A. As a matter of substantive right, in prosecutions pursuant to the provisions of Sections 30-9-11 through 30-9-15 NMSA 1978, evidence of the victim's past sexual conduct, opinion evidence of the victim's past sexual conduct or of reputation for past sexual conduct, shall not be admitted unless, and only to the extent that the court finds that, the evidence is material to the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

B. As a matter of substantive right, in prosecutions pursuant to the provisions of Sections 30-9-11 through 30-9-15 NMSA 1978, evidence of a patient's psychological history, emotional condition or diagnosis obtained by an accused psychotherapist during the course of psychotherapy shall not be admitted unless, and only to the extent that, the court finds that the evidence is material and relevant to the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

C. If the evidence referred to in Subsection A or B of this section is proposed to be offered, the defendant shall file a written motion prior to trial. The court shall hear the pretrial motion prior to trial at an in camera hearing to determine whether the evidence is admissible pursuant to the provisions of Subsection A or B of this section. If new information, which the defendant proposes to offer pursuant to the provisions of Subsection A or B of this section, is discovered prior to or during the trial, the judge shall order an in camera hearing to determine whether the proposed evidence is admissible. If the proposed evidence is deemed admissible, the court shall issue a written order stating what evidence may be introduced by the defendant and stating the specific questions to be permitted.

History: 1953 Comp., § 40A-9-26, enacted by Laws 1975, ch. 109, § 7; 1993, ch. 177, § 4.

The 1993 amendment, effective July 1, 1993, substituted "30-9-11 through 30-9-15 NMSA 1978" for "2 through 6 of this act" near the beginning of Subsection A; added present Subsection B, redesignating former Subsection B as present Subsection C; in Subsection C, inserted "referred to in Subsection A or B of this section" in the first sentence, inserted "or B" in the second and third sentences, and deleted "under Subsection A of this section" from the end of the third sentence; and made stylistic changes throughout Subsections A and C.

Victim's past allegations against a third party. — Where the trial court excluded evidence of the victim's past allegations against a third party which related to the victim's reputation for past sexual conduct, the victim made the allegations against the third party in the past; the circumstances of the prior incident in no way resembled the allegations that led to the charges against the defendant; the defendant did not show that the circumstances of the prior allegations were clearly relevant to any material issue in the defendant's case other than propensity; and the defendant did not show how the prior allegations related to the defendant's defense, the trial court properly excluded the evidence. State v. Casillas, 2009-NMCA-034, 145 N.M. 783, 205 P.3d 830, cert. denied, 2009-NMCERT-003, 146 N.M. 603, 213 P.3d 507.

Accused's right of confrontation denied. — Where the defendant's sole defense in his rape trial was that the child victim consented to sexual intercourse with him and then fabricated an allegation of rape because her parents, who were opposed to premarital sex because of their deeply religious convictions, had previously punished the victim for engaging in consensual sex with someone else, the defendant was denied his constitutional right of confrontation when the trial court prohibited the defendant from cross-examining the victim and her parents about the prior sexual encounter and the punishment the victim had received from her parents as a result of that encounter and the error was not harmless beyond a reasonable doubt. State v. Stephen F., 2008-NMSC-037, 144 N.M. 360, 188 P.3d 84, aff'g, 2007-NMCA-025, 141 N.M. 199, 152 P.3d 842.

Prior sexual abuse of a child. — To rebut the natural assumption that a young victim of sexual abuse is sexually naive and could only have learned about it because the victim was victimized by the defendant, the defendant may introduce the fact that the victim had been previously sexually abused to show an alternative source of sexual knowledge. State v. Payton, 2007-NMCA-110, 142 N.M. 385, 165 P.3d 1161, cert. denied, 2007-NMCERT-008, 142 N.M. 434, 166 P.3d 1088.

In order to present evidence of victim's alleged prostitution, defendant had to establish that the evidence was material and that its prejudicial effect did not outweigh its probative value. State v. Maestas, 2005-NMCA-062, 137 N.M. 477, 112 P.3d 1134, rev'd on other grounds, 2007-NMSC-001, 140 N.M. 836, 149 P.3d 933.

Section is not unconstitutional on its face. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972.

The fact that this section attempts to regulate practice and procedure in district courts in regard to a victim's past sexual conduct does not mean that the legislation is unconstitutional in that it violates the provisions for separation of governmental power. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972.

This section was intended to encourage reporting of rapes by minimizing intrusive inquiry into the personal affairs of the victim. State v. Romero, 1980-NMCA-011, 94 N.M. 22, 606 P.2d 1116, overruled on other grounds by State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869.

