2020 Georgia Code
Title 24 - Evidence
Chapter 4 - Relevant Evidence and Its Limits
§ 24-4-412. Complainant's Past Sexual Behavior Not Admissible in Prosecutions for Certain Sexual Offenses; Exceptions

1. In any prosecution for rape in violation of Code Section 16-6-1; aggravated assault with the intent to rape in violation of Code Section 16-5-21; trafficking persons for labor servitude or sexual servitude in violation of Code Section 16-5-46; aggravated sodomy or sodomy in violation of Code Section 16-6-2; statutory rape in violation of Code Section 16-6-3; aggravated child molestation or child molestation in violation of Code Section 16-6-4; keeping a place of prostitution in violation of Code Section 16-6-10; pimping in violation of Code Section 16-6-11; pandering in violation of Code Section 16-6-12; incest in violation of Code Section 16-6-22; sexual battery in violation of Code Section 16-6-22.1; or aggravated sexual battery in violation of Code Section 16-6-22.2, evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section. For the purposes of this Code section, evidence of past sexual behavior includes, but is not limited to, evidence of the complaining witness's marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.
2. In any prosecution for rape in violation of Code Section 16-6-1; aggravated assault with the intent to rape in violation of Code Section 16-5-21; trafficking persons for labor servitude or sexual servitude in violation of Code Section 16-5-46; aggravated sodomy or sodomy in violation of Code Section 16-6-2; statutory rape in violation of Code Section 16-6-3; aggravated child molestation or child molestation in violation of Code Section 16-6-4; keeping a place of prostitution in violation of Code Section 16-6-10; pimping in violation of Code Section 16-6-11; pandering in violation of Code Section 16-6-12; incest in violation of Code Section 16-6-22; sexual battery in violation of Code Section 16-6-22.1; or aggravated sexual battery in violation of Code Section 16-6-22.2, the court may admit the following evidence relating to the past sexual behavior of the complaining witness, following the procedure described in subsection (c) of this Code section:
   1. Evidence of specific instances of a victim's or complaining witness's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
   2. Evidence of specific instances of a victim's or complaining witness's sexual behavior with respect to the defendant if it supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution;
   3. Evidence of specific instances of a victim's or complaining witness's sexual behavior with respect to the defendant or another person if offered by the prosecutor; and
   4. Evidence whose exclusion would violate the defendant's constitutional rights.
3. The procedure for introducing evidence as described in subsection (b) of this Code section shall be as follows:
   1. If a party intends to offer evidence under subsection (b) of this Code section, the party must:
      1. File a motion that specifically describes the evidence and states the purpose for which it is to be offered; and
      2. Do so at least three days before trial unless the court, for good cause, sets a different date; and
   2. Before admitting the evidence under this Code section, the court shall conduct an in camera hearing to examine the merits of the motion.

(Code 1981, §24-4-412, enacted by Ga. L. 2011, p. 99, § 2/HB 24; Ga. L. 2019, p. 81, § 5/HB 424; Ga. L. 2020, p. 493, § 24/SB 429.)

The 2019 amendment, effective April 18, 2019, rewrote this Code section. See Editor's notes for applicability.

The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, substituted "subsection (b) of this Code section" for "subsection (b)" in the introductory language of paragraph (c)(1).

- Ga. L. 2019, p. 81, § 8/HB 424, not codified by the General Assembly, provides, in part: "Sections 4 and 5 of this Act shall apply to any motion made or hearing or trial commenced on or after the effective date of this Act." This Act became effective April 18, 2019.

- For article, "An Analysis of Georgia's Proposed Rules of Evidence," see 26 Ga. St. B.J. 173 (1990). For article, "Gender and Justice in the Courts: A Report to the Supreme Court of Georgia by the Commission on Gender Bias in the Judicial System," see 8 Ga. St. U.L. Rev. 539 (1992). For article, "The Georgia Roundtable Discussion Model: Another Way to Approach Reforming Rape Laws," see 20 Ga. St. U.L. Rev. 565 (2004). For comment on Teague v. State, 208 Ga. 459, 67 S.E.2d 467 (1951), see 14 Ga. B.J. 363 (1952). For comment on Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955), holding that a defendant has the right to cross-examine all witnesses called against him in all material matters, including the past conduct of the prosecutrix in an action for rape, see 19 Ga. B.J. 95 (1956). For comment, "Can Georgia's Rape Shield Statute Withstand a Constitutional Challenge?," see 36 Mercer L. Rev. 991 (1985).

ANALYSIS

• General Consideration
• Child Molestation
• Incest
• Rape
• Sexual Battery
• Sodomy
• Procedure
• Retrial

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1976, p. 741, § 1 and former O.C.G.A. §§ 24-2-2 and24-2-3 are included in the annotations for this Code section.

- Former O.C.G.A. § 24-2-3 did not violate a defendant's Sixth Amendment right of confrontation; the former statute served a variety of state interests which outweighed that right. Harris v. State, 257 Ga. 666, 362 S.E.2d 211 (1987) (decided under former O.C.G.A. § 24-2-3).

Former statute was a strong legislative attempt to protect the victim-prosecutor in rape cases by the exclusion of evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused. Parks v. State, 147 Ga. App. 617, 249 S.E.2d 672 (1978) (decided under Ga. L. 1976, p. 741, § 1).

Former O.C.G.A. § 24-2-3 sought to eliminate the philosophy that women of promiscuous sexual reputation were entitled to less protection under the rape laws than women of chaste reputation. Singleton v. State, 157 Ga. App. 192, 276 S.E.2d 685 (1981) (decided under Ga. L. 1976, p. 741, § 1); Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981); Snyder v. State, 201 Ga. App. 66, 410 S.E.2d 173 (1991) (decided under Ga. L. 1976, p. 741, § 1);(decided under former O.C.G.A. § 24-2-3).

Former O.C.G.A. § 24-2-3 was a legislative attempt to exclude evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused. Martin v. State, 196 Ga. App. 145, 395 S.E.2d 391 (1990) (decided under former O.C.G.A. § 24-2-3).

- Trial court did not err in applying the former "rape shield" principle to exclude evidence that the victim had allegedly engaged in sexual activity with her ex-boyfriend immediately prior to the alleged act of sexual battery; the court had discretion to apply such principle even when the exclusion was not mandated under former O.C.G.A. § 24-2-3. Bates v. State, 216 Ga. App. 597, 454 S.E.2d 811 (1995) (decided under former O.C.G.A. § 24-2-3).

Trial court did not abuse the court's discretion in excluding the defendant's claim that his victim had prior consensual sex with him and that he reasonably believed she consented on the night of the offense, since the victim testified to the events of that night, there was a trail of clothing left near the crime scene, and evidence of her injuries was offered. Davis v. State, 235 Ga. App. 362, 509 S.E.2d 655 (1998) (decided under former O.C.G.A. § 24-2-3).

§ 24-3-38. - Despite former O.C.G.A. § 24-3-38 (see now O.C.G.A. § 24-8-822), giving a party the right to have a whole conversation heard, former O.C.G.A. § 24-2-3 prohibited the admission of a portion of defendant's statement in which the defendant said that the victim had sexual intercourse with the victim's cousin. Snow v. State, 228 Ga. App. 649, 492 S.E.2d 564 (1997) (decided under former O.C.G.A. § 24-2-3).

Rape shield law was not implicated since the testimony of the victim concerned prior physical abuse, not sexual abuse. Demetrios v. State, 246 Ga. App. 506, 541 S.E.2d 83 (2000), overruled on other grounds, White v. State, 2019 Ga. LEXIS 66 (Ga. 2019) (decided under former O.C.G.A. § 24-2-3).

- Given that the defendant was not charged with rape, evidence of the victim's sexual activity, and the fact that she had a boyfriend, with whom she allegedly had sexual intercourse during the time of the alleged sexual abuse, should not have been excluded under either the 2004 or 2005 version of the former Rape Shield statute as: (1) that evidence acted as a possible explanation for the victim's physical trauma, placing her credibility and the defendant's guilt into question; (2) the jury's split verdict supported the defendant's argument that even without the excluded testimony, the state's case was far less than overwhelming; and (3) the appeals court could not determine what role the excluded evidence would have played in the jury's deliberations; hence, a new trial as to the charges of child molestation and incest was ordered. Gresham v. State, 281 Ga. App. 116, 635 S.E.2d 316 (2006) (decided under former O.C.G.A. § 24-2-3).

- Former rape shield law did not necessarily prohibit testimony as to the falsity of a victim's prior accusations of sexual misconduct directed against persons other than the defendant. Benton v. State, 265 Ga. 648, 461 S.E.2d 202 (1995), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019) (decided under former O.C.G.A. § 24-2-3).

Defendant was not required to make a threshold showing that the victim's previous molestation allegations were false before the defendant was entitled to a hearing on the reasonable probability of falsity. Peters v. State, 224 Ga. App. 837, 481 S.E.2d 898 (1997) (decided under former O.C.G.A. § 24-2-3).

