View in searchable PDF format: 1980.11.00 – Leon Letwin – %22Unchaste Character%22 (S.CA L.Rev).OCR
=====
Raw text:
“UNCHASTE CHARACTER,” IDEOLOGY, AND
THE CALIFORNIA RAPE EVIDENCE LAWS
.. _ ;:._,
LEON LETWIN
J
Reprinted from
SOUTHERN CALIFORNIA LAW REVIEW
Volume 54, November 1980, Number 1
–·
© Copyright 1980 by the University of Southern California
…
”UNCHASTE CHARACTER,”
IDEOLOGY, AND THE
CALIFORNIA RAPE
EVIDENCE LAWS
LEON LETWIN*
Feminist critiques of the past decade have dramatically challenged
conventional ways of thinking about the crime of rape. 1 Feminists
have called attention to a set of historic attitudes toward sex, woman,
and woman’s “proper place,” which had combined to present rape as a
very special sort of crime. 2 These attitudes often encouraged a stance
of easy tolerance toward rapists, resting on beliefs that rape was only a
mildly aberrational form of normal male behavior;3 that most women
wanted to be raped; that a rape accusation was commonly the product
• Professor of Law, University of California, Los Angeles. Ph.B. 1948, University of Chicago;
LL.B. 1952, University of Wisconsin Law School; LL.M. 1968, Harvard Law School.
I wish to express my gratitude to Daniel L. Let win and to Richard A. W asserstrom for their
criticisms of drafts of this Article.
1. There is extensive and growing literature on the subject. I have found the following
sources particularly valuable and interesting: B. BABCOCK. A. FREEDMAN, E. NORTON & S. Ross,
SEX DISCRIMINATION AND THE LAW 819-77 (1975) [hereinafter cited as B. BABCOCK); S.
BROWNMILLER, AGAINST OUR WILL (1975); Berger, Man’s Trial, Woman’s Tribulation: Rape
Cases in the Courtroom, 77 CoLuM. L. Rev. I ( 1977); LeGrand, Rape and Rape Laws, Sexism in
Society and Law, 61 CALIF. L. REv. 919 (1973) (discussion of rape laws, enforcement patterns, and
an argument that those laws do not express a concern with the plight of the female victim nearly
as much as with the interests of the male perpetrator).
The following works, not necessarily written from a feminist perspective, have also proved
particularly helpful: H. KALVEN & H. ZEISEL, THE AMERICAN JURY 249-54 (1966); NATIONAL
INSTITUTE OF LAW ENFORCEMENT AND CRIM. JUST., FORCIBLE RAPE, AN ANALYSIS OF LEGAL
ISSUES (1978); NATIONAL INSTITUTE OF LAW ENFORCEMENT AND CRIM. JUST., FORCIBLE RAPE,
FINAL PROJECT REPORT (1978).
2. See generally Berger, supra note I, at 7-10.
3. An impressionist account of such belief was given by an observer as follows:
Talking to rape victims, I hear the story over and over that the rapist, afterwards, even
after raping her very brutally and maybe using a gun or knife, will ask her for a date or
even propose marriage to her. Of course, our automatic response to that is, well, these
men must be crazy. Apparently, this is not so. Rather, it is that they don’t regard this as
a criminal act. They regard it as acceptable male behavior.
Hearings on Revising Cal!fomia Laws Relating to Rape Before the Assembly Criminal Justice Comm.
and the California Comm ~ on the Status oj’ Women 119 (Oct. 18, 1973) (testimony of Camille
LeGrand) [hereinafter cited as Rape Hemings].
35
36 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
of a woman’s over-active fantasy life or a distorted expression of shame
about her voluntary sexual activity; or that rape was the more or less
ineluctable consequence of a woman’s communication of her sexual
desires, subtly or otherwise, to a hapless male.4
The focus of this Article is on one aspect of the legal system’s treatment
of rape. It does not consider whether the crime of rape is properly
defined, 5 whether accused rapists are brought to trial often enough,
whether they are punished as the facts warrant, 6 whether a predomi-
4. The jury “closely, and often harshly, scrutinizes the female complainant and is moved to
be lenient with the defendant whenever there are suggestions of contributory behavil’lr on her
part.” H. KALVEN & H. ZEISEL, supra note I, at 249. See also Berger, supra note 1, at 14-15, 21-
22.
A notable expression of this attitude came from a judge in a celebrated case in Madison,
Wisconsin involving the rape of a sixteen-year-old girl in a high school. The judge was reported
to have “expressed the view that Madison’s sexually permissive climate and the provocative clothing
worn by modern women made rape a normal reaction for a young man.” Reported in B.
BABCOCK, supra note 1, at 296 (Supp. 1978).
These underlying attitudes, ironically, on other occasions, spawned an attitude of harsh vindictiveness
toward rapists, resting on the view that the victim’s sexual purity was among her most
precious assets, so that chivalry, as well as an alert concern for the proprietary interest of her
father or husband in the victim’s purity, dictated stem punishment of the predatory male. Berger,
supra note 1, at 31 n.l90; Comment, Forcible and Statutory Rape: An Exploration of the Operation
and Objectives of the Consent Standard, 62 YALE L.J. 55, 72-73 ( 1952) (rape laws bolster “a masculine
pride in the exclusive possession of a sexual object” and help protect against any “decrease in
the •value’ of [the male’s] sexual •possession’ “).
If the treatment of the rape defendant thus varied from tolerant to harsh, often the underlying
ideology, consisting as it did largely of sexual myths, stereotypes, and double standards, remained
constant enough. When the alleged rape was the act of a black man upon a white woman, the
resulting outrage expressed not only sterotypic attitudes about womanhood but racist sentiments
of the most intense sort. The application of rape penalties to black men, particularly in the South,
was both severe and profoundly discriminatory. Of the 455 men executed for rape since 1930,405
were black. The complainants were almost without exception white. United States v. Wiley, 492
F.2d 547, 555 (D.C. Cir. 1973). Nor is this a matter of ancient history. Professor Berger cites an
unpublished discussion paper prepared for the American Civil Liberties Union to the effect that as
of March 20, 1976, 35 persons were under sentence of death on rape charges, about three-quarters
of them black. Berger, supra note I, at 4 n.20. See also Furman v. Georgia, 408 U.S. 238, 249-52
(1972) (Douglas, J. concurring); C. WRIGHT & K. GRAHAM, 23 FEDERAL PRACTICE AND PROCE·
DURE § 5382, at 517-18 nn.43 & 44 (1980).
Something of the historic attitude toward black defendants convicted of raping white women
is suggested by a case in Harris County, Texas in which a teen-age defendant was given a 1000
year sentence by a jury following a total jury deliberation of 46 minutes. The penalty was said to
be the longest ever in Harris County history. Los Angeles Times, May 28, 1972, §A., at 8, col. 1-2.
5. For a range of feminist criticisms on this score, see generally Rape Hearings. supra note
3. An issue of contemporary concern is whether a rape charge should be maintainable by a wife
against her husband. The classic view, of course, was that it could not. R. PERKINS, ON CRIMINAL
LAW 156 (2d ed. 1969). 1979 California legislation provides otherwise. 1979 Cal. Legis. Serv.
Ch. 994, at 3715 (amending various sections of the Penal Code and adding§ 262).
6. Compare Berger, supra note I, at 4-6 (contending that rape is one of the most underreported
of crimes), with Le Grand, supra note I, at 920, and 23 C. WRIGHT & K. GRAHAM, supra
note 4, § 5382, at 496-505 (suggesting the data is insufficient to support informed judgment, partie1980]
uUNCHASTE CHARACTER,, EVIDENCE 37
nantly male bench and bar is capable of responding appropriately to
the offense, 7 or whether the rape victim’s medical, psychic, and other
human needs are adequately provided for by existing institutionsthough
all of these are worthy questions.
The concern of this Article is with a small but not unimportant
issue concerning the attitude of California law toward rape as reflected
in a somewhat arcane evidentiary question: In a rape prosecution,
should the prior sexual history of the “prosecutrix”8 be admissible to
show that the rape defendant had not used force upon the complainant
and that she had in fact given her consent9-a valid defense if estabularly
in respect to the effect of rape evidence rules in reducing the number of rape prosecutions
and convictions).
7. See Berger, supra note I, at 71. It is mistaken, however, to suppose that the mere accession
of women to the bench and the bar, important as that is, will in itself produce major change.
Women, too, are often acculturated to accept the dominant social views on the subject; or they
may .. lean over backwards” to gain credibility. This attitude at least is the belief of some participants
in the trial process. For instance, a deputy public defender testified that as a representative
of the accused rapist, she would prefer to have women jurors sitting in judgment: .. [W]omen are
harder on women and male jurors are protective [of the female complainant].” Rape Hearings,
supra note 3, at 72. The judgmental attitudes of some female jurors are discussed in B. BABCOCK,
supra note I, at 828.
8. It is common usage to refer to the complainant in sex cases as the “prosecutrix.” Indeed,
the term “prosecuting witness” is defined by one law dictionary as “[t]he witness upon whose
complaint a prosecution, particularly a prosecution for rape, is begun.” BALLENTINE’s LAW DicTIONARY
1014 (3d ed. 1969) (emphasis added).
Why, of all those persons, male and female, complaining of diverse forms of criminal conduct,
should the rape complainant be thought of as a “particularly” apt example of the “prosecuting
witness”? It is not because she indeed prosecutes, for she does not. It is normal to draw a
sharp distinction between the victim, on the one hand, who complains, and the state’s attorney, on
the other, who prosecutes. One would not be likely to refer to a robbery complainant as “prosecutor”
or “prosecutrix.” But see People v. Holland, 204 Cal. App. 2d 77, 23 Cal. Rptr. 84 (1960).
Why is there an atypical usage in the rape context? Several hypotheses come to mind, each
suggesting sexist biases in the legal system. One is that the designation “prosecutrix” is meant to
signify that rape is a crime that the public prosecutor appropriately approaches in a most gingerly
fashion and only because some vindictive, angry woman has insisted on it (thereby functionally
becoming the prosecutor). See Berger, supra note I, at 21. A second hypothesis is that historically
the “prosecutrix” would not likely have been confused with the public prosecutor because the
justice system was virtually bereft of female lawyers, not to mention female prosecutors. But of
course, this latter explanation fails to explain why the uie of the term is restricted to cases involving
sex crimes.
9. Extensive literature exists on this point. Among the most useful sources are those cited
at riote I, supra. See also 23 C. WRIGHT & K. GRAHAM, supra note 4. §§ 5381-5393, at 483-640
(analyzing FED. R. EVID. 412); 22 C. WRIGHT & K. GRAHAM, supra note 4, at§ 5238, at410 n.2;
Berger, supra note I, at 12 n.83.
For discussions of the evolving California law, see Comment, A Due Process Challenge to
Restrictions on the Substantive lise of Evidence of a Rape Prosecutrix’s Prior Sexual Conduct, 9 U.
CAL. D. L. REv. 443 (1976); Note, California Rape Evidence Reform: An Analysis of Senate Bill
1678, 26 HASTINGS L.J. 1551 (1975).
38 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
lished? 10 In other words, may a defendant in a rape prosecution offer
evidence of the complainant’s prior acts of consensual, nonmarital sexual
activity, either with himself or with other men, and inquire
whether, how frequently, or under what circumstances11 she had intercourse
prior to the alleged rape? To phrase the question as it pleased
judges and defense attorneys until recently: Could the defendant offer
evidence of the complainant’s “prior unchastity”? 12
A powerful common law tradition answered this question in the
affirmative. 13 The flavor of this view is suggested in the language of a
mid-nineteenth century California case: “[l]t must be obvious to all
that there would be less probability of resistance upon the part of one
already debauched in mind and body, than there would be in the case
of a pure and chaste female.” 14 Lest anyone take this view as a relic of
a by-gone age, it should be noted that it was embodied in a standardized
California jury instruction, former CALJIC No. 10.06, which was
in vogue until just a few years ago. 15 Indeed, the view expressed in the
case law and in this instruction was endorsed by the legislature as recently
as 1965 with the adoption of the California Evidence Code. 16
10. It should not, however, be confused with an affirmative defense, since proof of nonconsent
is an indispensable part of the prosecution’s case-in-chief. CAL. PENAL CODE§ 261 (West
1970 & Supp. 1980). For a discussion of the “consent standard,” which makes the absence of
“consent” the touchstone of the notion of rape, see Comment, supra note 4.
11. See People v. Walker, 150 Cal. App. 2d 594, 600, 310 P.2d 110 (1957).
12. “Chastity” denotes not virginity but the absence of sexual relations outside of a marriage
relationship.
13. Some jurisdictions, however, bad barred such evidence on grounds of prejudice and confusion
of issues. 1 J. WIGMORE, EviDENCE§ 200, at 682 (3d ed. 1940). Courts admitting such
evidence were divided on the issue of bow the complainant’s prior unchastity could be proved,
whether through proof of prior acts of the complainant, or of her reputation on the subject, or by
the opinion of persons who knew her. /d. The common law tradition permitted prior sex evidence
not only on the theory of unchastity but also on various noncharacter theories subsequently
described. See, e.g.. notes 89-153 and accompanying text infra.
14. People v. Benson, 6 Cal. 221, 223 (1856).
Other California cases in a similar vein include People v. Murphy, 59 Cal. 2d 818, 831, 382
P.2d 346, 354, 31 Cal. Rptr. 306, 314 (1963); People v. Pantages, 212 Cal. 237, 297 P. 890 (1931);
People v. Johnson, 106 Cal. 289, 293, 39 P. 622, 623 (1895); People v. Walker, ISO Cal App. 2d
594, 310 P.2d 110 (1957); People v. Hume, 56 Cal. App. 2d 262, 267, 132 P.2d 52, 54-SS (1942);
People v. Higgins, 18 Cal. App. 2d 595, 599, 64 P.2d 454, 456 (1937); People v. Biescar, 97 Cal.
App. 205, 217, 275 P. 851, 856 (1929); People v. Degnen, 70 Cal. App. 567, 590·91, 234 P. 129, 138
(1925).
For the general common law view affirming the admissibility of such character evidence in a
rape case, see J. WIGMORE, supra note 13, § 62, at 464.
IS. Former CALJIC No. 10.06 (3d rev. ed. 1970), reproduced in the text infra, was given as
recently as in the trial stage of People v. Rincon-Pineda, 14 Cal 3d 864, 538 P.2d 247, 123 Cal.
Rptr. 119 (1975).
16. Section 1103 of the California Evidence Code did not specifically approve the use of
“prior unchastity” evidence. The Law Revision Commission’s Comment to § 1103, however, ex1980]
uUNCHASTE CHARACTER,, EVIDENCE
CALJIC No. 10.06 spoke to the jury in the following terms:
Evidence was received for the purpose of showing that the female
person named in the information was a woman of unchaste
character.
A woman of unchaste character can be the victim of a forcible
rape but it may be inferred that a woman who has previously consented
to sexual intercourse would be more likely to consent again.
Such evidence may be considered by you only for such bearing
as it may have on the question of whether or not she gave her consent
to the alleged sexual act and in judging her credibility.
39
So matters stood until 1974. In that year, California, for the first
time, adopted legislation dealing specifically with the subject of rape
evidence. One effect was to severely restrict the evidentiary use of prior
sex history; 17 a second was to bar the use of jury instructions of the
pressly endorsed People v. Shea, 125 Cal. 151, 57 P. 885 (1889), which articulated the theory
underlying CALJIC No. 10.06.
17. Such a restriction was accomplished by adding subdivision (2) to § 1103 of the Evidence
Code and by adding a new section to the Evidence Code, § 782. Section 1103 as amended, as well
as § 782, are reproduced below:
§ 1103. Evidence of character of victim of crime to prove conduct; evidence of complaining
witness’ sexual conduct in rape prosecution
(I) In a criminal action, evidence of the character or a trait of character (in the form of
an opinion, evidence of reputation, or evidence of specific instances of conduct) of the
victim of the crime for which the defendant is being prosecuted is not made inadmissible
by Section 110 I if such evidence is:
(a) Offered by the defendant to prove conduct of the victim in conformity with
such character or trait of character.
(b) Offered by the prosecution to rebut evidence adduced by the defendant under
subdivision (a).
(2) (a) Notwithstanding any other provision of this code to the contrary, and except
as provided in this subdivision, in any prosecution under Section 261, or 264.1 of the
Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to
commit a crime defined in any such section, opinion evidence, reputation evidence, and
evidence of specific instances of the complaining witness’ sexual conduct, or any of such
evidence, is not admissible by the defendant in order to prove consent by the complaining
witness.
(b) Paragraph (a) of this subdivision shall not be applicable to evidence of the
complaining witness’ sexual conduct with the defendant.
(c) If the prosecutor introduces evidence, including testimony of a witness, or the
complaining witness as a witness gives testimony, and such evidence or testimony relates
to the complaining witness’ sexual conduct, the defendant may cross-examine the witness
who gives such testimony and offer relevant evidence limited specifically to the rebuttal
of such evidence introduced by the prosecutor or given by the complaining witness.
(d) Nothing in this subdivision shall be construed to make inadmissible any evidence
offered to attack the credibility of the complaining witness as provided in Section
782.
(e) As used in this section, “complaining witness” means the alleged victim of the
crime charged, the prosecution of which is subject to this subdivision.
CAL. EviD. CODE. § 1103 (West Supp. 1980).
40 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
“prior unchastity” genre. 18 In short, the legislative changes “overruled”
CALJIC No. 10.06 and rejected the very assumptions upon
which that instruction had rested.
The political and social pressure for this legislation came from two
directions. First, it came from feminist critics who saw the rape victim’s
prior sexual activity as irrelevant to the issues of her character,
her consent, or her credibility-ie., on precisely those· conclusions the
jurors were invited to draw by CALJIC No. 10.06. These critics saw
the admissibility of such evidence as inhibiting rape victims from pursuing
justified complaints through the legal system; 19 as invading the
victim’s privacy and transforming a rape trial into an inquiry about her
§ 782. Ra~; evidence of sexual conduct of complaining witness; procedure for admissibility
(a) In any prosecution under Section 261, or 264.1 of the Penal Code, or for assault
with intent to commit, attempt to commit, or conspiracy to commit any crime defined in
such section, if evidence of sexual conduct of the complaining witness is offered to attack
the credibility of the complaining witness under Section 780, the following procedure
shall be followed:
(I) A written motion shall be made by the defendant to the court and prosecutor
stating that the defense has an offer of proof of the relevancy of evidence of the sexual
conduct of the complaining witness proposed to be presented and its relevancy in attacking
the credibility of the complaining witness.
