*NOTE: This section includes amendments by emergency legislation that will expire on June 9, 2024. To view the text of this section after the expiration of all emergency and temporary legislation, click this link: Permanent Version.*
For the purposes of this chapter:
(1) “Actor” means a person accused of any offense proscribed under this chapter.
(2) “Bodily injury” means injury involving loss or impairment of the function of a bodily member, organ, or mental faculty, or physical disfigurement, disease, sickness, or injury involving significant pain.
(3) “Child” means a person who has not yet attained the age of 16 years.
(4) “Consent” means words or overt actions indicating a freely given agreement to the sexual act or contact in question. Lack of verbal or physical resistance or submission by the victim, resulting from the use of force, threats, or coercion by the defendant shall not constitute consent.
(4A) “Domestic partner” shall have the same meaning as provided in § 32-701(3).
(4B) “Domestic partnership” shall have the same meaning as provided in § 32-701(4).
(5) “Force” means the use or threatened use of a weapon; the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or the use of a threat of harm sufficient to coerce or compel submission by the victim.
(5A) “Minor” means a person who has not yet attained the age of 18 years.
(6) “Official custody” means:
(A) Detention following arrest for an offense; following surrender in lieu of arrest for an offense; following a charge or conviction of an offense, or an allegation or finding of juvenile delinquency; following commitment as a material witness; following or pending civil commitment proceedings, or pending extradition, deportation, or exclusion;
(B) Custody for purposes incident to any detention described in subparagraph (A) of this paragraph, including transportation, medical diagnosis or treatment, court appearance, work, and recreation; or
(C) Probation or parole.
(7) "Serious bodily injury" shall have the same meaning as provided in § 22-404.01(d).
(8) “Sexual act” means:
(A) The penetration, however slight, of the anus or vulva of another by a penis;
(B) Contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or
(C) The penetration, however slight, of the anus or vulva by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
(D) The emission of semen is not required for the purposes of subparagraphs (A)-(C) of this paragraph.
(9) “Sexual contact” means the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
(10) “Significant relationship” includes:
(A) A parent, sibling, aunt, uncle, or grandparent, whether related by blood, marriage, domestic partnership, or adoption;
(B) A legal or de facto guardian or any person, more than 4 years older than the victim, who resides intermittently or permanently in the same dwelling as the victim;
(C) The person or the spouse, domestic partner, or paramour of the person who is charged with any duty or responsibility for the health, welfare, or supervision of the victim at the time of the act;
(D) Any employee, contractor, consultant, or volunteer of a school, religious institution, or an educational, social, recreational, athletic, musical, charitable, or youth facility, organization, or program, including a teacher, coach, counselor, clergy, youth leader, chorus director, bus driver, administrator, or support staff, or any other person in a position of trust with or authority over a child or a minor.
(11) “Victim” means a person who is alleged to have been subject to any offense set forth in subchapter II of this chapter.
Subchapter II. Sex Offenses.
§ 22–3002. First degree sexual abuse.
(a) A person shall be imprisoned for any term of years or for life, and in addition, may be fined not more than the amount set forth in § 22-3571.01, if that person engages in or causes another person to engage in or submit to a sexual act in the following manner:
(1) By using force against that other person;
(2) By threatening or placing that other person in reasonable fear that any person will be subjected to death, bodily injury, or kidnapping;
(3) After rendering that other person unconscious; or
(4) After administering to that other person by force or threat of force, or without the knowledge or permission of that other person, a drug, intoxicant, or other similar substance that substantially impairs the ability of that other person to appraise or control his or her conduct.
(b) The court may impose a prison sentence in excess of 30 years only in accordance with § 22-3020 or § 24-403.01(b-2). For purposes of imprisonment following revocation of release authorized by § 24-403.01(b)(7), the offense defined by this section is a Class A felony.
§ 22–3003. Second degree sexual abuse.
A person shall be imprisoned for not more than 20 years and may be fined not more than the amount set forth in § 22-3571.01, if that person engages in or causes another person to engage in or submit to a sexual act in the following manner:
(1) By threatening or placing that other person in reasonable fear (other than by threatening or placing that other person in reasonable fear that any person will be subjected to death, bodily injury, or kidnapping); or
(2) Where the person knows or has reason to know that the other person is:
(A) Incapable of appraising the nature of the conduct;
(B) Incapable of declining participation in that sexual act; or
(C) Incapable of communicating unwillingness to engage in that sexual act.