Testimony of previous false allegations by the victim was not prohibited; however, the defendant failed to make the threshold showing of a reasonable probability that the victim's three previous rape reports were false. Banks v. State, 250 Ga. App. 728, 552 S.E.2d 903 (2001), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019) (decided under former O.C.G.A. § 24-2-3).

Trial court did not err by prohibiting the defendant from questioning one of the victims about allegations of molestation committed by other parties because the evidence was not admissible. Stevens v. State, Ga. App. , S.E.2d (Sept. 8, 2020).

- Lower appellate court properly reversed the ruling excluding the victim's admittedly false statement of sex because the false allegation plainly described the event involving someone else at a separate time; thus, there was no basis for confusion and, as such, O.C.G.A. § 24-4-403 did not pose a bar to the jury learning about the victim's false statement. State v. Burns, 306 Ga. 117, 829 S.E.2d 367 (2019).

Georgia Supreme Court overruled Smith v. State, 259 Ga. 135 (1989) and similar holdings, which held that Georgia's Rape Shield statute (now O.C.G.A. § 24-4-412), as it then existed, did not prohibit testimony of previous false allegations by the victim as the court held that although Smith's bright-line test was not unworkable, neither was the alternative of applying familiar and usual rules of evidence, which trial courts routinely do every day. State v. Burns, 306 Ga. 117, 829 S.E.2d 367 (2019).

- Evidence of a victim's past sexual behavior for the purpose of showing that she may have been pregnant at the time the allegations were made and may have therefore made up the charge to justify or explain the pregnancy was barred by former O.C.G.A. § 24-2-3. Green v. State, 221 Ga. App. 436, 472 S.E.2d 1 (1996) (decided under former O.C.G.A. § 24-2-3).

Evidence that a child rape victim had sex with her boyfriend six months before the alleged rape was properly excluded since, while relevant to show that the victim's pregnancy was not caused by the defendant, it was insufficiently probative due to the time frames involved.(decided under former O.C.G.A. § 24-2-3).

- Cross-examination of the victim with regard to sexual acts with males other than the defendant and the fact that she was "quite possibly pregnant" was properly disallowed since the only proffer made by the defendant concerning the possible pregnancy as a motive for lying was counsel's mere statement, and the defendant denied ever having sexual relations with the victim. Gibbs v. State, 196 Ga. App. 140, 395 S.E.2d 387 (1990) (decided under former O.C.G.A. § 24-2-3).

- With regard to a defendant's convictions for aggravated sodomy and kidnapping, the trial court did not abuse the court's discretion by excluding as barred by the former rape shield statute evidence of the victim's prior miscarriage since the former rape shield statute barred evidence relating to the past sexual behavior of the complaining witness. Smith v. State, 294 Ga. App. 692, 670 S.E.2d 191 (2008) (decided under former O.C.G.A. § 24-2-3).

- Trial court correctly excluded all reference to the fact that the 16-year-old victim had a child of approximately 21 months of age. Johnson v. State, 245 Ga. App. 690, 538 S.E.2d 766 (2000) (decided under former O.C.G.A. § 24-2-3).

Former rape shield statute provided the exclusive means for admitting evidence relating to the past sexual behavior of the complaining witness in prosecutions for rape. The res gestae rule, impeachment techniques, and other traditional means for introducing evidence which was otherwise inadmissible could have no effect in this situation. Johnson v. State, 146 Ga. App. 277, 246 S.E.2d 363 (1978) (decided under Ga. L. 1976, p. 741, § 1).

Former rape shield statute superseded all evidentiary exceptions, including the res gestae rule. Phillips v. State, 196 Ga. App. 267, 396 S.E.2d 57 (1990) (decided under former O.C.G.A. § 24-2-3).

Former O.C.G.A. § 24-2-3 did not prohibit testimony of previous false allegations by the victim; however, before such evidence could be admitted, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity existed. Smith v. State, 259 Ga. 135, 377 S.E.2d 158, cert. denied, 493 U.S. 825, 110 S. Ct. 88, 107 L. Ed. 2d 53 (1989), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019) (decided under former O.C.G.A. § 24-2-3).

Once the court determined that a child-victim's previous allegation of abuse was unreliable, testimony of the previous allegation was no longer subject to the former rape shield statute protection and should have been admitted. Hines v. State, 221 Ga. App. 193, 470 S.E.2d 787 (1996), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019) (decided under former O.C.G.A. § 24-2-3).

- Evidence concerning allegedly false prior rape claims made by the prosecutor was not barred by former O.C.G.A. § 24-2-3 as the subject testimony was admissible, not merely to impeach the witness credibility, but as substantive evidence tending to establish that there had been no rape, but mere consensual sexual intercourse; accordingly, the trial court abused the court's discretion in denying the defendant's motion for a new trial. Humphrey v. State, 207 Ga. App. 472, 428 S.E.2d 362 (1993), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019) (decided under former O.C.G.A. § 24-2-3).

Evidence of the admittedly false accusation by the victim, the defendant's stepdaughter, was not barred by the rape shield statute as evidence of the victim's alleged false allegations of sexual misconduct by persons other than the defendant did not involve the victim's past sexual conduct but rather the victim's propensity to make false statements regarding sexual misconduct. Burns v. State, 345 Ga. App. 822, 813 S.E.2d 425 (2018), aff'd, 306 Ga. 117, 829 S.E.2d 367 (2019).

- In a sexual molestation case, the trial court did not abuse the court's discretion in concluding that the defendant's evidence that the victim once falsely alleged that another man had molested the victim did not establish by a reasonable probability that the prior allegation was in fact false. Walker v. State, 308 Ga. App. 176, 707 S.E.2d 122 (2011) (decided under former O.C.G.A. § 24-2-3).

Former rape shield statute prohibited all evidence relating to the past sexual behavior of the complaining witness, including marital history, mode of dress, general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards; in other words, her reputation concerning past sexual activity with persons other than the defendant. The exceptions were, if so found by the judge after an in camera hearing, that the past behavior involving participation by the accused, or that the evidence supported an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of. Parks v. State, 147 Ga. App. 617, 249 S.E.2d 672 (1978) (decided under Ga. L. 1976, p. 741, § 1).

Evidence of prior sexual experience was not permitted by former O.C.G.A. § 24-2-3. Roberts v. State, 158 Ga. App. 309, 279 S.E.2d 753 (1981) (decided under Ga. L. 1976, p. 741, § 1); Raines v. State, 191 Ga. App. 743, 382 S.E.2d 738 (1989);(decided under former O.C.G.A. § 24-2-3).

Trial court did not err in refusing to admit evidence of the victim's past marital problems when the defendant admitted that the victim did not tell him which type of marital problem it was. Hence, his lack of knowledge that the victim's marital problem related to infidelity could have had no reasonable bearing on whether the victim would consent to the conduct complained of. Burley v. State, 190 Ga. App. 75, 378 S.E.2d 328 (1989) (decided under former O.C.G.A. § 24-2-3).

Former rape shield statute precluded the introduction of evidence of the victim's past sexual behavior. Obviously, a prior rape committed against the victim had nothing to do with her past sexual behavior. Raines v. State, 191 Ga. App. 743, 382 S.E.2d 738 (1989) (decided under former O.C.G.A. § 24-2-3).

Trial court properly disallowed the defendant's proffer that the victim might have said the defendant raped her on occasions other than the two charged since it was not clear how such evidence would have aided the defendant and there was no indication that the victim was lying about the other incidents of rape. Gibbs v. State, 196 Ga. App. 140, 395 S.E.2d 387 (1990) (decided under former O.C.G.A. § 24-2-3).

Evidence of portions of a conversation between the defendant and the victim that involved her past sexual abuse by family members and others was properly excluded. Hicks v. State, 222 Ga. App. 828, 476 S.E.2d 101 (1996), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019) (decided under former O.C.G.A. § 24-2-3).

- Proffered testimony of a defense witness that the witness had exchanged sex with the victim for money and that defendant knew of this at the time of the incident was not admissible under the "highly material category" of subsection (c)(2) of former O.C.G.A. § 24-2-3. Brown v. State, 214 Ga. App. 676, 448 S.E.2d 723 (1994) (decided under former O.C.G.A. § 24-2-3).

- After the state attempted to prove the defendant's rape of the victim by showing that the defendant passed herpes to the victim, the trial court's permission for the victim to testify that the victim had not had sex for five months prior to the rape did not violate the rape shield law, former O.C.G.A. § 24-2-3, as the victim's testimony was relevant to exclude the possibility that someone other than defendant had sexual contact with the victim and gave the victim herpes.(decided under former O.C.G.A. § 24-2-3).

- Even though the trial court allowed defendant to testify that the defendant had prior sexual intercourse with the complaining witness, the court properly disallowed testimony from defendant that the defendant had overheard conversations by the victim's family members that the victim "ran around." Marks v. State, 192 Ga. App. 64, 383 S.E.2d 626 (1989) (decided under former O.C.G.A. § 24-2-3).