(2) The written motion shall be accompanied by an affidavit in which the offer of
proof shall be stated.
(3) If the court finds that the offer of proof is sufficient, the court shall order the
hearing out of the presence of the jury, if any, and at such hearing allow the questioning
of the complaining witness regarding the offer of proof made by the defendanL
( 4) At the conclusion ofthe hearing, if the court finds that evidence proposed to be
offered by the defendant regarding the sexual conduct of the complaining witness is relevant
pursuant to Section 780, and is not inadmissible pursuant to Section 352 of this
code, the court may make an order stating what evidence may be introduced by the
defendant, and the nature of the questions to be permitted. The defendant may then
offer evidence pursuant to the order of the courL
(b) As charged in this section, “complaining witness” means the alleged victim of
the crime charged, the prosecution of which is subject to this section.
CAL. Evm. CoDE.§ 782 (West Supp. 1980).
18. Sections 1127d and 1127e of the California Penal Code reads as follows:
§ 1127 d. Instructions on prior sexual conduct of victim prohibited in prosecution for
rape or related crimes.
(a) In any criminal prosecution for the crime of rape. or for violation of Section
261.5, or for an attempt to commit, or assault with intent to commit, any such crime, the
jury shall not be instructed that it may be inferred that a female who has previously
consented to sexual intercourse with J?CCSOns other than the defendant would be therefore
more likely to consent to sexual mtercourse a~ain.
(b) A jury shall not be instructed that the pnor sexual conduct in and of itself of
the complaining witness may be considered in determining the credibility of the witness
pursuant to Chapter 6 (commencing with Section 780) of Divison 6 of the Evidence
Code.
§ 1127e. Unchaste character; use of term prohibited
The term “unchaste character” shall not be used by any court in any criminal case
in which the defendant is charged with a violation of Section 261 or 261.5 of the Penal
Code, or attempt to commit or assault with intent to commit any crime defined in any
such section, in any instruction to the jury.
19. See note 6 supra.
1980] uUNCHASTE CHARACTER,, EVIDENCE 41
“culpability” rather than that of the defendant’s; and as invoking the
prejudices of predominantly male judges and jurors by painting the
victim as a person “who got what she deserved.”2° Finally, feminist
critics saw the solemn respect traditionally displayed toward evidence ?
of “prior unchastity” as negative symbolism, reinforcing attitudes of
indifference toward the dignity, the freedom of choice, and the bodily ·
safety of the victim, and thereby forfeiting the proper educative role of
the law.21
From a different direction, pressure for change emanated from
prosecutorial and law-and-order elements prepared to do battle against
an evidentiary doctrine that made convictions of at least some
criminals harder to come by, however uncomfortable these persons
might have been with the feminist perspectives of their temporary allies.
22
The enactment of the 1974 rape evidence legislation put California
in the forefront of a widespread legislative movement23 restricting the
admissibility of evidence of prior sexual conduct. Some of this legislation
has been criticized as excluding evidence claimed to be indispensable
to the rape defendant’s right to a fair trial. 24 The primary objectives
of this Article are to evaluate whether and under what circumstances
20. See note 4 supra.
21. See Karst, ·~ Discrimination So Trivial’~· A Note on Law and the Symbolism of Women’s
Dependency, 35 OHIO ST. LJ. 546 (1974).
22. For example, the supporting groups for the 1974 California rape evidence legislation,
reproduced at note 17 supra, included prosecutorial groups (the California District Attorneys’ and
Police Officers’ Associations) and a feminist group (National Organization for Women). Opposing
groups included the A.C.L.U. and the California Public Defenders’ Association. Selected 1974
Cal Legislation, 6 PAC. L.J. 125,261 (1974). See also 23 C. WRIGHT & K. GRAHAM, supra note 4,
§ 5382, at 493-94.
The alliances behind such statutes made for strange bedfellows, and organizations like the
A.C.L.U. experienced a degree of distress, if not schizophrenia, as they sought to assess the tradeoff’s
between conflicting rights of women and criminal defendants, each with their own compelling
claim to recognition. See Berger, supra note I, at 35 n.212.
23. For comprehensive tables citing the 46 rape victim shield laws in effect as of the beginning
of 1980 and comparing them according to their general approach and specific provisions, see
Tanford & Bocchino, Rape f/ictim Shield Laws and the Sixth Amendment, 128 U. PA. L. Rev. 544,
591-602 ( 1980).
24. See, e.g., Amsterdam & Babcock, Proposed Position on Issues Raised by tlte Administration
o/ Laws Against Rape, Memorandum for lite ACLU of Northem Cal!fomia (Aprill974), reproduced
in B. BABCOCK, supra note I, at 840-43. Amsterdam and Babcock characterize their
proposal about the permissible uses of prior sex evidence and the appropriate attendant procedures
as “quite frankly, a compromise between the legitimate interests of the complainant and
those of the criminal accused.” Id at 842.
See also Berger, supra note I, at 39, 69-70; Rothstein, Evidence Workshop, New Federal Evidence
Rule <112 on Sex f/ictim”s Character, 15 CRIM. L. BULL. 353, 359-65 (1979); Comment, supra
note 9.
42 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
such evidence should be admitted; to note the answers given by the
197 4 California legislation; and to determine whether that legislation
properly draws the line between the permissible and impermissible uses
of the complainant’s sexual history. The secondary objective is to examine
some of the procedures prescribed by California law for enforcing
its restrictions on the use of such evidence.
The California legislation has soundly determined that a blanket
rule of exclusion is inappropriate. There is a need for simultaneous
concern for rape victims, on the one hand, and for criminal defendants-
predominantly the victims of poverty and racial discrimination25-
on the other. Under certain circumstances, however rare,
evidence of sexual history does in fact warrant ·admission. On such
occasions, rational fact-finding, as well as the Constitution itself, requires
that it be admitted.26
In brief, the 1974 rape evidence legislation can and should, if it is
to be fully justifiable, be read to produce the following results:
a) It should exclude all evidence of the complainant’s sexual history
when offered on either of two character theories that might be
mustered in its support.27 Thus, it should exclude character evidence
when offered to cast doubt upon the complainant’s credibility,28 and it
25. In 1978, for example, California law enforcement agencies reported 3,613 felony level
rape arrests. Of those arrested, 835 were Chicano and 1,392 were black. These two groups thus
comprised some 62% of the rape arrestees. BUREAU OF CRIMINAL STATISTICS, CALIFORNIA DEP’T
OF JUSTICE, CRIME AND DELINQUENCY IN CALIFORNIA 1978, pt. I, at 36.
Most of the 62% were, in addition to being minority group members, probably not persons of
great wealth. It is a fair assumption also that a substantial proportion of the remaining 38% were
poor. See also 23 C. WRIGHT & K. GRAHAM, supra note 4, § 5382, at 517 n.39.
26. The constitutional issue raised by efforts to exclude the complaining witness’ prior sexual
history has been widely discussed. See 23 C. WRIGHT & K. GRAHAM, supra note 4, §§ 5387-5388,
at 563-98; Berger, supra note I, at 52-55; Note, supra note 9. See generally Tanford & Bocchino,
supra note 23.
The constitutionality of California Evidence Code § 1103(2) was upheld in People v. Blackbum,
56 Cal. App. 3d 685, 691-92, 128 Cal. Rptr. 864, 866 (1976). This Article does not attempt to
add to the discussion of the constitutional issue. The concern here is with a different issue, though
one central to the constitutional calculus as well-how should one think about the balance of
probative force and prejudiciality of such evidence?
27. There is a third possible use that need not be considered here. That use arises when the
character evidence is offered because character is an ultimate issue in the case. CAL. Evm. CODE
§ 1100, Comment, Law Revision Commission. “Unchaste character, or any other trait of a victim’s
character is never an “ultimate issue, in a rape prosecution. The fact that the victim possesses
a particular character trait constitutes an element neither of the crime nor of any defense to
it. Therefore, no evidence of the complainant’s “unchaste character” could be offered on this
theory of relevance.
28. This strategy would employ the following string of inferences: prior sexual activity tends
to establish the complainant’s ”unchaste” sexual character; this tends to establish a generalized
1980] ~~uNCHASTE CHARACTER” EVIDENCE 43
should exclude such evidence when it is offered to enhance the likelihood
that the complainant did consent, that is, when offered to prove
conduct of the victim in conformity with her “unchaste” character.29
b) On the other hand, sexual history going to some purpose other
than character should not be categorically excluded. Such evidence
should be eligible for admission if, but only if, it is substantially probative
on some noncharacter theory, such as the complainant’s modus
operandi, her intent, her motive, and so on. 30
c) In the event a given item of evidence were capable of being
used by the jury both for the permissible and impermissible purposes
identified above, the court would be confronted with the commonplace,
but nevertheless often perplexing, problem of determining whether to
admit or to exclude the evidence and, if to admit it, with what cautionary
instruction. 31
d) On the procedural side, all evidence of the complainant’s sexual
history, whatever the offeror’s stated purpose, should be required to
pass scrutiny in a voir dire hearing, out of the presence of both the jury
and the public, for compliance with the restrictions on admission suggested
above, prior to its presentation to the jury.32
I. THE BACKGROUND OF THE 1974 RAPE
EVIDENCE LEGISLATION
Since one cannot fully appreciate the 1974legislation without comprehending
the tradition it was trying to reverse, it is necessary to begin by
moral indifference on her pan, including a lack of commitment to testify truthfully, and this in
tum suggests she is to be disbelieved when she testifies to her lack of consent in any case presently
before the coun. The admissibility of evidence on this theory is considered in notes 81-82, 86-88
and accompanying text infra.
29. Such evidence would be offered on the theory generally employed in Evidence Code
Section 1103(a). The admissibility of evidence on this theory is discussed at notes 43-56 and
accompanying text infra.
30. All of these categories are identified as examples of other-than-character evidence. CAL.
EviO. CODE§ 1101(b) (West 1966).
31. The discretionary power of courts to exclude evidence on various grounds, including
prejudice, is recognized: “The coun in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue comsumption
of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” CAL. EviD. CoDE§ 352 (West 1966).
Additionally, the courts have the power to give instructions designed to restrict the jury’s use
of evidence to its permissible purpose: “When evidence is admissible as to one party or for one
purpose and is inadmissible as to another pany or for another purpose, the coun upon request
shall restrict the evidence to its proper scope and instruct the jury accordingly.” CAL. EVJD. CODE
§ 355 (West 1966).
32. The procedure is discussed in Evidence Code § 782, set fonh in note 17 supra.
44 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
examining the traditional view of the relevance of the complainant’s
sexual history in a rape prosecution. That tradition was the product of
two intertwining sets of ideas. First was a set of ideas, or more accurately,
an ideology, about sex, rape, women, and their “proper place”;
second was a set of technical evidentiary doctrines governing the permissible
uses of character evidence.
By far the most interesting and important aspect of both the traditional
view and the counter-view embodied in the 1974 legislation is
what each reveals about the evolving ideology concerning the sexes.
The ideological component, however, cannot be understood apart from
the technical evidentiary doctrine through which it is expressed. We
begin therefore with an exploration of character evidence, an area as
complex and confusing as any in the field of evidence. Indeed, some of
the difficulties with the 1974 legislation may, at least in part, spring
from legislative confusion over basic concepts and distinctions concerning
such evidence. After reviewing this doctrine, we can profitably examine
the alternative social views underlying the 1974 rape evidence
legislation and the common law approach that it rejected.
II. CHARACTER EVIDENCE IN GENERAL
The 1965 Evidence Code codified a number of established prohibitions
of the use of character evidence. These prohibitions, which on the
whole continue in force today, have two aspects. One aspect regulates
the occasions upon which character evidence, of whatever kind, may be
used. Assuming character evidence may be used at all, a second aspect
regulates the kinds, or forms, of character evidence that may be employed.
33 As we shall see, these two aspects are interrelated, for the
modes of character evidence that will be permitted are a function of the
purpose for which such evidence is offered.
To understand the first set of limitations-those addressed to relevancy-
it is useful to articulate the different situations in which a party
might conceivably want to use character evidence. It can then be deter-
33. The Evidence Code assumes that there are at least three ways to prove a trait of character:
by “evidence in the form of an opinion, evidence of reputation and evidence of specific instances
of such person’s conduct.” CAL. EviD. CoDE§ 1100 (West 1966). Theoretically, however,
this may not exhaust the possibilities. Section 1100 does not presuppose that the three categories
are logically exclusive. Rather, it lists them as examples of character evidence.
Additionally, while these various possible ways of proving character exist, they are limited by
statute depending upon the precise purpose for which the character evidence is offered. See CAL.
EviD. CoDE§ 1100, Comment, Law Revision Comm’n (West 1966); id §§ 1102, 1103, 788; if.
FED. R. Evro. 405, 608, 609 (federal treatment of character evidence admissibility).
1980] ~~uNCHASTE CHARACTER,, EVIDENCE 45
mined how the admissibility of such evidence has been affected by the
1974 changes in the Evidence Code.
A. “PRIOR UNCHASTITY”: CHARACTER GOING TO CREDIBILITY34
Under the Evidence Code, character evidence bearing on honesty generally
is admissible to help the jury weigh a witness’ testimonial credibility.
35 The Code permits such evidence to be offered in two ways: in
the form of a witness’ community reputation for truthfulness or in the
form of opinion testimony about the witness’ character for truthfulness.
36 On the other hand, evidence of prior instances of conduct pertinent
to the witness’ credibility, such as evidence showing that the
witness had lied on numerous prior occasions, is generally not admissible.
37
Suppose, now that a defendant, relying upon the traditional doctrine
as just described, sought to offer character evidence not directly to
establish the complainant’s character for truthfulness but rather to establish
some other trait-e.g., in a rape case, the complainant’s lax sex-
34. See generally C. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE §§ 41-44, 49 (2d
ed. 1972).
35. California Evidence Code § 780(e) contemplates the use of such evidence, as do §§ 786
and 788. The last two sections impose restrictions on the panicular types of evidence that would
be permissible. Even if the evidence is of the proper type, evidence of the good character of a
witness for credibility is not admissible until that character trait has been attacked; that is, the
initiative for opening up the issue generally lies with the witness’ cross-examiner. CAL. Evm.
CODE § 790 (West 1966).
36. Once it is determined that character evidence is in general admissible for its bearing on
witness credibility, then all three forms of proving character specified in§ 1100 are permissible to
prove that character trait unless “otherwise provided by statute.” CAL. Evm. CoDE§ 1100 (West
1966). Sections 785-791, which deal with such proof, do not “otherwise provide,” except with
respect to proof by specific instances of the witness’ conduct which is strictly regulated by the
Code. Jd §§ 787, 788. Since opinion and community reputation are not excluded, they are permitted.
37. CAL. EviD. CODE§ 787 (West 1966). There is, however, one exception to this last prohibition.
Prior instances of the witness’ conduct would be admissible to impugn the witness’ credibility,
if the conduct in question had resulted in a felony conviction, id § 788, and if, moreover,
that conviction were for a crime deemed to bear sufficiently on credibility.
Untill972, § 788 was thought to permit impeachment by a prior felony conviction, whatever
the crime. In People v. Beagle, 6 Cal. 3d 441,452-53,492 P.2d I, 8, 99 Cal. Rptr. 313, 320 (1972),
the court effected a major change by holding that felony convictions offered under § 788 were
subject to the court’s general discretionary power to exclude evidence as prejudicial under § 352.
Numerous subsequent cases have attempted to clarify how the trial courts should exercise
such discretion. For a recent example in which the court held that prior convictions were admissable
on credibility only if the conviction “has as a necessary element an intent to deceive,
defraud, lie, steal, etc.,” see People v. Spearman, 25 Cal. 3d 107, 115, 599 P.2d 74, 78, 157 Cal.
Rptr. 883, 887 (1979) (prior convictions offered against a criminal defendant). See also People v.
Woodard, 23 Cal. 3d 329, 590 P.2d 391, 152 Cal. Rptr. 536 (1979) (prior convictions offered
against a nonparty witness).
46 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
ual character. This attempt to undermine a rape victim’s testimonial
credibility would be based upon the theory that a moral flaw in one
area of her character (sexual laxity) reflected on other aspects of her
character (e.g., honesty) as well. Even before the 1974 legislative restrictions,
controlling doctrine appeared to render such evidence inadmissible.
Only evidence relating directly to the character traits of
“honesty or veracity, or their opposites”38 was admissible on the issue
of credibility. Such a test would have excluded evidence of prior sexual
activity as, at best, indirect evidence of her character for credibility.
It follows that such evidence ought to have been excluded on at
least two grounds according to the traditional formulation of the doctrine.
It violated the rules against proof of a dishonest character by the
use of specific instances of conduct, and by the use of evidence bearing
only indirectly upon honesty and veracity.39
Good reason for excluding such evidence lay both in its questionable
probative value, depending as it did on the piling of inference upon
questionable inference, and in its rich capacity for evoking jury
prejudice. To this may be added a more contemporary reason for exclusion.
The theory of admissibility was sexually discriminatory. The
sex of the witness traditionally determined the relevance of ”unchastity.”
It weighed heavily against the female but not so against the
male.40
However, despite this theoretical bar on such evidence suggested
above, CALJIC No. 10.06 was, without ~xplanation, drafted to include
a proviso inviting jurors to make precisely this forbidden use of the
38. CAL. Evm. CoDE§ 786 (West 1966). This section codified the existing case law, as embodied,
for example, in People v. Johnson, 106 Cal. 289, 294, 39 P. 622, 623 (1895) and People v.
Murphy, 53 Cal. App. 474, 481, 200 P. 484, 488 (1921).
39. CAL. Evm. CoDE § 787 (West 1966) (specific instances barred); id § 786 (indirect evidence
of honesty or veracity barred).
With respect to the subject matter of§ 786, see 3A J. WIGMORE, EVIDENCE IN TRIALS AT
CoMMON LAw §§ 922-923, 924a ( 1960) (presenting Wigmore’s view as to the special relevance of
the complainant’s unchastity in rape cases).
40. Thus, note this passage from a tum of the century case:
It is a matter of common knowledge that the bad character of a man for chastity does not
even in the remotest degree affect his character for truth, when based upon that alone,
while it does that of a woman. It is no compliment to a woman to measure her character
for truth by the same standard that you do that of man’s predicated upon character for
chastity. What destroys the standing of the one in all the walks of life has no effect
whatever on the standing for the truth of the other . . . .