Section protects victim against unwarranted invasions of her privacy. — In addition to its effect in insulating the jury from prejudicial material, this section serves to protect the victim of the crime against unwarranted invasions of her privacy. State v. Romero, 1980-NMCA-011, 94 N.M. 22, 606 P.2d 1116, overruled on other grounds by State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869.

Purpose of statute. — The statute is designed to minimize intrusive inquiry into a rape complainant's private life. State v. Ramos, 1993-NMCA-072, 115 N.M. 718, 858 P.2d 94, cert. denied, 115 N.M. 602, 856 P.2d 250.

Section not in conflict with rules. — The procedures in this section do not conflict, but rather are consistent, with Rule 36, N.M.R. Crim. P. (now Rule 5-603 NMRA), regarding pretrial hearings. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972.

The balancing approach to be applied in admitting evidence concerning past sexual conduct under this section does not conflict, but rather is consistent, with Rule 403, N.M.R. Evid. (now Rule 11-403 NMRA). State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972.

Once a showing sufficient to raise an issue as to relevancy of past sexual conduct is made, the balancing test of this section and of Rule 403, N.M.R. Evid. (now Rule 11-403 NMRA) is to be applied in determining admissibility. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972.

There is no conflict between this section and Rule 405, N.M.R. Evid. (now Rule 11-405 NMRA), regarding methods of proving character, because the balancing approach of Rule 403, N.M.R. Evid. (now Rule 11-403 NMRA) is also applicable to evidence admissible under Rule 405, N.M.R. Evid. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972.

Section is not limited to sex by consent; rather, its unlimited wording applies to all forms of past sexual conduct, so that a prior rape is past sexual conduct within the meaning of this section. State v. Montoya, 1978-NMCA-052, 91 N.M. 752, 580 P.2d 973, cert. denied, 91 N.M. 751, 580 P.2d 972.

Section does not protect against waiver of privilege not to disclose medical records. — In a prosecution for criminal sexual penetration, this section did not apply to give the victim the right to release her medical and psychotherapy records to the police and state's attorneys and then invoke an absolute privilege against in camera inspection by the court or subsequent disclosure to other parties. State v. Gonzales, 1996-NMCA-026, 121 N.M. 421, 912 P.2d 297.

Discretion of trial court. — In prosecution for indecent exposure before female child under 18, where questions asked of prosecutrix on cross-examination relating to specific acts of sexual misconduct were allowed by the court on theory that they were an attack upon her credibility, the permitting or limiting of extent of such questioning was well within discretion of the trial court. State v. McKinzie, 1963-NMSC-060, 72 N.M. 23, 380 P.2d 177.

Limited psychiatric examination of victim permissible. — Insofar as a psychiatric examination probes the past sexual behavior of the victim, it is within the terms of this section. State v. Romero, 1980-NMCA-011, 94 N.M. 22, 606 P.2d 1116, overruled on other grounds by State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869.

Prior accusations of sexual misconduct. — In a prosecution for sexual misconduct, the trial court did not err in denying the defendant's request to call the victim's stepfather and the defendant's wife to testify that the victim had previously falsely accused the stepfather of sexual misconduct. State v. Scott, 1991-NMCA-081, 113 N.M. 525, 828 P.2d 958, cert. quashed, sub nom. Gibson v. State, 113 N.M. 524, 828 P.2d 957 (1992).

Victim's past sexual conduct not admissible. — Even though evidence of a victim's prior sexual conduct may be admissible to show bias, motive to fabricate or for other purposes consistent with the constitutional right of confrontation, the trial court did not err in rejecting such evidence where defendant failed to show that it was material and relevant, and that its probative value equaled or outweighed its inflammatory nature. State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869.

Victim's past sexual conduct in itself indicates nothing concerning consent in particular case. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972; see State v. Romero, 1980-NMCA-011, 94 N.M. 22, 606 P.2d 1116, overruled on other grounds by, State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869.

Victim's virginity relevant if consent at issue. — Evidence of a victim's virginity is relevant in cases involving alleged forcible criminal sexual penetration where the consent of the victim is at issue. State v. Singleton, 1984-NMCA-110, 102 N.M. 66, 691 P.2d 67.

Previous chastity immaterial. — Ordinarily the previous chastity of prosecuting witness is immaterial in a statutory rape case. State v. Armijo, 1958-NMSC-108, 64 N.M. 431, 329 P.2d 785.

Probative value of evidence of victim's past sexual activity must be weighed against its prejudicial effect, and its prejudicial effect is great. State v. Romero, 1980-NMCA-011, 94 N.M. 22, 606 P.2d 1116, overruled on other grounds by State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869.

