Parks v. State

249 S.E.2d 617, 147 Ga. App. 617, 1978 Ga. App. LEXIS 2868

Opinions

Deen, Presiding Judge.

The defendant was indicted in two counts for rape and sodomy, and was convicted of adultery and sodomy. The only enumeration of error concerns the exclusion of testimony of a witness as to the bad character of the prosecutrix.

Code § 38-202.1 (Ga. L. 1976, p. 741) is a strong legislative attempt to protect the victim-prosecutrix in rape cases by the exclusion of evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused. It prohibits all evidence relating to the past sexual behavior of the complaining witness, including marital history, mode of dress, general reputation for promiscuity, nonchastity or sexual mores contrary to community standards; in other words, her reputation concerning past sexual activity with persons other than the defendant. The exceptions are, if so found by the judge after an in camera hearing, that the past behavior involved participation by the accused, or that the evidence "supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of.” The ev idence offered by a witness who was a co-worker with the defendant and the prosecutrix and who had been acquainted with the latter for about eight months was that be had had a single date with her on which she had had sexual relations with him; that he had been told by one other person that she was not truthful, and some women had been talking about her. Evén before the statute was enacted, this type of evidence was inadmissible. Lynn v. State, 231 Ga. 559 (203 SE2d 221) (1974). Nothing remotely suggests that the defendant could, except as the result of an attack of megalomania, have inferred from these facts that the victim would consent to his sexual demands. The testimony was inadmissible in its entirety, and was properly excluded by the court. The fact that one other person had mentioned the prosecutrix told lies was insufficient to establish her general reputation for veracity and honesty. The remaining testimony, involving her sexual life, was not a base on which an opinion of bad general reputation could be founded. Code § 38-1804 stipulates that when good or bad character is proved by the statutory questions the "particular transactions, or the opinions of single individuals, shall not be inquired of on either side, except upon cross examination. . .” But this is not the type of transaction which may be made the subject of cross examination under Code § 38-202.1, from which it follows that these particulars are insufficient to justify a conclusion of bad character. Further, the witness had worked at the same plant as the defendant for approximately eight months; nothing he offered suggested any further knowledge of her character. There was no error in excluding this testimony. See also Johnson v. State, 146 Ga. App. 277 (246 SE2d 363) (1978).

Submitted September 11,1978 Decided October 18, 1978. Thompson, Fox & Brinson, David A. Fox, for appellant. Jeff C. Wayne, District Attorney, for appellee.

Judgment affirmed.

Smith, J., concurs. Banke, J., concurs specially.