§ 22–3004. Third degree sexual abuse.
A person shall be imprisoned for not more than 10 years and may be fined not more than the amount set forth in § 22-3571.01, if that person engages in or causes sexual contact with or by another person in the following manner:
(1) By using force against that other person;
(2) By threatening or placing that other person in reasonable fear that any person will be subjected to death, bodily injury, or kidnapping;
(3) After rendering that person unconscious; or
(4) After administering to that person by force or threat of force, or without the knowledge or permission of that other person, a drug, intoxicant, or similar substance that substantially impairs the ability of that other person to appraise or control his or her conduct.
§ 22–3005. Fourth degree sexual abuse.
A person shall be imprisoned for not more than 5 years and, in addition, may be fined not more than the amount set forth in § 22-3571.01, if that person engages in or causes sexual contact with or by another person in the following manner:
(1) By threatening or placing that other person in reasonable fear (other than by threatening or placing that other person in reasonable fear that any person will be subjected to death, bodily injury, or kidnapping); or
(2) Where the person knows or has reason to know that the other person is:
(A) Incapable of appraising the nature of the conduct;
(B) Incapable of declining participation in that sexual contact; or
(C) Incapable of communicating unwillingness to engage in that sexual contact.
§ 22–3006. Misdemeanor sexual abuse.
*NOTE: This section includes amendments by emergency legislation that will expire on June 9, 2024. To view the text of this section after the expiration of all emergency and temporary legislation, click this link: Permanent Version.*
(a) Whoever engages in a sexual act or sexual contact with another person and who should have knowledge or reason to know that the act was committed without that other person’s permission, shall be imprisoned for not more than 180 days and, in addition, may be fined in an amount not more than the amount set forth in § 22-3571.01.
(b)(1) A person convicted of misdemeanor sexual abuse who has 3 or more prior convictions for misdemeanor sexual abuse shall be fined no more than the amount set forth in § 22-3571.01, or incarcerated for no more than 3 years, or both.
(2) In addition to a violation of this section, a person shall be considered to have prior convictions for misdemeanor sexual abuse if that person has been previously convicted of a violation of a crime under the laws of any other jurisdiction that involved conduct that would, if committed in the District of Columbia, constitute a violation of this section, or conduct that is substantially similar to conduct prosecuted under this section.
§ 22–3007. Defense to sexual abuse.
Consent by the victim is a defense to a prosecution under §§ 22-3002 to 22-3006, prosecuted alone or in conjunction with charges under § 22-3018 or §§ 22-401 and 22-403.
§ 22–3008. First degree child sexual abuse.
Whoever, being at least 4 years older than a child, engages in a sexual act with that child or causes that child to engage in a sexual act shall be imprisoned for any term of years or for life and, in addition, may be fined not more than the amount set forth in § 22-3571.01. However, the court may impose a prison sentence in excess of 30 years only in accordance with § 22-3020 or § 24-403.01(b-2). For purposes of imprisonment following revocation of release authorized by § 24-403.01(b)(7), the offense defined by this section is a Class A felony.
§ 22–3009. Second degree child sexual abuse.
Whoever, being at least 4 years older than a child, engages in sexual contact with that child or causes that child to engage in sexual contact shall be imprisoned for not more than 10 years and, in addition, may be fined in an amount not more than the amount set forth in § 22-3571.01.
§ 22–3009.01. First degree sexual abuse of a minor.
Whoever, being 18 years of age or older, is in a significant relationship with a minor, and engages in a sexual act with that minor or causes that minor to engage in a sexual act shall be imprisoned for not more than 15 years and may be fined not more than the amount set forth in § 22-3571.01, or both.
§ 22–3009.02. Second degree sexual abuse of a minor.
Whoever, being 18 years of age or older, is in a significant relationship with a minor and engages in a sexual contact with that minor or causes that minor to engage in a sexual contact shall be imprisoned for not more than 7 1/2 years and may be fined not more than the amount set forth in § 22-3571.01, or both.
§ 22–3009.03. First degree sexual abuse of a secondary education student.
Any teacher, counselor, principal, coach, or other person of authority in a secondary level school who engages in a sexual act with a student under the age of 20 years enrolled in that school or school system, or causes that student to engage in a sexual act, shall be imprisoned for not more than 10 years, fined not more than the amount set forth in § 22-3571.01, or both.