Confrontation of witness. — The discretion of the trial court to exclude evidence of sexual conduct must be weighed against a criminal defendant's constitutional right to confront witnesses. Manlove v. Sullivan, 1989-NMSC-029, 108 N.M. 471, 775 P.2d 237.

Victim's past sexual history. — Evidence of a minor's past sexual history was properly excluded since that evidence was not relevant to the charge of contributing to the delinquency of a minor. State v. Lucero, 1994-NMCA-129, 118 N.M. 696, 884 P.2d 1175, cert. denied, 118 N.M. 731, 885 P.2d 1325.

Past conduct negativing defendant's paternity. — Exception to the rule that previous chastity of victim is immaterial might be where her pregnancy is shown and testimony given that defendant was father of the child, as there the testimony of prior sexual acts might be pertinent on rebuttal as tending to show that another might have been the cause of such condition. State v. Armijo, 1958-NMSC-108, 64 N.M. 431, 329 P.2d 785.

Issue of penetration. — Trial court did not err in refusing to permit cross-examination of prosecuting witness in prosecution for statutory rape concerning prior acts of intercourse with other men, where sole reason advanced by defendant's counsel for admissibility was on the issue of penetration, an issue about which there was no genuine controversy. State v. Armijo, 1958-NMSC-108, 64 N.M. 431, 329 P.2d 785.

De novo review is the proper standard of review for analyzing cases implicating both the rape shield rule and the Confrontation Clause. State v. Montoya, 2014-NMSC-032, rev'g 2013-NMCA-076, 306 P.3d 470.

Analysis of cases implicating both the rape shield rule and the Confrontation Clause. — When a defendant makes a claim that the rape shield law bars evidence implicating the defendant's confrontation rights, the district court must first identify a theory of relevance implicating the defendant's constitutional right to confrontation and then weigh whether evidence elicited under that theory would be more prejudicial than probative. State v. Montoya, 2014-NMSC-032, rev'g 2013-NMCA-076, 306 P.3d 470.

Application of rape shield rule violated Confrontation Clause. — Where defendant and the victim, who had a sexual relationship for two years, began arguing about a telephone call that defendant had received; during the argument, defendant indicated to the victim that defendant wanted sex; defendant and the victim went into defendant's bedroom where defendant got on top of the victim and tried to remove the victim's clothes; the victim told the defendant "no" several times and pushed and kicked defendant until defendant stopped making sexual advances; defendant was indicted for kidnapping with intent to commit a sexual offense; the district court refused to allow defendant on cross-examination to ask the victim whether the victim and defendant had a long-standing sexual relationship and whether they had a history of engaging in sex after an argument as "make-up sex" to resolve disputes for the purpose of showing that defendant never intended to sexually assault the victim but was pursuing consensual "make-up sex" as defendant and the victim had done after arguments in the past; the victim was the sole material witness against defendant and the only witness who could provide testimony necessary for defendant's theory of the case; and the evidence was relevant to defendant's defense and would not have had a prejudicial impact on the victim, the district court's ruling violated defendant's confrontation right because it denied defendant an opportunity to present a full and fair defense. State v. Montoya, 2014-NMSC-032, rev'g 2013-NMCA-076, 306 P.3d 470.

Standard of review for cases involving the rape shield rule and the Confrontation Clause. — There are three steps and three standards of review that relate to the application of the rape shield rule. First, the court reviews de novo whether a defendant has presented a theory of admissibility that implicates the defendant's confrontation rights. If the defendant has, the court undertakes a de novo balancing of the state's interest in excluding the evidence against the defendant's constitutional rights to determine if the district court acted within the wide scope of its discretion to limit cross-examination. If the Confrontation Clause is not implicated or if there has been no Confrontation Clause violation, the court examines whether the district court has abused its discretion in its application of the rule itself. State v. Montoya, 2013-NMCA-076, rev'd by 2014-NMSC-032.