Exceptions to the general rule of inadmissibility listed in the former statute were exclusive and those exceptions were provided solely for the benefit of the defendant who, by proper and timely objection, could prevent the state from introducing the evidence excluded by the former statute. Johnson v. State, 146 Ga. App. 277, 246 S.E.2d 363 (1978) (decided under Ga. L. 1976, p. 741, § 1).

Two exceptions contained in former O.C.G.A. § 24-2-3 were exclusive. Jones v. State, 190 Ga. App. 416, 379 S.E.2d 189 (1989) (decided under former O.C.G.A. § 24-2-3).

- Admitting testimony that an alleged victim was not a virgin to support an inference that an accused reasonably believed she consented to his advances is erroneous since it is against just such reasoning that rape shield laws have been enacted. Johnson v. State, 146 Ga. App. 277, 246 S.E.2d 363 (1978) (decided under Ga. L. 1976, p. 741, § 1).

Admission of victim's testimony that during the attack she told defendant she was a virgin was harmless error since the defense was based upon a claim of mistaken identity, not alleged consent by the victim. Veal v. State, 191 Ga. App. 445, 382 S.E.2d 131 (1989) (decided under former O.C.G.A. § 24-2-3).

- Inquiry into the victim's past sexual experiences was properly refused, even after a physician testified that in examining the victim it was obvious she had been sexually active. Worth v. State, 183 Ga. App. 68, 358 S.E.2d 251, cert. denied, 183 Ga. App. 907, 358 S.E.2d 251 (1987) (decided under former O.C.G.A. § 24-2-3).

- Former O.C.G.A. § 24-2-3 included cross-examination of the other witnesses about the sexual conduct of the complaining witness so the argument that the former statute applied only to cross-examination of the complaining witness was without merit. Ellis v. State, 181 Ga. App. 630, 353 S.E.2d 822 (1987) (decided under former O.C.G.A. § 24-2-3).

- Any error in denying the defendant a thorough and sifting cross-examination of the victim concerning a past sexual experience with the defendant was harmless when the defendant subsequently testified to such an experience and the victim then denied the experience. Clarke v. State, 169 Ga. App. 433, 313 S.E.2d 716 (1984) (decided under former O.C.G.A. § 24-2-3).

When the defendant had never seen or known the victim prior to her abduction, evidence of past sexual activity was not admissible on the question of consent. Fuller v. State, 169 Ga. App. 488, 313 S.E.2d 505 (1984) (decided under former O.C.G.A. § 24-2-3).

- Former rape shield law was not applicable to evidence offered to impeach the victim as to her mode of dress at the time in question. Villafranco v. State, 252 Ga. 188, 313 S.E.2d 469 (1984) (decided under former O.C.G.A. § 24-2-3).

- When a physician testified that the victim had a venereal disease and that she maintained she had not had sexual intercourse with anyone else, it was reversible error not to allow the defendant to show by his wife's medical records, or otherwise, that his wife was then undergoing medical treatment and tests for pregnancy and showed no sign of the disease and therefore, by logical extension, that defendant did not have the disease. Reece v. State, 192 Ga. App. 14, 383 S.E.2d 572 (1989) (decided under former O.C.G.A. § 24-2-3).

- Exclusion of medical testimony regarding an infectious discharge discovered in the victim's body within hours after the alleged rape was reversible error since the excluded testimony was relevant to defendant's claim that he did not penetrate the victim because of the victim's gross physical condition. White v. State, 201 Ga. App. 53, 410 S.E.2d 441 (1991) (decided under former O.C.G.A. § 24-2-3).

- Defense's question to the victim concerning her status as a high school dropout and her failure to keep a previous court appointment did not violate former O.C.G.A. § 24-2-3, since the questions did not directly reflect on her past sexual behavior. George v. State, 257 Ga. 176, 356 S.E.2d 882 (1987) (decided under former O.C.G.A. § 24-2-3).

- Exhibit, which was apparently a fictional work about someone's sexual experiences and was to be used in an attack upon the victim's reputation for prior sexual behavior, was properly excluded under former O.C.G.A. § 24-2-3. Kilgore v. State, 195 Ga. App. 884, 395 S.E.2d 337 (1990) (decided under former O.C.G.A. § 24-2-3).

- When the defendant was convicted of rape, aggravated child molestation, and enticing a child for indecent purposes, trial counsel was not ineffective in failing to investigate alternate sources of the victim's pregnancy and injuries because trial counsel testified that identifying an alternate sexual partner might have conflicted with the rape shield statute; any sexual contact after the crime would not have been relevant to the victim's injuries and would have been highly prejudicial; and, in light of the victim's testimony, the victim's immediate outcry, and the evidence of male DNA found inside the victim and the victim's vaginal injury, it was not reasonably likely that the result of the trial would have been different. Davis v. State, 329 Ga. App. 797, 764 S.E.2d 588 (2014)(decided under former O.C.G.A. § 24-2-3).

- When defendant offered to prove that the complaining witness had prior sexual encounters with the defendant and others and that the defendant knew about the others and of her reputation at the time of the incident on trial, it was error to deny a hearing on the defendant's offer of proof relating to the witness's past sexual behavior. Hamilton v. State, 185 Ga. App. 536, 365 S.E.2d 120 (1987), cert. denied, 185 Ga. App. 910, 365 S.E.2d 120 (1988) (decided under former O.C.G.A. § 24-2-3).

- Appellate court reviewed the trial court's exclusion of evidence under the former rape shield statute, former O.C.G.A. § 24-2-3, for abuse of discretion. Jackson v. State, 254 Ga. App. 562, 562 S.E.2d 847 (2002) (decided under former O.C.G.A. § 24-2-3).

Child Molestation

Former rape shield law applicable in child molestation cases.

- In a prosecution for child molestation, evidence of the victim's past sexual behavior and preoccupation with sex was properly excluded. McGarity v. State, 224 Ga. App. 302, 480 S.E.2d 319 (1997), overruled in part by Abdulkadir v. State, 279 Ga. 122, 610 S.E.2d 50 (2005) (decided under former O.C.G.A. § 24-2-3).

Trial court properly refused to allow defense counsel to question an investigator about the victim's prior sexual activity in a child molestation case as the rape shield law, former O.C.G.A. § 24-2-3 (prohibiting the introduction of evidence of the past sexual behavior of the complaining witness in rape cases), was also applicable in child molestation cases, and no exceptions to the rape shield law was implicated. Flowers v. State, 255 Ga. App. 660, 566 S.E.2d 339 (2002) (decided under former O.C.G.A. § 24-2-3).

Former O.C.G.A. § 24-2-3(b) was applicable in child molestation cases and excluded evidence relating to the past sexual behavior of the complaining witness with some limited exceptions which include: (1) to show that someone other than the defendant caused the injuries to the child; (2) to show lack of victim credibility if the victim's prior allegations of molestation were false; and (3) to show other possible causes for the symptoms exhibited. Since no exception applied, inquiry into a later rape of defendant's victim was properly foreclosed in defendant's rape and incest trial. Taylor v. State, 268 Ga. App. 333, 601 S.E.2d 815 (2004) (decided under former O.C.G.A. § 24-2-3).

In 2005, former O.C.G.A. § 24-2-3 was amended to provide expressly that the former rape shield law applied to prosecutions for child molestations. Brown v. State, 275 Ga. App. 281, 620 S.E.2d 394 (2005) (decided under former O.C.G.A. § 24-2-3).

- In a child molestation case, evidence of the victim's possibly engaging in masturbation at an early age would not have been admissible as the defendant made no allegation that the victim had any unusually early or sudden sexual knowledge; thus, the victim's sexual history was irrelevant under the circumstances. Hughes v. State, 297 Ga. App. 581, 677 S.E.2d 674 (2009) (decided under former O.C.G.A. § 24-2-3).

- In the defendant's trial for child molestation against three victims, the trial court erred in allowing the state to introduce evidence of one victim's prior sexual activity involving the defendant's molestation of the defendant's two step-sisters; this evidence was inadmissible under the Rape Shield Statute, O.C.G.A. § 24-4-412, even if introduced by the state for the purpose of showing the effects of the defendant's molestation of the victim. However, the error was harmless. White v. State, 305 Ga. 111, 823 S.E.2d 794 (2019).

- Defendant's claim that the defendant should have been able to question witnesses about the victim's alleged molestation by her stepfather and step-uncle was rejected as a nurse's testimony that the victim's behavioral characteristics were consistent with those of a child who had been sexually molested fell far short of the expert testimony regarding abuse accommodation syndrome that warranted the admission of evidence of previous molestation by others. Brown v. State, 280 Ga. App. 884, 635 S.E.2d 240 (2006) (decided under former O.C.G.A. § 24-2-3).

- By the former statute's plain terms the former rape shield statute, former O.C.G.A. § 24-2-3(a), applied only in prosecutions for rape and not to child molestation cases; however, the trial court did not err by applying former § 24-2-3(a) to defendant's case because defendant was prosecuted for, among other offenses, rape, and the fact that defendant was acquitted of the rape charge did not require a new trial on the other charges. Abdulkadir v. State, 279 Ga. 122, 610 S.E.2d 50 (2005) (decided under former O.C.G.A. § 24-2-3).

