2023 Indiana Code › Title 35. Criminal Law and Procedure › Article 37. Trial Procedure › Chapter 4. Evidence and Protection of Certain Witnesses › 35-37-4-4. Sex Crimes; Admissibility of Evidence of Past Sexual Conduct; Procedure

Sec. 4. (a) In a prosecution for an offense described in IC 11-8-8-4.5(a):
(1) evidence of the victim's past sexual conduct;
(2) evidence of the past sexual conduct of a witness other than the accused;
(3) opinion evidence of the victim's past sexual conduct;
(4) opinion evidence of the past sexual conduct of a witness other than the accused;
(5) reputation evidence of the victim's past sexual conduct; and
(6) reputation evidence of the past sexual conduct of a witness other than the accused;
may not be admitted, nor may reference be made to this evidence in the presence of the jury, except as provided in this chapter.
(b) Notwithstanding subsection (a), evidence:
(1) of the victim's or a witness's past sexual conduct with the defendant;
(2) which in a specific instance of sexual activity shows that some person other than the defendant committed the act upon which the prosecution is founded; or
(3) that the victim's pregnancy at the time of trial was not caused by the defendant;
may be introduced if the judge finds, under the procedure provided in subsection (c), that it is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.
(c) If the defendant or the state proposes to offer evidence described in subsection (b), the following procedure must be followed:
(1) The defendant or the state shall file a written motion not less than ten (10) days before trial stating that it has an offer of proof concerning evidence described in subsection (b) and its relevancy to the case. This motion shall be accompanied by an affidavit in which the offer of proof is stated.
(2) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, and at the hearing allow the questioning of the victim or witness regarding the offer of proof made by the defendant or the state.
At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant or the state regarding the sexual conduct of the victim or witness is admissible under subsection (b), the court shall make an order stating what evidence may be introduced by the defendant or the state and the nature of the questions to be permitted. The defendant or the state may then offer evidence under the order of the court.
(d) If new information is discovered within ten (10) days before trial or during the course of the trial that might make evidence described in subsection (b) admissible, the judge shall order a hearing out of the presence of the jury to determine whether the proposed evidence is admissible under this chapter.
(e) This section does not limit the right of either the state or the accused to impeach credibility by a showing of prior felony convictions.
(f) If:
(1) a defendant files a motion under subsection (c)(1) concerning evidence described in subsection (b)(3); and
(2) the state acknowledges that the victim's pregnancy is not due to the conduct of the defendant;
the court shall instruct the jury that the victim's pregnancy is not due to the conduct of the defendant. However, other evidence concerning the pregnancy may not be admitted, and further reference to the pregnancy may not be made in the presence of the jury.
As added by Acts 1981, P.L.298, SEC.6. Amended by P.L.322-1983, SEC.1; P.L.144-2018, SEC.17.