Sec. 4. (a) In a prosecution for an offense described in
IC 11-8-8-4.5(a):
(1) evidence of the victim's past sexual conduct;
(2) evidence of the past sexual conduct of a witness other than the
accused;
(3) opinion evidence of the victim's past sexual conduct;
(4) opinion evidence of the past sexual conduct of a witness other
than the accused;
(5) reputation evidence of the victim's past sexual conduct; and
(6) reputation evidence of the past sexual conduct of a witness
other than the accused;
may not be admitted, nor may reference be made to this evidence in the
presence of the jury, except as provided in this chapter.
(b) Notwithstanding subsection (a), evidence:
(1) of the victim's or a witness's past sexual conduct with the
defendant;
(2) which in a specific instance of sexual activity shows that some
person other than the defendant committed the act upon which the
prosecution is founded; or
(3) that the victim's pregnancy at the time of trial was not caused
by the defendant;
may be introduced if the judge finds, under the procedure provided in
subsection (c), that it is material to a fact at issue in the case and that
its inflammatory or prejudicial nature does not outweigh its probative
value.
(c) If the defendant or the state proposes to offer evidence described
in subsection (b), the following procedure must be followed:
(1) The defendant or the state shall file a written motion not less
than ten (10) days before trial stating that it has an offer of proof
concerning evidence described in subsection (b) and its relevancy
to the case. This motion shall be accompanied by an affidavit in
which the offer of proof is stated.
(2) If the court finds that the offer of proof is sufficient, the court
shall order a hearing out of the presence of the jury, and at the
hearing allow the questioning of the victim or witness regarding
the offer of proof made by the defendant or the state.
At the conclusion of the hearing, if the court finds that evidence
proposed to be offered by the defendant or the state regarding the
sexual conduct of the victim or witness is admissible under subsection
(b), the court shall make an order stating what evidence may be
introduced by the defendant or the state and the nature of the questions
to be permitted. The defendant or the state may then offer evidence
under the order of the court.
(d) If new information is discovered within ten (10) days before trial
or during the course of the trial that might make evidence described in
subsection (b) admissible, the judge shall order a hearing out of the
presence of the jury to determine whether the proposed evidence is
admissible under this chapter.
(e) This section does not limit the right of either the state or the
accused to impeach credibility by a showing of prior felony
convictions.
(f) If:
(1) a defendant files a motion under subsection (c)(1) concerning
evidence described in subsection (b)(3); and
(2) the state acknowledges that the victim's pregnancy is not due
to the conduct of the defendant;
the court shall instruct the jury that the victim's pregnancy is not due to
the conduct of the defendant. However, other evidence concerning the
pregnancy may not be admitted, and further reference to the pregnancy
may not be made in the presence of the jury.
As added by Acts 1981, P.L.298, SEC.6. Amended by
P.L.322-1983, SEC.1; P.L.144-2018, SEC.17.
Notes of Decisions
Cited in
71
cases (
5 in the last 5 years), 1984–2026 · leading case:
Hodges v. State, 524 N.E.2d 774 (Ind. 1988).
Hodges v. State, 524 N.E.2d 774 (Ind. 1988).
· cites it 19× “as the procedures set forth in Ind. Code § 35-37-4-4 were not followed and the evidence was without proper foundation, was not relevant, and was highly prejudicial.”
Sallee v. State, 785 N.E.2d 645 (Ind. Ct. App. 2003).
· cites it 16× “) (citing Ind. Code § 35-37-4-4 ). To the extent there is a difference between the two, the rule controls.”
Oatts v. State, 899 N.E.2d 714 (Ind. Ct. App. 2009).
· cites it 6× “Evidence Rule 412, the Rape Shield Rule, “incorporates the basic principles” of Ind.Code § 35-37-4-4, 7 Indiana’s Rape Shield Act.”
Stewart v. State, 531 N.E.2d 1146 (Ind. 1988).
· cites it 8× “Ind. Code § 35-37-4-4 . The rule in Little stated that the falsity of the victim's accusations must be admitted by him or her or the allegations must be demonstrably false before the victim may be impeached.”
Sallee v. State, 777 N.E.2d 1204 (Ind. Ct. App. 2002).
· cites it 6× “The Rape Shield Statute, Ind.Code § 35-37-4-4, predates Evidence Rule 412.”