- Contrary to the defendant's contention, the trial court properly excluded evidence consisting of any prior abuse committed against the victims by persons other than the defendant on relevancy grounds, given that the state's fact witness, a social worker, did not testify that the victims' demeanor exhibited symptoms consistent with child abuse accommodation syndrome. The court noted that the evidence was not excludable under the former rape shield statute as contended by the state. Segura v. State, 280 Ga. App. 685, 634 S.E.2d 858 (2006) (decided under former O.C.G.A. § 24-2-3).

Evidence of a child sexual abuse victim's previous sexual activity was properly excluded under former O.C.G.A. § 24-2-3(b) because medical evidence indicated the child had been sexually violated within the last 48 hours. Callahan v. State, 256 Ga. App. 482, 568 S.E.2d 780 (2002) (decided under former O.C.G.A. § 24-2-3).

In a rape case, the trial court properly found that under former O.C.G.A. § 24-2-3, the defendant failed to show that the child victim had made three prior false allegations of sexual misconduct. In the first case, the defendant asserted a vague claim unsupported by any evidence that when the child was two years old, the child might have made some unspecified allegation against a relative against whom no charges were brought; in the second case, the allegations led to a guilty plea; in the third case, police found that a minor had touched the victim but that no crime had been committed. Osborne v. State, 291 Ga. App. 711, 662 S.E.2d 792 (2008), cert. denied, No. S08C1643, 2008 Ga. LEXIS 783 (Ga. 2008), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019) (decided under former O.C.G.A. § 24-2-3).

With regard to defendant's convictions for sexual battery and child molestation of a step-child, the trial court properly excluded defendant's attempt to introduce evidence of a purported false allegation by the victim that the victim was the victim of date rape in 2006 under the former rape shield law as defendant did not seek to introduce the evidence to show that the victim had psychological problems, rather, defendant argued that the victim had made a previous false allegation. Birkbeck v. State, 292 Ga. App. 424, 665 S.E.2d 354 (2008), cert. denied, No. S08C1917, 2008 Ga. LEXIS 874 (Ga. 2008); overruled in part, State v. Gardner, 286 Ga. 633, 690 S.E.2d 164 (2010) (decided under former O.C.G.A. § 24-2-3).

Trial court did not violate Georgia's rape shield statute, O.C.G.A. § 24-4-412, in determining that proposed testimony regarding a separate, independent investigation into child molestations allegations by the victim against another man was inadmissible because the proposed statements were not false allegations of sexual misconduct but were statements that another man had not engaged in sexual misconduct with the victim when, in fact, some sort of sexual misconduct had occurred. Frye v. State, 344 Ga. App. 704, 811 S.E.2d 460 (2018), overruled on other grounds by State v. Burns, 306 Ga. 117, 829 S.E.2d 367 (2019).

- In a prosecution for child molestation, the trial court did not abuse the court's discretion by granting the state's motion to exclude evidence that the victim told her physician that she was sexually active with her boyfriend. Cox v. State, 241 Ga. App. 388, 526 S.E.2d 887 (1999) (decided under former O.C.G.A. § 24-2-3).

- At a trial in which defendant was accused of sexual offenses against the daughter, the trial court did not err under former O.C.G.A. § 24-2-3(b) in refusing to admit evidence of the possibility that the daughter was previously sexually molested by the babysitter; such evidence was inadmissible in a molestation case to show the victim's reputation for nonchastity or the victim's preoccupation with sex, and an exception to this rule did not apply as the state presented neither medical evidence showing that the victim had been molested nor evidence showing that the victim had indicated symptoms consistent with the child abuse accommodation syndrome. Zepp v. State, 276 Ga. App. 466, 623 S.E.2d 569 (2005), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-2-3).

Trial court did not err by excluding letters the victim wrote to the defendant during the time period between the defendant's arrest and the trial pursuant to the former Rape Shield Statute, former O.C.G.A. § 24-2-3, because the evidence was cumulative to the extent that a portion of a letter from the victim recounting the victim's prior sexual activity supported an inference that the victim consented to sexual conduct since the jury was aware that the victim was pregnant with the defendant's child; to the extent that the portion of a letter from the victim in which the victim described future sexual activities that the victim would like to engage in with the defendant was relevant and admissible to show that the victim still had feelings for the defendant, that evidence was cumulative to the victim's testimony that the victim still loved the defendant and remained in contact with the defendant. Morgan v. State, 303 Ga. App. 358, 693 S.E.2d 504 (2010) (decided under former O.C.G.A. § 24-2-3).

Trial court did not err by excluding letters the victim wrote to the defendant during the time period between the defendant's arrest and the trial pursuant to the former Rape Shield Statute, former O.C.G.A. § 24-2-3, because although the trial court initially indicated that the former Rape Shield Statute prohibited admission of the letters, the court clearly indicated that it would consider any future proper attempt to admit the evidence, but the defendant declined to do so; assuming that the ruling was erroneous, the verdict was sustainable because the evidence in the letters that the victim had a previous sexual relationship with the defendant before the incident and wanted to have one with the defendant in the future was not relevant to the charges for which the defendant was convicted, namely kidnapping, kidnapping with bodily injury, family violence aggravated assault, and false imprisonment. Morgan v. State, 303 Ga. App. 358, 693 S.E.2d 504 (2010) (decided under former O.C.G.A. § 24-2-3).

Defendant's convictions for child molestation in violation of O.C.G.A. § 16-6-4(a) and sexual battery in violation of O.C.G.A. § 16-6-22.1(b) were vacated because the trial court erred by applying former O.C.G.A. § 24-2-3(a) to the case and striking the testimony regarding the victim's previous alleged sexual conduct with the victim's brother based on the court's conclusion that the former rape shield statute prohibited the defendant from presenting evidence regarding the victim's prior sexual history, and the error in excluding the evidence of the victim's prior sexual history could have contributed to the jury's verdict since the only direct evidence of the defendant's guilt was the victim's testimony that the defendant sexually abused the victim; the former provisions did not apply to prosecutions for child molestation or sexual battery. Robinson v. State, 308 Ga. App. 562, 708 S.E.2d 303 (2011) (decided under former O.C.G.A. § 24-2-3).

- Although the former rape shield statute, former O.C.G.A. § 24-2-3, did not require the exclusion of evidence of a child molestation victim's past boyfriends and difficult past because the charge was not an aggravated charge, the trial court was authorized to evaluate the relevance of any evidence and exclude the evidence on that basis. Cantu v. State, 304 Ga. App. 655, 697 S.E.2d 310 (2010) (decided under former O.C.G.A. § 24-2-3).

- Evidence that a child sexual abuse victim was raised in a household where sexual activity was open was properly excluded, under former O.C.G.A. § 24-2-3(b), because nothing in the proffered evidence showed that this would cause the victim to have knowledge of the sexual acts performed on the victim by defendant. Callahan v. State, 256 Ga. App. 482, 568 S.E.2d 780 (2002) (decided under former O.C.G.A. § 24-2-3).

- Trial court did not err in granting the state's motion to suppress evidence that the victim had a venereal disease one year after the last act of molestation since there was no evidence or offer of proof that the defendant did not have the disease. Van Ricks v. State, 249 Ga. App. 80, 546 S.E.2d 919 (2001) (decided under former O.C.G.A. § 24-2-3).

- When the state did not offer any medical evidence to prove the girl had been molested or any testimony to show that she had displayed symptoms consistent with the child abuse accommodation syndrome, the exception to the admissibility of past sexual activity did not apply and inquiry into the victim's sexual history was precluded by former O.C.G.A. § 24-2-3(b). Rocha v. State, 248 Ga. App. 53, 545 S.E.2d 173 (2001) (decided under former O.C.G.A. § 24-2-3).

- Trial court did not err in refusing to allow cross-examination of a child sex abuse victim concerning alleged prior false accusations of molestation made against the victim's half brother after the trial court conducted a hearing to determine if the allegations at issue had a "reasonable probability of falsity," and ruled that the defense had not carried the defense's burden of showing a reasonable probability that the victim's accusation against the victim's half-brother was false; it was apparent that the trial court was faced with the conflicting testimony of the victim and the victim's half-brother and found that of the victim more credible. Williams v. State, 266 Ga. App. 578, 597 S.E.2d 621 (2004) (decided under former O.C.G.A. § 24-2-3).

- At defendant's trial for various sexual offenses based on allegations by his stepdaughter, which were later recanted, there was no manifest necessity for a mistrial over defendant's objection when a child abuse investigator mentioned, in violation of the trial court's ruling on a motion in limine based on former O.C.G.A. § 24-2-3, that the stepdaughter had viewed pornographic movies even though the trial court did not abuse the court's discretion in granting the state's motion in limine to exclude the evidence; defense counsel's question to the investigator did not call for the improper response and, once the issue had been injected, the defense was entitled to clarify that defendant bore no responsibility for the victim's viewing of the pornographic movies.(decided under former O.C.G.A. § 24-2-3).

