The Sexual Innocence Inference Theory as a Basis for the Admissibility of a Child Molestation Victim’s Prior Sexual Conduct

The sexual innocence inference refers to the thought process a jury follows when it hears a young child testify about sexual acts and matters that reveal an understanding of such acts beyond the capacity likely at his or her age. A jury is likely to assume that because the child is so young, he or she must be innocent of sexual matters. Shocked by the child’s display on the witness stand, the jury may then infer that the child could have acquired such knowledge only if the charged offense of child molestation is true. To rebut this inference, a defendant would like to introduce evidence of the child’s prior sexual conduct, including a prior molestation, to show that the child could have acquired sexual knowledge from prior abuse rather than from the charged encounter. The evidence demonstrates an alternative source for the child’s sexual knowledge. This, in tum, permits the defendant to argue credibly that the child had the capacity to fabricate the charge against him.

Thus, a court attempting to decide whether such evidence is admissible faces a difficult problem. Under the Sixth Amendment, the defendant may cross-examine the child and, to the extent that evidence of a prior molestation might prevent a jury from making the sexual innocence inference, the cross-examination represents an attack on the credibility of the witness which has traditionally been permissible. On the other hand, the rape shield statute, by its terms, excludes the evidence. The goal of this Note is to provide a rational means of resolving this quandary.