§ 22–3009.04. Second degree sexual abuse of a secondary education student.
Any teacher, counselor, principal, coach, or other person of authority in a secondary level school who engages in sexual conduct with a student under the age of 20 years enrolled in that school or school system, or causes that student to engage in sexual conduct, shall be imprisoned for not more than 5 years, fined not more than the amount set forth in § 22-3571.01, or both.
§ 22–3010. Enticing a child or minor.
(a) Whoever, being at least 4 years older than a child or being in a significant relationship with a minor, (1) takes that child or minor to any place for the purpose of committing any offense set forth in §§ 22-3002 to 22-3006 and §§ 22-3008 to 22-3009.02, or (2) seduces, entices, allures, convinces, or persuades or attempts to seduce, entice, allure, convince, or persuade a child or minor to engage in a sexual act or contact shall be imprisoned for not more than 5 years or may be fined not more than the amount set forth in § 22-3571.01, or both.
(b) Whoever, being at least 4 years older than the purported age of a person who represents himself or herself to be a child, attempts (1) to seduce, entice, allure, convince, or persuade any person who represents himself or herself to be a child to engage in a sexual act or contact, or (2) to entice, allure, convince, or persuade any person who represents himself or herself to be a child to go to any place for the purpose of engaging in a sexual act or contact shall be imprisoned for not more than 5 years or may be fined not more than the amount set forth in § 22-3571.01, or both.
(c) No person shall be consecutively sentenced for enticing a child or minor to engage in a sexual act or sexual contact under subsection (a)(2) of this section and engaging in that sexual act or sexual contact with that child or minor, provided, that the enticement occurred closely associated in time with the sexual act or sexual contact.
§ 22–3010.01. Misdemeanor sexual abuse of a child or minor.
*NOTE: This section includes amendments by emergency legislation that will expire on June 9, 2024. To view the text of this section after the expiration of all emergency and temporary legislation, click this link: Permanent Version.*
(a) Whoever, being 18 years of age or older and more than 4 years older than a child, or being 18 years of age or older and being in a significant relationship with a minor, engages in sexually suggestive conduct with that child or minor shall be imprisoned for not more than 180 days, or fined not more than the amount set forth in § 22-3571.01, or both.
(a-1)(1) A person convicted of misdemeanor sexual abuse of a child or minor who has 3 or more prior convictions for misdemeanor sexual abuse of a child or minor shall be fined no more than the amount set forth in § 22-3571.01, or incarcerated for no more than 3 years, or both.
(2) In addition to a violation of this section, a person shall be considered as having prior convictions for misdemeanor sexual abuse of a child or minor if that person has been previously convicted of a violation of a crime under the laws of any other jurisdiction that involved conduct that would, if committed in the District of Columbia, constitute a violation of this section, or conduct that is substantially similar to conduct prosecuted under this section.
(b) For the purposes of this section, the term “sexually suggestive conduct” means engaging in any of the following acts in a way which is intended to cause or reasonably causes the sexual arousal or sexual gratification of any person:
(1) Touching a child or minor inside his or her clothing;
(2) Touching a child or minor inside or outside his or her clothing close to the genitalia, anus, breast, or buttocks;
(3) Placing one’s tongue in the mouth of the child or minor; or
(4) Touching one’s own genitalia or that of a third person.
§ 22–3010.02. Arranging for a sexual contact with a real or fictitious child.
(a) It is unlawful for a person to arrange to engage in a sexual act or sexual contact with an individual (whether real or fictitious) who is or who is represented to be a child at least 4 years younger than the person, or to arrange for another person to engage in a sexual act or sexual contact with an individual (whether real or fictitious) who is or who is represented to be a child of at least 4 years younger than the person. For the purposes of this section, arranging to engage in a sexual act or sexual contact with an individual who is fictitious shall be unlawful only if the arrangement is done by or with a law enforcement officer.
(b) A person who violates subsection (a) of this section shall be imprisoned for not more than 5 years, fined not more than the amount set forth in § 22-3571.01, or both.
§ 22–3011. Defenses to child sexual abuse and sexual abuse of a minor.
(a) Neither mistake of age nor consent is a defense to a prosecution under §§ 22-3008 to 22-3010.01, prosecuted alone or in conjunction with charges under § 22-3018 or § 22-403.