Child molestation victim was not entitled to a new trial based on the victim's testimony that she was a virgin prior to his first assault of her. Even assuming that the testimony violated the former rape shield statute, former O.C.G.A. § 24-2-3(a), the challenged testimony was cumulative of other testimony to which defendant did not object. Collins v. State, 310 Ga. App. 613, 714 S.E.2d 249 (2011) (decided under former O.C.G.A. § 24-2-3).

Although the trial court erred by excluding evidence of one child victim's alleged homosexual relationship in defendant's trial on 14 counts of child molestation and 11 counts of aggravated child molestation, it was highly probable that the error did not contribute to the jury's verdict; even if defendant was given the opportunity to cross-examine the victim about the victim's past sexual behavior, the judge would have been unlikely to have adjudged that evidence as credible, completely disregarding defendant's guilty plea and the other evidence that such a similar transaction did occur. Brown v. State, 275 Ga. App. 281, 620 S.E.2d 394 (2005) (decided under former O.C.G.A. § 24-2-3).

- Evidence that the victim was molested by her stepfather would not have diminished evidence that defendant molested the victim; therefore, application of the former rape shield statute did not deny him a fair trial. Rouse v. State, 204 Ga. App. 845, 420 S.E.2d 779, cert. denied, 204 Ga. App. 922, 420 S.E.2d 779 (1992) (decided under former O.C.G.A. § 24-2-3).

- Defense counsel was properly prohibited from asking the 11-year-old victim on cross-examination whether she had previously accused the defendant, her stepfather, of molesting her. Allen v. State, 210 Ga. App. 447, 436 S.E.2d 559 (1993), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-2-3).

- Limitation on cross-examination of an alleged child molestation victim, precluding examination of whether she was dating an older man, did not preclude questioning whether she had a motive to fabricate the allegations due to conflicts with defendant over parental discipline. Nixon v. State, 234 Ga. App. 797, 507 S.E.2d 833 (1998) (decided under former O.C.G.A. § 24-2-3).

- Since the defendant was convicted of incest and child molestation, the trial court erred in disallowing the defendant to introduce medical evidence of a sexually transmitted disease for which the victim had tested positive for the purpose of corroborating defendant's defense, not for the purpose of exploring the victim's past or other sexual behavior. Chambers v. State, 205 Ga. App. 78, 421 S.E.2d 326 (1992), appeal after remand, 213 Ga. App. 284, 444 S.E.2d 833, 1994 Ga. App. LEXIS 583 (1994), appeal after remand, 216 Ga. App. 361, 454 S.E.2d 567, 1995 Ga. App. LEXIS 127 (1995), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019) (decided under former O.C.G.A. § 24-2-3).

- In a prosecution for child molestation and incest, the defendant was properly precluded from questioning the victim about her alleged promiscuity. Walker v. State, 234 Ga. App. 40, 506 S.E.2d 179 (1998) (decided under former O.C.G.A. § 24-2-3).

Because evidence of the victim's disease was inadmissible under former O.C.G.A. § 24-2-3(a), trial counsel's performance could not be considered deficient based on a failure to contest the receipt of the medical information; thus, an order granting defendant's petition for a writ of habeas corpus was reversed because even if counsel had requested a continuance for the purpose of testing the defendant, no reasonable likelihood existed that the outcome of the trial would have been different, and in fact, a negative result for defendant at the time of trial would not have established the medical condition at the time of the crimes, or rule out the possibility that the defendant had molested the victim. Murrell v. Ricks, 280 Ga. 427, 627 S.E.2d 546 (2006) (decided under former O.C.G.A. § 24-2-3).

- Trial court abused the court's discretion in excluding evidence that a child molestation victim had been having sex with her boyfriend because the evidence would provide an alternate explanation as to why the victim's hymen had been penetrated, and absent the evidence of the sexual relationship with the boyfriend, the obvious inference was that the defendant had caused the penetration injuries; the state decided to present evidence of the penetration damage to the victim's hymen, and it was the state's affirmative act of "opening the door" to the area that required the trial court to allow the defendant to present evidence that someone other than the defendant caused the injury. Tidwell v. State, 306 Ga. App. 307, 701 S.E.2d 920 (2010), overruled on other grounds, White v. State, 305 Ga. 111, 823 S.E.2d 794, 2019 Ga. LEXIS 66 (2019) (decided under former O.C.G.A. § 24-2-3).

- Former O.C.G.A. § 24-2-3 did not bar the introduction of victim's prior alleged molestations to show that someone other than defendant caused the injuries to the two victims. Lemacks v. State, 207 Ga. App. 160, 427 S.E.2d 536 (1993) (decided under former O.C.G.A. § 24-2-3).

- Trial court did not err in limiting inquiry into a child victim's alleged viewing of the victim's brother's pornographic materials because there was no showing of relevance when the victim denied seeing the movies and did not use words of a sexual nature that normally would not be in the victim's vocabulary. Montgomery v. State, 277 Ga. App. 142, 625 S.E.2d 529 (2006) (decided under former O.C.G.A. § 24-2-3).

In the absence of a showing of relevance, evidence of a sexual molestation victim's exposure to sexually explicit photographs or sexually explicit conversation was wholly irrelevant to the issue of whether the defendant committed the acts alleged by the victim, and was thus properly excluded by the trial court pursuant to former O.C.G.A. § 24-2-3(a). Walker v. State, 308 Ga. App. 176, 707 S.E.2d 122 (2011) (decided under former O.C.G.A. § 24-2-3).

- Trial court did not err in refusing to allow the offered testimony regarding other sexual assaults upon the victim after defendant failed to offer proof that the victim's stepfather was also infected with gonorrhea. Any evidence of the victim's sexual activity with her stepfather would have shed no light on the origin of the victim's sexually transmitted disease. Rouse v. State, 204 Ga. App. 845, 420 S.E.2d 779, cert. denied, 204 Ga. App. 922, 420 S.E.2d 779 (1992) (decided under former O.C.G.A. § 24-2-3).

- Trial court did not plainly err in charging the jury that a child under the age of 16 years could not consent to sexual intercourse. Algren v. State, 330 Ga. App. 1, 764 S.E.2d 611 (2014).

- Although the defendant in a child molestation case should have been allowed to question one of the teenagers involved about her sexual relationship with the defendant's child because at the time of the trial, the former rape shield statute applied only to rape cases, the error was harmless; such a relationship was placed into evidence by the teenager's own statements. Krirat v. State, 286 Ga. App. 650, 649 S.E.2d 786 (2007), cert. denied, No. S07C1788, 2007 Ga. LEXIS 745 (Ga. 2007) (decided under former O.C.G.A. § 24-2-3).

Incest

Incest.

- Former rape shield statute was applicable in prosecution for incest. Estes v. State, 165 Ga. App. 453, 301 S.E.2d 504 (1983) (decided under former O.C.G.A. § 24-2-3).

- Trial court did not err by excluding evidence concerning daughter's alleged flirtation with her stepfather because the former rape shield statute bars such evidence. Murphy v. State, 195 Ga. App. 878, 395 S.E.2d 76 (1990) (decided under former O.C.G.A. § 24-2-3).

Incest was a sexual crime included within former O.C.G.A. § 24-2-3. Haynes v. State, 180 Ga. App. 202, 349 S.E.2d 208 (1986) (decided under former O.C.G.A. § 24-2-3).

In the defendant's trial for rape, incest, and aggravated child molestation of the defendant's daughter over a period of years, the trial court did not err in excluding evidence of a sexual incident between the victim and the victim's older brother because the evidence did not come within the exception to the Rape Shield Statute, O.C.G.A. § 24-4-412; the evidence was not admissible to show that the older brother's testimony was biased. Torres v. State, 353 Ga. App. 470, 838 S.E.2d 137 (2020).

Rape

Evidence not admissible in rape case.

- In a prosecution for rape and other offenses, the trial court properly precluded defendant from examining an officer regarding intimate photographs and letters written by the victim to her husband while he was in prison. Martin v. State, 219 Ga. App. 277, 464 S.E.2d 872 (1995) (decided under former O.C.G.A. § 24-2-3).

Victim impact statement in which the victim stated that defendant "took her virginity" was not admissible for impeachment purposes under the former rape shield statute. Fetterolf v. State, 223 Ga. App. 744, 478 S.E.2d 889 (1996) (decided under former O.C.G.A. § 24-2-3).

In a rape trial, the trial court did not err in refusing to allow defense counsel to impeach the victim with a certified copy of a misdemeanor conviction for prostitution because moral turpitude was no longer the impeachment standard. The prostitution conviction was inadmissible under former O.C.G.A. § 24-9-84.1(a)(3) (see now O.C.G.A. § 24-6-609) because the conviction did not involve an element of dishonesty or false statement, and the conviction was barred from admission by the rape shield statute because the conviction related to the victim's past sexual behavior and did not come within an exception in former O.C.G.A. § 24-2-3. Green v. State, 291 Ga. 287, 728 S.E.2d 668 (2012) (decided under former O.C.G.A. § 24-2-3).

