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California’s Rape Shield Law Makes It More Difficult to Establish a Sexual Encounter Was Consensual


The issue of consent arises very frequently in California sexual assault cases. However, under the California Rape Shield Law, a defendant who is charged with sexual assault may have a difficult time establishing that his encounter with the complaining witness was consensual.

What Is a Rape Shield Law?

Rape shield laws refer to a series of rules of evidence that prevent defendants charged with certain crimes from bringing up evidence of the alleged victim’s sexual past. In California, the rape shield law is contained in California Evidence Code 1103, and applies to the following cases:

  • Penal Code 261: Rape
  • Penal Code 262: Spousal/marital rape
  • Penal Code 264.1: Rape in concert
  • Penal Code 286: Sodomy
  • Penal Code 288(a): Oral copulation by force; and
  • Penal Code 289: Forcible penetration by a foreign object.

When a defendant is charged with any of the above offenses, the California rape shield law prevents the defendant from introducing “opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness sexual conduct.” Notably, the law only precludes this evidence when it is being admitted by the defendant and if it is being admitted to prove that the encounter with the defendant was consensual. Thus, the prosecution is not bound by the rape shield law and a defendant who is able to establish a reason for admission unrelated to consent may also be able to get around the application of the rule.

One significant exception to the rape shield law is that it does not prevent a defendant from admitting evidence of the sexual history between the defendant and the alleged victim. Thus, the law only precludes admission of evidence of sexual acts with third parties. However, this can still interfere with a defendant’s ability to effectively present a defense.

On a related note, subsection (2) of 1103 explains that evidence of how the alleged victim was dressed on the day of the alleged assault is not admissible by either party to prove consent. If either party hopes to admit this type of evidence, the proponent of the evidence must make an offer of proof as to why the evidence is relevant outside the presence of the jury.

Have You Been Charged with a California Sex Crime?

If you have recently been arrested and charged with a California sex crime, you should contact the Law Offices of John W. Noonan as soon as possible. As the discussion above illustrates, there are likely to be many complex issues involving the admissibility of critical evidence. Attorney Noonan is a former prosecutor with over 55 years of experience as a California criminal defense attorney and knows what it takes to succeed on behalf of his clients. Whether it be negotiating a favorable plea agreement or fighting the case all the way to a jury verdict, Attorney Noonan will proudly defend you at every step along the way. To learn more, call 925-479-0033 to schedule a free consultation today.