State v. Sibley, 131 Mo. 519, 531-32, 33 S.W. 167, 171 (1895),1JUOied disapproving/yin 3A J. WIGMORE,
supra note 39, § 924, at 735-36. See also Sharon v. Hill, 26 F. 337, 361 (D. Cal. 1885)
(“[I]ncontinence in a man does not usually imply the moral degradation and insensibility that it
does in a woman.”).
1980] uuNCHASTE CHARACTER” EVIDENCE 47
evidence.41 One can only speculate about the reasons for this, or how
this facet of the instruction could have survived appropriate objections42
had they been made. In any event, prior sex evidence was subject
to jury use, on the theory articulated in CALJIC No. 10.06, up to
the enactment of the 197 4 legislation.
B. “PRIOR UNCHASTITY”: CHARACTER TO PROVE CONDUCr43
The use of character evidence to prove conduct is illustrated by the
following example. Suppose the prosecutor, in, for example, a battery
case, possessed evidence that the defendant had a violent character.
The prosecutor, we may imagine, could generate considerable enthusiasm
for bringing this to the jury’s attention. Since the issue in a battery
case is whether the defendant behaved violently, the state’s position is
strengthened when the jury knows he has a violent nature and hence is
likely to have behaved violently on the occasion in question. To be
sure, if candor reigned, the prosecutor might derive a substantial bonus
from the receipt of such evidence. If the jurors were persuaded that the
defendant possessed this regrettable character trait, they might hold
him in disfavor and be more willing to lower the effective standard of
proof, reasoning that even if he were erroneously convicted of this
crime, he was probably getting what he deserved.
41. The proviso is included in the last five words of that instruction. See text accompanying
note 16 supra.
42. Objections, that is, under §§ 786-787, as discussed in the immediately preceding text.
See notes 37-39 supra. Such an instruction bas been prohibited since 1974 by CAL. PENAL CoDE
§ 1127d(b) (West Supp. 1980) (reproduced at note 18 supra).
Possible explanations for the apparent lack of challenge to this facet of the instruction, despite
its seeming illegality, include the following facts: 1) the prosecution, the logical party to object,
bas relatively little ability to secure appellate review of an improper instruction and virtually none
if there is an acquittal, United States v. Wilson, 420 U.S. 332, 339-53 (1975); 2) it might not have
occurred to the prosecution to object, even if it could have, because it may well have shared the
sexist bias reflected in the instruction; 3) the complainant, not being a party in the case, has no
standing to raise the issue; and 4) it might have been thought the instruction did not invite the jury
to draw impermissible characler inferences from the prior unchastity evidence; rather, it only
invited the jury to infer that the complainant was generally testifying dishonestly if it disbelieved
her denial of consent-invoking the notion that a witness who has been “found unreliable with
respect to one issue may properly be accorded little weight as to the next.” NLRB v. Pittsburgh
S.S. Co., 337 U.S. 656, 659 (1949). If this last view constituted the theory underlying the final five
words of CAUIC No. 10.06, it is certainly not so explained in the instruction. It can hardly be
doubted that juries would assume permission to infer bad character for credibility from evidence
of “unchaste character.”
43. s~e generally C. McCoRMICK, supra note 34, §§ 186-195; 1 J. WIGMORE, supra note 13,
§§ 54-68.
48 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
1. General Prohibition of the Use of Character Evidence
If one is committed to the view that the jury’s role is not one of settling
the defendant’s overall score with society but rather is limited to determining
guilt or innocence in a particular instance, such “bonus” possibilities
of the evidence count heavily against its admission. It is worth
noting that the danger of prejudice is inherent in character evidence.
An individual’s character attributes are normally not neutral factsthey
often give rise to and support severe moral judgments.44 To the
degree that character attributes do, they inevitably carry risks of triggering
legally irrelevant juror values.
This risk”leads to the question whether such evidence is sufficiently
probative to warrant admissibility. Several considerations suggest that
it is not. First, even when a person’s character is correctly assessed as
violent, that conclusion is not inconsistent with the fact that the vast
majority of that person’s encounters with other people will be nonviolent.
45 Simply knowing a person’s “character” does not imply that he
or she will invariably or even habitually exhibit a given response.
Thus, only the most general connection may exist between a person’s
character and his or her conduct on a given occasion.
There are additional pitfalls in making the inferential leap from
character to conduct. One may misjudge a person’s character or even
lack the contextual information or psychological expertise to truly
fathom the person’s “characteristic” behavior under the circumstances
confronting that individual. Also, the very meaning of “character” is
ambiguous. It is not defined in the Evidence Code, and the closest the
Law Revision Commission came to explaining its meaning in proposing
the language of the Evidence Code was to equate “character” with
a “propensity or disposition to engage in a certain type of conduct. “46
But people have all sorts of “propensities” and “dispositions”-mental
or physical qualities, ideological commitments, lifestyles, compulsions,
obsessions, habits, preferences, and drive~ach of which “disposes”
them to behave in certain ways, without necessarily rising to thecate-
44. E.g., honesty and peaceableness, and their opposites, dishonesty, violence, viciousness,
cruelty, a non-law-abiding quality, and the like. C. McCORMICK supra note 34, § 191, at 455.
45. Cf. C. McCORMICK, supra note 34, § 191, at 454 (“The basic premise [underlying the
admissibility of character evidence] is the one by which we order our daily lives, that people
generally act in keeping with their character.”). This generalization seems far too unrefined and
sweeping to be accurate. Of course, in the trial context, the concern normally is not how a person
will behave under unpredictable and vague future circumstances, but rather how he did in fact act
in a largely known past contexL It is likely that one will make somewhat better use of character
evidence in that circumstance than when one tries to make predictions about future behavior.
46. CAL. Ev1o. CoDE § 1101, Comment, Law Revision Comm’n (West 1966).
‘ ‘
\
.l
1980] uUNCHASTE CHARACTER,, EVIDENCE 49
gory of character traits. Yet the Code apparently assumes that the nature
of character is either so elusive as to defy definition or so obvious
that it need not be defined; it leaves one only with the notion that there
are relatively fixed truths about the way a person “is,” captured by an
undefined notion of “character,” that may sometimes help determine
probable behavior.47 Because of its attenuated probative force coupled
with the prejudicial potential already noted, the use of character evidence
to prove conforming conduct was, generally speaking, excluded
by the 1965 Evidence Code.48
2. Exceptions and Distinctions
Standing alone, this prohibition would have barred evidence of “unchaste
character” to prove consent. The 1965 Code, however, recognized
two exceptions. First, while the prosecution was barred from
offering the defendant’s bad character to prove his or her conforming
conduct, the criminal defendant was permitted to offer evidence of his
or her own good character. 49 Second, and more importantly for our
purposes, the defendant was permitted to offer evidence of his victim’S
had character to suggest relevant conforming conduct on the victim’s
part. Thus, if the defendant claimed self-defense, it would be critically
important to determine who had started the fight. On this issue, the
defendant was permitted to offer evidence of the victim’s violent character.
50 To be sure, the evidence was still weak, indirect, and subject to
jury misuse; however, the risks of error favored the criminal defendant.
47. One could dismiss these uncertainties, but for the fact that critical evidentiary consequences
may tum on characterization. If a particular quality is seen as a “character” trait, it is
subject to markedly different treatment, CAL. Evm. CoDE§ 1101 (West 1966), than if it is seen, for
example, as a “habit.” ld § 1105. It is far from clear which of the propensity traits identified in
the text accompanying this note should be classified as “character” and therefore subjected to the
rule of evidence governing character evidence.
For an excellent discussion of the elusive qualities of “character,” see 22 C. WRIGHT & K.
GRAHAM, supra note 4, § 5233.
48. CAL. Evm. CODE§ 1101 (West 1966). See generally C. McCoRMICK, supra note 34,
§ 190; I J. WIGMORE, supra note 13, §§55, 57.
Even without any specific rule of exclusion, it is worth noting that California couns could
easily reach the same result by invoking their discretionary powers under § 352. See note 31
supra. The legislature has not, however, left the matter to ad hoc balancing by judges; rather it
has itself explicitly barred the evidence, subject to a number of exceptions soon to be considered.
49. CAL. EviD. CODE§ 1102 (West 1966). Once the defendant has opened the door to this
type of evidence, the prosecution is permitted to offer rebuttal testimony of the defendant’s bad
character. /d.§ 1102(b). See also C. McCoRMI~K, supra note 34, § 191.
50. CAL. EVID. CODE§ 1103 (West Supp. 1980). Once the defendant has opened the door to
this type of evidence, the prosecution is permitted to offer rebuttal testimony of the victim’s good
character. ld § 1103(b). See also C. McCORMICK, supra note 34, § 193, at 461-62; I J. WIGMORE,
supra note 13, § 63.
50 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
Since these risks reinforced rather than undermined the presumption of
innocence, they were doubtlessly seen as acceptable.
The result of this set of rules and exceptions was that evidence of
past sexual activity on the defendant’s part could not be offered by the
prosecution to prove the male’s propensity toward rape;51 however, it
could be offered by the defendant to prove the female’s propensity toward
consensual sexual activity. Thus, before the 1974 rape evidence
enactments, evidence of the rape complainant’s prior sexual activity
was admissible as a straightforward application of the exception admitting
evidence of the victim’s character to prove conforming conduct,
namely consent. 52 Of course, if consent was not an issue, as, for example,
if the defendant admitted the victim had been raped but claimed
someone else had raped her, the victim’s “unchaste character” would
be utterly irrelevant. 53 But this limitation would often be quite theoretical,
because the defendant could not easily be forced to elect between
the defenses of consent, alibi, mistaken identity, and so on, especially
given the virtual absence of defensive pleadings in criminal cases. 54
51. The exception still existed, however, that the prosecution was permitted to offer such
evidence on rebuttal. CAL. Evm. CODE§ 1102(b) (West 1966).
52. ld § 1102, Comment, Law Revision Comm’n (adopting the doctrine of People v. Shea,
125 Cal. 151, 57 P. 885 (1899)); see 1 J. WIGMORE, supra note 13, § 62.
Under§ 1103, .. unchaste character” could be proven by all recognized ways of proving character,
including evidence of specific instances of the complainant’s prior sexual conduct. This
stands in contrast to § 1102, which permits a defendant seeking to prove his own good character
only the options of opinion or reputation evidence, but not specific act evidence. The reason given
for so restricting the defendant is “to avoid the possibility of prejudice, undue confusion of the
issues with collateral matters, unfair surprise, and the like.” CAL. Evm. CoDE§ 1102, Comment,
Law Revision Comm’n (West 1966). A similar concern when specific act evidence was offered
against a rape complainant under § 1103 was not thought necessary simply because the older cases
had allowed such evidence. Interestingly, such specific act evidence had been inadmissible when
offered in battery cases against the alleged victim. Id The Law Revision Commission chose to
follow the precedent permitting such evidence in the case of rape complainants rather than the
contrary line of cases that had evolved in non-rape offenses. A plausible hypothesis is that it did
so because it shared the sexist assumptions that made it seem eminently fair to permit such evidence
against rape complainants. Section II 03 was drafted in a manner to accommodate precisely
such evidence, which until then had been only admissible in rape cases. In this respect, section
1103 appears to have evolved in the form that it did as a rule intended for the special benefit of
rape defendants, but cast in general form.
53. People v. Byers, 10 Cal. App. 3d 410, 414-15, 88 Cal. Rptr. 886, 888 (1970); People v.
Schafer, 4 Cal. App. 3d 554, 558, 84 Cal. Rptr. 464, 466 (1970).
54. For example, he could plausibly argue that he was entitled to cross-examine the complaining
witness on the issue of consent, without regard to his other defenses. People v. Degnan,
70 Cal. App. 567, 590-94, 234 P. 129, 138-40 (1925).
In some decisions holding that the defendant had not placed consent in issue, the coun has
had good reason to know the intended lines of the defense. Thus in People v. Byers, the coun
denied the defendant the right to cross-examine the complainant about her prior sexual activity
because of the happenstance that the trial coun had already been informed by the defendant that
\ …
1980] UUNCHASTE CHARACTER,, EV/IJENCE 51
One other important distinction must be drawn in completing this
survey of character evidence. The distinction is suggested in Evidence
Code section llOl(b). After generally barring the use of character evidence
to prove conduct (subject to the two exceptions discussed above),
the section goes on to say that the bar does not extend to evidence:
“that a person committed a crime, civil wrong, or other act when relevant
to prove some fact (such as motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident) other
than his disposition to commit such acts. “55 This statutory language
recognizes that a person’s prior behavior might be relevant for some
noncharacter purpose (e.g., motive or plan). In such a case, section
110 I makes clear what would in any event be logically inescapable-a
rule barring character evidence does not preclude noncharacter evidence.
What is the need for explicitly embedding such an elementary
point in the Evidence Code? The answer is that when a party offers
evidence pursuant to section IIOI(b), it may reveal “bad” conduct of
the person referred to, thereby reflecting adversely on that person’s
character even if that is not the proclaimed or intended purpose of the
evidence. Section 110 I (b) establishes that this risk of unwanted side
effects is not sufficient ground for categorical exclusion; the evidence
may be received so long as it fulfills a permissible noncharacter purpose
as well. It is, however, a good deal easier to state this distinction
between character and noncharacter evidence in principle than to
maintain it rigorously in practice. Much of the history of the section
IIOI(b) noncharacter categories is a history of evasion and game playing
in which evidence that is essentially of character is disingenuously
offered and received as though it were something else56—enabling the
consent would not be a defense and that the sole defense was alibi. 10 Cal. App. 3d 410, 415, 88
Cal. Rptr. 886, 888 (1970). It is, of course, unlikely that the defendant would normally make such
a concession or that he could be compelled to do so.
55. CAL. EVID. CODE§ IIOI(b) (West 1966).
56. The effort to apply the distinction in practice has proved one of the most troubling
problems currently confronting criminal courts. One reason is practical. the other theoretical.
The practical reason is that a given item of evidence may have both a permissible and an impermissible
use; it is then necessary to decide at what point the one predominates over the other, often
a difficult matter. The theoretical reason is that some noncharacter uses-particularly some types
of evidence offered under the heading of modus operandi-are in their nature exceedingly difficult
to distinguish from the forbidden kinds of dispositional (character) evidence barred by § 1103.
See notes 134-36 and accompanying text infra.
For an excellent discussion of the problem and an analysis of some of the leading California
cases, see People v. Wills-Watkins, 99 Cal. App. “3d 451,457, 160 Cal. Rptr. 289,292 (1979) (Kaus,
J., concurring). See also People v. Thompson. 27 Cal. 3d 303, 314-21, 61 P.2d 883, 889-93, 165
Cal. Rptr. 289, 294-98 (1980).
52 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
prosecution to benefit from the juror’s illicit response to the defendant’s
“bad character.”
Nonetheless, the distinction has its legitimate uses, and it underscores
the possibility of offering the identical item of evidence either on
a noncharacter or a character theory and admitting or excluding it accordingly.
An argument is presented later for precisely this distinction
in relation to evidence of a rape complainant’s prior sexual conduct,
that is, for its potential admissibility if of the noncharacter type and for
its exclusion if of the character type.
In summary, the traditional rules governing the use of character to
prove specific conduct, as codified in the Evidence Code prior to the
197 4 amendments, generally barred such character evidence, created
exceptions for its use at the behest of a criminal defendant (under sections
1102 and 1103), and established that the rule against character
evidence did not bar noncharacter uses in appropriate circumstances
(under section 110l(b)).
It is against this backdrop that one of the critical changes wrought
by the 1974legislation can be appreciated. That change created an exception
to what was itself an exception, ie., to the right of a criminal
defendant to offer evidence of his victim’s character to prove conforming
conduct: it barred evidence of the victim’s ”unchaste character”
to prove consent.
III. THE 1974 LEGISLATION: CHARACTER EVIDENCE
The legislature accomplished the above purpose with an arsenal of devices.
First, it amended Evidence Code section 1103 to·preclude the
defendants from offering “opinion evidence, reputation evidence, and
evidence of specific instances of the complaining witness’ sexual conduct,
or any of such evidence … in order to prove consent by the
COmplaining witneSS. “57
Second, it barred the use of the pejorative phrase “unchaste character”
in any jury instruction58 (as it had been employed in CALJIC
57. CAL. EvrD. CoDE§ 1103(2)(a) (West Supp. 1980).
The section is reproduced in its entirety at note 17 supra. For an indication as to what various
proponents of such legislation desired to achieve, see Rape Hearings, supra note 3.
The precise contour of .. sexual conduct” in this provision is not free of ambiguity. For an
imaginative consideration of its possible parameters under the analogous phrase “sexual behavior”
in FED. R. EVID. 412, see 23 C. WRIGHT & K. GRAHAM, supra note 4, § 5384.
58. CAL. PENAL CoDE§ 1127e (West Supp. 1980) (reproduced at note 18 supra).
(
I
1980] ~~uNCHASTE CHARACTER, EVI.DENCE 53
No. 10.06).59 Third, it totally prohibited the use of an instruction in
such vein even if it did not explicitly employ the term “unchaste character.”
60
The legislation thus barred both evidence and jury instructions
that depended on inferential leaps from the complainant’s prior sexual
conduct to her character, and then from her character to her consent on
the charged occasion. It did this, it should be noted, without categorically
excluding all evidence of the complainant’s prior sexual behavior;
indeed, the legislation expressly contemplated its use on some occasions.
61
Finally, having inaugurated a scheme under which prior sex evidence
was sometimes admissible and sometimes not, the legislature displayed
a lively concern that its exclusionary objectives might be
sabotaged by lawyers offering the prohibited evidence on spurious or
insubstantial grounds. To minimize such subversion, the legislature
enacted section 78262 of the Evidence Code, establishing a procedure
for a preliminary determination, out of the earshot of the jury, of the
admissibility of sexual conduct evidence.
If the foregoing purposes of the legislation are clear, other aspects
are more obscure. First, how broad a prohibition did the legislature
intend when it barred the use of prior sexual history ”to prove consent”?
Did it mean to preclude only character evidence? Or did it
mean to preclude all prior evidence bearing on consent, whether via a
character route or not?