Trial counsel was not deficient for failing to seek to introduce evidence at trial that the victim had consensual sexual intercourse with the victim's partner before the sexual assault because the defendant failed to show any prejudice resulting from the alleged deficiency as the victim identified the defendant as the victim's attacker at trial and in a show-up identification and photographic lineup before trial and unequivocally testified that the defendant forced the victim to have sexual intercourse. Lanham v. State, 345 Ga. App. 657, 813 S.E.2d 184 (2018), cert. denied, No. S18C1287, 2018 Ga. LEXIS 768 (Ga. 2018).

When the defendant was convicted of rape, the trial court did not abuse the court's discretion by refusing to allow the defendant to introduce sexually explicit photographs the victim allegedly sent to the defendant, which the defendant argued would communicate to the jury that the defendant could have assumed that the victim consented to have sex with the defendant because the defendant conceded that the photographs were sent before the defendant and the victim had ended their relationship, at least 10 months before the rape; and it was undisputed that the parties had a consensual, sexual relationship when the photographs were sent. Bryant v. State, 346 Ga. App. 176, 815 S.E.2d 596 (2018).

Evidence concerning a romantic relationship between the victim and a recused prosecuting attorney was inadmissible. Griffin v. State, 224 Ga. App. 225, 480 S.E.2d 608 (1997) (decided under former O.C.G.A. § 24-2-3).

There was no error in the trial court's refusal to allow defendant to introduce evidence of the victim's past sexual behavior to explain how her hymen became perforated. Snow v. State, 228 Ga. App. 649, 492 S.E.2d 564 (1997) (decided under former O.C.G.A. § 24-2-3).

Even though defendant obtained a pretrial order allowing him to present testimony that he and the victim had previously had consensual intercourse, his asking a nurse about the victim's statement to her about a prior act of voluntary intercourse violated the former rape shield statute since this evidence was not included in defendant's proffer. Banks v. State, 230 Ga. App. 258, 495 S.E.2d 877 (1998) (decided under former O.C.G.A. § 24-2-3).

Trial court properly excluded evidence as to the victims' past sexual behavior in defendant's rape and aggravated assault trial as defendant failed to satisfy either prong of former O.C.G.A. § 24-2-3(b) since: (1) the victims were beaten; (2) one victim testified that she was pushed to the ground and hit in the face; (3) the other victim was dragged to an abandoned yard and told repeatedly to "shut up" while being punched in the face; and (4) the victims testified that they never had sex with defendant before the night in question. Williams v. State, 257 Ga. App. 54, 570 S.E.2d 362 (2002) (decided under former O.C.G.A. § 24-2-3).

Since the victim never claimed that defendant was the father of her child, evidence of her sexual conduct was irrelevant pursuant to former O.C.G.A. § 24-2-3(b). Carson v. State, 259 Ga. App. 21, 576 S.E.2d 12 (2002), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015) (decided under former O.C.G.A. § 24-2-3).

In a prosecution for rape and sodomy, the trial court properly refused to allow the defendant to present evidence as to the victim's past conduct in which she allegedly consented to sex in exchange for drugs as defendant did not proffer any evidence to demonstrate the basis for his belief that the victim consented to his conduct. Brown v. State, 260 Ga. App. 77, 579 S.E.2d 87 (2003) (decided under former O.C.G.A. § 24-2-3).

Former rape shield statute was properly used to exclude testimony of the victim's mother and in limiting victim's cross-examination; the evidence excluded under the former rape shield statute involved the victim's sexual act with a third party and was also excludable on relevancy grounds. Abdulkadir v. State, 264 Ga. App. 805, 592 S.E.2d 433 (2003) (decided under former O.C.G.A. § 24-2-3).

Evidence of the sexual history of defendant's wife was properly excluded under the former Georgia Rape Shield Statute, former O.C.G.A. § 24-2-3, as defendant was charged with the aggravated assault of his wife in conjunction with a rape charge; trial counsel was not ineffective for failing to argue that evidence of the prior sexual history of defendant's wife was admissible. Osterhout v. State, 266 Ga. App. 319, 596 S.E.2d 766 (2004) (decided under former O.C.G.A. § 24-2-3).

Trial court properly refused to allow testimony that a victim of domestic violence had been seen working as a prostitute because that information had no relevance to the aggravated assault and false imprisonment charges for which a defendant was convicted and, further, the defendant failed to produce any evidence that could have provided a nexus between the alleged prostitution and a conclusion that someone else might have inflicted the victim's injuries. Moorer v. State, 290 Ga. App. 216, 659 S.E.2d 422 (2008) (decided under former O.C.G.A. § 24-2-3).

Trial court did not abuse the court's discretion in excluding the defendant's testimony regarding statements the victim allegedly made to the defendant because the statements were prohibited by the former Rape Shield Statute, former O.C.G.A. § 24-2-3(a), since the statements made reference to the victim's past sexual behavior by implying that the victim had sex in the past with her boyfriend and with older men; the defendant would not have reasonably believed that the victim consented to sex because there was testimony that the victim was intoxicated, in and out of consciousness, and unable to move. Turner v. State, 312 Ga. App. 315, 718 S.E.2d 545 (2011) (decided under former O.C.G.A. § 24-2-3).

Trial court did not err in refusing to allow the defendant to cross-examine his daughter, the victim's friend, about a comment she posted on a website concerning the victim because the testimony the defendant sought to elicit, that the victim had sex with other men, was the very type of evidence prohibited by the former Rape Shield Statute, former O.C.G.A. § 24-2-3(a). Turner v. State, 312 Ga. App. 315, 718 S.E.2d 545 (2011) (decided under former O.C.G.A. § 24-2-3).

- When the state also prosecuted the defendant for the rape of the victim's older sister, the rape shield statute barred the evidence sought by the defendant because the evidence related to the past sexual behavior of the older sister and did not fall within the statutory exceptions as the past sexual behavior of the older sister having sex with boys for money did not involve the participation of the defendant and did not support an inference that the defendant reasonably believed that the older sister consented to the defendant's alleged sexual activities with the older sister. Jones v. State, 340 Ga. App. 568, 798 S.E.2d 87 (2017).

- Trial court did not err in prohibiting the defendant from seeking testimony regarding the victim's prior sexual activity because the defendant wanted to perform a fishing expedition for all possible persons who could have been the father of the victim's child and then backtrack for a motive to lie, which was the type of unfettered exploration the statute was designed to prevent. Atkins v. State, 304 Ga. 240, 818 S.E.2d 567 (2018).

- Defendant's aggravated sodomy conviction was reversed after the trial court erroneously refused to allow testimony concerning defendant's five-year relationship with the victim, a prostitute, under Georgia's former Rape Shield Statute, former O.C.G.A. § 24-2-3; the ongoing customer-prostitute relationship between the two would support a reasonable inference that defendant believed that the defendant's sexual relationship with the victim on the night in question was consensual; the evidence also had a direct bearing on the victim's motivation to fabricate the rape allegation, and therefore was admissible; defendant's proposed cross-examination of the victim was confined to the existence of an ongoing relationship between them. Ivey v. State, 264 Ga. App. 377, 590 S.E.2d 781 (2003) (decided under former O.C.G.A. § 24-2-3).

- Any evidence of physical injuries a victim received during the commission of a rape, including the condition of the hymen, was admissible, but the term "virgin" was a comment on prior sexual history and therefore not admissible. Herndon v. State, 232 Ga. App. 129, 499 S.E.2d 918 (1998) (decided under former O.C.G.A. § 24-2-3).

- Trial court properly refused to permit defendant to introduce evidence or to make inquiry about the mode of the victim's dress on the night of the rape. Alford v. State, 243 Ga. App. 212, 534 S.E.2d 81 (2000) (decided under former O.C.G.A. § 24-2-3).

- Despite defendant's contention that defendant should have been allowed to present evidence that the victim had the motive to fabricate her claim of rape in order to prevent her parents from knowing that she had become sexually active, the trial court did not abuse the court's discretion in restricting defendant's cross-examination of the victim regarding her past sexual history based on Green v. State, 221 Ga. App. 436 (1996). Lloyd v. State, 263 Ga. App. 234, 587 S.E.2d 372 (2003) (decided under former O.C.G.A. § 24-2-3).

- Failure of defense counsel to cross-examine rape victim regarding her prior sexual history was not ineffective assistance of counsel since such questioning was clearly prohibited under former O.C.G.A. § 24-2-3. Brown v. State, 225 Ga. App. 49, 483 S.E.2d 318 (1997).

- When defendant was charged with raping a victim who accepted defendant's offer of a ride as the victim was on her way to return a jacket to a former boyfriend, the former rape shield law, former O.C.G.A. § 24-2-3(a), did not prohibit defendant from inquiring of the victim about a theory that the victim fabricated the rape charge to explain semen stains on the boyfriend's jacket, resulting from the sexual encounter, because she wanted to reestablish a romantic relationship with the boyfriend because defendant was not seeking to inquire about the victim's character for sexual behavior. Richardson v. State, 276 Ga. 639, 581 S.E.2d 528 (2003) (decided under former O.C.G.A. § 24-2-3).

