A. In prosecutions under this article, or under clause (iii) or (iv) of § 18.2-48, 18.2-370, 18.2-370.01, or 18.2-370.1, general reputation or opinion evidence of the complaining witness's unchaste character or prior sexual conduct shall not be admitted. Unless the complaining witness voluntarily agrees otherwise, evidence of specific instances of his or her prior sexual conduct shall be admitted only if it is relevant and is:
1. Evidence offered to provide an alternative explanation for physical evidence of the offense charged which is introduced by the prosecution, limited to evidence designed to explain the presence of semen, pregnancy, disease, or physical injury to the complaining witness's intimate parts; or
2. Evidence of sexual conduct between the complaining witness and the accused offered to support a contention that the alleged offense was not accomplished by force, threat or intimidation or through the use of the complaining witness's mental incapacity or physical helplessness, provided that the sexual conduct occurred within a period of time reasonably proximate to the offense charged under the circumstances of this case; or
3. Evidence offered to rebut evidence of the complaining witness's prior sexual conduct introduced by the prosecution.
B. Nothing contained in this section shall prohibit the accused from presenting evidence relevant to show that the complaining witness had a motive to fabricate the charge against the accused. If such evidence relates to the past sexual conduct of the complaining witness with a person other than the accused, it shall not be admitted and may not be referred to at any preliminary hearing or trial unless the party offering same files a written notice generally describing the evidence prior to the introduction of any evidence, or the opening statement of either counsel, whichever first occurs, at the preliminary hearing or trial at which the admission of the evidence may be sought.
C. Evidence described in subsections A and B of this section shall not be admitted and may not be referred to at any preliminary hearing or trial until the court first determines the admissibility of that evidence at an evidentiary hearing to be held before the evidence is introduced at such preliminary hearing or trial. The court shall exclude from the evidentiary hearing all persons except the accused, the complaining witness, other necessary witnesses, and required court personnel. If the court determines that the evidence meets the requirements of subsections A and B of this section, it shall be admissible before the judge or jury trying the case in the ordinary course of the preliminary hearing or trial. If the court initially determines that the evidence is inadmissible, but new information is discovered during the course of the preliminary hearing or trial which may make such evidence admissible, the court shall determine in an evidentiary hearing whether such evidence is admissible.
1981, c. 397; 2007, c. 890; 2011, c. 785.
Notes of Decisions
League v. Commonwealth, 385 S.E.2d 232 (Va. Ct. App. 1989).
· cites it 56× “His appeal of the conviction raises three issues, the first two of which involve construction of the "rape shield" statute, Code § 18.2-67.7. The issues are (1) whether the trial court erred in refusing to allow League to testify about a prior act of consensual sexual…”
Winfield v. Commonwealth, 301 S.E.2d 15 (Va. 1983).
· cites it 34× “In this case of first impression involving a prosecution for sexual assault, we must examine the admissibility of evidence of the complaining witness's specific acts of sexual conduct with persons other than the accused, in the light of the "rape shield" provision of Code §…”
Cairns v. Commonwealth, 579 S.E.2d 340 (Va. Ct. App. 2003).
· cites it 26× “Appellant noticed a hearing on the admissibility of W's journals pursuant to Code § 18.2-67.7, the rape shield statute.”
Ortiz v. Com., 667 S.E.2d 751 (Va. 2008).
· cites it 14× “Victim's Prior Allegations and the Rape Shield Statute Ortiz filed a pretrial motion seeking permission pursuant to Code § 18.2-67.7 to introduce evidence of the child's alleged prior sexual conduct with a third person.”
Clinebell v. Commonwealth, 368 S.E.2d 263 (Va. 1988).
· cites it 16× “Prior to the trial of this case, the Commonwealth, relying upon Code § 18.2-67.7 (sometimes referred to as the “rape shield” law), 1 filed a motion in limine to have the trial court prohibit the “offer or reference to any past sexual contact of the [daughter] with any person…”
Evans v. Commonwealth, 415 S.E.2d 851 (Va. Ct. App. 1992).
· cites it 34× “He challenges the conviction on grounds that the trial court erred: (1) in refusing to set aside the verdict because the evidence was insufficient to support it; and (2) in applying Code § 18.2-67.7, Virginia’s rape shield statute, to exclude evidence that the complaining…”
Brown v. Commonwealth, 510 S.E.2d 751 (Va. Ct. App. 1999).
· cites it 24× “Ruling that this question was inadmissible pursuant to the “rape shield statute,” Code § 18.2-67.7, the court refused to allow it.”
Johnson v. Commonwealth, 385 S.E.2d 223 (Va. Ct. App. 1989).
· cites it 40× “The alleged evidence regarding H was that she told Johnson that her stepfather had appeared nude in front of her and had told her on several occasions that he was going to have sex with her.”
Neeley v. Commonwealth, 437 S.E.2d 721 (Va. Ct. App. 1993).