Second, what did the legislature mean when it said that Evidence
Code section 11 03(2) did not “make inadmissible any evidence offered
to attack the credibility of the complaining witness”?63 That is, what
distinction did it have in mind between evidence going to “consent”forbidden
by paragraph (2)(a)-and evidence going to “credibility”protected
by paragraph (2)( d)? And why was the distinction made,
whatever it meant?
Third, how did the legislature intend the language of Evidence
59. Reproduced in text accompanying note 16 supra.
60. CAL. PENAL CoDE § 1127d (West Supp. 1980) (reproduced at note 18 supra).
61. Specifically, when the evidence pertains to the complainant’s prior sexual conduct with
the defendant. CAL. EviD. CODE§ 1103(2)(b) (West Supp 1980); when the prosecution or complainant
has opened the door to such evidence by offering it themselves, id. § 1103(2)(c); and when
the evidence is .. offered to attack the credibility of the complaining witness,” id § 1103(2)(d).
62. Reproduced at note 17 supra.
63. CAL. Evm. CoDE § 1103(2)(d) (West Supp. 1980).
54 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
Code section 11 03(2)( d) to coexist with the language of Penal Code
section 1127d, subdivision (b), adopted at about the same time?64 The
former, as already noted, permits the use of evidence relating to credibility.
The latter, however, bars any instruction ”that the prior sexual
conduct in and of itself of the complaining witness may be considered
in determining the credibility of the witness.” Was prior sexual con·
duct to be admissible credibility evidence by virtue of Evidence Code
section 11 03(2)( d), or inadmissible by virtue of Penal Code section
1127d, subdivision (b)? These points will be considered below.
It has been suggested above that, at a minimum, the 1974 amendment
to section 1103 barred the use of character (“prior unchastity”)
evidence to prove the complainant’s conforming conduct. The amendment
accomplished this, not by completely abolishing the criminal defendant’s
prerogative to offer evidence of the victim’s character, but by
eliminating this option in only one kind of case (rape) with respect to
one character trait (“unchastity”), and against one type of victim (the
rape victim). Defendants charged with other crimes, for example, battery,
remain entitled, even after the 1974 legislation, to offer evidence,
under Evidence Code section 11 03( 1 ), about their alleged victims’ violent
character. The amendment to section 1103 thus works a highly
selective denial. In a legal culture as highly sensitive about selective
denials as ours, the validity of such distinctive treatment is inevitably
subject to claims of unequal justice. Accordingly, what is at issue is the
defensibility of the exception barring the defendant’s use of evidence of
“unchastity” in a rape case.
IV. RELEVANCE OF “PRIOR UNCHASTITY” AS
CHARACTER EVIDENCE
At least four kinds of arguments can be and have been advanced
against the use of such evidence. First, admitting evidence of “unchastity”
invades the complainant’s privacy interest in her intimate sexual
life;65 second, such evidence contributes to her “second rape” at trial
through harassing and embarrassing cross-examination, with the consequence
of inhibiting rape prosecutions;66 third, the very notion of “con-
64. Section 2 was added to CAL. EviD. CoDE § 1103 by ch. 569, § 2, 1974 Cal. Stats. 1388.
CAL. PENAL CODE§§ 1127d and 1127e were adopted by ch. 1093, § I, 1974 Cal. Stats. 2320 and
ch. 1092, § I, 1974 Cal. Stats. 2320, respectively.
65. In some contexts it has been held that the compulsory disclosure of the woman’s prior
sexual activity may be a violation of the constitutional right of associational privacy. Morales v.
Superior Court, 99 Cal. App. 3d 283, 160 Cal. Rptr. 194 (1979) (building on Britt v. Superior
Court, 20 Cal. 3d 844, 574 P.2d 766, 143 Cal. Rptr. 695 (1978)); see Berger. supra note I. at 41-45.
66. See note 6 supra.
1980] “UNCHASTE CHARACTER” EVIDENCE 55
senf’ as a defense to a rape charge is suspect;67 and fourth, even
assuming the validity of “consent” as a defense to a rape charge, evidence
of “unchaste character” sheds virtually no light on the factual
soundness of the defense.
This Article focuses upon the last of these arguments68 and, accordingly,
upon a comparison of the probative value with the prejudicial
danger inherent in such evidence. It should be noted at the outset,
however, that how one strikes the balance tends to rest, not on carefully
measured experimental data, but rather on unarticulated “commonsense”
notions and “hunches” about the nature and interaction of men
and women in the real world. Articulating these contrasting “hunches”
enables us to appraise which better conforms with an acceptable contemporary
vision, as well as the developing reality, of male-female relationships
in our society. Such an appraisal provides strong support for
the view that the 1974 rape evidence restrictions rest on principled justifications
and are not mere pragmatic concessions to powerful but parochial
feminist politicians, driven by an obsessive and irrational
hostility to the common law tradition.
A. EXPLANATIONS SUPPORTING “PRIOR UNCHASTITY” EVIDENCE,
THEIR SHORTCOMINGS AND LINGERING PREJUDICE
The enthusiasm of the common law tradition for “prior unchastity”
evidence, it seems fair to say, rested on a stereotypic view of women
and their sexuality. Women were seen as the “repository of special sen-
67. On the “consent standard”, see generally Comment, supra note 4.
Some of the feminist hostility to this standard ftows from the view that it improperly focuses
on the woman’s frame of mind rather than on the man’s coercive conduct. See, e.g., Le Grand,
supra note I, at 934-36; Rape Hearings, supra note 3, at 146 (“(w)e seem to talk about something
called consent. If we analyze … rape [as] only a special type of assault or battery, we can see
how absurd that is because you cannot, by definition, consent to an assault or to a battery …. “).
For an argument on behalf of a “resistance standard” that does not focus on the woman’s state of
mind but rather on the outward manifestation thereof, 1:e., her actual conduct, see Comment, The
Resistance Standard in Rape Legislation, 18 STAN. L. REv. 680 (1966).
68. The weight of the first and second of the arguments seems to depend ultimately on the
relevance of the evidence. That is. they are only good arguments against admissibility if the evidence
itself is of no more than marginal probative value or if the danger of its prejudicial misuses
makes it excludable under CAL. Evm. CODE§ 352 (West 1966). Conversely, if it constitutes rational,
imponant evidence on behalf of the defendant, then it should not be excluded for either of
the first two reasons, both as a matter of sound policy and as a matter of constitutional law (if
indeed the two tum out to be different in this context).
As to the third argument, it is a serious and interesting one, see note 67 supra, but beyond the
scope of this Anicle. For a consideration of the constitutional issue, see sources cited at note 26
supra.
56 SOUTHERN CALIFORNIA LAW REVIEW [Vol. :;4:3:;
sibility and refinement. “69 Men, in contrast, were seen as animated by
a primitive, bestial nature, which it was woman’s task to tame. 70 It was
congenial, if not central, to this view that the appropriate role of sex for
women was limited to the reproductive function within the marriage
relationship. If romantic sexuality was thus not crucial within the marital
relationship, when it expressed itself outside that relationship it was
nothing less than a betrayal of woman’s essential nature and of her
mission as mother and as tamer of men. 71
To be sure, views of proper womanhood and the role of sexuality
have changed. From an earlier conception of virtue that all but excluded
sexual expression, twentieth century views have become more
sympathetic to a view of sexual expression as acceptable and even essential
to personal fulfillment but, under a widely held view, still to
take place only within the marital relationship.72 Within this view, women
failing to conform to the standard were seen as either morally
blind or as lacking the self-control necessary to comply with moral imperatives.
Persons holding this view no doubt found an instruction such as
CALJIC No. 10.06 to be precisely on point. It embodied the normative
and predictive features essential to that view. It stamped the errant
woman as morally defective, and it concluded, ineluctably, that having
done these things before, she was more likely to do them again.
Men, on the other hand, were judged under a different and more
lenient standard. If there was little to admire in their primitive tendency,
it was a mitigating factor that they were merely behaving as they
were biologically programmed to behave; moral judgments went easier
on those who had to do battle with their own dominant nature in order
to be good.
69. S.M. ROTHMAN, WOMAN’S PROPER PLACE 22 (1978). The ideal was that of “virtuous
womanhooti.” ld at 21-26.
70. In the words of a commentator from an earlier period:
[I]n marrying, [women] have simply captured a wild animal . . . the taming of
which is to be the life work of the woman who has taken him in charge. . . . The duty is
imposed upon her by high heaven, to reduce all these grand, untamed life-forces to order
. . . to make them subservient to the behests of her nature, and to those vast undying
interests which, to these two and to their posterity, center in the home.
/d at 22-23 (quoting J. HALLER, JR. & R. HALLER, THE PHYSICIAN AND SEXUALITY IN VICToRIAN
AMERICA 90 (1974)).
71. J. HALLER, JR. & R. HALLER, supra note 70, at 84.
72. See, e.g., Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (1976);
People v. Blackburn, 56 Cal. App. 3d 685, 690·91, 128 Cal. Rptr. 864, 867 (1967); M. SANGER,
HAPPINESS IN MARRIAGE (1926); Berger, supra note 1, at 55-56.
r
i
1980] uUNCHASTE CHARACTER,, EVIDENCE 57
A contemporary observer might be fully prepared to reject the
views just described and nevertheless steadfastly believe that the complainant’s
prior sexual conduct was relevant to the issue of her consent,
however dubious the traditional explanations in support of the connection.
The argument might proceed as follows. While all references to
“prior unchastity” (or other pejorative language) would appropriately
be stricken from the approved courtroom rhetoric, prior sexual activity
should simply be seen as a morally neutral basis for inferring subsequent
consent.73 Prior sexual indulgence is, in this view, not offered to
prove morally reprehensible behavior; rather, it is offered because it
suggests a receptivity, an interest, a taste, or at the very least, the absence
of an unalterable antipathy, and perhaps, depending on frequency,
even some enthusiasm for the activity. To be sure, it is hardly
overwhelming evidence of subsequent consent, but equally as sure it
has some “tendency in reason”74 to prove it. And so, it should be admissible.
There are several reasons for skepticism about this argument.
First, if the danger of prejudice is diminished by omission of any explicit
reference to “unchaste character,” risks of two kinds still remain.
The lesser risk is that jurors will not be well equipped to draw rational
inferences from the complainant’s earlier sexual experiences. Powerful
taboos still inhibit the dissemination of accurate, scientific, knowledge
about human sexual behavior. 75 Of course, much of the task conventionally
assigned jurors is the drawing of inferences that are intuitive,
unscientific, and of uncertain grounding, especially when more precise
answers are hard to come by. But there are differences of degree, and
ignorance in the sexual domain is of a special order.
A second and more serious risk is that sexual history is subject to
jury misuse not merely through neutral ignorance but through affirmative
prejudice as well. It is not fanciful to suppose that jurors confronted
with evidence of a previously sexually active rape complainant
will adopt unarticulated premises such as: “She got what she de-
73. The permissible instruction might thus read:
Evidence was received for the purpose of showing that the complainant has previously
consented to sexual intercourse. A woman who has previously consented to sexual intercourse
can be the victim of a forcible rape but it may be inferred that she would be more
likely to consent again.
q: CAUIC No. 10.06, reproduced at text accompanying note 16 supra (using the term ”unchaste
character”).
74. CAL. EVID. CODE§ 210 (West 1966).
75. Witness, for example, the public reactions when efforts are made to introduce sex education
into public school systems.
58 SOUTHERN CALIFORNIA LAW .REVIEW [Vol. 54:35
served,” ie., even if she were raped, she has at long last been punished
for past misdeeds; she is previously “damaged property,” ie., she lacks
purity and has therefore suffered no great additional harm;76 or “All
women want to be raped,” and the evidence of prior “unchaste” conduct
is somehow seen as brilliant confirmation of these widespread
male fantasies. 77
The point is that the danger of jury misuse does not stem simply
from the pejorative tone of the term “prior unchastity,” but from the
extent to which members of our society have been conditioned to think
in sexually stereotypic terms. This is not to say that the jury would so
react in every case. Presumably, the greater the attendant physical violence,
the less the complainant’s prior sexual activity might be taken as
excusing the defendant. The issue, however, is not whether the jury
would be prepared to punish aggravated battery, but whether it is encouraged
to nullify in certain contexts the societal norms against the
invasion of bodily integrity known as rape.
Additionally, the argument that evidence of prior sexual activity
simply presents the jury with morally neutral data is undercut by the
following inconsistency. It is not all prior sexual activity that is deemed
relevant but only extramarital sex. If the issue is simply whether the
complainant is attracted to or inhibited about sex, then prior sex, even
within marital confines, ought to be deemed relevant. Yet it is virtually
unthinkable that questions about the frequency or character of marital
sexual behavior would be either asked or permitted on such a theory.
A major reason is that marital sex is not “immoral.” Thus, whatever
the stated rationale for such propensity evidence, its use is inseparable
from the impermissible premise that prior sex implies ”unchaste character,”
which in tum implies promiscuity.
It should be noted that the concern about prejudice against the
rape complainant in no way depends upon the assumption that rape
complainants are necessarily truthful or that rape defendants are necessarily
lying. Defendants are entitled to the presumption of innocence
in cases of rape as elsewhere. It is simple realism, however, to recog-
76. If the harm to her is slight, the cost to the defendant, if convicted, would be out of all
proportion to the offense. The ultimate travesty, in this view, would be to convict a man for
raping a prostitute. How much, the jury might reason, could she have suffered?
“[T]o speak of sexual intercourse with a prostitute without her consent as an ‘outrage to her
person and feelings’ is in the nature of mockery.” R. PERKINS, supra note 5, at 158; see Berger,
supra note 1, at 25-26.
77. Le Grand, supra note 1, at 932-33; cf. Berger, supra note 1 at 28 (impact of Freudian
masochism theory on twentieth century attitudes toward sexual assault).
I
‘I
r
::
•• 1
,.
~
‘j
·I
.‘1.. ~
1980] uUNCHASTE CHARACTER” EVIDENCE 59
nize the framework of socially dominant attitudes. Nor are these attitudes
the exclusive property of jurors. Courts, too, have greeted the
rape complainant with a profound and atypical suspicion; courts fashioned
the now-rejected instructions concerning “prior unchastity.”
Reasonably current expressions of the special suspicion of sex complainants
are well illustrated: first, in the utilization of the Lord Hale
instruction (casting special doubt on the testimony of a rape complainant)
until its recent repudiation in People v. Rincon-Pineda;18 and seco~
d, in the doct~e of Ballard v. SU]Jerior Court, 19 only recently
reJected by the legislature, 80 under which the court singled out complainants
in sex cases as alone subject to a requirement, in the court’s
discretion, that they submit to psychiatric assessment of their credibility
.
B. “PRIOR UNCHASTITY”: PROBATIVE VALUE V.
RISK OF PREJUDICE
Assuming there indeed exist serious risks of prejudice, 81 one is brought
to the second major branch of the inquiry: Is the probative value of the
prior sex evidence sufficient to outweigh the risks? Its probative value
in behalf of the defendant, it must be noted, is easily exaggerated. This
fact emerges most clearly when one considers the context in which the
evidence is offered. In virtually every rape prosecution one is confronted
not only with the fact of the complainant’s previous sexual activity
but with a critically important additional fact as well-the
78. 14 Cal. 3d 864, 871, 538 P.2d 247, 252, 123 Cal. Rptr. 119, 124 (1975).
79. 64 Cal. 2d 159, 440 P.2d 838,49 Cal. Rptr. 302 (1966); see People v. Benson. 6 Cal. 221,
223-24 (1856) (“There is no class of prosecutions [besides rape) attended with so much danger, or
which afford so ample an opportunity for the free play of malice and private vengeance.”).
Professor Wigmore’s views to similar effect are well known. He believed that every complainant
in a sex case should be examined by a psychiatrist to provide testimony at trial as to her
“social history and marital makeup.” 3A J. WIGMORE. supra note 39, § 924a. at 737.
80. 1980 Cal. Legis. Serv. ch. 16, at 5-7 (to be codified at CAL. PENAL CoDE§ 1112).
81. It is true that the prejudice emanating from the use of prior sex history comes to bear in
pan on someone other than a party-ie., on a complaining witness rather than on the prosecution
or the defendant. It might consequently be thought less serious, especially in comparison to possible
prejudice against a criminal defendant. It must be remembered, however, that the prejudice in
this context does affect a pany-the state-by inhibiting its ability to implement the rape laws.
And, of course, even nonparty witnesses are entitled to protection from sexually discriminatory
harassment. . . .
This is explicitly recognized in FED. R. EviD. 6ll(a). which calls upon the court, m exerCJSmg
its discretion in admitting evidence, to .. protect witnesses from harassment or un~u~ embarassment.”
FED. R. EviD. 6ll(a) (emphasis added). CAL. Ev10. CoDE§ 352 has no sumlar express
provision, but the reference to .. undue prejudice” as a ground for exclusion ~bould be broad
enough to embrace the interests of the witness and therefore to produce an equivalent power on
the judge’s part. See also Berger, supra note 1, at 41-52.
60 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
complainant has taken the extraordinary step of lodging an official
complaint and thereby inviting painful public scrutiny into the charge
of rape.82 This fact enhances the victim’s credibility when she does
make the charge, for the appropriate question then becomes not
whether, having consented before, she is likely to have consented again;
but rather whether, having consented before without falsely charging
rape, it is likely she would again consent and then falsely charge rape.
Posing the issue that way, the complainant’s prior sexual activity enhances
the likelihood of truthfulness in the extraordinary circumstances
where she does charge rape.
There is yet a more fundamental reason for doubt as to the probative
value of such evidence. Its relevance dependS upon the assumption
that prio’r consensual activity, more or less without regard to surrounding
circumstances, suggests subsequent consent. But if anything is clear
about present-day sexual relationships, it is that they come in many
varieties reflecting different degrees of interpersonal commitment The
significance of sexual activity as a predictor of future behavior must
surely vary accordingly. 83 This proposition contrasts with a view more
congenial to the common law approach, namely, that there were two
dichotomous types of sexual relationships-those within marriage and
those outside of marriage-with a distinctive moral standing associated
with each. Marriage, in that view, implied sexual exclusivity between
the partners, and the law often demanded it through laws prohibiting
fornication or adultery.84 If a woman demonstrated her inability to
conform to that norm, it could be anticipated that she would act out her
regrettably lax sexual disposition on subsequent occasions.
But in today’s world, one observes a bewildering array of relationships,
both within and without marriage. Nonmarital relationships
range from committed long-term arrangements, marriages in all but
name (in which the partners would no more engage in sexual activity
with others than if they were married) to casual, uncommitted relationships
implying no restriction on sexual activity with other persons.