(b) Marriage or domestic partnership between the defendant and the child or minor at the time of the offense is a defense, which the defendant must establish by a preponderance of the evidence, to a prosecution under §§ 22-3008 to 22-3010.01, prosecuted alone or in conjunction with charges under § 22-3018 or § 22-403, involving only the defendant and the child or minor.
§ 22–3012. State of mind proof requirement.
In a prosecution under §§ 22-3008 to 22-3010, prosecuted alone or in conjunction with charges under § 22-3018 or § 22-403, the government need not prove that the defendant knew the child’s age or the age difference between himself or herself and the child.
§ 22–3013. First degree sexual abuse of a ward, patient, client, arrestee, detainee, or prisoner.
Any staff member, employee, contract employee, consultant, or volunteer of a law enforcement agency or at a hospital, treatment facility, law enforcement facility, detention or correctional facility, group home, or other institution; anyone who is an ambulance driver or attendant, bus driver or attendant, or person who participates in the transportation of a ward, patient, client, arrestee, detainee, or prisoner to and from such institutions; or any official custodian of a ward, patient, client, arrestee, detainee, or prisoner, who engages in a sexual act with a ward, patient, client, arrestee, detainee, or prisoner, or causes a ward, patient, client, arrestee, detainee, or prisoner to engage in or submit to a sexual act shall be fined not more than the amount set forth in § 22-3571.01, or incarcerated for no more than 10 years, or both.
§ 22–3014. Second degree sexual abuse of a ward, patient, client, arrestee, detainee, or prisoner.
Any staff member, employee, contract employee, consultant, or volunteer of a law enforcement agency or at a hospital, treatment facility, law enforcement facility, detention or correctional facility, group home, or other institution; anyone who is an ambulance driver or attendant, bus driver or attendant, or person who participates in the transportation of a ward, patient, client, arrestee, detainee, or prisoner to and from such institutions; or any official custodian of a ward, patient, client, arrestee, detainee, or prisoner, who engages in a sexual contact with a ward, patient, client, arrestee, detainee, or prisoner, or causes a ward, patient, client, arrestee, detainee, or prisoner, to engage in or submit to a sexual contact shall be fined not more than the amount set forth in § 22-3571.01, or incarcerated for no more than 5 years, or both.
§ 22–3015. First degree sexual abuse of a patient or client.
(a) A person is guilty of first degree sexual abuse who purports to provide, in any manner, professional services of a medical, therapeutic, or counseling (whether legal, spiritual, or otherwise) nature, and engages in a sexual act with another person who is a patient or client of the actor, or is otherwise in a professional relationship of trust with the actor; and
(1) The actor represents falsely that the sexual act is for a bona fide medical or therapeutic purpose, or for a bona fide professional purpose for which the services are being provided;
(2) The nature of the treatment or service provided by the actor and the mental, emotional, or physical condition of the patient or client are such that the actor knows or has reason to know that the patient or client is impaired from declining participation in the sexual act;
(3) The actor represents falsely that he or she is licensed as a particular type of professional; or
(4) The sexual act occurs during the course of a consultation, examination, treatment, therapy, or other provision of professional services.
(b) Any person found guilty pursuant to subsection (a) of this section shall be imprisoned for not more than 10 years and, in addition, may be fined not more than the amount set forth in § 22-3571.01.
§ 22–3016. Second degree sexual abuse of a patient or client.
(a) A person is guilty of second degree sexual abuse who purports to provide, in any manner, professional services of a medical, therapeutic, or counseling (whether legal, spiritual, or otherwise) nature, and engages in a sexual contact with another person who is a patient or client of the actor, or is otherwise in a professional relationship of trust with the actor; and
(1) The actor represents falsely that the sexual contact is for a bona fide medical or therapeutic purpose, or for a bona fide professional purpose for which the services are being provided;
(2) The nature of the treatment or service provided by the actor and the mental, emotional, or physical condition of the patient or client are such that the actor knows or has reason to know that the patient or client is impaired from declining participation in the sexual contact;
(3) The actor represents falsely that he or she is licensed as a particular type of professional; or
(4) The sexual contact occurs during the course of a consultation, examination, treatment, therapy, or other provision of professional services.
(b) Any person found guilty pursuant to subsection (a) of this section shall be imprisoned for not more than 5 years and, in addition, may be fined not more than the amount set forth in § 22-3571.01.
§ 22–3017. Defenses to sexual abuse of a ward, patient, or client.
