Colorado’s Rape Shield law is a tool used by the prosecution to prevent defendants from presenting a complete defense to certain charges which could put them in prison for the rest of their lives.
By way of brief background, in 2014, the Colorado General Assembly passed C.R.S. 18-3-407 (Colorado’s Rape Shield Law), titled “victim’s and witness’s prior history – evidentiary hearing – victim’s identity – protective order.” This law limits defendants’ ability to use victims’ or witnesses’ prior acts of sexual conduct to question their credibility trial.
The most recent version of Colorado’s Rape Shield Law went into effect on July 1, 2014. Below is a summary of the Rape Shield Statute as it appears in Colorado Criminal Statute 18-3-407
WHAT IS THE PURSPOSE OF COLORADO’S RAPE SHIELD LAW?
When the Colorado legislature passed the Rape Shield statute, it declared it would prevent defendants from using rape shield evidence as a means of inflicting emotional or psychological abuse on victims as a punishment for their cooperation in prosecuting a criminal case. People v. McKenna, 585 P.2d 275 (Colo. 1978).
The basic purpose C.R.S. 18-3-407 is to provide rape victims more protection from humiliating and embarrassing “fishing expeditions” into their sexual history overcome their reluctance to participate in criminal prosecutions.
WHAT EVIDENCE CAN I INTRODUCE AT TRIAL?
The Rape Shield statute permits a defendant to introduce evidence of his prior sexual conduct with the victim or witness. This type of evidence could include the fact that he dated the victim or hooked up with her at a party. The sexual conduct can have occurred years in the past.
Colorado’s Rape Shield statute permits the introduction of evidence to prove a defendant was not the source of the semen found on or inside of the victim. Because DNA evidence is generally obtained in sexual assault cases, the ability to argue that the semen found inside the victim was not the defendant’s is a critical defense.
Other evidence, like previous false allegations of rape made by the victim, is admissible with permission from the Court. Colorado’s Rape Shield Law is confusing and complicated. If you are charged with a sex crime, you should hire an attorney immediately.
WHAT KIND OF EVIDENCE IS ADMISSIBLE?
Evidence of a victim’s or witness’ prior sexual history is admissible in the following exceptional circumstances:
A defendant may admit evidence of his own sexual history with a victim or witness; and
A defendant may admit evidence that a victim or witness had sex with someone else to contest that he was the source of semen, disease, or pregnancy of the victim.
HOW DO I INTRODUCE EVIDENCE UNDER COLORADO’S RAPE SHIELD STATUTE?
A defendant seeking to introduce Rape Shield evidence must comply with the following rules:
A written motion at least 35 days prior to trial. This motion must advise the court why the evidence is relevant and material to his case.
The defendant must attach a sworn statement to the motion which summarizes the evidence.
The court must decide whether it will admit the Rape Shield evidence and whether it will hold a hearing to let the parties argue about whether to admit the rape shield evidence.
If the court holds a hearing, it must occur in chambers and prior to trial.
The court can require the victim to testify at this hearing and it can listen to additional evidence.
If the defendant discovers rape shield evidence at trial, the court can conduct an evidentiary hearing at that time.
The court will tell the parties how and when to introduce it.
The court will seal every document filed in cases. The court will only unseal documents if the evidence is admissible and the case proceeds to trial.
The court must seal transcripts and recordings of any hearings. It may only unseal them if the case proceeds to trial.