Further, one finds that commitments toward fidelity within marriage as
well, run the gamut from sexual exclusivity to open marriages contemplating
varying degrees of extramarital sex. 83 Thus, the fact that the
82. A possible exception to this proposition would arise in the circumstance where the victim
was killed during the episode and therefore could not be the complainant.
83. See Berger, supra note I, at 20-21.
84. Neither are crimes in California today.
85. Others. ~ve tog~ther without a similar long-term commitment but with an understanding
of sexual exclUSivity until they mutually decide otherwise. Some relationships are neither perma1980]
uUNCHASTE CHARACTER,, EVIDENCE 61
complainant has had sex on prior occasions, say, with a close friend,
would tell virtually nothing about her propensity toward sex with
strangers-just as the fact that she had sex within marriage would tell
nothing about the likelihood of extramarital sex. In short, the relationship
between past and future consent is dramatically more complex
than classic jury instructions such as CALJIC No. 10.06 allowed. It is
this combination of attenuated relevance with the likelihood of
prejudice that justifies the exclusion of evidence of “unchaste” character
to demonstrate consent.
C. “PRIOR UNCHASTITY” AS IT RELATES TO CREDIBILITY UNDER
THE 1974 LEGISLATION
The argument could be made that prior sex evidence remains admissible
under the 1974 legislation by virtue of Evidence Code section
11 03(2)( d), to prove witness “credibility” as set forth in section 780 of
the Code.86 This cross-reference to section 780 might be taken as authorizing
the introduction of all the types of evidence listed in section
780. The implications of such a reading would be striking. A defendnent
nor exclusive, yet the partners may view third-party sexual activity as permissible only if that
relationship is based on love or strong affection. Yet other relationships accept a casual commitment
to sexual loyalty but have a heavy commitment to candor, so that it is quite permissible to
have sexual relations with others so long as the parties are behaving openly with each other.
This hardly exhausts the variations that arise, as people strive to fashion relationships in an
atmosphere decidedly more accepting of experimentation than in the past And where i~ this more
true than in California? One reflection of these changes is the alternation in legal status of unmarried
persons recognized in Marvin v. Marvin, 18 Cal. 3d 660, 684, 557 P.2d 106, 122-23, 134 Cal.
Rptr. 815, 831-32 (1976).
86. I.e., by way of Evidence Code § 782, to which § ll03(2)(d) refers. CAL Ev10. CoDE
§§ 182, ll03(2)(d) (West Supp. 1980); see note 17 supra. California Evidence Code§ 780 reads:
Except as otherwise provided by statute, the court or jury may consider in determining
the credibility of a witness any matter that has any tendency in reason to prove or
disprove the truthfulness of his testimony at the hearing, including but not limited to any
of the following:
(a) His demeanor while testifying and the manner in which he testifies.
(b) The character of his testimony.
(c) The extent of his capacity to perceive, to recollect, or to communicate any matter
about which be testifies.
(d) The extent of his opportunity to perceive any matter about which he testifies.
{c) His character for honesty or veracity or their opposites.
(t) The existence or nonexistence of a bias, interest, or other motive.
(g) A statement previously made by him that is consistent with his testimony at the
hearing.
(h) A statement made by him that is inconsistent with any part of his testimony at
~~~ .
(i) The existence or nonexistence of any fact testified to by him.
(j) His attitude toward the action in which he testifies or toward the giving of testimony.
(k.) His admission of untruthfulness.
CAL. Evm. CODE§ 780 {West 1966).
62 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
ant wishing to offer the complainant’s sexual history might well grant
that section 1103(2)(a) bars character evidence to prove consent, but
argue that section 780(e) admits it to show credibility. The trouble with
the argument is that section 780 adopts those limitations “otherwise
provided by statute.” Prior sexual conduct, as earlier noted, 87 is made
inadmissible twice-over by Evidence Code sections 786 and 787, if offered
as character evidence going to credibility.
This result could be avoided only if section 782 were read as implicitly
repealing sections 786 and 787 so far as sexual-conduct evidence
is concerned. But such a reading would convert the 1974
legislation into a dreary shell game: Unchastity was formerly admissible
on the theory of consent. Now it is not. Unchastity was formerly
inadmissible on the theory of credibility. Now it is. The express language
of the statute does not require this self-defeating reading. The
only sensible interpretation is that when section 782 refers to section
780, it refers to section 780 in its entirety, ie., both to the specific examples,
and to the general limitations. If there still were any doubt on that
score, it is laid to rest by Penal Code section 1127d (b).88
The result is that evidence of sexual history, both in principle and
under the 1974 rape evidence legislation, is admissible for neither character
purpose, that is, neither to prove the complainant’s conduct, nor
to prove her lack of credibility.
V. NONCHARACTER USES OF PRIOR SEX EVIDENCE
UNDER THE 1974 LEGISLATION.
It is now necessary to address the fact that the complainant’s prior sexual
conduct may be relevant on theories having nothing to do with her
character. Suppose, for example, a rape defendant wished to offer the
following evidence. The complainant was a prostitute who had agreed
to sexual -relations with men other than the defendant on twenty occasions
in the year preceding the alleged rape; that in each case, after
completing the sex act, she had demanded double the agreed fee and
had threatened to charge rape falsely if the customer did not comply;
and that she had indeed carried through on her threats by falsely
charging rape on the ten prior occasions when the customer did not
heed the threat. Suppose, in short, the defendant claimed that the rape
charge was falsely lodged against him as a result of an extortion effort
87. See notes 35-39 and accompanying text supra.
88. Reproduced at note 18 supra.
1980] uUNCHASTE CHARACTER” EVIDENCE 63
and wished to offer evidence of the earlier, demonstrably false threats
in support of this defense.
Such a case is admittedly far-fetched; nevertheless, if it did arise,
the prior sexual episodes would be of considerable evidentiary importance.
It is, of course, true that from one point of view the relevant
issue would not be whether the complainant had, in fact, engaged in
prior sexual activity, but rather whether she had an established pattern
of falsely charging rape. However, the effort to prove that pattern
might necessitate a demonstration of the factual ‘context in which those
false charges had arisen-as acts of prostitution falsely characterized as
rape. In short, to defend against the charges, one may have to prove
the prior sexual activity. 89
The example does, therefore, suggest that a flat rule, excluding all
evidence of the complainant’s prior conduct that included a sexual
component, is unacceptable. The example suggests that there are cases,
however infrequent, in which prior sexual episodes are so telling as defense
evidence that it would be difficult to imagine excluding the evidence.
Moreover, exclusion would probably be unconstitutional even
if it could be imagined. 90 The admissibility of such evidence under the
1974 legislation must now be examined.
A. THE CoNSENT/CREDIBILITY DICHOTOMY UNDER SECTION 1103
I. Section JJOJ(l)(a) Read as Barring Sexual History Only When
Offered on a Character Theory
If section 11 03(2) stands simply as a barrier to character evidence and
no more, then it should not bar the prostitute-extortion evidence if it is
deemed sufficiently probative on a noncharacter theory, for example, as
evidence of modus operandi.91 Unfortunately, there is ample room for
dispute as to whether section 1103(2)(a) is intended solely as a bar to
character evidence or as a bar to all sexual conduct evidence, whether
of a character or noncharacter tenor, so long as offered “to prove con-
89. If, on the other hand, the complainant admilledher prior pattern of false charges under
similar circumstances as occurred in the present case, little importance would attach to the prior
sexual episodes. But, if she denied the prior false charges, proof that they were false would inevitably
involve untangling what had in fact happened on the prior occasions.
90. Clearly such evidence was admissible prior to the 1974 enactments. People v. Hurlburt,
166 Cal. App. 2d 334, 333 P.2d 82 (1958) (in prosecution for lewd conduct with child, evidence
held admissible that the witness in the past made similar charges against other men, which
changes the witness had admitted were false or were proven to be false). See also People v. Neely,
228 Cal. App. 2d 16, 39 Cal. Rptr. 251 (1964). For a constitutional analyses of the admissibility
issue. see sources cited supra note 26.
91. As governed by CAL. EVID. CODE§§ 352, l10l(b) (West 1966).
64 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
sent by the complaining witness. “92 The latter interpretation would be
a beguilingly simple reading. But if it is an accurate reading, the prostitute-
extortion evidence (bearing as it does on “consent”) would be
categorically inadmissible-an unacceptable result. It may be thought
that the solution to the dilemma is to hold the· extortion evidence excludable
under section 1103(2)(a) but admissible under section
1103(2)(d) as evidence going to the complainant’s credibility.93 This is
not a satisfactory solution for reasons soon to be considered. 94
Can section 1103(2)(a), then, be read more narrowly as barring
sexual history only when offered on a character theory (as to prove
“prior unchastity”) but not when offered to prove consent on some persuasive
noncharacter theory? It is capable of just such a limited reading.
It will be recalled that section 1103, as originally enacted in the
1965 Evidence Code, dealt solely with one limited aspect of character
evidence. It was entitled “Evidence of Character of Victim of Crime to
Prove Conduct. “95 That section permitted a criminal defendant to offer
character evidence as proof of his alleged victim’s conduct,96 which included
a rape defendant’s right to offer “prior unchastity” evidence to
establish the complainant’s consent.97 Subdivision (2) of section 1103,
added by the 1974 legislation, simply amends this section. It is a reasonable
interpretation that the amending provision was intended to bar
only evidence that would otherwise have been permitted-sexual history
to prove the victim’s character. In short, since section 1103 originally
dealt only with the subject of character evidence, it is natural to
suppose that the 1974 amendment was addressed to the same subject
and limited the defendant’s power with respect to character evidence
alone.98 Accordingly, where the evidence is offered on a noncharacter
92. CAL. EviD. CODE§ 1103(2)(a) (West Supp. 1980) (subject to the exceptions set forth in
§ 1103(2}(b)-(d)).
93. This reading appears to be the nearly unanimous interpretation adopted implicitly or
explicitly by commentators on the statute. E.g., Berger, supra note 1, at 35 n.215, 70 n.401; Comment,
California Rope Evidence Reform: An Analysis of Senate Bi/11638, 26 HASTINGS L.J. 1551,
1560-63, 1567-68 (1975); Comment, supra note 22; Comment, supra note 9, at 445. Bur see id at
473 n.158.
94. See text accompanying notes 101-08 infra.
95. The effect of a section heading does not, technically, “affect in any manner” the “scope,
meaning, or intent” of the provisions, however. CAL. EviD. CODE§ 5 (West 1966).
96. See text accompanying notes 49-50 supra.
97. See note 16 supra.
98. An additional argument in support of the proposed narrow exclusionary scope of
§ 1103(a) is the fact that the paragraph defines the kind of evidence to be excluded as “opinion
evidence, reputation evidence, and evidence of specific instances” of the complainant’s sexual
conduct. These, of course, are the typical forms of cluuocler evidence. See CAL. EVID. CoDE
§§ 1100, 1103(1) {West 1966). The use of these categories suggests that it was character evidence
1980] uUNCHASTE CHARACTER,, EVIDENCE 65
theory, section 1103(2)(a) need not be read to bar evidence of prior
sexual activity to prove consent.
Furthermore, an important virtue of this interpretation is that it
permits paragraphs (2)(a) and (2)(d) to coexist peacefully, thereby serving
the laudable purpose of preserving the statute’s coherence. If paragraph
(2)(a) is read, as proposed here, to bar character evidence only,
no conflict will arise between it and paragraph (2)( d): what is excluded
under the former (evidence of ”unchaste character”) would in any
event be inadmissible under the latter, 99 and what is admissible under
that the legislature was attempting to regulate. In fact, “opinion evidence” and “reputation evidence”
would be virtually meaningless with respect to noncbaracter purposes, since such evidence
would not normally be permissible ways of proving conduct. This fact, combilied with the fact
that the prohibition was attached to a paragraph dealing with the admissibility of character evidence,
argues in favor of the suggested limited reading of§ 11 03(2). On the other hand, the introductory
phrase to § 1103(2)–“Notwithstanding any other provision of this code to the contrary”
(emphasis added) suggests a broader reading.
Evidence from the Rape Hearings, supra note 3, about legislative intent is inconclusive. First,
there is the difficulty of trying to extrapolate legislative intent from a committee’s intent, even
assuming that one fully fathomed the committee’s intent. Second, the bearings were before the
Assembly Criminal Justice Committee, which did not write the legislation culminating in
§ 1103(2). That legislation originated in the Senate, though it may have been influenced by the
views expressed in the Rape Hearings. Third, it is unclear whether the witnesses supporting rape
evidence restrictions were thinking only of character evidence, or whether they viewed all evidence
going to consent as the evil to be proscribed. For various views, see id at 80-86, 98-102,
110-11, 148-49. A fair reading of these bearings is that the predominant views are not inconsistent
with the proposed narrow reading of the evidence to be proscribed by rape evidence legislation.
The clearest indication that, at least, the Assembly Committee on Criminal Justice bad in
mind the possibility that certain noncharacter uses of prior sex evidence would be admissible, is
found in Assembly Criminal Justice Committee, Findings and Recommendations for Revising
California Laws Relating to Rape (March 1974), Finding and Recommendation No. 10.
Finding 10 referred to “unchaste character” as an archaic and irrelevant concept. Recommendation
10 called for its abandonment and went on to say: “The jury should be permitted to
consider the prior sexual history of the victim, if relevant, only on the issue of whether the victim
consented to the alleged rape, and not be permitted to consider such acts in judging her credibility
regarding other facts in dispute.” /d.
Evidence from the nine versions of S.D. 1678 preceding the adoption of·the amendment to
§ 1103 is also inconclusive. Perhaps the strongest argument against the proposed reading is that
the May 16, 1974 version included a paragraph reading as follows: “Nothing in this section shall
prohibit the admission of evidence under Sections 1100 and 1101 of the Evidence Code.” Had
that language found its way into § 1103(2), instead of the language presently found in
§ 1103(2)(d), there would have been explicit support for the inference that the exclusionary rule of
§ 11 03(2) was aimed at ”unchaste character” evidence and not at any otherwise relevant
noncharacter evidence, i.e., evidence admissible under§ 1101.
A final argument against the proposed interpretation is the fact that feminist critics may have
been sharply dissatisfied with the consent standard as a substantive pan of rape law doctrine. See
note 67 supra. This may have made it eminently logical for them to press for a rule of evidence
that would exclude proof going to an issue that they in any case regarded as irrelevant.
99. This is because, as earlier discussed, “un.-:baste character” is not a permissible way to
attack witness credibility. See notes 35-42 and accompanying text supra.
66 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
the former would in no event be excluded under the latter. Read in this
way, the worst that one could say of paragraph (2)(d) is th(\t it is surplusage,
since paragraph (2)(a) itself would bar only character evidence
and not any otherwise admissible credibility evidence. 100
2. Section 1103(2)(a) Read as Barring All Evidence of Sexual
History
A problem arises if section 1103(2)(a) is read to exclude the admission
of all sexual history because “consent” and “credibility” are not mutually
exclusive categories. Evidence relevant for one purpose is almost
always relevant for the other. If paragraph (2)(a) were read as barring
all prior sex evidence, 101 then paragraphs (2)(a) and (2)(d) would be
utterly inconsistent, since one points toward the exclusion and the other
toward the admissibility of the same item of evidence. Thus, if the
complainant denies consent (as she must when she charges rape) then
evidence tending to prove that she did consent would necessarily affect
her credibility (just because she has denied it). 102 Conversely, evidence
tending to affect her credibility would bear on the issue of her consent
as well, because anything affecting her credibility would undercut her
claim of nonconsent.
Applying this analysis to the prostitute-extortion example, the simple
fact is that such evidence would go to both consent (inadmissible
under paragraph (2)(a)) and credibility (admissible under paragraph
(2)(d)}.l03 To so read the statute would render it incoherent.
100. If this were what the legislature intended to achieve by paragraph (2)(d), it certainly
would have been better had it limited the exclusionary purpose of (2)(a) more directly and comprehensively.
Rather than simply safeguarding “credibility” evidence the legislature could, for
example, have said that§ 1103(2) was not intended to bar noncharacter evidence admissible under
§ liOI(b) or under any other appropriate Code provision.
Perhaps the legislature thought it was accomplishing this result by safeguarding credibility
evidence in paragraph (2)(d) on the theory that almost every instance of noncharacter evidence
that went to consent would in any event be admissible because it went to witness credibility. This
is, to be sure, an awkward reading of (2)( d) but it is better than an unconstitutional one.
The “credibility” reservation was apparently a reftexive response to Davis v. Alaska, 415 U.S.
308 (1974) (defendant held constitutionally entitled to cross-examine a prosecution witness about
a juvenile conviction to illustrate witness bias and lack of credibility), handed down while
§ 1103(2) was under legislative consideration. See Comment, supra note 93, at 1571 n.l29.
101. It has so been widely read. See note 93 supra.
102. Thus, CAUIC No. 2.21 provides in pan that “a witness willfully false in one material
part of his testimony is to be distrusted in others.”
103. To be sure, one can imagine cases where prior sexual history is pertinent for the one
purpose and not for the other, e.g.. the case, rare though it may be, in which the victim does not
testify (perhaps having died prior to trial). Clearly, then, her “credibility” would not be an issue,
though her consent would be. Conversely, if the defendant wished to offer an “alibi” defense to
the effect that at the very moment of the alleged rape the complainant was engaged in sexual
(
(
f
1980] ~~uNCHASTE CHARACTER,, EVIDENCE 67
a. Possible solutions and their failures: A possible reconciliation
of this apparent incompatibility might be effectuated by employing the
familiar doctrine of limited admissibility. 104 Thus, in the prostituteextortion
example, the jury could be instructed to disregard the evidence
insofar as it was introduced to prove consent and consider it only
on the issue of credibility. But such a limiting instruction makes absolutely
no sense here. The complainant’s repetitive method of operation
(her “modus operandi”) rationally undercuts her credibility only to the
degree that it supports the conclusion that she did indeed consent on
the charged occasion. If it fails to support that conclusion, the evidence
is probative neither of consent nor of lack of credibility. As sensible as
limited admissibility is in other contexts, it is not so here. The doctrine
would make the evidence of the complainant’s modus operandi allowable
on one.issue and not the other, where logically such evidence can
only affect the one by affecting the other. 105
A second possible reconciliation of paragraphs (2)(a) and (2)(d),
under the instant analysis, would build on the fact that evidence can
affect witness credibility with different degrees of directness. Sometimes
a proposed item of evidence bears “directly” or “in the first instance”
on credibility and only indirectly or by more remote inference
on the substantive issues in the case. For example, evidence that a witness
has a financial stake in the litigation suggests a motive for the
witness to lie. Such evidence speaks directly to credibility and only
indirectly to the substantive issues in the case. At other times, an item
of evidence specifically contradicts the witness’ version of some material
fact. Not only does it challenge that version, but it may undercut
the witness’ credibility in other respects. 106 In such instances, the evidence
speaks directly to the substantive issue and only indirectly to the
activity with another person, then the defendant would not be seeking to prove “consent” but
rather that no sex act at all bad taken place between himself and the complainant.
