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How rape shield law works

Rohn K. Robbins/Special to the Daily

Colorado’s Rape Shield Statute may be found at Section 18-3-407 of the Colorado Revised Statutes. Title 18 encompasses the Criminal Code, Article 3 concerns “Offenses Against the Person” and Part 4 pertains to “Unlawful Sexual Behavior.” Specifically, section 407 is entitled “Victim’s and witness’ prior history – evidentiary hearing.”

First a few terms. At the outset, what does the word “evidentiary” mean. As you might surmise, the term derives from the word “evidence.”

While “evidence” has a common-sense meaning, and is generally understood by lay persons (that is, non-lawyers), the legal significance of the term “evidence” is somewhat different.



At law, “evidence” really has two meanings. The first is the common-sense one. That is, a species of proof – something tending to prove a proposition at stake in the litigation. Its more subtle meaning, however, is that proof (testimony, writings, materials or other things) which may be “presented” at trial of an issue.

In Colorado, as in all states, and in the federal courts, there are statutory rules of evidence. The Colorado Rules of Evidence, under which the Bryant case will proceed, “govern proceedings in all courts in the State of Colorado …” including criminal proceedings. These rules spell out what evidence may be presented at trail, what evidence may not be presented, and, in some instances, how evidence such evidence be presented at the trial of a matter.



A “hearing” is a formal proceeding before the court with definite issues of fact or of law to be tried and where witnesses may be heard. In may respects, a “hearing” is much like a trial and it may terminate with a final order from the court disposing of the matter in controversy.

The Colorado Rape Shield Statute provides, in relevant part, that evidence of specific instances of the victim’s or a witness’ prior or subsequent sexual conduct, as well as reputation evidence of the victim’s or a witness’ sexual conduct, shall be presumed to be irrelevant except in specifically identified circumstances. Irrelevant evidence is not admissible.

The exceptions to this blanket exclusion are: 1) evidence of the victim’s or witness’ prior or subsequent sexual conduct with the actor (that is, the accused); and, 2) evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual relations offered to show that the act or acts charged were not committed by the defendant. In these two narrow instances, evidence of the victim’s or witness’ sexual conduct and/or reputation is considered to be relevant and is, therefore, admissible.



If the above exceptions do not apply, the defendant may, by written motion to the court presented at least 30 days before trial, make an “offer of proof” of the relevancy and materiality of evidence of the victim’s or witness’ sexual conduct or sexual reputation, or that the victim or witness has a history of false reporting of sexual assault.

In other words, the defendant can try to overcome the presumption of irrelevancy by showing why, in this particular circumstance, evidence of this victim’s or this witness’ sexual conduct, reputation or history of false reporting should be permitted to be heard. The written motion must be accompanied by an affidavit in which the offer of proof shall be stated.

An “affidavit” is a written declaration of facts, sworn under oath by someone with the capacity and authority to know about the thing to be proved. An “offer of proof” is a somewhat more complex concept.

Generally, an “offer of proof” occurs as follows: At trial or at hearing, when an objection to a question has been sustained by the court, the party aggrieved (that is, the one against whom the objection has been sustained), may indicate for the record (out of the presence of the jury) the answer which would have been given had the question not been excluded.

In the instance of the Rape Shield Statute, since there is a presumption that the evidence will be excluded at hearing unless it qualifies under one of the exceptions, the evidence that is presumed to be irrelevant may be presented to the court by way of an offer of proof before the hearing begins in an attempt to convince the court that in this particular instance, the evidence is, in fact, relevant.

If the court finds the offer of proof to be sufficient, the court must notify the other party and set a hearing to be held in camera prior to trial. “In camera” means in the judge’s chambers; that is, not in the courtroom, not in a public proceeding.

At the in camera proceeding, the court shall allow questioning of the victim or witness regarding the offer of proof and shall allow a full presentation of the offer of proof including presentation of witnesses.

At the conclusion of the hearing, if the court finds the evidence proposed to be offered relevant to a material issue in the case, the court shall order that the evidence may be introduced and may prescribe the nature of the evidence or questions to be presented. The moving party may then offer evidence at hearing pursuant to the order of the court.

The Colorado Rape Shield Statute is largely protective of the alleged victim of a sexual assault, but it is not absolute.

The protection involves only shielding of the victim’s or witness’ sexual conduct and/or reputation and even then, under some circumstances, those matters may be presented as evidence before the court.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. He can be reached at 926-4461 or at his e-mail address: robbins@colorado.net


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