If a defendant intends to offer evidence under this exception, the defendant must file written notice of that intent. In his offer of proof, defense counsel stated that he expected to adduce testimony that six to eight years prior to the alleged assault, the victim and Diamond were co-workers who became involved in a sexual relationship and that after the relationship ended, the victim attempted to obtain admissions from him that he had sexually harassed her by forcing her to engage in sex to retain employment. If permitted, Diamond would also have testified that the victim profited from this allegation by filing a civil suit against their employer and then agreeing to a cash settlement. Defense counsel indicated that he did not care whether the existence of the relationship came into evidence, his focus was Diamond's proposed testimony that the victim had made a false allegation of sexual harassment against him for personal gain. The trial court excluded the proffered testimony.
Defendant argues that the trial court's ruling was reversible error.
Though defendant's brief is not a model of clarity as to why the exclusion was error, two themes emerge. The first is that although evidence of the victim's past sexual conduct is not admissible pursuant to Vermont's Rape Shield Statute, the testimony fell within a statutory exception to that rule for evidence of prior false accusations of sexual assault. The second is that the Rape Shield Statute did not apply to bar the testimony, and exclusion of the evidence violated defendant's constitutional right to confront the complainant. Defendant, as the proponent of the evidence, bore the burden of proving its admissibility. To invoke the exception, defendant needed to demonstrate that the victim had made a prior false allegation of sexual assault.