California Evidence Limitations in Sexual Assault Claims

California evidence limitations in sexual assault claims in civil actions for money damages are set up to protect the victim from having their entire sexual history made “fair game.” California statutes and case law have set up special rules on the admissibility of so-called “character evidence” to prove any allegation of plaintiff’s consent or the absence of physical injury related to the assault.

In general California Evidence Code 1100 through 1109 set forth guidelines on so-called “character evidence”. “Character evidence” can broadly be defined as evidence of a person’s reputation or specific instances of prior conduct to show a personal “trait” or propensity to act or do certain things. In some cases, this type of evidence is allowed. When it comes to a civil claim for money damages related to a sexual assault and battery or sexual harassment, however, CA statutes and case law provide some significant restrictions on such evidence.

Specifically, CA Evidence Code section 1106(a) states, in pertinent part, as follows:

“ In any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, opinion evidence, reputation evidence, and evidence of specific instances of plaintiff’s sexual conduct, or any of such evidence, is not admissible by the defendant in order to prove consent by the plaintiff or the absence of injury to the plaintiff. ...”

The legal issues in a civil trial for sexual assault and battery are, whether the assault occurred, whether there was consent and the damages. The California Legislature, enacted section 1006 of the Evidence Code to prevent a defendant from obscuring these issues by arguing that the victim was a “slut” or had a history of sexual promiscuity with persons other than the defendant and, therefore, should not be able to claim a lack of consent for the incident at issue.

This statute has been held to be limited to civil actions but, in that context, the term “sexual conduct” has been interpreted to include not just sex acts but, “testimony about the plaintiff’s “racy banter, sexual horseplay, and statements concerning prior, or planned sexual exploits.” Rieger v. Arnold (2002) 104 Cal.App.3th 451, 462.

Exception to the Rule and Limitations: Evidence of plaintiff’s sexual conduct with others may be used to attack the credibility of the plaintiff regarding the alleged sexual assault or battery at issue if, and only if, the following procedure takes place:

• The defendant submits a written motion to the court with a so-called “offer of proof” (a summation of what the defendant intends to introduce as evidence and for what purpose the introduction will have).
• The “offer of proof” must be substantiated by a sworn affadavit (i.e. under the penalty of perjury)
• If the judge finds that the offer of proof is sufficient, a hearing will be held outside the presence of the jury (under California Evidence Code 402) to elicit the exact testimony which defendant proposes.
• If and only if the judge decides that the alleged evidence of plaintiff’s sexual conduct is relevant and has so-called “probative value” which is not outweighed by the chance that the evidence will “prejudice” the plaintiff by confusing the jury, the evidence may be introduced.

What does all this mean? It means that, in general, California law protects the victims of sexual assault and battery from being the subject of “character assassination”. It places very strong requirements on attempting to introduce any evidence of prior sexual history.

Given the complexity of these evidence code provisions and other laws related to civil claims for sex abuse or assault, it is imperative that the victim consult and retain the services of an experienced CA sex assault lawyer promptly following any incident of sexual battery, harassment or abuse. The victim can say and do things that may be “thrown up at them” in a deposition or trial not knowing the scope of their legal rights and how to protect their privacy and limit such attacks. Steven M. Sweat, Personal Injury Lawyers, APC has decades of experience representing the victims of sexual assault and abuse in Los Angeles and throughout the State of California. For a free consultation on any personal injury claim related to sexual misconduct, call our toll free sexual assault helpline at 866-966-5240 or in the L.A. area at 310-592-0445.

• California Evidence Code Sections 1100 – 1109