Understanding Louisiana’s Rape Shield Law and How It Affects Your Defense

When it comes to defending a rape charge, one of the most common defenses is consent—that the sexual contact was consensual. That defense goes to the very heart of the charge, because Louisiana law defines rape as anal, oral, or vaginal sexual intercourse committed without the other person’s lawful consent. One important caveat: when the law deems an alleged victim incapable of consenting—most notably because of the victim’s age—consent is not a defense at all.

If you are facing a rape charge in Louisiana, call our Shreveport rape defense attorney at the Law Offices of Philip B. Adams today.

Past Sexual Encounters and History

To prove consent, many defendants seek to introduce evidence of the victim’s past sexual history—the logic being that the more sexually active the victim has been in the past, the more likely it is that the victim consented to the sexual contact at issue in the current case.

To a defendant, that may seem to make some logical sense. But the law also wants to protect victims. A rape or sexual assault trial should not become a trial of the accuser’s private life, and prior sexual choices that have nothing to do with the charged offense should not be used to embarrass or humiliate those who come forward.

So how do we balance these two interests—the need to protect and not humiliate victims, and the need to allow the accused to present a complete defense of consent?

The Rape Shield Law—Louisiana Code of Evidence Article 412

The answer is Louisiana Code of Evidence article 412, commonly called the rape shield law. When an accused is charged with a crime involving sexually assaultive behavior, article 412 flatly prohibits reputation or opinion evidence about the victim’s past sexual behavior—with no exceptions—and it bars evidence of specific instances of the victim’s past sexual behavior except in two narrow situations.

The reason for the rule is that a person’s sexual history says nothing about what happened on the occasion charged. Simply put, just because a victim may have consented to sexual activity with 100 people in the past does not mean that the victim consented on this one particular occasion.

The Two Exceptions Written Into Article 412

Source of semen or injury. When the State’s case relies on physical evidence—semen or an injury—the defense may introduce evidence that the victim engaged in sexual behavior with someone other than the accused, to show that the accused was not the source. But Louisiana imposes a strict limit that surprises many people: the evidence must involve sexual behavior within the seventy-two hours before the alleged offense, and the jury must be instructed—both when the evidence is admitted and in the final charge—about the limited purpose for which it may be considered.

Prior sexual behavior with the accused. Evidence that the victim and the defendant engaged in sexual behavior with each other in the past—even conduct short of intercourse—may be admitted on the question of whether the victim consented to the conduct now charged.

What About Prior False Accusations?

Many people assume that a victim’s prior false accusations are a third rape shield “exception.” Technically, they are not. In State v. Smith, 743 So. 2d 199 (La. 1999), the Louisiana Supreme Court held that a prior false allegation is not “past sexual behavior” at all, so article 412 simply does not apply to it. That does not make the evidence automatically admissible, though. When considering the admissibility of such evidence, the question for the trial court is not whether it believed the prior allegations were false, but whether reasonable jurors could find, based on the evidence presented by the defendant, that the victim had made prior false accusations.   Courts scrutinize these showings closely.

Beyond the statute, the United States Supreme Court has recognized that the Sixth Amendment’s Confrontation Clause can override evidentiary restrictions where the excluded evidence would show the accuser’s bias or motive to fabricate. Olden v. Kentucky, 488 U.S. 227 (1988).

Following Procedure

Article 412 evidence does not come in automatically. Article 412 requires the defense to file a written motion before trial—generally within the deadline for filing pretrial motions—accompanied by a statement of the evidence identifying the witnesses who will present it. The motion is served on the State, which must make a reasonable effort to notify the victim, and the victim has the right to attend the hearing with counsel. The judge then holds a closed hearing, outside the public’s view, and decides whether—and to what extent—the evidence may be used at trial. Miss the procedure, and even otherwise admissible evidence can be kept out.

Contact a Louisiana Criminal Defense Lawyer Today

Contact me today at the Law Offices of Philip B. Adams. I am a dedicated Louisiana criminal defense attorney who defends my clients’ rights at every stage of the case. Complete my “Contact Us” page here. You may significantly benefit by having an attorney with legal competence and experience assist you with your Louisiana criminal case. My office is in Shreveport, and I handle criminal defense cases throughout Louisiana.