2021 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

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.