104. CAL. EviD. CoDE§ 355 (West 1966). See Comment, supra note 93, at 1557-58, which
takes precisely this view of the “reconciliation” of the two paragraphs. The author is properly
skeptical of the efficacy of such an arrangement in protecting rape complainants. ld at 1567-68.
105. The idea of limited admissibility and of limiting instructions is, of course, no novelty.
Until the adoption of§ 1235 of the California Evidence Code in 1965, for example, it was the rule
in California, as in most other jurisdictions, that prior inconsistent statements were admissible for
impeachment purposes but not as substantive evidence of their content. A plausible rationale
existed for such limited use that is unavailable, however, in the extortion example: it is logically
possible for a prior inconsistent statement to impeach even if that statement is not accepted as
true. Inconsistency alone undercuts credibility, even if one doesn’t know which, if either, of the
two statements is true. The same, however, cannot be said of the extortion evidence.
106. See note 102 supra. Also, if the evidence impeaches through self-contradiction, it probably
does both simultaneously.
68 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
witness’ credibility. Building on this distinction, it might then be argued
that paragraph (2)(d) is intended to admit only evidence of the
first sort-evidence bearing directly on credibility.
There are good reasons, however, for rejecting this interpretation.
107 First, no rational policy concerns are fostered by defining
“credibility” evidence in this fashion. To be sure, “indirect” evidence
is, by definition, more attenuated than “direct,” and therefore perhaps
less entitled to respect. But what reason is there to prefer “direct” credibility
evidence over equally direct consent evidence? Indeed, credibility
evidence is often merely an indirect way of ascertaining whether
consent had been given on the charged occasion. What justification
can there be for excluding such evidence on the ground that it goes
“merely” to consent, when consent is often the central factual inquiry
in a rape case? 108
Second and most significant, this interpetation of paragraph (2)( d)
would categorically exclude the prostitute-extortion evidence discussed
above as “indirect” evidence of credibility. Again, this reading would
provide an unacceptably narrow test for -admissibility of prior sex evidence.
It should suffice to demonstrate that some other interpretation is
a plausible one, even if not necessarily the only one. An alternative,
and far preferable, interpretation is that section 1103(2)(a), despite its
nominally greater breadth, is intended to exclude only evidence of the
complainant’s prior sexual activity when offered to prove her “unchaste”
character as a basis for inferring conforming conduct on her
part. Evidence offered on such a theory should be deemed barred by
section 1103(2)(a); furthermore, that evidence should not be deemed
admissible as “credibility” evidence under paragraph (2)(d) (that is, as
an exception to paragraph (2)(a)). If, on the other hand, the evidence is
offered on a plausible noncharacter theory, it should not be excluded
by paragraph (2)(a); it should be entitled to admission either under par-
107. It will be observed that§ 1103(2)(d), and through it§§ 780 and 782, provide no textual
support for such interpretation. CAL. Evm. CoDE§§ 782, 1103(2)(d) (West Supp. 1980); id § 570
(West 1966 ). In fact, some of the specific forms of credibility evidence recited in § 780 are incompatible
with the two limitations mentioned above. See, e.g.. CAL. Evm. CoDE§ 780(i) (West
1966). That the evidence has “any tendency in reason to prove or disprove the truthfulness” of a
witness’ testimony is, under that section, quite enough to classify it as credibility evidence, without
respect to how it does it or what else it does.
108. Interestingly, the board of the ACLU of Southern California recently adopted an “updated
policy on rape” under which “evidence of a complaining witness’ prior sexual conduct . . .
[would] never [be] admissible into evidence to prove the credibility of the complaining witness”
though it would be admissible “in certain very narrow circumstances to determine whether the
victim consented …. ” ACLU of Southern California Open Forum, April I, 1980, at 2, col. I.
r
‘
I‘
~
I
!
1980] “UNCHASTE CHARACTER,, EVIDENCE 69
agraph (2)(d), or simply as relevant evidence not barred by any provision
of the Evidence Code. So interpreted, the critical distinction in
section 11 03(2) turns out not to be one between consent evidence and
credibility evidence, but rather one between character and noncharacter
evidence. 109
b. People v. Blackburn: The consent/credibility dichotomy as a
test for admissibility has thus far not generated the mischief of which it
is capable. This is due more to the accident of the kind of facts that
have to date come before the courts than to the validity of the distinction
itself.
The potential problem can best be illustrated in the leading California
case calling for the application of section 1103(2)-People v.
Blackburn. 110 The complainant in Blackburn had testified against the
defendant in a preliminary hearing. On cross-examination at that
hearing, she testified that she had been a virgin prior to the rape, but
later testified she had had sexual intercourse some five or six months
earlier. At the subsequent trial, the issue of her chastity was not raised,
1: e., neither she nor the prosecution presented any claim of lack of prior
sexual experience on her part. The defendant, however, sought to offer
evidence of her prior sexual conduct, which had been alluded to at the
preliminary hearing, on the theory that the inconsistencies in her testimony
at the preliminary hearing bore on her credibility.
Exclusion of the evidence would have been warranted simply on
the basis that it amounted to an attempt to prove a lack of truthful
character in a manner barred by Evidence Code section 787. 111 The
court in Blackburn, however, excluded the evidence on a different and
dangerously overbroad theory. The court said:
Section 1103, subsection (2) excludes evidence of the victim’s sexual
conduct only when it is offered to prove consent. That limited exclusion
no more deprives a defendant of a fair trial than do rules of
evidence barring hearsay, opinion evidence, and privileged communications
. . . . In those situations, policy considerations dictate that
the evidence be excluded, and these policy considerations are
deemed incorporated within the definition of a fair trial. 112
109. See note 100 and accompanying text supra.
110. 56 Cal. App. 3d 685, 128 Cal. Rptr. 864 (1976).
111. CAL. Evm. CooE § 787 (West 1966) reads: “Subject to Section 788 [prior felony conviction],
evidence of specific instances of his conduct relevant only as tending to prove a trait of his
character is inadmissible to attack or support the credibility of a witness.”
112. 56 Cal. App. 3d at 690, 128 Cal. Rptr. at 866.
70 SOUTHERN CALIFORNIA LAW REVIEW [Vol. ~4:1~
Of course, the court was correct in saying that due process does not
require that all exonerating evidence, however slight, be received. 113 It
was equally correct in believing that the evidence in the case before it
was “slight at best.”114 But it was wrong in implying that the exclusion
of all evidence of prior sexual conduct, whatever its nature or the theory
on which it rested, could be justified both as a matter of constitutional115
and statutory law simply because it was introduced to support
defendant’s defense of consent. The appropriate reason for exclusion
in Blackburn was not that the evidence went to consent, but rather that
it went to character, and as such, its probative value was small compared
with its capacity for engendering prejudice. 116 If applied to other
circumstances (e.g., the prostitute-extortion example) the court’s test
would produce results that were doubtful in principle and equally
doubtful as a matter of constitutional law.
3. Reconciliation of Evidence Code Section 1103(2)(d) and Penal
Code Section 1127d
To complete the consideration of section 1103(2)(d), an additional
complexity must be examined. That section, it will be remembered,
ensures the admissibility of “credibility” evidence. That language must
somehow be rendered intelligible when laid alongside subdivision (b)
of Penal Code section ll27d, which was adopted at about the same
time. 117 That subdivision bars any judicial instruction to the effect that
“the prior sexual conduct in and of itself of the complaining witness
may be considered in determining the credibility of the witness
• • • • “
118 How are the two provisions to be reconciled?
The key probably lies in the “in and of itselr’ qualification of the
Penal Code provision. The only plausible reading of that phrase seems
Interestingly, there are indications that the court regarded the exclusionary rule to be aimed
at character evidence of the “unchaste character” type. ld at 690-91, 128 Cal. Rptr. at 866-67.
113. ld at 691, 128 Cal. Rptr. at 867.
114. ld
115. In Davis v. Alaska, 415 U.S. 308 (1973), it was held that the states’ interest in preserving
the confidentiality of a juvenile conviction had to yield to the defendant’s interest in cross-examining
a juvenile witness concerning that witness’ probationary status, for its bearing on his possible
bias. And it is quite clear that the state does not have carte blanche authority to deny the criminal
defendant all hearsay evidence in his favor, no matter how critical it may be to his defense or how
reliable the hearsay. E.g., Chambers v. Mississippi, 410 U.S. 284 (1973); seeTanford & Bocchino,
supra note 23, at 556-60.
116. The same can be said of In re Wright, 18 Cal. App. 3d 788, 144 Cal. Rptr. 535 (1978),
which again applies the Blackburn view, and arrives at the probably correct result, though on an
overbroad principle.
117. Reproduced at note 18 supra.
118. CAL. PENAL CODE§ 1127d(b) (West Supp. 1980).
1980] uUNCHASTE CHARACTER,, EVIDENCE 71
to be that it was intended to prohibit inferences about the complainant’s
credibility based on “prior unchastity” evidence. This is because
it is only with respect to such evidence that the offerer relies upon the
prior sex evidence “in and of itself,” ie., without regard to surrounding
circumstances, to establish lack of credibility.
In contrast, when the evidence is offered on a noncharacter theory,
the mere fact of prior sexual conduct is never in itself important. It
becomes important only when linked with other facts that prove, for
example, modus operandi or motive to lie. Put another way, it is not
the fact of prior sexual activity as such that is important, but something
about the special circumstances under which that prior sexual activity
took place that renders it important. If this is true, Penal Code section
1127d(b) should be read to bar “prior unchastity” (character) evidence
offered to attack the complainant’s credibility. 119 So read, it is a parallel
provision to Evidence Code section 1103(2)(a), which bars such evidence
when introduced to prove consen/. 120 The point of subdivision
(b) was thus to overrule expressly one of the uses of prior sexual history
that had been approved by the traditional rape evidence instruction, 121
though as earlier noted, such evidence should have been barred even
prior to the 1974 enactment}22
It will be useful to now consider various examples in which sexual
history might be offered and to consider how the admissibility issue
would appropriately be resolved in light of sound policy and the provisions
of the Code. 123 These examples do not imply an expansive approach
to admissibility of prior sex evidence. Occasions genuinely
warranting admission are probably quite rare. The point of the review
is to illustrate the kinds of cases that might plausibly be thought of as
presenting noncharacter evidence and to suggest a method of thinking
about the admissibility of such evidence.
119. Such evidence is, in any event, barred under other provisions of the law, but one can
appreciate the felt need to specifically so provide. See notes 35-42 and accompanying text, supra.
120. A reading reinforced by CAL. PENAL CooE § 1127e (West Supp. 1980) (reproduced at
note 18 supra).
121. See text accompanying note 16 supra.
122. See notes 35-42 and accompanying text supra.
123. See Berger, supra note I, at 97-99 (Professor Berger’s proposed statute regulating admissibility
of evidence of sexual conduct).
72 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
B. POSSIBLE USES OF SEXUAL HISTORY AND THE PROPER
DETERMINATIONS OF THEIR ADMISSIBILITY FOR
NONCHARACTER PURPOSES
1. Evidence That the Complainant Has Engaged in Prior Incidents of
Sexual Activity
Suppose the. defendant seeks to introduce evidence of the complainant’s
prior sexual activity with others (her “prior unchastity”) to establish
a disposition on her part to engage in sexual activity. This
character disposition is, in tum, proposed as a basis for inferring that
she acted in conformity with that trait on the charged occasion, i.e.,
that she consented to sexual activity with the defendant.
This is the straightforward use of the complainant’s sexual history
as character evidence. It has no other relevance. Such evidence deserves
to be excluded for all the reasons earlier discussed. 124 Nothing
could be clearer under section ll03(2)(a) than that it would be excluded.
Suppose, however, the defendant wished to offer evidence of his
prior consensual activity With the very same woman, the complainant.
The argument for exclusion might run in the following manner. Such
evidence panders to the male prejudice that once having consented to
sex with the defendant, the complainant would surely be likely to consent
again; or that regardless of whether she consented on the subsequent
occasion, rape by one to whom she has had previously given her
consent is a matter of relatively little moment.
While recognizing this possible risk in permitting the introduction
of such evidence, on balance it should probably be admitted, as indeed
it would be under section 1103(2)(b). 12s The goal of rationally untangling
what happened between the two persons on the charged occasion
requires one to understand the history of their sexual relationship.
Quite apart from any character implications, this prior relationship
bears too heavily on the complainant’s probable conduct on the
charged occasion, as well as on the motivation for her present accusation,
to be excluded. 126
124. See text accompanying notes 81-85 supra. The same result should obtain if the defendant
offered similar evidence as above, except without explicitly employing the phrase “prior unchastity”
or any other similarly perjorative term. See note 73 and accompanying text supra.
125. See note 17 supra.
126. Similarly, in California a husband can be prosecuted for raping his wife, CAL. PENAL
CoDE § 262 (West Supp. 1980), and it is hard to imagine holding irrelevant the fact that the couple
were married, if the defense were consent.
1980] uUNCHASTE CHARACTER,, EVIDENCE
2. Evidence of the Complainant~ Prior Sexual Conduct Suggesting
She Possesses a Mental or Emotional Condition
Undermining Her Credibility.
73
Suppose the defendant seeks to offer evidence of the complainant’s
prior sexual conduct to support a psychiatric opinion that she had a
pathological predisposition to fantasize and to lie about rape. 127 The
underlying critical issue here is whether, and to what degree, the views
of psychiatrists on the subject are worthy of respect. Severe doubts can,
and have, been expressed about the reliability of such psychiatric evaluations.
In part, these rest on a general skepticism of psychiatric ability
to “postdict” a person’s behavior, 128 as well as skepticism about
whether psychiatrists (most of whom are males) enjoy even a relative
immunity from the sexual stereotypes that prevail in the society at
large. 129
Assuming doubts on this score are favorably resolved, the next issue
is whether a psychiatrist, under present evidentiary doctrine, should
be permitted to testify in opinion form about a witness’ credibility.
There is no reason to preclude such testimony if the opinion has an
adequate basis.130 The question then is whether the complainant’s
prior sexual activity should be admissible if such activity is an important
underpinning of the psychiatrist’s conclusion. Should the evidence
be excluded as character evidence or received as a neutral fact, analogous
to testimony about a broken bone in support of a doctor’s opinion
about a physical disability?
Whatever the nominal theory of admission, there is sufficient likelihood
that the jury would use the evidence improperly to warrant a
compromise under which the expert would be permitted to base his or
her opinion partly on the prior sex history, without test!fying to that
prior history. Thus, if the opinion about credibility were based in part
on the complainant’s prior sexual conduct, the net opinion could be
127. Wigmore’s view was that such evidence was not merely useful but indispensable. 3 A. J.
WIGMORE, supra note 39, § 924a.
128. “Postdiction” means the effort to determine circumstantially what probably happened on
a past, disputed occasion. The process, as well as the risk, is similar to that confronted in making
predictions. In some contexts, psychiatrists have been at pains to deny their capacity to predict
accurately. See, e.g.. Tarasoffv. Regents of the Univ. of Cal., 17 Cal. 3d 425,438,551 P.2d 334,
345, 131 Cal. Rptr. 14, 25 (1976) (“We recognized the difficulty that a therapist encounters in
attempting to forecast whether a patient presents a serious danger of violence.”). See also id at
461 n.5, 551 P.2d at 360 n.5, 131 Cal. Rptr. at 40 n.5 (Clark, J., dissenting); C. WRIGHT & K.
GRAHAM. supra note 4, § 5385, at 558 & n.72.
129. See B. BABCOCK, supra note 1, at 855-60; Berger, supra note 1, at 28-29.
130. See CAL. EVID. CoDE§ 801 (West 1966).
74 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
received without directly admitting the prejudice-inducing sexual history
upon which it rested. 131
3. Modus Operandi· Evidence of Prior False Charges of Rape.
Suppose the defendant seeks to offer evidence of a pattern of behavior
on the complainant’s part consisting of numerous instances of prior,
consensual, sexual activity frequently followed by false accusations of
rape. This, it will be recognized, is the prostitute-extortion example
discussed earlier.132 Such evidence might plausibly be offered on a
noncharacter theory to establish the existence of a relevant plan or
scheme on the complainant’s part that suggests similar conduct with the
defendant on the charged occasion. 133 There is, to be sure, no bright,
unwavering line between evidence of character and evidence of modus
operandi used to show like conduct; 134 both are dispositional evidence
in a sense. If it were the case that the two, in principle, could not adequately
be distinguished, then “modus operandi evidence” would
merely amount to a thinly veiled disguise for the illicit introduction of
character evidence to prove like conduct.
Several considerations serve to distinguish the two uses. First, modus
operandi evidence refers to a particularized and closely repetitive
kind of conduct-in this instance bordering on the habitual. It therefore
seems to be a more reliable predictor of subsequent conduct than
mere evidence of general character. The fact that the complainant has
responded on ten prior occasions with the same distinctive patterns of
behavior-a false charge of rape-strongly suggests that the eleventh
charge arising under similar circumstances 135 is also false.
131. This solution is arguably consistent with current California law. The mere fact that an
expert is permitted to testify to an opinion does not necessarily imply that he or she may testify to
all of the facts supporting it. CAL: Ev10. CoDE§ 80l{b) (West 1966); id Comment, Law Revision
Comm’n (final paragraph). The problem with so restricting the expert’s opinion is that if the
opinion testimony is important, it saps the force of the testimony to prevent the expert from explaining
how he arrived at it. Professor Berger argues that such supporting evidence for a psychiatric
opinion should be admissible at the court’s discretion. Berger, supra note 1, at 69.
