John E. DeVito, Esq., of DeVito and Visconti, P.A.

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Sexual Assault

Is the Sexual Past of a Complaining Witness Admissible at Trial?

In many sexual assault cases the defendant will deny the accusation or claim consent and argue that the victim was a willing participant and has a past history of willing participation with himself or others. MGLA c. 233ยง21B excludes from evidence the sexual past of a complaining witness. There are two exceptions to this rule. The first exception allows evidence to be admissible of recent conduct of a complaining witness, if that conduct relates to the cause of any physical feature, characteristic or condition such as the presence of sperm in the vagina or the complainants virginity, if she claims it, Commonwealth v. McKay, 263 Mass. 222 (1973). The simplest example is that the defendant did not have sex with the complainant, the sperm present in her was that of another.

The second exception permitting prior sexual conduct to be admitted into evidence is to demonstrate motive to lie or bias.

"Because bias is intimately related to credibility, the defendant has the right to cross-examine a prosecution witness in order to reveal bias...The principles protecting a defendant's right to cross-examination a particularly important when the charges rape, because the right to cross-examine a complainant in a rape case to show a false accusation made to be the last refuge of an innocent defendant, Commonwealth v. Stockhammer, 409 Mass. 867 (1991).

In Stockhammer,Id. the court concluded that:

"Defendant in rape trial was entitled to cross-examine the complainant on the topic of reaction of complainant's parents to knowledge that complainant had been sexually active with her boyfriend, where complainant's credibility was of critical importance, and defense counsel intended to elicit from complainant that her parents strongly disapproved of premarital sex and that complainant was afraid of how parents would react to knowledge that she was sexually active, and thus that complainant was motivated to lie about being raped to prevent her parents from learning that she was sexually active."

Sexual assault cases involve complicated fact patterns and only an experienced lawyer will know how to maneuver through this pattern and find the appropriate way to introduce evidence beneficial to the defense. If the attorney does not convince the court that such evidence is relevant to some physical feature or characteristic of the complainant or that the complainant is biased or has a motive to lie, the evidence of prior sexual activity of the complainant will not be admissible.

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