The Georgia Supreme Court recently held in White v. State that the Rape Shield Statute may be invoked by the defense to exclude evidence of prior sexual conduct of the alleged victim that the State wishes to introduce at trial. In this case, the State sought to introduce evidence that the alleged child victim was engaging in sexual acts with her stepsisters following the alleged abuse by the defendant. The State wished to show that such behavior was consistent with a child who has been sexually abused. The Court held that such evidence would not be admissible under the Rape Shield Statute.
The case had previously been decided by the Georgia Court of Appeals which held that Georgia’s Rape Shield Statute could not be used by a defendant to prevent an alleged victim from offering evidence of his/her own sexual conduct. The Supreme Court granted certiorari and ruled that evidence of an alleged victim’s past sexual history that is prohibited by the Rape Shield Statute may not be introduced by either party.
By way of comparison, the Court noted that the Federal Rules of Evidence have an express exception that permits the introduction of evidence that would otherwise be excluded by the rape shield statute “if offered by the prosecutor.” It would not be surprising if the Georgia legislature responds by amending the statute to include a similar exception.
While this appeared to be a favorable ruling for the defense, it was not for several reasons. First, the Court affirmed the defendant’s conviction finding that the error concerning the admission of this evidence did not constitute plain error as it likely did not affect the outcome of the trial.
The Court then overruled years of Georgia appellate decisions which had permitted the introduction of evidence of an alleged victim’s prior sexual conduct when it was relevant to refute a critical issue in the case. For instance, evidence concerning prior sexual conduct of an alleged victim was traditionally admissible to show other possible causes of a child’s behavioral symptoms or a sexually transmitted disease.
Moreover, the Court made no mention of its prior ruling in Villafranco v. State where it held that the Rape Shield Statute does not apply where the evidence is being used to impeach the testimony of the alleged victim. In Villafranco, the Supreme Court reasoned that “[t]here is no justification for letting the witness affirmatively resort to perjurious testimony in reliance on the defendant’s disability to challenge her credibility…The shield provided by this law should not be perverted into a license to use questionable or possibly perjurious testimony free from the risk of adverse confrontation.”
The Court also made no mention of its decision in State v. Smith where it stated that evidentiary rules “must yield to the defendant’s right of confrontation and right to present a full defense.” The only clue offered is in a footnote where it noted that “we offer no opinion about the circumstances under which O.C.G.A. § 24-4-412 would have to yield to due process concerns with respect to the exclusion of evidence of a victim’s past sexual behavior in a criminal defendant’s trial.”
We will soon find out whether the Supreme Court will overrule the admissibility of evidence concerning prior false allegations made by an alleged victim. Just recently, in Burns v. State, the Court granted certiorari to determine whether evidence that the alleged victim made a prior false allegation of sexual abuse was still admissible under the new rules of evidence. If it overturns those decisions, which have been the law in Georgia for 30 years, it will essentially deprive defendants falsely accused of sexual offenses in Georgia of the ability to show that an alleged victim had a pattern of making similar false claims against others.
As of now, all the Court is saying is: “We also offer no opinion in this case on the question whether the admissibility of a victim’s prior false accusation of alleged sexual misconduct may or may not be impacted by the Rape Shield Statute.”
Clearly, that opinion is forthcoming and we will be following it very closely.