132. See text accompanying notes 89-90 supra. As observed in that discussion, the evidence
can plausibly be offered on a noncharacter theory. Such evidence has been held admissible, on
one or another theory, in sex cases arising prior to the amendment in 1974 of§ 1103. See, e.g.,
People v. Neely, 228 Cal. App. 2d 16,39 Cal. Rptr. 251 (1964) (inquiry about prior false charges of
rape by complainant, a patient in a mental institution, held proper: “their relevance is obvious”);
People v. Hurlburt, 166 Cal. App. 2d 334, 333 P.2d 82 (1958) (testimony as to past similar charges
against other men, admitted or proved to be false, held admissible where the past false charges go
not only to credibility but to the basic fact in issue).
133. See text accompanying notes 89-90 supra.
134. As to the difficulties with the distinction, see note 56 and accompanying text supra.
135. Since one does not know if the present case does present “similar circumstances,” this is
! j
1980] uUNCHASTE CHARACTER~~ EVIDENCE 75
A second distinction between modus operandi and character evidence
is that the former is not couched in the rhetoric of moral judgment.
136 Modus operandi evidence does not purport to characterize the
actor as morally defective nor would any instruction concerning the
evidence invite the jury to brand the actor as a moral leper. The evidence
simply presents the conduct in neutrally descriptive terms. The
combined result of these two differences is that genuine modus operandi
evidence tends to be both more relevant and less prejudicial than
character evidence.
To note these two theoretical differences is, however, hardly to allay
all realistic fears that the admission of prior sexual history on a
modus operandi theory will facilitate circumvention of the bar against
“unchaste character” evidence. The ease with which the two different
uses can be confused creates a dilemma. It is, however, a dilemma that
cannot be appropriately resolved by a fiat rule of exclusion that is indifferent
to the circumstances of the case or to the strength of the proposed
evidence.
The factors to be taken into account in determining admissibility
include the factual similarity of the present case with the instances of
past conduct, the number of occasions on which the past pattern manifested
itself, and the degree of certainty that the past incidents had in
fact occurred. The more that the past and present incidents have only a
general similarity, that the prior occasions of such conduct were infrequent,
and that the very occurrence of the prior incidents is a subject of
legitimate dispute, the weaker the argument for admissibility of the
prior-pattern evidence.
4. Evidence That the Complainant is a Prostitute
Suppose the defendant wishes to offer evidence that the complainant
had engaged in acts of prostitution with persons other than the defendant.
Such evidence, standing alone, should be excluded as having no
conceivable purpose except to suggest the complainant’s “unchaste
character” and therefore to support the impermissible inferences that
she had consented, that she was not a credible witness, or that she “got
what she deserved.”137
Suppose, however, the defendant additionally claims that his sexsomewhat
question begging. All one does know is that the defendant has so claimed. If the priorpattern
evidence is itself weak, this weakness should count against allowing such a line of inquiry.
136. See text accompanying note 44 supra.
137. Contra, 1 J. WIGMORE, supra note 13, § 62, at466 n.2.
76 SOUTHERN CALIFORNIA LAW REVIEW (Vol. 54:35
ual activity with the complainant was itself an act of prostitution on her
part. It might be argued that the complainant’s prior sexual conduct
suggests a business pattern that somewhat enhances the probability of
similar behavior with this defendant. This evidence should nonetheless
also be excluded. There is an obvious danger that the jury will regard
the right of a prostitute to sexual autonomy as unentitled to serious
respect. Admission of such evidence would tend to ensure the rapist
relative impunity for an act of rape seen by the jury as ”understandable,”
or in any event “not so serious.” Furthermore, such evidence is
virtually indistinguishable, in terms of probative value, from prior sexual
episodes on the part of a woman who is not a prostitute, which
would unequivocally and appropriately be excluded as character evidence.
138
A further concern is that such evidence could be easily fabricated
by friends of the defendant who may be prepared to help set up the
“defense” of prostitution by testifying falsely to their own acts of prostitution
with the same complainant. 139 Moreover, even if such testimony
were true, the evidence is no more than minimally relevant
because there is no reason to believe that a person who regularly engages
in acts of prostitution without falsely charging rape would falsely
levy the charge on this occasion. 140 Unless such a reason can be shown,
the evidence of the prior acts of prostitution should be excluded as adding
immeasurably more to the danger of jury prejudice than to the
rational resolution of the factual issue.
A more difficult case would arise if the defendant were to produce
modus operandi evidence that the complainant was a prostitute who
customarily met her clients at a specified time and place and transported
them in her vehicle to a particular room for consummation of
the transaction; and then coupled the evidence with proof that she and
the defendant had met under similar circumstances, and that the alleged
rape had taken place in that very place where the prostitute normally
took her clients. 141 The evidence in this case would enhance the
probability that an act of prostitution, rather than an act of rape, had
138. See text accompanying notes 124-26 supra.
139. See Comment, Tlte Rope Yiclim: A Yictim of Society mul tile Law, 11 W1LLAMETIE LJ.
36, 40 n.29 (1974).
140. See text accompanying notes 81-83 supra. Of oourse, if the oomplainant had previously
falsely charged rape, we would have a variation of the extortion example discussed earlier. Cf. In
re Wright, 78 Cal App. 3d 788, 144 Cal. Rptr. S3S (1978) (evidence that petitioner had ooosensual
sexual relations with several male acquaintances over a relatively short period of time does not
give rise to an inference she committed an act of prostitution with a stranger).
141. See Berger, supra note 1, at S9-60.
1980] ••uNCHASTE CHARACTER,, EVIDENCE 77
taken place on the occasion in question. It would, in short, do more
than simply draw attention to the irrelevant but prejudicial fact that on
other occasions the complainant had engaged in prostitution.
Such evidence should be admitted only if there is a sufficiently
demonstrated identity of circumstances between the defendant’s encounter
with the complainant and those of the complainant’s normal
prostitution activity to make the evidence substantially probative of
consent. This is, of course, not to deny that an act of rape may have
indeed occurred notwithstanding the coincidence of circumstances with
the complainant’s normal prostitution activity. At a certain point, however,
the evidence becomes of sufficient probative value so that on balance
it would be difficult to deny the defendant its use in fashioning his
defense.
5. Evidence of the Complainant~ Motive for Lying
The defendant might seek to introduce evidence of the complainant’s
prior sexual conduct with a third party to establish a motive on the
complainant’s part to falsely implicate him. For example, he might offer
evidence of her prior sexual activity with a third party on the theory
that she had become pregnant by that person and had falsely accused
the defendant of rape in order to provide an alternate explanation for
the pregnancy. The defendant, in short, contends that the complainant
is lying not only in claiming intercourse with him, forcible or otherwise,
but also in attributing her pregnancy to that event. The argument in
support of admissibility is that the prior sexual conduct with the third
party and its consequences (her pregnancy) are indispensible data to
appreciate the complainant’s reason for falsely implicating the defendant.
The prior sexual activity is not offered on the theory that standing
by itself it is relevant (in which case it would be inadmissible character
evidence); rather, in connection with the surrounding circumstances, it
suggests a powerful motive for the complainant to lie.
Such evidence, if sufficiently probative apart from any innuendoes
concerning the complainant’s character, would not violate the proscription
of section 1103(2)(a) (if that section bars only character evidence,
as urged above). 142 However, it also has “no direct probative value in
142. An adequate opportunity to cross-examine with respea to bias and motive to fabricate is
indeed constitutionally required. Although Davis v. Alaska. 415 U.S. 308 (1974), did not arise in
connection with a rape charge, it nevertheless held that if the proposed evidence of motive has
sufficient defensive importance. the defendant must be permitted its usc even in the face of an
otherwise rational state policy of keeping certain information confidentiaL See note 115 supra.
78 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
relation to the charges at bench and is demeaning to the witness.” 143
Moreover, it is still subject to jury misuse, whatever the nominal theory
of admissibility. Thus, a balance must be struck by which admissibility
would depend upon how clearly the valid purpose predominated and
the extent to which it was not a mere pretext for highlighting the complainant’s
“sexual character.” This would be the case, for example, if
the defendant were able to demonstrate that, under the circumstances,
a false charge of rape would be a likely way for the complainant to
avoid the consequences of her prior consensual sexual activity (e.g., by
misleading parents, husband, or lover). 144
Suppose, now, that a third-party witness testifies in support of the
complainant’s version of the facts. To undercut his testimony, the defendant
seeks to offer evidence that this witness has been having sexual
relations with the complainant, on the theory that it rationally bears on
the witness’ bias or motive to lie. Arguably, the defendant’s legitimate
interests would be adequately served by limiting his evidence to a general
description of the close relationship between witness and complainant,
without reference to its sexual component. Suppose, however,
that the witness were to deny any such close relationship or that the
defendant were able to demonstrate a likelihood of sexual jealousy or
pride on the witness’ part that would particularly bolster the relevance
of the sexual dimension of the relationship. If so, the evidence should
be regarded as compatible with the requirements of section 1103(2)(a)
(read as barring only character evidence) and therefore admissible. 145
143. People v. Fritts, 72 Cal. App. 3d 319,326, 140 Cal. Rptr. 94,98 (1977) (in a prosecution
for unlawful sexual intercourse with a minor, the court held that the trial court properly excluded,
because it was only tangentially relevant, evidence of the victim’s prior sexual experience offered
to prove that the victim charged defendant in order to divert attention from her own misconduct);
see Berger, supra note I, at 66.
144. See Berger, supra note I, at 66.
In People v. Sims, 64 Cal. App. 3d 544, 553, 134 Cal. Rptr. 566, 572 (1976), the defendant
asked the complainant whether she had had a pregnancy test within two weeks prior to the alleged
rape, arguing the question was relevant since ”Sharon may have known she was pregnant and
thus ‘concocted’ the story of rape to cover up for her pregnancy.” The court did not reach the
question of the admissibility of the evidence under§ 1103(2), since the defendant had failed to
present the matter in the manner required by Evidence Code § 782. 64 Cal. App. 3d at 553-54,
134 Cal. Rptr. at 572.
145. Under no reading could this evidence be thought admissible under§ 1103(2)(d). It is not
offered on the issue of the complainant’s credibility, but rather that of the witness’. The relevance
of Davis v. Alaska cannot be overlooked. See note 115 supra.
Pre-1974 cases that have dealt with the issue in various contexts include People v. Ogg, 258
Cal. App. 2d 841, 845, 66 Cal. Rptr. 289, 291 (1968) (”There is no question that an extramarital
relationship between defendant and his witness is relevant to show bias.”); People v. Dukes, 241
Cal. App. 2d 488, 492-94, 50 Cal. Rptr. 609, 613-14 (1966); People v. Warren, 175 Cal. App. 2d
233, 241, 346 P.2d 64, 68-69 ( 1959) (prosecution permitted to ask whether alibi witness had been
1980) ~~uNCHASTE CHARACTER,, EVIDENCE 79
6. Evidence to Show the Defendant~ Reasonable Though Mistaken
Belief That the Complainant Had Consented
Under the substantive law of rape, a reasonable, though mistaken, belief
on the defendant’s part that the complainant has consented constitutes
a defense. 146
A useful starting point is to consider briefly the substantive validity
of this defense. The issue can be best introduced by considering the
more extreme view that accepts the genuine, even if unreasonable, belief
that the woman has consented as a valid defense. The issue arose
in the celebrated case, Director of Public Prosecutions v. Morgan. 141
Morgan, a senior RAF officer had invited three of his RAF companions
to have sexual intercourse with his wife. He told them his wife
would be a willing partner but would probably resist. This, he assured
them, should not deter them because the “resistance” would be simulated:
she was “kinky” and that was her way of getting “turned on.”
True to his promise, she resisted. The astonishing facts of the case indicated
she had been:
roused from her sleep, frog-marched into another room where there
was a double bed, held by each of her limbs, arms and legs apart, by
the four appellants, while each of the three young appellants in tum
had intercourse with her ….
According to Mrs. Morgan she consented to none of this and
made her opposition to what was being done very plain indeed. In
her evidence to the court, she said that her husband was the first to
seize her and pull her out of bed. She then ”yelled” to the little boy
who was sleeping with her to call the police, and later, when the elder
boy came out on the landing, she called to him also to get the police,
and “screamed.” Her assailants, however, covered her face and
pinched her nose, until she begged them to let her breathe. She was
held, wrist and feet, “dragged” to the neighbouring room, put on the
“sleeping with appellant” as tending to show whether she “cherished a friendly interest in appel·
lant”); People v. Payton, 36 Cal. App. 2d 41, 54-55, 96 P.2d 991, 997-98 (1939) (prosecution permitted
to inquire of defendant’s witness whether she had lived with him and borne him children,
as bearing on “the state of mind of the witness as to bias, prejudice, interest involved, and hostility
or friendship toward parties litigant”); People v. Williams, 52 Cal. App. 609, 611, 199 P. 56, 56-57
(1921) (statutory rape case) (affirming the relevance, on the issue of the minor’s animosity toward
the defendant (her stepfather) and motive for lying, of evidence that before the defendant’s arrest
“the prosecuting witness had been found in bed with a young man at the home of her mother and
that the defendant, upon so discovering her, had called the police and had the mother, the girl,
and the young man taken to the city jail”).
146. People v. Mayberry, 15 Cal. 3d 143, 153-58, 542 P.2d 1337, 1344-47, 125 Cal. Rptr. 745,
752-55 (1975). For similar cases, see Berger, supra note 1, at 61 n.360.
147. [1975] 2 All E.R. 347.
80 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
bed where the various incidents occurred. At this stage she was overcome
by fear of “being hit.” There was never a time when her body
was free from being held. When it was all over she grabbed her coat,
ran out of the house, drove straight to the hospital and immediately
complained to the staff of having been raped. 148
There are, to say the least, grave doubts about the social utility of recognizing
a defense of genuine-though-unreasonable belief. Its recognition
does little to protect the bodily integrity of the woman or her right
of autonomous choice with respect to her sexual activities. On the
other hand, it tends to reinforce a widespread male fantasy that “no”
means ”yes,” and it may encourage men to see just how close they can
come to skirting the line of forcible rape without actually crossing it.
What is indeed unclear is why the defendant’s state of mind, whether
his belief is reasonable or not, should count in the face of unequivocal
external manifestations of resistance on the woman’s part. 149
Putting to one side, however, the question of whether recognition
of a defense of reasonable belief, .as under California law, is a sound
substantive rule, so long as such a defense exists, it has evidentiary implications.
Suppose, then, that the defendant seeks to establish the requisite
belief in e~ther of the following ways: by tendering evidence that
on other occasions the complainant had similarly resisted even though
she genuinely meant ”yes,” or by tendering evidence of her community
reputation for such behavior, whether accurate or not, which reputation
was known to and relied upon by the defendant at the time he
engaged in the sexual relationship with the complainant.
How would such evidence fare under section ll03(2)(a)? Since it
is offered neither as character evidence nor as evidence going to consent
(but only to the defendant’s he/iifregarding consent), it would not
be barred. If such evidence is to be excluded, then, it could only be on
the ground that the evidence was insufficiently probative to warrant
admission under section 352.150
148. ld at 354.
Defendants• appeals on the grounds that they were convicted under the wrong standard were
dismissed because of the coun•s finding that the jury would not have acquitted on the evidence
presented. even if it had been given the proper charge recognizing the good faith. though unreasonable.
belief defense.
149. See generaUy Berger. supra note 1. at 61-63; Comment. supra note 67.
150. See note 31 supra.
1980] ul/NCHASTE CHARACTER,, EVIDENCE 81
7. Evidence to Dispute the Charge That a Sex Act Had Occurred
Between the Complainant and the Defendant
Suppose the defendant wished to offer evidence that at the very moment
of the alleged rape, the victim was having sexual relations with a
third party. Such evidence, in effect establishing an “alibi” defense, is
undeniably relevant. Section 1103(2)(a) poses no barrier since the evidence
goes neither to consent nor to character.
One might, however, argue for the inappropriateness of such evidence
under section 352151 on the theory that reference to the complainant’s
sexual activity is unnecessary to accomplish the defendant’s
legitimate purpose. Is it not sufficient merely to establish that she was
1000 miles away at the time of the alleged rape without regard to what
she was doing there? A problem arises, however, if she denies having
been at that other location. In that event, evidence as to what she was
doing might become indispensible corroborating evidence on the issue
of where she was on the disputed occasion. If this appears to be the
case, such evidence should be held admissible.
Suppose, now, that as part of its proof.of sexual penetration, the
prosecution had offered a vaginal smear supporting its claim that the
complainant had indeed engaged in sexual activity at about the time of
the alleged rape. The defendant concedes this fact but wishes to offer
evidence that such sexual activity took place with a third party rather
than with the defendant.
This evidence should be admitted on essentially the same theory as
in the preceding example. Since the prosec~tion attempted to link the
defendant to specific evidence of sexual activity on the complainant’s
part, the defendant should unquestionably have the opportunity to offer
alternative explanations for that evidence, 152 even though it necessarily
depends on evidence of other sexual conduct. Again, section
1103(2)(a) is inapplicable, since the evidence goes neither to character
nor to consent.
Finally, it bears emphasizing that under the analysis suggested in
the various examples above, noncharacter uses of prior sex evidence
would not be automatically admissible. The exclusionary purpose of
the 1974 legislation would come to nothing if it could be routinely cir-
151. See id.
152. Such evidence was of critical imPQrtance in the Scottsboro trials. D. CARTER, ScoTTSBORO
229-32, 236, 267, 285 (1969). Also, the Federal Rules of Evidence expressly permits such
evidence. FED. R. EVID. 412(b)(2)(A).
82 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
./ cumvented by admitting the prohibited evidence on purported
noncharacter theories, however remote and farfetched they might be.
The court should exclude evidence of “prior unchastity” (i.e., character),
whether offered to cast doubt upon the complainant’s credibility or
to show her consent. Where it is difficult to determine whether the evidence
is offered for character or noncharacter purposes, the court must
exercise its discretionary powers under section 352 of the Evidence
Code. This indeed is explicitly required by Evidence Code section
782.153
VI. THE REQUIRED PROCEDURES UNDER SECTION 782
A. COVERAGE
Section 782154 establishes a mandatory procedure to enable the court to
pass on proposed defense evidence about the complainant’s sexual history
before it is offered at trial There are several unjustified and probably
unintended gaps in the kind of evidence made subject to the
section 782 procedures. First, the section does not apply to all evidence
of prior sexual activity; it applies only to such evidence as is “offered to
attack the credibility of the complaining witness under section 780.” 155
Presumably, then, evidence admissible on other theories of relevance
escapes the sanitizing procedures of section 782. Suppose, for example,
evidence of the complainant’s community reputation for sexual laxity
(whether deserved or not) is found admissible in support of a defendant’s
assertion of his good faith belief that the complainant had given
her consent. 156 On this theory of relevance, the evidence goes neither
to consent nor to credibility, since the issue is not whether she indeed
consented but only whether the defendant reasonably believed she had.