(a) Consent is not a defense to a prosecution under §§ 22-3013 to 22-3016, prosecuted alone or in conjunction with charges under § 22-3018.
(b) That the defendant and victim were married or in a domestic partnership at the time of the offense is a defense, which the defendant must prove by a preponderance of the evidence, to a prosecution under §§ 22-3013 to 22-3016, prosecuted alone or in conjunction with charges under § 22-3018.
§ 22–3018. Attempts to commit sexual offenses.
Any person who attempts to commit an offense under this subchapter shall be imprisoned for a term of years not to exceed 15 years where the maximum prison term authorized for the offense is life or for not more than 1/2 of the maximum prison sentence authorized for the offense and, in addition, may be fined an amount not to exceed 1/2 of the maximum fine authorized for the offense.
§ 22–3019. No immunity from prosecution for spouses or domestic partners.
No actor is immune from prosecution under any section of this subchapter because of marriage, domestic partnership, or cohabitation with the victim; provided, that marriage or the domestic partnership of the parties may be asserted as an affirmative defense in prosecution under this subchapter where it is expressly so provided.
§ 22–3020. Aggravating circumstances.
*NOTE: This section includes amendments by emergency legislation that will expire on June 9, 2024. To view the text of this section after the expiration of all emergency and temporary legislation, click this link: Permanent Version.*
(a) Any person who is found guilty of an offense under this subchapter may receive a penalty up to 1 1/2 times the maximum penalty prescribed for the particular offense, and may receive a sentence of more than 30 years up to, and including life imprisonment without possibility of release for first degree sexual abuse or first degree child sexual abuse, if any of the following aggravating circumstances exists:
(1) The victim was under the age of 13 years at the time of the offense;
(2) The victim was under the age of 18 years at the time of the offense and the actor had a significant relationship to the victim;
(3) The victim sustained serious bodily injury as a result of the offense;
(4) The defendant was aided or abetted by 1 or more accomplices;
(5) The defendant is or has been found guilty of committing sex offenses against 2 or more victims, whether in the same or other proceedings by a court of the District of Columbia, any state, or the United States or its territories; or
(6) The defendant was armed with, or had readily available, a pistol or other firearm (or imitation thereof) or other dangerous or deadly weapon.
(b) It is not necessary that the accomplices have been convicted for an increased punishment (or enhanced penalty) to apply under subsection (a)(4) of this section.
(c) No person who stands convicted of an offense under this subchapter shall be sentenced to increased punishment (or enhanced penalty) by reason of the aggravating factors set forth in subsection (a) of this section, unless prior to trial or before entry of a plea of guilty, the United States Attorney or the Corporation Counsel, as the case may be, files an information with the clerk of the court, and serves a copy of such information on the person or counsel for the person, stating in writing the aggravating factors to be relied upon.
Subchapter II-A. Reporting Requirements in Child Sexual Abuse Offense Cases.
§ 22–3020.51. Definitions.
For the purposes of this subchapter, the term:
(1) “Child” means an individual who has not yet attained the age of 16 years.
(2) “Person” means an individual 18 years of age or older.
(3) “Police” means the Metropolitan Police Department.
(4) “Sexual abuse” means any act that is a violation of:
§ 22–3020.52. Reporting requirements and privileges.
(a) Any person who knows, or has reasonable cause to believe, that a child is a victim of sexual abuse shall immediately report such knowledge or belief to the police. For the purposes of this subchapter, a call to 911, or a report to the Child and Family Services Agency, shall be deemed a report to the police.
(b) Any person who is or has been a victim of sexual abuse is not required to report pursuant to subsection (a) of this section if the identity of the alleged perpetrator matches the identity of the victim’s abuser.
(c) No legally recognized privilege, except for the following, shall apply to this subchapter:
(1) A lawyer or a person employed by a lawyer is not required to report pursuant to subsection (a) of this section if the lawyer or employee is providing representation in a criminal, civil, or delinquency matter, and the basis for the knowledge or belief arises solely in the course of that representation.
