What Is the Rape Shield Law?
The rape shield law restricts using a sexual-assault victim’s sexual history against them at trial. It exists to stop defense strategies that put the victim, rather than the defendant, on trial — while still preserving narrow paths for genuinely relevant evidence.
California’s version doesn’t just track the federal rule; it adds its own procedural layer that federal courts don’t require. That layer is one of the most commonly tested CEC-vs-FRE distinctions on the California Bar Exam.
The rape shield law is a rule of evidence that generally excludes a sexual-assault victim’s other sexual behavior or reputation, admitting specific instances only in narrow, defined circumstances such as an alternative source of physical evidence or the parties’ own prior relationship.
FRE 412: Categorical Exclusion With Narrow Exceptions
In criminal cases, FRE 412 flatly bars reputation and opinion evidence of a victim’s sexual behavior — no balancing test, no exceptions. Specific instances of the victim’s sexual conduct come in only if they:
- Show that someone other than the defendant was the source of semen, injury, or physical evidence;
- Show prior consensual sexual relations between the victim and the defendant, relevant to a consent defense; or
- Are required by the Constitution to admit (a rarely satisfied exception).
Civil cases flip the analysis: FRE 412 applies a reverse-403 balancing test, admitting evidence only if its probative value substantially outweighs the danger of harm and prejudice, and admitting reputation evidence only if the victim herself placed her reputation in controversy.
California’s CEC § 1103(c) and the § 782 Procedure
CEC § 1103(c) mirrors the federal exclusion in substance — a complaining witness’s sexual conduct is generally barred, with similar carve-outs for prior relations with the accused and constitutionally required evidence. What makes California distinctive is CEC § 782’s mandatory procedure.
Before a party can offer any evidence of the victim’s sexual conduct, they must file a written motion and offer of proof, triggering an in-limine hearing held outside the jury’s presence, with the victim and prosecutor present. The judge must find the evidence relevant and not barred by the rape shield rule before it’s ever mentioned at trial. Federal law imposes no equivalent mandatory closed-hearing procedure — this is a purely California statutory safeguard.
CEC vs. FRE: Rape Shield Side by Side
| Issue | Federal Rule (FRE) | California Rule (CEC) |
|---|---|---|
| Criminal cases — reputation/opinion evidence | Categorically excluded, no exceptions | Categorically excluded (CEC § 1103(c)) |
| Criminal cases — specific instances | Admissible only for 3 narrow reasons (source of injury, prior relations with accused, constitutional requirement) | Similar narrow exceptions under § 1103(c) |
| Civil cases | Reverse-403 balancing; reputation admissible only if victim put reputation in controversy | No direct CEC counterpart to FRE 415’s civil propensity provision |
| Procedure to offer evidence | No mandatory closed pretrial hearing required by the FRE itself | CEC § 782 requires a written motion and in-camera hearing before any such evidence is offered |
| Defendant’s prior sexual misconduct (propensity) | Admissible under FRE 413–414, ordinary FRE 403 balancing | Admissible under CEC § 1108, similarly balanced |
The Propensity Exception That Favors the Defendant
Here’s the twist that trips up a lot of exam-takers: rape shield protects victims, but FRE 413–414 and California’s CEC § 1108 do the opposite for defendants. In sexual-assault and child-molestation prosecutions, a defendant’s own prior sexual misconduct is admissible as propensity evidence — normally forbidden under the general character-evidence bar. Both systems subject this evidence to ordinary FRE 403 (or CEC § 352) balancing, not the reverse-403 test used for FRE 412 civil cases.
California adds a parallel provision, CEC § 1109, permitting propensity evidence in domestic-violence prosecutions using similar logic.
Worked Hypothetical
Facts: In a California rape prosecution, the defendant claims the encounter was consensual. He wants to introduce evidence that the victim had multiple partners in the months before the alleged assault, arguing it shows she was likely to consent. Separately, the prosecution wants to introduce evidence that the defendant committed an uncharged sexual assault against a different victim two years earlier.
Analysis: The defense evidence about the victim’s general sexual history is barred. Neither exception under CEC § 1103(c) applies — this isn’t evidence of a prior relationship between the victim and the defendant, nor is it needed to show an alternative source of physical evidence. Before even attempting to offer it, defense counsel would have needed to file a CEC § 782 motion for an in-limine hearing, which the evidence would almost certainly fail on the merits regardless.
The prosecution’s evidence of the uncharged prior assault is a different story. Under CEC § 1108, propensity evidence of a defendant’s other sexual offenses is admissible in sexual-assault prosecutions, subject to CEC § 352 balancing (California’s version of FRE 403). Absent unfair prejudice substantially outweighing probative value, the prior assault likely comes in — even though ordinary character-propensity evidence would otherwise be barred.
Common Exam Traps
- Assuming all sexual-history evidence is excluded without checking for the narrow exceptions.
- Confusing reputation/opinion evidence (categorically barred) with specific-instance evidence (narrow exceptions may apply).
- Applying the criminal categorical-exclusion rule to a civil fact pattern, where reverse-403 balancing governs instead.
- Overlooking that FRE 413–414 and CEC § 1108 let the defendant’s prior sexual misconduct in as propensity evidence.
- Forgetting the mandatory CEC § 782 in-limine hearing requirement in a California fact pattern.
FAQ
Does California require a hearing before admitting a victim’s sexual history?
Yes. CEC § 782 requires a written motion and offer of proof, followed by an in-camera hearing with the victim and prosecutor present, before any evidence of the complaining witness’s sexual conduct may be offered at trial.
Can a defendant’s prior sexual assault be used against him in a new case?
Yes, under CEC § 1108 (and federal FRE 413–414), a defendant’s other sexual offenses are admissible as propensity evidence in sexual-assault prosecutions, subject to standard prejudice balancing — an exception to the usual rule against propensity evidence.
Is the rape shield rule the same in civil and criminal cases?
No. Criminal cases under FRE 412 apply near-categorical exclusion with narrow exceptions. Civil cases apply reverse-403 balancing, admitting evidence only if its probative value substantially outweighs the risk of harm or prejudice.
Key Takeaways
- FRE 412 and CEC § 1103(c) both generally exclude a victim’s sexual history, with narrow shared exceptions.
- California’s CEC § 782 adds a mandatory in-limine hearing procedure the federal rule doesn’t require.
- Civil cases use reverse-403 balancing under FRE 412; California has no direct counterpart to FRE 415’s civil propensity rule.
- CEC § 1108 (like FRE 413–414) lets a defendant’s own prior sexual misconduct in as propensity evidence — a rare exception favoring the prosecution.
- Always check for the § 782 procedural hurdle in a California fact pattern, even when the substantive exception clearly applies.
This article is educational and is not legal advice. Consult a licensed California attorney about your situation.