Sexual offense cases are extremely difficult to defend. The laws have been written and re-written over years to make sex offense cases easier to prosecute. The Rape Shield law is one of these laws written specifically to make it easier to prosecute a sex offense case.

What is  the Rape Shield Law?

C.R.S. 18-3-407 is the statute regarding Colorado’s Rape Shield Law. This statute limits the type of attack that can be made against a victim in a sexual assault prosecution. This statute limits the kinds of evidence that can be admitted and the types of inferences that can be drawn during the defense’s cross-examination. This statute was intended to prevent victim-blaming. It is not appropriate to use irrelevant sexual encounters beyond the evidence underlying the charges to attack the victim’s character. However, there are certain exceptions to the Rape Shield Law but even these exceptions prevent the defense from tarnishing the named victim by providing evidence of her sexual history.

Any kind of information that is meant to suggest that the named victim is a woman of loose morals will never be admitted. There is no exception to this presumption.

Exceptions Under the Rape Shield Law

There are three main exceptions under the Rape Shield Law.

1) This aspect of the rape shield law allows the defendant to present evidence that he or she had sexual intercourse with the named victim either before and or after the claim of sexual assault. This kind of evidence is rare to see in a sexual assault case. However, when it is present it can be very effective in aiding you in your defense. Keep in mind, that you would need proof to show this, a simple “we had sexual contact after the alleged incident” is not enough to persuade a judge to allow Rape Shield information.

2)The law allows you to present evidence of sexual conduct to explain the presence of semen. For example, if the SANE exam reveals more than one person’s semen is present on the woman, this evidence will be allowed and submitted to the court.

3) This third reason is very rarely allowed in a courtroom, but the law may allow the defendant to present evidence that the victim has made false allegations of sexual assault in the past.

These are the ONLY three exceptions to the Rape Shield law and these reasons are not popular with the court. Most judges are mindful at the risks to the victim for allowing information like this. They have to be aware of protecting a true victim from embarrassing ridicule created by cross-examinations of this nature. They have to be the gatekeepers for the evidence submitted at trial and for that reason, more often than not, a rape shield motion will be denied.

The public policy surrounding this kind of motion is what makes it so unpopular with the court. The court system, as well as law enforcement, wants victims to come forward with sexual assault crimes. Victims will be less likely to come forward if defense attorneys are allowed to trample all over them with inappropriate  public fishing expeditions. This is also the reason that the exceptions to this rule are so limited in scope.

What should you consider when filing a rape shield motion?

As an attorney, there are always some considerations that you must go over with your client before filing a motion of this nature.

First, one must consider the danger of pointing out evidence like this in a trial. It must be taken into consideration if the jury will be more sympathetic to the victim because it seems like the defense is unfairly tarnishing the victim by bringing up this evidence. It is important to create a balance between presenting evidence to protect your client and not coming off as too harsh against the named victim.

You do not want to put yourself in a position where the jury is more sympathetic to the victim because of the rape shield evidence you present.

As mentioned before, you need concrete proof of this kind of evidence. The proof here has to be distinct and dispositive. Statements like “I think the victim lied” are not enough.

The umbrella of rape shield only limited to acts of sexual conduct, financial issues, divorce, custody, etc. does not fall under rape shield and can not be used in such a manner.

It is important to understand that in order to defend against a sexual assault charge, you must first begin with the five to ten minutes surrounding the allegation as that is the heart of the prosecution’s case. Only when you have confronted those facts of the case can you move forward to what happened before or after. So often our clients want to only talk about the surrounding aspects of the case and not the underlying facts, that will not accomplish a successful defense.

Your Case is Unique and Important.

The Rape Shield law was written to be difficult to use. I have seen many experienced attorneys fail to comply with the requirements of this law. Furthermore, it can be even more difficult to realize when it is necessary to file these motions. I have been practicing in this field through over a decade of changes to the Rape Shield law in Colorado. If you are charged with a crime, especially a sexual offense, please call my office immediately at (303)-377-0100.