AMENDED IN ASSEMBLY AUGUST 22, 2024

AMENDED IN ASSEMBLY AUGUST 12, 2024

AMENDED IN SENATE MARCH 19, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

94

CHAPTER 993

Statutes of 2024

[ Approved by Governor September 29, 2024. Filed with Secretary of State September 29, 2024. ]

Introduced by Senator Caballero

(Coauthors: Senators Ashby, Atkins, Blakespear, Menjivar, and Rubio)

February 16, 2024

An act to amend Section 1106 of the Evidence Code, relating to evidence.

Vote: majority   Appropriation: no   Fiscal committee: no   Local program: no

LEGISLATIVE COUNSEL’S DIGEST

Under existing law, in any civil action that contains allegations of sexual harassment, sexual assault, or sexual battery, opinion evidence, reputation evidence, and evidence of specific instances of a plaintiff’s sexual conduct with someone other than the alleged perpetrator, is not admissible by the defendant in order to prove consent by the plaintiff or the absence of injury to the plaintiff.

This bill would also make the specified types of evidence inadmissible in such civil actions when being used to attack the credibility of the plaintiff’s testimony on consent or absence of injury.

Under existing law, in any sexual battery civil action involving a minor and an adult who is in a position of authority, as specified, evidence of the plaintiff minor’s sexual conduct with the defendant adult is not admissible to prove consent by the plaintiff or the absence of injury to the plaintiff. Existing law authorizes evidence of the minor plaintiff’s sexual conduct to be introduced only to attack the credibility of the plaintiff or to prove something other than consent by the plaintiff if, upon a hearing of the court out of the presence of the jury, the defendant proves that the probative value of that evidence outweighs the prejudice to the plaintiff, as specified.

This bill would remove the requirement, in cases involving a minor and an adult who is in a position of authority, that prior to the introduction of specified types of evidence, a court hold a hearing out of the presence of the jury, where the defendant bears the burden to prove that the probative value of the evidence outweighs the prejudice. The introduction of evidence relating to the sexual conduct of the minor in such cases would be evaluated under procedures already in place under existing law.

The people of the State of California do enact as follows:

SECTION 1.

Section 1106 of the Evidence Code is amended to read:

1106.

(a) In any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, opinion evidence, reputation evidence, and evidence of specific instances of the plaintiff’s sexual conduct, or any of that evidence, is not admissible by the defendant in order to:

(1) Prove consent by the plaintiff.

(2) Prove absence of injury suffered by the plaintiff, unless the injury alleged by the plaintiff is in the nature of loss of consortium.

(3) Attack the credibility of the plaintiff’s testimony on consent or the absence of injury suffered by the plaintiff.

(b) Subdivision (a) does not apply to evidence of the plaintiff’s sexual conduct with the alleged perpetrator.

(c) Notwithstanding subdivision (b), in any civil action brought pursuant to Section 1708.5 of the Civil Code involving a minor and an adult as described in Section 1708.5.5 of the Civil Code, evidence of the plaintiff minor’s sexual conduct with the defendant adult shall not be admissible to prove consent by the plaintiff or the absence of injury to the plaintiff.

(d) If the plaintiff introduces evidence, including testimony of a witness, or the plaintiff as a witness gives testimony, and the evidence or testimony relates to the plaintiff’s sexual conduct, the defendant may cross-examine the witness who gives the testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the plaintiff or given by the plaintiff.

(e) This section shall not be construed to make inadmissible any evidence offered to attack the credibility of the plaintiff’s testimony as to something other than consent or absence of injury as provided in Section 783.