believed that there was affirmative and freely-given
permission. If there is evidence to suggest that the
defendant reasonably believed that such permission had
been given, the State must demonstrate either that
defendant did not actually believe that affirmative
permission had been freely-given or that such a belief was
unreasonable under all of the circumstances. Thus, the
State bears the burden of proof throughout the case. State
in Interest of M.T.S., 129 N.J. at 448-449.
V. EVIDENCE
A. Resistence
The State is not required to offer proof that the victim
resisted, resisted to the utmost, or reasonably resisted
against any conduct proscribed by Chapter 14. N.J.S.A.
2C:14-5a.
B. Admissibility of Evidence (See also EVIDENCE, this
Digest)
In prosecution for aggravated sexual assault, sexual
assault, aggravated sexual contact and sexual contact,
endangering the welfare of a child and lewdness, evidence
of the victim’s previous sexual conduct is not admissible,
nor is reference to it allowed in front of the jury, unless
defendant obtains a court order allowing the evidence.
N.J.S.A. 2C:14-7a. Evidence of a victim’s sexual conduct
which took place more than one year before the offense
occurred is presumed to be inadmissible, unless there is
“clear and convincing proof” that such evidence should be
admitted. N.J.S.A. 2C:14-7b.
Evidence of sexual conduct with someone other than
defendant is not considered relevant unless it is material to
proving the source of semen, pregnancy or disease.
N.J.S.A. 2C:14-7c.
Evidence of the victim’s previous sexual conduct with
defendant is relevant only if it is probative of the
determination whether a reasonable person, knowing what
defendant knew at the time the alleged offense occurred,
would have believed that the victim “freely and
affirmatively permitted” the sexual behavior complained
of. N.J.S.A. 2C:14-7d.
Evidence of how the victim was dressed at the time the
alleged offense occurred is not admissible unless the trial
court first determines that such evidence is relevant and
admissible “in the interests of justice.” N.J.S.A. 2C:14-7e.
Before making such a determination, the proponent of
such evidence must make an offer of proof outside the
jury’s presence, or at a hearing on the subject if the trial
court deems such necessary. The trial court must make a
record of its findings of fact essential to its determination.
Id.“Sexual conduct” as utilized in N.J.S.A. 2C:14-7,
means any sexual conduct or behavior by the victim,
including but not limited to, previous or subsequent sexual
penetration or sexual contact, use of contraceptives,
notations in the victim’s gynecological records concerning
the victim’s sexual activity, or living arrangement and life
style of the victim. N.J.S.A. 2C:14-7f.For a thorough discussion on this statute, commonly
known as the “Rape Shield Law,” see State v. Budis, 125 N.J.
519 (1991). In State v. Cuni, 159 N.J. 584, 598 (1999), the
procedural requirements of this statute were found
constitutional. To qualify for an evidentiary hearing on
admissibility of victim’s prior sexual activity, defendant
must submit a signed, detailed written proffer to the trial
court. State v. Rowe, 316 N.J. Super. 425, 436 (App. Div.
1998), certif. denied 160 N.J. 89 (1999).One purpose of the Rape Shield Law is to protect the
victim against surprise, harassment and unnecessary
invasion of privacy. State v. Cuni, 159 N.J. 584, 598
(1999); State v. Rowe, 316 N.J. Super. at 434. Another
purpose is to encourage victims to report sexual assaults
and to avoid prejudicing juries against victims. State v.
Cuni, 159 N.J. at 596-97. See also State v. Clowney, 299
N.J. Super. 1, 14 (App. Div.), certif. denied 151 N.J. 77
(1997)(Rape Shield Law applies even to victim who is
dead); State v. Ogburne, 235 N.J. Super 113 (App. Div.
1989) (forbidding defendant from asking if victim was a
virgin); State v. G.S., 278 N.J. Super. 151, 171 (App. Div.
1994), rev’d o.g. 145 N.J. 460 (1996) (evidence of victim’s
sexual activity between her and her boyfriend not
admissible).For discussion on Rape Trauma Syndrome, see State v.
Scherzer, 301 N.J. Super. 363, 399 (App. Div.), certif.
denied 160 N.J. 89 (1999) (court found it was error to
admit expert testimony that victim exhibited signs of Rape
Trauma Syndrome).For discussion on Child Sexual Abuse Accommoda-
tion Syndrome (CSAAS) see State v. J.Q., 130 N.J. 554
(1993), finding that such evidence is inadmissible to
establish guilt or innocence, but is admissible to establish
that victims’ symptoms are consistent with sexual abuse
and to explain delay in reporting abuse or in recanting
allegations; see also State v. W.L., 278 N.J. Super. 295 (App.
Div. 1995) (finding reversible error in trial court’s failure