Trial court did not abuse the court's discretion by excluding cross-examination and testimony concerning a 15-year-old rape victim's alleged past sexual encounters under the former Rape Shield Statute, former O.C.G.A. § 24-2-3, despite the defendants' claims that the victim fabricated her story in retaliation for the defendant telling her mother that she was sexually active. McIntyre v. State, 311 Ga. App. 173, 715 S.E.2d 431 (2011) (decided under former O.C.G.A. § 24-2-3).

Former O.C.G.A. § 24-2-3 applied by the former statute's terms to any prosecution for rape, making no distinction between the different phases of the trial. Singleton v. State, 157 Ga. App. 192, 276 S.E.2d 685 (1981) (decided under Ga. L. 1976, p. 741, § 1).

- Although the former rape shield statute was applicable by the statute's terms to rape cases, logic and the intent of the former statute showed that it should be equally applicable in statutory rape cases, except that the exceptions in the former statute relating to consent and the accused's prior participation would be inapplicable in statutory rape cases. Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 (1979) (decided under Ga. L. 1976, p. 741, § 1); Hill v. State, 159 Ga. App. 489, 283 S.E.2d 703 (1981); Brown v. State, 173 Ga. App. 640, 327 S.E.2d 515 (1985) (decided under Ga. L. 1976, p. 741, § 1);(decided under former O.C.G.A. § 24-2-3).

In a prosecution for statutory rape, evidence of sexual intercourse between the victim and other individuals was properly excluded under former O.C.G.A. § 24-2-3; in the absence of any indication that the prior acts of sexual intercourse were forcibly accomplished, evidence of sexual intercourse with others would relate to past sexual behavior and reflect upon the character of the victim. Berry v. State, 210 Ga. App. 789, 437 S.E.2d 630 (1993), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019) (decided under former O.C.G.A. § 24-2-3).

- Former O.C.G.A. § 24-2-3 permitted introduction of evidence of other sexual activity of the complaining witness only if such behavior involved the defendant or if such evidence supported an inference that the defendant reasonably believed the complaining witness would have consented to his actions. Rouse v. State, 204 Ga. App. 845, 420 S.E.2d 779, cert. denied, 204 Ga. App. 922, 420 S.E.2d 779 (1992) (decided under former O.C.G.A. § 24-2-3).

Evidence that victim had contracted gonorrhea three months before she was raped, that she wore sexually suggestive clothing and acted promiscuously when she frequented nightclubs, and that she demanded money from another man threatening to claim that he raped her was properly ruled inadmissible. Ford v. State, 189 Ga. App. 395, 376 S.E.2d 418 (1988) (decided under former O.C.G.A. § 24-2-3).

- Former rape shield statute applied to victim's statements to defendant about her having had sexual relations with black men and having had children by these men which defendant sought to introduce as evidence that defendant believed the victim consented to have sex with him. Logan v. State, 212 Ga. App. 734, 442 S.E.2d 883 (1994) (decided under former O.C.G.A. § 24-2-3).

- In a case decided under former O.C.G.A. § 24-2-3, the trial court did not err in granting the state's motion in limine to exclude evidence that the defendant and the victim had a prior sexual relationship as there was no way, given the circumstances of the episode, that the defendant reasonably believed the victim consented to sexual intercourse, even if the victim had previously done so. Johnson v. State, 322 Ga. App. 612, 744 S.E.2d 903 (2013)(decided under former O.C.G.A. § 24-2-3).

- Since the defendant knew the victim for only one hour before the alleged rape occurred, and since in that time, it was unlikely that the defendant discovered any past sexual activity on the part of his victim that could justify his claim that she consented to intercourse, the trial court's refusal to admit evidence as to the victim's prior sexual experience was not a denial of defendant's right to a thorough and sifting cross-examination. Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979) (decided under Ga. L. 1976, p. 741, § 1).

Proffered testimony of two young men regarding the victim's advances toward them was inadmissible in a rape case since there was no evidence of consent by the victim, nor any evidence that defendant had knowledge of the alleged conduct between the victim and the two young men. Moore v. State, 195 Ga. App. 851, 395 S.E.2d 13 (1990) (decided under former O.C.G.A. § 24-2-3).

Evidence that a victim of an attempted rape had recorded a phone-sex tape did not support an inference that the defendant could have reasonably believed that she consented to the attempted sexual intercourse. Sweeney v. State, 233 Ga. App. 862, 506 S.E.2d 150 (1998) (decided under former O.C.G.A. § 24-2-3).

Refusal to allow cross-examination of rape victim on existence of pubic hairs found on victim inconsistent with those of appellant and victim was not error. Tremble v. State, 162 Ga. App. 761, 292 S.E.2d 442 (1982) (decided under former O.C.G.A. § 24-2-3).

In rape cases, proof of prior consent without regard to identity of persons or similarity of circumstances may be admitted to allow the jury to weigh or calculate the probability of consent with respect to an entire class of "unchaste" women when the court finds that the evidence supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of. Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981) (decided under Ga. L. 1976, p. 741, § 1).

State's introduction of evidence that victims contracted gonorrhea after rape and that defendant had gonorrhea during time in question did not authorize defendant to question victims concerning their prior sexual conduct. McNeese v. State, 170 Ga. App. 118, 316 S.E.2d 564 (1984) (decided under former O.C.G.A. § 24-2-3).

Sexual Battery

No application in sexual battery cases.

- Trial court did not err in refusing to charge the jury that it could consider the victim's character in determining whether the sexual contact with defendant was consensual or against the victim's will since the former rape shield statute, former O.C.G.A. § 24-2-3, on which defendant relied in arguing for the instruction, did not apply directly to sexual offenses such as sexual battery or aggravated sexual battery, and also because there was no evidence of any past sexual behavior between defendant and the victim. Stinson v. State, 256 Ga. App. 902, 569 S.E.2d 858 (2002) (decided under former O.C.G.A. § 24-2-3).

- Trial court correctly granted the state's motion in limine to exclude evidence concerning the sexual assault victim having had consensual sex with her boyfriend before defendant sexually assaulted her because the former Georgia rape shield statute, former O.C.G.A. § 24-2-3, barred the sexual assault victim's prior sexual history as having any relevance to defendant's intent at the time of his sexual assault on the victim. Bing v. State, 256 Ga. App. 88, 567 S.E.2d 731 (2002) (decided under former O.C.G.A. § 24-2-3).

Former O.C.G.A. § 24-2-3 was applicable to prosecutions for aggravated assault with intent to rape, and trial court did not err in sustaining the state's objection to defense counsel's questions concerning the prosecutors' previous sexual conduct. Blount v. State, 172 Ga. App. 120, 322 S.E.2d 323 (1984) (decided under former O.C.G.A. § 24-2-3).

Sodomy

Evidence not admissible in sodomy case.

- Evidence of any previous consensual homosexual fantasies the victim may have had was not admissible because it would in no way support an inference that the accused could have reasonably believed that the victim consented to the conduct complained of in the prosecution, which included armed robbery and kidnapping, as well as non-consensual aggravated sodomy at knife point. Rogers v. State, 247 Ga. App. 219, 543 S.E.2d 81 (2000) (decided under former O.C.G.A. § 24-2-3).

In a prosecution for aggravated sodomy, even though the former rape shield statute did not apply, evidence of the victim's sexual behavior with persons other than the defendant was properly excluded as not relevant since the defendant's defense was that he was not there, rather than that the victim had consented. Mobley v. State, 212 Ga. App. 293, 441 S.E.2d 780 (1994) (decided under former O.C.G.A. § 24-2-3).

- Trial court did not abuse the court's discretion in excluding evidence of a rape victim's alleged past sexual behavior with defendant as the evidence of alleged prior sexual encounters with the victim did not lead to an inference of consent since the evidence established that defendant could not have reasonably believed that the victim consented to the sodomy and intercourse at issue based on defendant brandishing a gun and threatening to shoot the victim's friend and the victim if the victim did not comply with defendant's demands for sex. Jennings v. State, 292 Ga. App. 149, 664 S.E.2d 248 (2008) (decided under former O.C.G.A. § 24-2-3).

Procedure

Defense must notify court of need for in camera hearing.

- Before a trial court can be faulted for refusing an in camera hearing as provided for by former O.C.G.A. § 24-2-3, the court must be placed on notice as to the intent of the defense to seek to introduce such evidence, and the defense must specifically notify the court of the need for an in camera hearing for its offer of proof. Tucker v. State, 173 Ga. App. 742, 327 S.E.2d 852 (1985) (decided under former O.C.G.A. § 24-2-3); Evans v. State, 180 Ga. App. 1, 348 S.E.2d 561 (1986);(decided under former O.C.G.A. § 24-2-3).

Defendant was not entitled to an in camera hearing on defendant's offer of proof of the victim's past sexual behavior when the defendant later testified before the jury that the defendant had consensual sex with the victim and the defendant never made a proffer of anticipated testimony of an independent witness who would testify that the witness saw the consensual sex. Nelson v. State, 210 Ga. App. 249, 435 S.E.2d 750 (1993) (decided under former O.C.G.A. § 24-2-3).

