(a) Rape Shield. Except as otherwise provided, evidence of the reputation or specific instances of a victim’s sexual conduct shall not be admissible in any criminal or civil proceeding involving alleged sexual misconduct.
(b) Exceptions. The following specific act evidence may be admissible:
(1) evidence of the victim’s sexual conduct with the defendant;
(2) evidence of the victim’s recent conduct alleged to be the cause of any physical feature, characteristic, or condition of the victim; and
(3) evidence the exclusion of which would violate the constitutional rights of the defendant.
(c) Procedure to Determine Admissibility. Evidence under Subsection (b) is admissible only after an in camera hearing on a written motion for admission of same and an offer of proof. If, after the hearing, the court finds that the weight and relevancy of the evidence is sufficient to outweigh its prejudicial effect to the victim, the evidence shall be admitted; otherwise the evidence will not be admitted. If the proceeding is a jury trial, said hearing shall be held in the absence of the jury. The court’s finding shall be in writing and filed but shall not be made available to the jury.
Subsection (a). This subsection is derived from G. L. c. 233, § 21B, and Commonwealth v. Domaingue, 397 Mass. 693, 696–700, 493 N.E.2d 841, 844–846 (1986). Evidence of a victim’s sexual conduct cannot be introduced at a trial for any of the crimes on this nonexhaustive list: G. L. c. 265, §§ 13B, 13F, 13H, 22, 22A, 23, 24, and 24B, and G. L. c. 272, § 29A. Evidence in the form of reputation or opinion is not admissible to prove the complainant’s reputation for unchastity. See Commonwealth v. Joyce, 382 Mass. 222, 227–228, 415 N.E.2d 181, 185–186 (1981) (the rape-shield statute “reverses the common law rule under which evidence of the complainant’s general reputation for unchastity was admissible” [citation omitted]). Note that the cases use the terms “victim” and “complainant” interchangeably.
“The rape-shield statute is principally designed to prevent defense counsel from eliciting evidence of the victim’s promiscuity as part of a general credibility attack.” Commonwealth v. Fitzgerald, 412 Mass. 516, 523, 590 N.E.2d 1151, 1155 (1992). “The policy rationale for this law is that evidence of the victim’s prior sexual conduct might divert attention from the alleged criminal acts of the defendant, inappropriately putting the victim on trial” (citations omitted). Commonwealth v. Houston, 430 Mass. 616, 621, 722 N.E.2d 942, 945 (2000). In Commonwealth v. Parent, 465 Mass. 395, 404–405, 989 N.E.2d 426, 434–435 (2013), the Supreme Judicial Court held that the trial judge did not abuse her discretion in ruling that a witness who overheard the victim speaking on a cell phone could testify that the victim invited a boy to visit her on the evening of the alleged sexual assault but would not be permitted to testify that the victim was overheard promising to engage in oral sex.
Subsection (b)(1). This subsection is taken nearly verbatim from G. L. c. 233, § 21B. The complainant’s prior sexual activity with the defendant may be relevant to the issue of consent, particularly to show the complainant’s emotion to that particular defendant. Commonwealth v. Grieco, 386 Mass. 484, 488, 436 N.E.2d 167, 170 (1982). Cf. Commonwealth v. Fionda, 33 Mass. App. Ct. 316, 321–322, 599 N.E.2d 635, 638–639 (1992) (provocative conversation and kissing on prior occasion not probative of consent to intercourse on later occasion).
Subsection (b)(2). This subsection is taken nearly verbatim from G. L. c. 233, § 21B. Prior acts with another person may be relevant to establishing an alternative cause for the complainant’s physical condition. See, e.g., Commonwealth v. Fitzgerald, 402 Mass. 517, 521–522, 524 N.E.2d 72, 74–75 (1988), S.C., 412 Mass. 516, 521–525, 590 N.E.2d 1151, 1154–1156 (1992) (presence of sperm where defendant underwent a vasectomy); Commonwealth v. Cardoza, 29 Mass. App. Ct. 645, 648–649, 563 N.E.2d 1384, 1386 (1990) (presence of foreign pubic hair not belonging to defendant should have been admitted).