(2)(A) The notification requirements of subsection (a) of this subsection do not apply to a priest, clergyman, rabbi, or other duly appointed, licensed, ordained, or consecrated minister of a given religion in the District of Columbia, or a duly accredited practitioner of Christian Science in the District of Columbia, if the basis for the knowledge or belief is the result of a confession or penitential communication made by a penitent directly to the minister if:
(i) The penitent made the confession or penitential communication in confidence;
(ii) The confession or penitential communication was made expressly for a spiritual or religious purpose;
(iii) The penitent made the confession or penitential communication to the minister in the minister’s professional capacity; and
(iv) The confession or penitential communication was made in the course of discipline enjoined by the church or other religious body to which the minister belongs.
(B) A confession or communication made under any other circumstances does not fall under this exemption.
(3) Domestic violence counselors, as that term is defined in D.C. Official Code § 14-310(a)(2), human trafficking counselors, as that term is defined in § 14-311(a)(2), and sexual assault counselor, as that term is defined in § 14-312(a)(2), shall be exempt from reporting pursuant to subsection (a) of this section any crime disclosed in a confidential communication, as that term is defined in § 14-310(a)(1), § 14-311(a)(1), or § 14-312(a)(1), respectively.
(d) This section should not be construed as altering the special duty to report by persons specified in § 4-1321.02(a).
§ 22–3020.53. Defense to non-reporting.
Any survivor of an intrafamily offense, as that term is defined in § 16-1001(8), may use the occurrence of that intrafamily offense as a defense to their failure to report under this subchapter.
§ 22–3020.54. Penalties.
(a) Any person required to make a report under this subchapter who willfully fails to make such a report shall be subject to a civil fine of $300.
(b) Adjudication of any infraction of this subchapter shall be handled by the Office of Administrative Hearings pursuant to § 2-1831.03(b-6).
§ 22–3020.55. Immunity from liability.
(a) Any person who in good faith makes a report pursuant to this subchapter shall have immunity from liability, civil or criminal, that might otherwise be incurred or imposed with respect to the making of the report or any participation in any judicial proceeding involving the report. In all civil or criminal proceedings concerning the child or resulting from the report, good faith shall be presumed unless rebutted.
(b) Any person who makes a good-faith report pursuant to this subchapter and, as a result thereof, is discharged from his or her employment or in any other manner discriminated against with respect to compensation, hire, tenure, or terms, conditions, or privileges of employment, may commence a civil action for appropriate relief. If the court finds that the person is an individual who was required to report, who in good faith made a report, and who was discharged or discriminated against as a result, the court may issue an order granting appropriate relief, including reinstatement with back pay. The District may intervene in any action commenced under this subsection.
Subchapter III. Admission of Evidence in Sexual Abuse Offense Cases.
§ 22–3021. Reputation or opinion evidence of victim’s past sexual behavior inadmissible.
(a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of an offense under subchapter II of this chapter, reputation or opinion evidence of the past sexual behavior of an alleged victim of such offense is not admissible.
(b) For the purposes of this subchapter, “past sexual behavior” means sexual behavior other than the sexual behavior with respect to which an offense under subchapter II of this chapter is alleged.
§ 22–3022. Admissibility of other evidence of victim’s past sexual behavior.
(a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of an offense under subchapter II of this chapter, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is:
(1) Admitted in accordance with subsection (b) of this section and is constitutionally required to be admitted; or
(2) Admitted in accordance with subsection (b) of this section and is evidence of:
(A) Past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or bodily injury; or
(B) Past sexual behavior with the accused where consent of the alleged victim is at issue and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which such offense is alleged.
(b)(1) If the person accused of committing an offense under subchapter II of this chapter intends to offer under subsection (a) of this section, evidence of specific instances of the alleged victim’s past sexual behavior, the accused shall make a written motion to offer such evidence not later than 15 days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph, and the accompanying offer of proof, shall be filed under seal and served on all other parties and on the alleged victim.
(2) The motion described in paragraph (1) of this subsection shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subsection (a) of this section, the court shall order a hearing in chambers to determine if such evidence is admissible. At such hearing, the parties may call witnesses, including the alleged victim, and offer relevant evidence. If the relevancy of the evidence which the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers, or at a subsequent hearing in chambers scheduled for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue.
(3) If the court determines on the basis of the hearing described in paragraph (2) of this subsection that the evidence which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the court specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined.
§ 22–3024. Privilege inapplicable for spouses or domestic partners.
Laws attaching a privilege against disclosure of communications between spouses or domestic partners are inapplicable in prosecutions under subchapter II of this chapter where the defendant is or was married to the victim, or is or was a domestic partner of the victim, or where the victim is a child.
