CHAPTER 257

FORMERLY

SENATE BILL NO. 133

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 35, PART II, TITLE 11 OF THE DELAWARE CODE RELATING TO THE ADMISSABILITY OF CERTAIN EVIDENCE IN RAPE CASES.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Chapter 35, Part II, Title 11 of the Delaware Code by adding thereto the following new sections:

"§3504. Rape; Sufficiency of Evidence; Proceedings in Camera.

(a) In any prosecution for the crime of rape; an attempt to commit rape if such attempt conforms to the provisions of §531, Chapter 11 of the Delaware Code; solicitation for the crime of rape if such offense conforms to the provisions of §502, Title 11 of the Delaware Code; or conspiracy to commit rape if such offense conforms to the provisions of §512, Title 11 of the Delaware Code, if evidence of the sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness the following procedure shall be followed:

(1) The defendant shall make a written motion to the court and prosecutor stating that the defense has an offer of proof concerning the relevancy of evidence of the sexual conduct of the complaining witness which he proposes to present, and the relevancy of such evidence in attacking the credibility of the complaining witness.

(2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.

(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at such hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.

(4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant, and is not inadmissable, the court may issue an Order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the Order of the court.

(b) As used in this section, 'complaining witness' shall mean the alleged victim of the rape, attempted rape, conspiracy or assault.

§3505. Rape; Admissibility of Certain Evidence.

(a) Notwithstanding any other provision of this Code to the contrary, and except as provided in this section, in any prosecution for rape, any opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness' sexual conduct, or any of such evidence, is not admissible by the defendant in order to prove consent by the complaining witness.

(b) The provisions of this section, however, shall not be applicable to evidence of the complaining witness' sexual conduct with the defendant.

(c) If the prosecutor introduces evidence, including testimony of a witness, or the complaining witness as a witness gives testimony, and such evidence or testimony relates to the complaining witness' sexual conduct, the defendant may cross-examine the witness who gives such testimony and offer relevant evidence limited specifically to the rebuttal of such evidence introduced by the prosecutor or given by the complaining witness.

(d) Nothing in this section shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in 3504, Chapter 35, Title 11.

(e) As used in this section, 'complaining witness' shall mean the alleged victim of the crime charged, the prosecution of which is subject to the provisions of this section."

Approved July 11, 1975