Subsection (b)(3). This subsection is derived from Commonwealth v. Joyce, 382 Mass. 222, 227–229, 415 N.E.2d 181, 185–186 (1981). The Supreme Judicial Court has stated that
“[a] defendant’s constitutional right to put forth his full defense outweighs the interests underlying the rape-shield statute, however, only if he shows that the theory under which he proceeds is based on more than vague hope or mere speculation, and he may not engage in an unbounded and freewheeling cross-examination in which the jury are invited to indulge in conjecture and supposition” (quotations and citations omitted).
Commonwealth v. Thevenin, 33 Mass. App. Ct. 588, 592–593, 603 N.E.2d 222, 226 (1992).
“Where evidence of bias is available by other means, no evidence of the complainant’s prior sexual history should be admitted.” Commonwealth v. Gagnon, 45 Mass. App. Ct. 584, 589, 699 N.E.2d 1260, 1264 (1998). See also Commonwealth v. Pyne, 35 Mass. App. Ct. 36, 38, 616 N.E.2d 470, 471 (1993), citing Commonwealth v. Elder, 389 Mass. 743, 751 nn.11–12, 452 N.E.2d 1104, 1110 nn.11–12 (1983). Cf. Commonwealth v. Stockhammer, 409 Mass. 867, 875, 570 N.E.2d 992, 998 (1991) (specific act evidence may be used to demonstrate the complainant’s bias or motive to fabricate). Evidence may be used to show that the complainant made prior false allegations of rape or abuse. See Commonwealth v. Bohannon, 376 Mass. 90, 94–95, 378 N.E.2d 987, 991 (1978) (evidence admissible where witness was the complainant at trial, consent was central issue, complainant’s testimony was inconsistent and confused, and there was independent basis for concluding that prior allegations were false). Cf. Commonwealth v. Talbot, 444 Mass. 586, 590–591, 830 N.E.2d 177, 181 (2005); Commonwealth v. Blair, 21 Mass. App. Ct. 625, 626–629, 488 N.E.2d 1200, 1201–1203 (1986). A defendant may introduce evidence that a complainant has been subjected to past sexual abuse to explain the complainant’s inappropriate knowledge of sexual matters. See Commonwealth v. Ruffen, 399 Mass. 811, 814–817, 507 N.E.2d 684, 687–688 (1987). See also Commonwealth v. Beaudry, 445 Mass. 577, 580–586, 839 N.E.2d 298, 302–305 (2005). A trial judge has discretion to admit evidence of a complainant’s prior conviction for a sexual offense, but must take into consideration the objectives of the rape-shield statute. See Commonwealth v. Harris, 443 Mass. 714, 723–728, 825 N.E.2d 58, 66–69 (2005) (harmonizing G. L. c. 233, §§ 21 and 21B). “The judge must determine whether the weight and relevance of the proffered evidence of bias or motive to lie is sufficient to outweigh its prejudicial effect to the victim” (citation omitted). Commonwealth v. Noj, 76 Mass. App. Ct. 194, 198–199, 920 N.E.2d 894, 897–898 (2010) (in a prosecution for rape, trial judge properly exercised discretion to exclude victim’s three prior convictions for prostitution because the marginal relevance of the evidence to the defendant’s theory of fabrication was not sufficient to outweigh its prejudicial effect on the jury, which might misuse the evidence to minimize the effect of a sexual assault on a prostitute who also was a drug user and an alcoholic).
Conversely, “[i]n the exercise of this discretion a trial judge should consider the important policies underlying the rape-shield statute. He should exclude evidence of specific instances of a complainant’s sexual conduct in so far [sic] as that is possible without unduly infringing upon the defendant’s right to show bias.” Commonwealth v. Joyce, 382 Mass. at 231, 415 N.E.2d at 188.
Subsection (c). This subsection is derived from G. L. c. 233, § 21B, and Commonwealth v. Harris, 443 Mass. 714, 721, 825 N.E.2d 58, 64–65 (2005). See Commonwealth v. Cortez, 438 Mass. 123, 129–130, 777 N.E.2d 1254, 1259–1260 (2002); Commonwealth v. Joyce, 382 Mass. 222, 232–233, 415 N.E.2d 181, 187 (1981) (Braucher, J., concurring).
Cross-Reference: Section 403, Grounds for Excluding Relevant Evidence.