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304 S.C. 300

403 S.E.2d 677

State v. Lang

Court of Appeals of South Carolina · decided 1991-04-01

Cited by 6 later decisions — most recently July 2014

6 state decisions

Key passage — most relied on by later courts

“(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct is not admissible in prosecutions under Sections 16-3-615 and 16-3-652 to 16-3-656; however, evidence of the victim’s sexual conduct with the defendant or evidence of specific instances of sexual activity with persons other than the defendant introduced to show source or origin of semen, pregnancy, or disease about which evidence has been introduced previously at trial is admissible if the judge finds that such evidence is relevant to a material fact and issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. Evidence of specific instances of sexual activity which would constitute adultery and would be admissible under rules of evidence to impeach the credibility of the witness may not be excluded. (2) If the defendant proposes to offer evidence described in subsection (1), the defendant, prior to presenting his defense shall file a written motion and offer of proof. The court shall order an in-camera hearing to determine whether the proposed evidence is admiss[i]ble under subsection (1). If new evidence is discovered during the presentation of the defense that may make the evidence described in subsection (1) admissible, the judge may order an in-camera hearing to determine whether the proposed evidence is admissible under subsection (1).”

quoted by 1 later decision, including State v. Grovenstein

Relies on State v. Younger · State v. Joe'l · State v. Finley

Good law ✅— No negative treatment on recordhow we know

Decided 1991-04-01

View the full empirical analysis of this case →

Goolsby, Judge:

¶1 Leon Lang appeals his convictions and sentences for kidnapping, first degree criminal sexual conduct, and pointing a firearm. His appeal charges the trial court with reversible error in not allowing him to introduce evidence of the victim’s sexuality after the State introduced evidence the victim was not a homosexual. We reverse and remand for a new trial.

¶2*301 During direct examination, the victim was asked by the prosecutor, “Are you homosexual?” The victim answered he was not. Later, on cross-examination, he characterized himself as heterosexual. When Lang proposed to introduce evidence “concerning the victim’s sexuality[ ] for the sole purpose of impeaching the victim,” i.e., evidence showing the victim was not a heterosexual as he claimed but was a homosexual, the trial judge ruled “that there is a statutory prohibition against such testimony,” apparently referring to the Rape Shield Statute, Section 16-3-659.1 of the South Carolina Code of Laws (1976).

¶3 The issue in focus here was resolved by the Supreme Court in State v. Finley, 300 S.C. 196, 387 S.E. (2d) 88 (1989). There the Supreme Court held, as we read its decision, the Rape Shield Statute did not bar evidence of a victim’s sexual conduct if the evidence was offered for a purpose other than to attack the victim’s morality. Here, Lang proposed to offer evidence concerning the victim’s sexuality simply for the purpose of impeaching the victim’s credibility; thus, the Rape Shield Statute had no application. See S.C. CODE ANN. § 16-3-659.1 (1985) (“[Evidence of specific instances of sexual activity which would constitute adultery and would be admissable [sic] under rules of evidence to impeach the creditability [sic] of the witness shall not be excluded.”); State v. Younger, 306 N.C. 692, 697, 295 S.E. (2d) 453, 456 (1982) (the Rape Shield Statute “was not designed to shield the prosecutrix from the effects of her own inconsistent statements which cast a grave doubt on the credibility of her story.”); State v. Johnson, 66 N.C. App. 444, 446, 311 S.E. (2d) 50, 52 (1984), review denied, 310 N.C. 747, 315 S.E. (2d) 707 (1984) (Rape Shield Statute, which addresses evidence of a “ ‘general reputation for unchastity,’ ” did not bar the admission of evidence of a prior sexual assault suffered by the victim when it was offered, in part, to impeach her credibility); State v. Reiter, 65 Or. App. 304, 672 P. (2d) 56 (1983) (even though the defendant failed to comply with the Rape Shield Statute’s notice requirement, this failure to give notice could not affect his right to cross-examine the complainant about the truthfulness of her direct testimony concerning her previous sexual relationship with the defendant).

¶4*302 That Lang suffered prejudice in not being permitted to offer the evidence cannot be seriously questioned, considering the State itself made the matter of the victim’s sexual preference an issue in the case and considering the prosecutor’s closing argument in which he bolstered the victim’s credibility by spotlighting the absence of any evidence that the victim’s sexual preference was other than what the victim claimed it to be, viz.,

And there is no evidence here, none whatsoever, no evidence — and remember that, folks, — there is no evidence that [the victim] is homosexual, at all. And evidence is what you base your verdict on.

¶5 See State v. Myers, — S.C. —, 391 S.E. (2d) 551 (1990) (the trial court’s refusal to allow a defense witness to testify as an expert on blood spatter patterns deemed prejudicial where the State conceded blood spatter evidence required expert testimony and the solicitor argued the evidence to the jury in his closing argument).

¶6 Reversed and remanded.

Sanders, C.J., and Bell, J., concur.
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