Application of the rape shield rule did not implicate the Confrontation Clause. — Where defendant and the victim had been arguing; defendant wanted to have sex with the victim, but the victim refused; defendant got on top of the victim and attempted to remove the victim's clothing; the victim pushed and kicked defendant until defendant stopped; defendant did not force the victim to have sex; defendant was charged with kidnapping and attempt to commit criminal sexual penetration; to show that defendant did not have specific intent to commit the crimes, defendant sought to introduce evidence of the sexual history of the victim and defendant to show that the defendant's intent and the victim's belief was that defendant was trying to have sex to "make-up" just as they had done in the past; the district court precluded defendant from inquiring into the party's sexual history; at trial, the victim testified that defendant and the victim had been friends for two years, the victim believed that defendant would not penetrate the victim unless the victim consented, and the victim perceived defendant's actions as an attempt to obtain the victim's consent to have sex; defendant claimed that defendant's confrontation rights had been violated because defendant was unable to challenge an opposing version of the facts, the district court's exclusion of the evidence did not implicate or violate the Confrontation Clause, because defendant sought not to confront the victim, but to use the victim's testimony as evidence unrelated to the truth or accuracy of the victim's testimony and the district court did not abuse its discretion in excluding of evidence of the history of victim's and defendant's sexual relationship. State v. Montoya, 2013-NMCA-076, rev'd by 2014-NMSC-032.

Prior acts with defendant. — Admission into evidence of prior sexual acts between defendant and prosecuting witness similar to those charged in prosecution for indecent handling and touching of girl under age of 16 was not an abuse of trial court's discretion as matter of law. State v. Minns, 1969-NMCA-035, 80 N.M. 269, 454 P.2d 355, cert. denied, 80 N.M. 234, 453 P.2d 597.

Trial court did not err in allowing a child-victim to testify about his sexual conduct with defendant while in California and before moving to New Mexico, where the California episodes were relevant to the episodes in New Mexico. State v. Gillette, 1985-NMCA-037, 102 N.M. 695, 699 P.2d 626.

Evidence of past sexual encounter of victim and third party. — Trial court acted within its discretion in suppressing evidence of a past sexual encounter of the victim and a third party during which the victim allegedly affixed the ropes found on the bed to restrain the third party in the course of consensual sexual activity, where such evidence was irrelevant to defendant's culpability for the crimes charged, advanced no legitimate defense, excuse, or justification for the crimes charged, and were likely to inject false issues and confuse the jury. State v. Swafford, 1989-NMCA-069, 109 N.M. 132, 782 P.2d 385, cert. denied, 109 N.M. 54, 781 P.2d 782.

Testimony offered for fabrication defense. — Testimony that the prosecutrix made up stories of rape and abduction in the past that resembled the facts alleged in the case, that prosecutrix had once recanted such a story, and that prosecutrix was the sort of person who would willingly see an innocent person put in jail, was not evidence of sexual conduct precluded by the Rape Shield Law but rather went to the prosecutrix's proclivity for truthfulness and was relevant both to impeach the prosecutrix's credibility and as direct evidence in the petitioner's fabrication defense. The testimony was closely enough related to sexual conduct to be barred by this section, but the court's discretion to exclude such evidence must be weighed against a defendant's constitutional right to confront witnesses. Manlove v. Tansy, 981 F.2d 473 (10th Cir. 1992).

Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11 N.M.L. Rev. 159 (1981).

For annual survey of New Mexico law relating to criminal procedure, see 12 N.M.L. Rev. 271 (1982).

For note, "Striking the Right Balance in New Mexico's Rape Shield Law - State v. Johnson," see 28 N.M.L. Rev. 611 (1998).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 50 Am. Jur. 2d Lewdness, Indecency and Obscenity § 34 et seq.; 65 Am. Jur. 2d Rape §§ 82 to 87; 70A Am. Jur. 2d Sodomy §§ 54 to 57.

Evidence of complaint by victim of rape who is not a witness, 157 A.L.R. 1359.

Validity and construction of constitution on statute authorizing exclusion of public in sex offense cases, 39 A.L.R.3d 852.

Modern status of admissibility, in forcible rape prosecution, of complainant's prior sexual acts, 94 A.L.R.3d 257.

Modern status of admissibility, in forcible rape prosecution, of complainant's general reputation for unchastity, 95 A.L.R.3d 1181.

Admissibility of evidence of character or reputation of party in civil action for sexual assault on issues other than impeachment, 100 A.L.R.3d 569.

Constitutionality of "rape shield" statute restricting use of evidence of victim's sexual experiences, 1 A.L.R.4th 283.

Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor, 43 A.L.R.4th 395.

Impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that prosecuting witness threatened to make similar charges against other persons, 71 A.L.R.4th 448.

Impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that similar charges were made against other persons, 71 A.L.R.4th 469.

Admissibility in prosecution for sex offense of evidence of victim's sexual activity after the offense, 81 A.L.R.4th 1076.

Admissibility of evidence that juvenile prosecuting witness in sex offense case had prior sexual experience for purposes of showing alternative source of child's ability to describe sex acts, 83 A.L.R.4th 685.

75 C.J.S. Rape §§ 63; 81 C.J.S. Sodomy § 10.