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Sexual Abuse Victims: Evidence of Prior Sexual Activity

Published on February 8th, 2010

Illinois sexual abuse victims and their lawyers are now protected against having to defend against evidence of other sexual behavior or sexual predisposition. Effective January 1, 2010, 735 ILCS 5/8-2801 provides that: “Admissibility of evidence; prior sexual activity or reputation.
(a) Evidence generally inadmissible. The following evidence is not admissible in any civil proceeding except as provided in subsection (b) and (c):
(1) evidence offered to prove that any victim engaged in other sexual behavior; or (2) evidence to prove any victim’s sexual predisposition.

(b) Exceptions.
(1) in a civil case, the following evidence is admissible, if otherwise admissible under this Act:
(A) evidence of specific instances of sexual behavior by the victim offered to prove that a person other than the accused was the source of semen, injury, or otheer physical evidence; and (B) evidence of specific instances of sexual behavior by the victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent by the victim.

Subsection (c) deals with the procedure to determine admissibility, essentially a motion filed fourteen days before trial with an in camera hearing with the record sealed. This addition to the Illinois Code of Civil Procedure essentially follows Rule 412 of the
Federal Rules of Evidence.
 The Notes on Rule 412 state: The rule aims to safeguard the alleged victim against invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and infusion of sexual innuendo into the factfinding process. By affording victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings.

This addition to the Illinois Code of Civil Procedure is welcome for victims of sexual abuse. No longer will they be cross examined regarding other sexual behavior or their sexual predispositions. This will as the notes to Rule 412 reveal encourage victims to institute or participate in legal proceedings without fear of embarrassment or sexual stereotyping. Illinois sexual abuse victims will no longer have to fear public disclosure of intimate sexual details that have no bearing on the allegations of sexual abuse that are being litigated. This is very good news for Illinois sexual abuse victims and will now freely allow them to access the legal system for redress without submitting their entire life’s sexual history to public scrutiny.

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