SENATE, No. 2063

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED JUNE 21, 2010

 


 

Sponsored by:

Senator  DONALD NORCROSS

District 5 (Camden and Gloucester)

Senator  DIANE B. ALLEN

District 7 (Burlington and Camden)

 

 

 

 

SYNOPSIS

     Creates a civil “rape shield” law.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning certain evidence in civil matters alleging sexual assault or sexual harassment and supplementing Title 2A of the New Jersey Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    In a civil action alleging conduct which would constitute sexual assault or sexual harassment:

     a.     A party seeking discovery of information concerning the plaintiff’s sexual conduct with persons other than the defendant shall establish specific facts showing good cause for that discovery, and that the information sought is relevant to the subject matter of the action and reasonably calculated to lead to the discovery of admissible evidence.

     b.    (1) Evidence of the victim’s previous sexual conduct shall not be admitted nor reference made to it in the presence of a jury except as provided in this subsection.  When the defendant seeks to admit such evidence for any purpose, the defendant must apply for an order of the court before the trial or preliminary hearing, except that the court may allow the motion to be made during trial if the court determines that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence. After the application is made, the court shall conduct a hearing in camera to determine the admissibility of the evidence.  If the court finds that evidence offered by the defendant regarding the sexual conduct of the victim is relevant and that the probative value of the evidence offered is not outweighed by its collateral nature or by the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim, the court shall enter an order setting forth with specificity what evidence may be introduced and the nature of the questions which shall be permitted, and the reasons why the court finds that such evidence satisfies the standards contained in this section.  The defendant may then offer evidence under the order of the court.

     (2)   In the absence of clear and convincing proof to the contrary, evidence of the victim’s sexual conduct occurring more than one year before the date of the offense charged is presumed to be inadmissible under this section.

     (3)   For the purposes of this subsection, “sexual conduct” shall mean any conduct or behavior relating to sexual activities of the victim, including but not limited to previous or subsequent experience of sexual penetration or sexual contact, use of contraceptives, living arrangement and life style.

 

     2.    This act shall take effect immediately.


STATEMENT

 

     This bill would create a “rape shield” statute for civil cases. Under current law, the “rape shield” statute in criminal prosecutions set out in N.J.S.A.2C:14-7 provides that evidence of the victim’s previous sexual conduct is not admissible except under certain prescribed circumstances.  The bill would establish similar provisions in civil actions alleging conduct which would constitute sexual assault or sexual harassment.

     The bill’s provisions are also comparable to N.J.S.A.2A:61B-1, which establishes a specific civil action for minors who are victims of sexual abuse.

     Under the bill, a party seeking discovery of information concerning the plaintiff’s sexual conduct with persons other than the defendant would be required to establish specific facts showing good cause for that discovery, and that the information sought is relevant to the subject matter of the action and reasonably calculated to lead to the discovery of admissible evidence.

     At trial, evidence of the victim’s previous sexual conduct would not be admitted nor reference made to it in the presence of a jury except under certain circumstances.  If the defendant seeks to admit such evidence the defendant would be required to apply for an order of the court before the trial or preliminary hearing, except that the court may allow the motion to be made during trial if the court determines that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence. After the application is made, the court would conduct a hearing in camera to determine the admissibility of the evidence.

     The bill provides that if the court finds that evidence offered by the defendant regarding the sexual conduct of the victim is relevant and that the probative value of the evidence offered is not outweighed by its collateral nature or by the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim, the court shall enter an order setting forth with specificity what evidence may be introduced and the nature of the questions which shall be permitted, and the reasons why the court finds that such evidence satisfies the standards contained in this section.  The defendant may then offer evidence under the order of the court.

     The bill provides that in the absence of clear and convincing proof to the contrary, evidence of the victim’s sexual conduct occurring more than one year before the date of the offense charged is presumed to be inadmissible under this section.

     The bill defines “sexual conduct” as “any conduct or behavior relating to sexual activities of the victim, including but not limited to previous or subsequent experience of sexual penetration or sexual contact, use of contraceptives, living arrangement and life style.”