introducing evidence of the complaining witnesses past sexual behavior. That precedent was correctly followed until 2000 where the Court of Appeals held in Demetrios v. State 246 Ga. App. 506 (2000) that the defense could not object to “otherwise relevant evidence” offered by the State.

These conflicting stances from the Court of Appeals were rectified in February of 2019 when the Supreme Court of Georgia held that the Court of Appeals was correct in Johnson holding that prosecutors may not avail themselves of an exception to the rape shield statute that doesn’t exist.

2.Is evidence of a complaining witness’s past sexual behavior
admissible if that evidence is relevant to an issue other than
consent?

The Defendant may introduce evidence at trial relating to the alleged victim’s past sexual behavior if the past behavior directly involved the defendant and such evidence supports a finding that the defendant could have reasonably believed the alleged victim consented to the behavior at question.

Prosecutors cannot avail themselves of this exception to the rape shield statute to help advance their theory of a case. Although true today, I expect that the general assembly will create an additional exception to the rape shield statute and permit prosecutor’s to introduce evidence of the alleged victim’s past sexual behavior where it is relevant to proving the crimes of which the defendant is accused.

Additional Note: This provision of the law is a marked difference from the Federal Rules of Evidence. The Federal Rules provide an exception that permits prosecutors to admit evidence of the alleged victim’s past sexual behavior despite the Rape Shield Statute if with respect to the victim’s past sexual behavior and the accused. Although the ‘new’ Georgia Evidence code closely resembles the Federal Rules, there are important differences and this is one of them.

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