2022 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.

History. 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).

Editor’s notes.

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.

Law reviews.

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).