Assembly Revises Civil “Rape Shield” Bill

On May 13, the Assembly Judiciary Committee reported favorably on a revised version of a bill (A231) that would create a “rape shield” statute for civil cases (see the June 2009 issue of the New Jersey eAuthority for our prior discussion of the Assembly’s 2009 version of the bill). Under current law, the “rape shield” statute provides that evidence of the victim’s previous sexual conduct is not admissible except under certain prescribed circumstances in criminal prosecutions. Under the Assembly bill, in civil cases alleging sexual assault or sexual harassment, 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. The bill also provides that at trial, evidence of the victim’s previous sexual conduct would not be admitted or referred to in the presence of the jury except following an in camera hearing to determine relevance and prejudice of the evidence, and subsequent court order.

Whereas the prior bill stringently defined “relevant” as being “material to proving that the source of semen, pregnancy or disease is a person other than the defendant,” this language was removed from the amended version of the bill. The bill retains its very broad definition of “sexual conduct,” however, defining same 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.” This definition, and particularly its use of “living arrangement and life style,” could seemingly encompass many topics routinely delved into in workplace sexual harassment suits.