Caley v. State, 650 N.E.2d 54 (Ind. Ct. App. 1995).
· cites it 18× “'s credibility through cross-examination. Evidence of the sexual history of an alleged victim of a sexual offense is generally inadmissible in the trial of the alleged offender.”
Williams v. State, 681 N.E.2d 195 (Ind. 1997).
· cites it 6× “Rule 412 is intended to prevent the victim from being put on trial, to protect the victim against surprise, harassment, and unnecessary invasion of privacy, and, importantly, to remove obstacles to reporting sex crimes.”
Clark v. State, 728 N.E.2d 880 (Ind. Ct. App. 2000).
· cites it 6× “Evidence Rule 412; Ind.Code § 35-37-4-4. 2 Furthermore, the trial court gave a preliminary instruction on child molesting as follows: A person who, with a child under fourteen (14) years of age, performs or submits to deviate sexual conduct commits child molesting.”
State v. Walton, 715 N.E.2d 824 (Ind. 1999).
· cites it 5× “Discussion Indiana’s Rape Shield Act, originally promulgated as Indiana Code § 35-37-4-4, generally prohibited the admission of evidence relating to a rape victim’s sexual history.”
Henry Tague v. Thomas Richards & Attorney Gen. of the State of Indiana, 3 F.3d 1133 (7th Cir. 1993).
· cites it 3× “On appeal, Tague raises several issues, most important of which are whether the state trial court’s application of Indiana’s rape shield statute, Ind.Code § 35-37-4-4, violated his Sixth Amendment right to confrontation, and whether allowing amendment of the charging information…”
Zawacki v. State, 753 N.E.2d 100 (Ind. Ct. App. 2001).
· cites it 4× “I.C. § 35-37-4-4; Evid.R. 412. The purpose of the Rape Shield Law is to encourage the reporting of sexual assaults and to prevent victims from feeling as though they are on trial for their sexual histories.”
Ind. Code § 35-37-4-4(a): 4 cases
Sallee v. State, 777 N.E.2d 1204 (Ind. Ct. App. 2002).
“The Rape Shield Statute, Ind.Code § 35-37-4-4, predates Evidence Rule 412.”
Henry Tague v. Thomas Richards & Attorney Gen. of the State of Indiana, 3 F.3d 1133 (7th Cir. 1993).
“On appeal, Tague raises several issues, most important of which are whether the state trial court’s application of Indiana’s rape shield statute, Ind.Code § 35-37-4-4, violated his Sixth Amendment right to confrontation, and whether allowing amendment of the charging information…”
Ind. Code § 35-37-4-4(b): 4 cases
Sallee v. State, 785 N.E.2d 645 (Ind. Ct. App. 2003).
“) (citing Ind. Code § 35-37-4-4 ). To the extent there is a difference between the two, the rule controls.”
Caley v. State, 650 N.E.2d 54 (Ind. Ct. App. 1995).
“'s credibility through cross-examination. Evidence of the sexual history of an alleged victim of a sexual offense is generally inadmissible in the trial of the alleged offender.”
Henry Tague v. Thomas Richards & Attorney Gen. of the State of Indiana, 3 F.3d 1133 (7th Cir. 1993).
“On appeal, Tague raises several issues, most important of which are whether the state trial court’s application of Indiana’s rape shield statute, Ind.Code § 35-37-4-4, violated his Sixth Amendment right to confrontation, and whether allowing amendment of the charging information…”
Ind. Code § 35-37-4-4(b)(2): 4 cases
Caley v. State, 650 N.E.2d 54 (Ind. Ct. App. 1995).
“'s credibility through cross-examination. Evidence of the sexual history of an alleged victim of a sexual offense is generally inadmissible in the trial of the alleged offender.”
Ind. Code § 35-37-4-4(c): 3 cases
Sallee v. State, 785 N.E.2d 645 (Ind. Ct. App. 2003).
“) (citing Ind. Code § 35-37-4-4 ). To the extent there is a difference between the two, the rule controls.”
Sallee v. State, 777 N.E.2d 1204 (Ind. Ct. App. 2002).
“The Rape Shield Statute, Ind.Code § 35-37-4-4, predates Evidence Rule 412.”
Ind. Code § 35-37-4-4(c)(l): 1 case
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