On May 11, 2009, the Assembly Judiciary Committee reported favorably on a bill (A243) that would create a so-called “rape shield” statute for civil cases. New Jersey’s current “rape shield” statute provides that evidence of a victim’s previous sexual conduct with persons other than the defendant is not admissible in criminal prosecutions except under certain limited circumstances. Under the proposed new law, in civil cases alleging sexual assault or sexual harassment, a party seeking discovery concerning the plaintiff’s “sexual conduct” with persons other than the defendant would be required to establish specific facts showing good cause for that discovery, and that the evidence sought is “relevant” (which is defined as being material to prove that the source of semen, pregnancy or disease is from someone other than the defendant). “Sexual conduct” also is defined broadly, to include “any conduct or behavior relating to sexual activities of the victim, including but not limited to previous or subsequent experience of sexual penetration or sexual contact, use of contraceptives, living arrangement and life style.” At trial, evidence of the victim’s previous sexual conduct would not be admitted, nor reference made to it in the presence of a jury (except under similar limited circumstances).
Making this bill potentially troubling for employers is that, to the extent it applies to workplace sexual harassment civil suits, it potentially could preclude discovery or introduction at trial of evidence routinely sought and utilized in such cases, such as the fact that the harassment was not unwelcome (based on prior sexual behavior), that the plaintiff herself or himself engaged in sexual workplace banter and conduct, and evidence concerning the plaintiff’s living arrangement and/or lifestyle.