- Since the victim is not the defendant, the court does not consider any prejudice to her that admission of sexual history evidence may allow as against its probative value; nor is she provided any right of appeal against a finding of admissibility. Once the pertinence of a woman's lack of chastity, and hence its admissibility, is determined at the in camera inspection, this character trait may be proved. Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981) (decided under Ga. L. 1976, p. 741, § 1).

Retrial

Reprosecution not barred when evidence inappropriately introduced.

- Defendant's introduction of evidence that was prohibited by the former rape shield statute gave the court grounds to find manifest necessity for a mistrial; therefore, state and federal double jeopardy provisions did not bar reprosecution. Banks v. State, 230 Ga. App. 258, 495 S.E.2d 877 (1998) (decided under former O.C.G.A. § 24-2-3).

Trial court did not err in denying a defendant's plea in bar of former jeopardy with regard to kidnapping, rape, and other charges for alleged crimes committed against the defendant's estranged wife as defense counsel violated the former Rape Shield Statute, former O.C.G.A. § 24-2-3, in questioning the defendant's spouse as to how often the spouse had engaged in sexual intercourse after the alleged rape, which entitled the state to a mistrial. The defendant did not have the right to force the state either to endure a prejudiced trial or forego prosecution entirely. Birdsong v. State, 298 Ga. App. 322, 680 S.E.2d 159 (2009) (decided under former O.C.G.A. § 24-2-3).

- Trial judge did not abuse the judge's discretion in determining that declaration of a mistrial was required because prejudicial and inadmissible matter injected by the defense in violation of former O.C.G.A. § 24-2-3 made it impossible for an impartial verdict to be reached, and retrial of defendant was not barred by the double jeopardy clause of the Fifth Amendment. Abdi v. State, 249 Ga. 827, 294 S.E.2d 506 (1982), cert. denied, 471 U.S. 1006, 105 S. Ct. 1871, 85 L. Ed. 2d 164 (1985) (decided under former O.C.G.A. § 24-2-3).

Declaration of a mistrial by the trial judge, on the judge's own motion, in a rape prosecution, following the cross-examination of the alleged victim, which culminated in a question by defense counsel concerning the past sexual behavior of the witness, a violation of former O.C.G.A. § 24-2-3 that was "highly improper" and prejudicial, was proper and did not bar a second trial of the defendant for the alleged offense. Abdi v. Georgia, 744 F.2d 1500 (11th Cir. 1984), cert. denied, 471 U.S. 1006, 105 S. Ct. 1871, 85 L. Ed. 2d 164 (1985) (decided under former O.C.G.A. § 24-2-3).

Given the nature of the question, which violated the Rape Shield Statute, defense counsel's suggestion that the victim told the defendant that the victim was not a virgin, the prejudice to the state's case, and the trial court's careful consideration of the law, facts, and possible alternatives, the trial court did not abuse the court's broad discretion in declaring a mistrial based on defense counsel's improper questioning of the witness, and the defendant's subsequent plea in bar of former jeopardy was properly denied. Chisholm v. State, 355 Ga. App. 19, 842 S.E.2d 327 (2020).

- With regard to a defendant's conviction for child molestation as well as the trial court's denial of the defendant's motion for a new trial, the trial court did not err by limiting the defendant's cross-examination of the victim by refusing to allow the defendant to cross-examine the 11-year-old victim regarding an alleged Internet profile page that listed the victim's age as 17 years old and having an occupation as a cheerleader for a professional sports team. The victim's age was not at issue in the case nor was the fact that the victim had previously stated that the victim was a cheerleader for a professional sports team, thus, the trial court properly ruled that the defendant was merely attempting to run around the prohibition on the admission of prior bad acts and impeach the victim about an immaterial issue. Daniel v. State, 296 Ga. App. 513, 675 S.E.2d 472 (2009), cert. denied, No. S09C1192, 2009 Ga. LEXIS 326 (Ga. 2009) (decided under former O.C.G.A. § 24-2-2).

- To the extent that the alleged evidence, sought to be introduced by the defendant, concerning the general reputation and character of the victim, dealt with the victim's reputation for nonchastity, it was inadmissible at trial in a prosecution for child molestation. Lively v. State, 157 Ga. App. 419, 278 S.E.2d 67 (1981) ((decided under former Code 1933, § 38-202).

- When the defendant was charged with rape and aggravated sodomy, the Rape Shield Statute barred defense counsel's question about the victim's nonchastity because it related to the victim's past sexual behavior, and it did not fall within the single statutory exception as it did not directly involve the participation of the accused. Chisholm v. State, 355 Ga. App. 19, 842 S.E.2d 327 (2020).

Whether or not the victim was a prostitute was not relevant to the determination of who killed the victim. Bryant v. State, 249 Ga. 242, 290 S.E.2d 75 (1982) (decided under former O.C.G.A. § 24-2-2).

- Trial court did not err in granting the state's motion in limine, which sought to prevent the defendant from introducing the victim's school records in an attempt to show that the victim had disciplinary problems, since such evidence was absolutely irrelevant to any issue in the prosecution for child molestation. Lively v. State, 157 Ga. App. 419, 278 S.E.2d 67 (1981) (decided under former Code 1933, § 38-202).

- Because making a bomb threat did not unambiguously reflect on a child victim's credibility, honesty, or imagination, was not related to the victim's testimony, and was not material to the issues on trial, the trial court did not abuse the court's discretion in refusing to allow the defense to introduce the evidence under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405). Bentley v. State, 277 Ga. App. 483, 627 S.E.2d 61 (2006) (decided under former O.C.G.A. § 24-2-2).

- In a rape prosecution, while the prosecutor should not have been allowed to question the victim about the victim's involvement with a civic organization that helped mentally ill children, the admission of such irrelevant material did not warrant a mistrial. Brown v. State, 260 Ga. App. 77, 579 S.E.2d 87 (2003) (decided under former O.C.G.A. § 24-2-2).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29 Am. Jur. 2d, Evidence, § 368 et seq.

Alleged Victim's Commission of Prior Acts of and Reputation for Violence, 15 POF2d 167.

- 32 C.J.S., Evidence, §§ 568 et seq., 776 et seq.

- Propriety of instructions as to the significance of evidence concerning the defendant's good character as an element bearing upon the question of reasonable doubt, 10 A.L.R. 8; 68 A.L.R. 1068.

Cross-examination as to sexual morality for purpose of affecting credibility of witness, 65 A.L.R. 410.

Admissibility in rape cases of evidence of previous unchastity, or reputation for unchastity, of prosecutrix, 140 A.L.R. 364.

Admissibility of evidence of complaint or details of complaint by alleged victim of rape or other similar offense as affected by fact that she is not a witness or an incompetent to testify because of age or other reason, 157 A.L.R. 1359.

Admissibility and propriety, in rape prosecution, of evidence that accused is married, has children, and the like, 62 A.L.R.2d 1067.

Admissibility, in nonstatutory rape prosecution, of evidence of pregnancy of prosecutrix, 62 A.L.R.2d 1083.

Propriety of cross-examining witness as to illicit relations with defendant in criminal case, 25 A.L.R.3d 537.

Admissibility of prosecution evidence on issue of consent, that rape victim was a virgin, absent defense attack on her chastity, 35 A.L.R.3d 1452.

Propriety and prejudicial effect of prosecutor's remarks as to victim's age, family circumstances, or the like, 50 A.L.R.3d 8.

Prejudicial effect of prosecutor's reference in argument to homosexual acts or tendencies of accused which are not material to his commission of offense charged, 54 A.L.R.3d 897.

Modern status of admissibility, in statutory rape prosecution, of complainant's prior sexual acts or general reputation for unchastity, 90 A.L.R.3d 1300.

Modern status of admissibility, in forcible rape prosecution, of complainant's prior sexual acts, 94 A.L.R.3d 257.

Modern status of admissibility, in forcible rape prosecution, of complainant's general reputation for unchastity, 95 A.L.R.3d 1181.

Constitutionality of "rape shield" statute restricting use of evidence of victim's sexual experiences, 1 A.L.R.4th 283.

Modern status of rule regarding necessity for corroboration of victim's testimony in prosecution for sexual offense, 31 A.L.R.4th 120.

Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution, 45 A.L.R.4th 310.

Impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that prosecuting witness threatened to make similar charges against other persons, 71 A.L.R.4th 448.

Impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that similar charges were made against other persons, 71 A.L.R.4th 469.

Admissibility in prosecution for sex offense of evidence of victim's sexual activity after the offense, 81 A.L.R.4th 1076.

Admissibility of evidence that juvenile prosecuting witness in sex offense case had prior sexual experience for purposes of showing alternative source of child's ability to describe sex acts, 83 A.L.R.4th 685.

Admissibility in civil case, under Rule 412 of Federal Rules of Evidence, of evidence of victim's past sexual behavior, 12 A.L.R. Fed. 3d 6.

Admissibility in criminal case, under Rule 412 of Federal Rules of Evidence, of evidence of victim's past sexual behavior, 15 A.L.R. Fed. 3d 1.