The evidence then is immune from the section 782 screening requirements
since that section is limited by section 1103(2)(d) to “credibility”
evidence.
There is, however, no reason to absolve the defendant from complying
with appropriate screening procedures whenever he proposes to
offer evidence of the complainant’s sexual conduct or reputation. The
court could and should fill the gap by exercising its discretionary power
to require a prior voir dire hearing of the section 782 type whenever
IS3. CAL. EviD. CoDE§ 782(a)(4) (West Supp. 1980).
IS4. Reproduced at note 17 supra.
ISS. CAL. EVID. CoDE§ 782 (West Supp. 1980) (emphasis added) (§ 780 is reproduced at
note 86 supra).
IS6. See notes 14S-48 and accompanying text supra.
I
1980] uUNCHASTE CHARACTER,, EVIDENCE 83
prior sex history is offered, whatever the kind and whatever the theory,
in order to foreclose a tempting route for circumventing the purposes of
the 1974 legislation. 157 The failure of the Evidence Code to so require
is an unfortunate defect.
A further gap or ambiguity in coverage arises from the fact, already
noted, 158 that any item of evidence bearing on credibility may
simultaneously bear on some material fact in dispute as well. It is not,
then, simply “credibility” evidence; it is also substantive evidence. This
observation suggests two sets of issues: (I) Suppose an item of evidence
tends to discredit the victim simply because it specifically contradicts
her version of some material fact. Should it then be regarded as
credibility evidence, thereby triggering the section 782 procedures? Or
should the “credibility” designation be reserved only for evidence that
bears “directly” or “in the first instance” on her credibility but not for
evidence that permits only an indirect inference as to credibility by
challenging her version of the facts? (2) Or suppose a prior inconsistent
statement alluding to her sexual history is offered against her. Evidence
Code section 1235 permits such evidence to be offered
simultaneously for impeachment and for substantive purposes. 159 In
each of these two cases, should the evidence be regarded as “credibility”
evidence thereby triggering the section 782 procedures?
There is good reason for rejecting any limitation of the section 782
screening procedures to evidence that bears “directly,” “solely,” or
“primarily” upon credibility. The section 782 safeguards should apply
to sexual conduct evidence whether offered on the issues of consent,
credibility, or any other relevant question. Otherwise, defense lawyers
are invited to engage in litigious gamesmanship by springing questions
about the victim’s prior sexual conduct at trial without a prior section
782 screening and justifying the questions with diverse and exotic theories
distinguishing between the “exclusive,” “primary,” or “direct” effect
of the evidence. Even if the court was to sustain an objection to the
question, the mere asking of it causes enough damage to warrant the
all-inclusive screening requirements. The only realistic solution is a fiat
rule requiring prior judicial scrutiny whenever the issue of the victim’s
prior sexual conduct (or her reputation concerning it) is to be raised.
157. See CAL. EviD. CoDE§ 402 (West 1966).
158. See text accompanying notes 101-14 supra.
159. CAL. Ev10. CoDe§ 1235 (West 1966) reads: “Evidence of a statement made by a witness
is not made inadmissible by the hearsay rule if the Jtatement is inconsistent with his testimony at
the hearing and is in compliance with section 770 [evidence of inconsistent statement of witness).”
84 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
This suggests an expansive reading of “credibility” evidence for section
782 purposes. 160
B. THE IN CAMERA HEARING UNDER SECTION 782
A further defect in section 782 is its failure to require explicitly that the
section 782(a)(3) hearing be conducted in camera, ie., out of the earshot
of the public, as is required by the analogous Federal Rule of Evidence
412. The California statute provides only that the hearing take
place out of the earshot of the jury.161 While this amply safeguards
against jury prejudice, it does not protect against the embarrassment
and ~vasion of privacy invited by public access to the complainant’s
sexual history. The court, presumably, has the discretionary power to
order the hearing to be conducted in camera, and there is good reason
to do so routinely if there are no constitutional barriers to the practice.
162
C. SECTION 782 AND THE PRIVILEGE AGAINST
SELF-INCRIMINATION
Section 782 requires the defendant to make a sworn offer of proof regarding
his proposed evidence of the victim’s sexual conduct so that the
court can assess its admissibility before the defendant offers it at trial.
It is appropriate to inquire whether this requirement runs afoul of the
160. See text accompanying notes 101-14 supra.
Virtually any evidence bearing on a substantive issue in the case will ultimately bear. one way
or another. on the witness’ credibility. One clear exception would be in the rare case where the
victim is not a witness and where. consequently, no evidence would be admissible to attack the
victim’s credibility, since it is not in issue.
161. CAL. EvJD. CODE § 782(a)(3) (West Supp. 1980).
162. In People v. Pompa-Ortiz. 27 Cal. 3d 519, 612 P.2d 941, 165 Cal. Rptr. 851 (1980), the
court held that a criminal defendant did not have a constitutional right to a public pre~minary
hearing (though he did have a statutory right under the Code sections governing preliminary
hearings).
In the context of the § 782 hearing, the argument that a closed hearing is constitutional would
seem to be even stronger. There is a tradition of “closed” bench conferences to rule on the admissibility
of a disputed item of evidence. The § 782 hearing is merely a formalized instance of such a
hearing. Its purpose is to screen out prejudicial and irrelevant evidence and thereby reduce the
harassment and embarrassment of rape complainants. This end would be defeated if such hearings
were open to public scrutiny or to scrutiny by the press. s~ Gannett Co. v. DePasquale, 443
U.S. 368 (1979) (exclusion of public and press from a pretrial suppression hearing. at the request
of defendant. to help ensure a fair trial, is constitutionally permissible); Berger, supra note I, at 88-
96; Rothstein, Evidence Worlc.rlrop, New Federal Evidence Rule -112 on Sex Yiclim’s Clrtuacler, 15
CRJM. L. BULL. 353, 355-56 (1979).
The sixth amendment and § 13 of article I of the California Constitution each generally
guarantee defendants the right to a public trial. and Richmond Newspapers, Inc. v. Virginia. 444
U.S. 896 (1980), recently made clear that the first amendment requires that criminal trials generally
be open to the public. Closure of the voir dire hearing in rape cases nonetheless remains
justifiable for the reasons articulated above.
~
\
1980] ”UNCHASTE CHARACTER,, EYIDENCE 85
privilege against incrimination. From one perspective, the suggestion
may appear ludicrous. The defendant, after all, has no right to introduce
irrelevant evidence, nor even all relevant evidence. 163 Additionally,
the defendant may be required to show foundational facts
establishing the relevance of proposed evidence. 164 Just as he may
waive the privilege against self-incrimination by testifying, he may be
said to waive it by offering evidence, to the degree that its admissibility
depends upon his offering otherwise privileged testimony, to establish
indispensable foundational facts.
Under the section 782 procedures, however, the issue is more complicated.
This is so because that section does not specify when the required
in camera hearing is to be held. ~ince the hearing is potentially
time-consuming, courts may seek to schedule it at some point before
trial, or at any rate before the defendant would be ready to offer it in
the normal course of his proof, in order to avoid disrupting the evidentiary
phase. 165 Such a procedure would take on some of the qualities of
prosecutorial discovery, a field pregnant with self-incrimination
problems. Nonetheless, it may well be that such a procedure would be
compatible with current federal constitutional standards, 166 and its constitutionality
under the California Constitution has been upheld in
Blackburn. 167
There is, however, considerable room for doubt about whether the
procedures specified in section 782 can be reconciled with California
self-incrimination doctrine, which is “considerably more solicitous of
the privilege against self-incrimination than federal law currently requires.”
168 In particular, it remains to be seen whether the section 782
163. CAL EVID. CODE § 352 (West 1966).
164. Jd §§ 402, 403, 405.
165. Cf. FED. R. EviD. 412(c)(l), which requires that the defendant normally serve notic::e of
his intention to offer sexual history evidenc::e at least IS days before trial.
166. See. e.g .• United States v. Nobles, 422 U.S. 22S (1975) (defendant may be required to
furnish prosecution, after its case in chief, relevant portions of a defense investigatofs report containing
statements made by prosecution witnesses); Williams v. Florida, 399 U.S. 78 (1970) (upholding
conslitutionality of Florida’s statute requiring defendants to divulge names of alibi
witnesses); Berger, supra note 1, at 72-84.
167. People v. Blackburn, 56 Cal. App. 3d 685, 128 Cal. Rptr. 864 (1976). The court’s decision
seems to stand on three grounds: 1) the disclosure sought of the defendant pertained to
information which the defendant in any event intended 10 introduc::e at trial; 2) it related to the
prior sexual conduct of the complainant and did not concern the crime charged against the defendant;
and 3) it was sought “after the essenc::e” of the prosecution’s case had been presented,
and it therefore could not lessen the prosecution’s burden. ld at 692, 128 Cal. Rptr. at868.
168. Reynolds v. Superior Court, 12 Cal. 3d 834, 843, 528 P.2d 45, SO, 117 Cal. Rptr. 437, 442
(1974). •
•
86 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 54:35
procedures will survive attack under Allen v. Superior Cour/. 169 That
case reaffirmed the Prudhomme110 standard under which defense disclosure
may not be required unless it “cannot possibly have a tendency
to incriminate” 171 and unless the information sought is not of a kind
that “conceivably might lighten the prosecution’s burden of proving its
case in chief.”172 True, the offer of proof is required not to provide
prosecutorial discovery but to screen out irrelevant or prejudicial evidence.
Yet mandatory defense disclosure before the prosecution has
put on its case, or for that matter, at any time prior to its intended use
by the defendant at trial, renders the section 782 disclosure requirement
at least problematical. 173 Perhaps the section 782 hearing should be
deferred, if the defendant so desires, until such time as he chooses to
offer the evidence at trial. (Of course, his tactical interest in adequate
preparation for trial will often dictate that he voluntarily acquiesce in a
section 782 hearing earlier rather than later).
Suppose, now, that the required advance disclosures not only provide
the prosecution with information about the defendant’s theory and
tactics, but further that the tenor of such information is directly incrim-
169. 18 Cal. 3d S20, SS1 P.2d 6S, 134 Cal Rptr. 774 (1976). In Allen, a trial court order
requiring the prosecution and the defendant to disclose names of their prospective witnesses so
that those names could be read to potential jurors to asq:nain whether any were acquainted with
prospective jurors, was held to violate the defendant’s privilege against self-incrimination.
170. Prudhomme v. Superior Court, 2 Cal 3d 320, 466 P.2d 673, 8S Cal. Rptr. 129 (1970)
(discovery order, requiring pretrial defense disclosure of names, addresses, and expected testimony
of defense witnesses, held violation of privilege against self-incrimination).
171. Jd at 326, 466 P.2d at 677, 8S Cal. Rptr. at 133.
172. ld
173. E.g., in Allen v. Superior Court, 18 Cal. 3d S20, SS1 P.2d 6S, 134 Cal. Rptr. 774 (1976),
the court said it was inconsequential, for self-incrimination purposes, that the required disclosure
did not result from a motion for prosecutorial discovery but was rather the result of the court’s .
own motion for other reasons. Jd at S26, SS1 P.2d at 67, 134 Cal. Rptr. at 776.
It is also irrelevant that Prudhomme dealt with pretrial discovery, while the instant case
involves disclosure at trial. In . . . Bradshaw v. Superior Court . . . we rejected that
portion of a discovery order which required defense disclosure of witnesses within 24
hours of expected usc. We observe that “If the evidence might possibly incriminate petitioners,
they cannot be compelled to disclose it at any time prior to its actual use at trial.”
ld at S26 n.3, SS1 P.2d at 67-68 n.3, 134 Cal Rptr. 776-77 n.3.
Tending in the same direction is People v. Fries, 24 Cal. 3d 222, S94 P.2d 19, ISS Cal. Rptr.
194 ( 1979). There the court considered a requirement that the defendant make an offer of proof of
his intended testimony, in connection with his argument against the admission of prior convictions,
to attack his credibility. The court held such a requirement to violate his privilege against
self-incrimination on the Prudhomme rationale that the advance disclosure of the intended defense
would .. lighten the state’s burden.” ld at 233, S94 P.2d at 26-27, ISS Cal. Rptr. at 201-02.
q: Williams v. Florida, 399 U.S. 78, 8S (1970) (The notice of alibi requirement does not offend
fifth amendment norms since it .. only compelled petitioner to accelerate the timing of his disclosure,
forcing him to divulge at an earlier date information that the petitioner from the beginning
planned to divulge at trial.”).
l
1980] uUNCHASTE CHARACTER,, EVIDENCE 87
inatory. This would be true, for example, if the defendant sought to
prove that the complainant were a prostitute. The court might first require
the defendant to offer evidence. that he had met the alleged prostitute
where she usually picked up clients, that the pickup took place in
the usual manner, that she charged her usual fees, and that the two
went to the victim’s apartment where she normally took her clients. As
noted earlier, this makes the fact of prostitution more relevant than if it
stood alone, even though the evidence is still of doubtful admissibility.
174 If, however, it were held admissible, the defendant’s demonstration
of the foundational facts, would incriminate him twice-over. First,
he would be giving evidence that he had had sexual relations with the
victim, an element of the offense with which he is charged; second, he
would be giving evidence of his participation in an act of prostitutionan
independent crime. The defendant both could and should be spared
some of the costs of laying such a foundation. This could be achieved
by denying the prosecution the right to offer at trial any incriminating
testimony given by the defendant in the course of the section 782 proceeding.
175
D. SECTION 782 AND SHIFTING THE BURDEN OF PROOF
If the court determines that the offer of proof made under section 782 is
insufficient, it follows that the defendant will be prohibited from interrogating
the complaining witness about her sexual conduct in the section
782 voir dire procedures. A fortiori, no interrogation would be
permitted at the trial. What constitutes a “sufficient” offer of proof is
therefore a critical issue.
Note at the outset that it is odd to require an offer of proof in
respect to evidence sought on cross-examination. The law does not normally
require such an offer of proof, reserving that procedure for the
direct examination of witnesses. 176 An offer of proof is not usually required
on cross-examination because it is often unreasonable to expect
a party to know what testimony the adverse witness will give. To permit
cross-examination only if the defendant is first prepared to make a
detailed offer of proof may erect an unfair shield around the prosecution
witnesses. Furthermore, requiring an offer of proof may endow
174. See notes 137-40 and accompanying text supra.
175. See, e.g., Simmons v. United States, 390 U.S. 327 (1968) (defendant’s testimony to establish
standing to object to illegally seized evidence may not be used against him at trial on the issue
of guilt or innocence).
176. CAL. EVID. CODE§ 354 (West 1966).
88 SOUTHERN CALIFORNIA LAW RJSriJSW [Yol. :l‘+:JJ
the testimony of prosecution witnesses with a presumptive validity at
odds with the usual prosecutorial burden of proof.
Section 782 procedures should be interpreted to alleviate this
problem. The offer of proof requirement should merely require the defendant
to state what he hopes to find, rather than to give detailed affidavits
showing that his interrogation would in fact produce such
evidence. If his stated intentions seem reasonable, i.e., if the facts he
hopes to establish would be relevant if established, if there is no affirmative
reason to disbelieve they exist, and if there is at least minimal
reason to believe that they do, he should be permitted to go to the next
stage-an in camera interrogation of the complainant. If his hopes for
admissible evidence tum to ashes, then he should be strictly precluded
from undertaking at trial what has already been demonstrated to be a
useless and prejudicial course of questioning.
Even this procedure, however, would at best provide an imperfect
protection of the complainant’s legitimate interests. To be sure, it prevents
prejudicing the jury by unwarranted questioning of the complainant.
Additionally, the section 782 in camera procedure shields the
complainant from the embarrassment and harassment that would accompany
public interrogation. Nevertheless the procedure still subjects
the complainant to potentially embarrassing and harassing inquiries in
the presence of the judge, court reporter, attorneys, defendant, and perhaps
others. If such a hearing is not as odious as a public inquiry,
neither is it a trivial invasion of the victim’s privacy or sense of dignity.
Yet, on balance, the procedure seems a reasonable accommodation of
the interests of the complainant and defendant.
CONCLUSION
Feminist criticism has focused on the way traditional evidentiary doctrine
unjustifiably devalued the protections of the rape laws, invaded
the privacy of rape complainants, and furthered sexist stereotypes embedded
in both the law and in the popular consciousness. The most
outrageous of these abuses involved the use of prior sexual conduct to
exonerate the defendant because the woman was of “unchaste character.”
A sound resolution of this problem would require that evidence of
a woman’s prior sexual conduct be excluded in all circumstances where
it is offered to cast doubt upon her credibility or to enhance the likelihood
that she consented to the alleged “rape” by way of an inference
that she was of “unchaste character.” On the other hand, on fairly in“
l‘\ (“HAST£ CHARACTER’‘ EVIDENCE 89
.requent occasiOns the complainant’s prior sexual conduct w?uld appropriately
be placed before the fact-finder. On those occas10~s, t~e
thrust of the evidence lies not in its tendency to prove the complamant s
“bad character.” but rather to prove some other important fact in controversy.
This does, of course, present a dilemma. The fact that the
evidence is nominally received on a noncharacter basis does not mean
that it will be taken solely or even primarily for that purpose by the
jurors. Courts confronting such evidence should approach it skeptically
and exercise their ample discretionary powers to minimize the
damage historically associated with the admission of such evidence.
Finally, any attempt to introduce evidence of sexual history should
require a prior voir dire screening. Such screening should be required
regardless of the nature of the evidence or the theory upon which it is
offered. Section 782 already requires a voir dire screening in some circumstances.
Where it does not, the court should require it in the exercise
of its discretionary powers. Finally, the voir dire hearing should be
conducted out of the presence of both the jury and the public.
The 1974 California legislation, though unclear and confused in
some respects, is capable of being interpreted to effectuate, or to permit,
th~ above purposes ~ithout in~urring the unacceptable cost of depreciatmg
the defendant s appropnate legal protections.
Leon Letwin (1929-2015) 