21-3525. Evidence of complaining witness' previous sexual conduct in prosecutions for sex offenses; motions; notice.
21-3525
21-3525. Evidence of complaining witness' previoussexual conduct inprosecutions for sex offenses; motions; notice.(a) The provisions of this section shall apply only in a prosecution for: (1)Rape, as defined by K.S.A. 21-3502, and amendments thereto; (2) indecentliberties with a child, as defined in K.S.A. 21-3503, and amendments thereto;(3) aggravated indecent liberties with a child, as defined in K.S.A. 21-3504,and amendments thereto; (4) criminal sodomy, as defined in subsections(a)(2)and (a)(3) of K.S.A. 21-3505, and amendments thereto; (5)aggravatedcriminal sodomy, as defined by K.S.A. 21-3506, and amendments thereto;(6)aggravated indecent solicitation of a child, as defined in K.S.A. 21-3511, andamendments thereto; (7) sexual exploitation of a child, as defined inK.S.A.21-3516, and amendments thereto; (8) aggravated sexual battery, as defined inK.S.A. 21-3518, and amendments thereto; (9) incest, as defined in K.S.A.21-3602, and amendments thereto; (10) aggravated incest,as defined in K.S.A. 21-3603, and amendments thereto; (11) indecentsolicitation of a child, as defined in K.S.A. 21-3510, and amendmentsthereto;(12) aggravated assault, as defined in K.S.A. 21-3410, and amendments thereto,with intent to commit any crime specified above; (13) sexual battery, asdefined in K.S.A. 21-3517, and amendments thereto;(14) unlawful voluntarysexual relations, as defined in K.S.A. 21-3522, and amendments thereto;(15) aggravated trafficking, as defined in subsections (a)(1)(B)and (a)(2) of K.S.A. 21-3447, and amendments thereto; (16) electronicsolicitation, as defined in K.S.A. 21-3523, and amendments thereto; or (17)attempt, as definedin K.S.A. 21-3301, and amendments thereto, or conspiracy, as defined in K.S.A.21-3302, and amendments thereto, to commit any crime specified above.
(b) Except as provided in subsection (c), in any prosecution to whichthis section applies, evidence of the complaining witness' previous sexualconduct with any person including the defendant shall not be admissible,and no reference shall be made thereto in any proceeding before thecourt, exceptunder the following conditions: The defendantshall make a written motion to the court to admitevidence or testimony concerning the previous sexual conduct of the complainingwitness. The motion mustbe made at least seven days before the commencement of theproceeding unlessthat requirement is waived by the court. The motion shall state the natureof such evidence or testimony and its relevancyand shall be accompanied by an affidavit in which an offer of proof of theprevious sexual conduct of the complaining witness is stated.The motion, affidavits and any supporting or responding documents of themotion shall not be made available for examination without a written order ofthe court except that such motion, affidavits and supporting and respondingdocuments or testimony when requested shall be made available to the defendantor the defendant's counsel and to the prosecutor. The defendant, defendant'scounsel and prosecutor shall be prohibited from disclosing any matters relatingto the motion, affidavits and any supporting or responding documents of themotion. The court shall conducta hearing on the motion in camera. At the conclusion of the hearing, ifthe court finds that evidence proposed to be offered by the defendant regardingthe previous sexual conduct of the complaining witness is relevant and isnot otherwise inadmissible as evidence, the court may make an order statingwhat evidence may be introduced by the defendant and the nature of thequestions to be permitted. The defendant may then offer evidence and questionwitnesses in accordance with the order of the court.
(c) In any prosecution for a crime designated in subsection (a), theprosecuting attorney may introduce evidence concerning any previoussexual conduct of the complaining witness, and the complaining witness maytestify as to any such previous sexual conduct. If such evidence or testimonyis introduced, the defendant may cross-examine the witness who gives suchtestimony andoffer relevant evidence limited specifically to the rebuttal of such evidenceor testimony introduced by the prosecutor or given by the complaining witness.
(d) As used in this section, "complaining witness" means the alleged victimof any crime designated in subsection (a), the prosecution of which is subjectto this section.
History: L. 1976, ch. 162, § 1; L. 1983, ch. 109, § 15;L. 1991, ch. 87, § 1;L. 1992, ch. 298, § 32;L. 1993, ch. 291, § 53;L. 2005, ch. 114, § 1;L. 2009, ch. 70, § 2; Apr. 16.