· cites it 20× “1 In a pre-trial evidentiary hearing and at trial, the trial judge, citing Code § 18.2-67.7, refused to admit proffered evidence of the complaining witness’s prior sexual conduct.”
Clifford v. Commonwealth, 633 S.E.2d 178 (Va. Ct. App. 2006).
· cites it 12× “fell squarely within the protections of Code § 18.2-67.7, Virginia’s rape shield statute, and did not fall under any of the statute’s exceptions.”
Pilcher v. Commonwealth, 583 S.E.2d 70 (Va. Ct. App. 2003).
· cites it 14× “Indeed, the Court further observed that the “law gives a defendant access for the first time to far more probative evidence: specific prior sexual conduct with third persons, if it is relevant for the purposes set forth in Code § 18.2-67.7.” Winfield, 225 Va. at 220 , 301 S.”
— Va. Code Ann. § 18.2-67.7(0) — 1 case
Winfield v. Commonwealth, 301 S.E.2d 15 (Va. 1983).
“In this case of first impression involving a prosecution for sexual assault, we must examine the admissibility of evidence of the complaining witness's specific acts of sexual conduct with persons other than the accused, in the light of the "rape shield" provision of Code §…”
— Va. Code Ann. § 18.2-67.7(A) — 17 cases
League v. Commonwealth, 385 S.E.2d 232 (Va. Ct. App. 1989).
“His appeal of the conviction raises three issues, the first two of which involve construction of the "rape shield" statute, Code § 18.2-67.7. The issues are (1) whether the trial court erred in refusing to allow League to testify about a prior act of consensual sexual…”
Clifford v. Commonwealth, 633 S.E.2d 178 (Va. Ct. App. 2006).
“fell squarely within the protections of Code § 18.2-67.7, Virginia’s rape shield statute, and did not fall under any of the statute’s exceptions.”
— Va. Code Ann. § 18.2-67.7(A)(1) — 3 cases
Neeley v. Commonwealth, 437 S.E.2d 721 (Va. Ct. App. 1993).
“1 In a pre-trial evidentiary hearing and at trial, the trial judge, citing Code § 18.2-67.7, refused to admit proffered evidence of the complaining witness’s prior sexual conduct.”
— Va. Code Ann. § 18.2-67.7(A)(2) — 8 cases
League v. Commonwealth, 385 S.E.2d 232 (Va. Ct. App. 1989).
“His appeal of the conviction raises three issues, the first two of which involve construction of the "rape shield" statute, Code § 18.2-67.7. The issues are (1) whether the trial court erred in refusing to allow League to testify about a prior act of consensual sexual…”
— Va. Code Ann. § 18.2-67.7(B) — 11 cases
Ortiz v. Com., 667 S.E.2d 751 (Va. 2008).
“Victim's Prior Allegations and the Rape Shield Statute Ortiz filed a pretrial motion seeking permission pursuant to Code § 18.2-67.7 to introduce evidence of the child's alleged prior sexual conduct with a third person.”
Winfield v. Commonwealth, 301 S.E.2d 15 (Va. 1983).
“In this case of first impression involving a prosecution for sexual assault, we must examine the admissibility of evidence of the complaining witness's specific acts of sexual conduct with persons other than the accused, in the light of the "rape shield" provision of Code §…”
Johnson v. Commonwealth, 385 S.E.2d 223 (Va. Ct. App. 1989).
“The alleged evidence regarding H was that she told Johnson that her stepfather had appeared nude in front of her and had told her on several occasions that he was going to have sex with her.”
League v. Commonwealth, 385 S.E.2d 232 (Va. Ct. App. 1989).
“His appeal of the conviction raises three issues, the first two of which involve construction of the "rape shield" statute, Code § 18.2-67.7. The issues are (1) whether the trial court erred in refusing to allow League to testify about a prior act of consensual sexual…”
— Va. Code Ann. § 18.2-67.7(C) — 14 cases
Winfield v. Commonwealth, 301 S.E.2d 15 (Va. 1983).
“In this case of first impression involving a prosecution for sexual assault, we must examine the admissibility of evidence of the complaining witness's specific acts of sexual conduct with persons other than the accused, in the light of the "rape shield" provision of Code §…”
League v. Commonwealth, 385 S.E.2d 232 (Va. Ct. App. 1989).
“His appeal of the conviction raises three issues, the first two of which involve construction of the "rape shield" statute, Code § 18.2-67.7. The issues are (1) whether the trial court erred in refusing to allow League to testify about a prior act of consensual sexual…”
Johnson v. Commonwealth, 385 S.E.2d 223 (Va. Ct. App. 1989).
“The alleged evidence regarding H was that she told Johnson that her stepfather had appeared nude in front of her and had told her on several occasions that he was going to have sex with her.”
Neeley v. Commonwealth, 437 S.E.2d 721 (Va. Ct. App. 1993).
“1 In a pre-trial evidentiary hearing and at trial, the trial judge, citing Code § 18.2-67.7, refused to admit proffered evidence of the complaining witness’s prior sexual conduct.”
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