In Doe v. Superior Court (Mountain View School District), published October 29, 2021, the Second District Court of Appeal, Division 2 denied a writ petition challenging a trial court's decision to allow the defendant school district to present evidence of a plaintiff student's past sexual abuse. The plaintiff sued the school district for allegedly negligently supervising a fourth-grade teacher who molested the plaintiff in 2010 and 2011. The district sought to introduce evidence that a family friend sexually abused the plaintiff in 2013. The plaintiff moved in limine to exclude the evidence under Evidence Code sections 1106 and 352. In civil actions alleging sexual misconduct, section 1106 bars evidence of specific instances of the plaintiff's sexual conduct to prove consent by the plaintiff or absence of injury to the plaintiff. An exception to the bar is evidence admissible under Evidence Code section 783, which allows evidence of sexual misconduct by the plaintiff offered to attack the credibility of the plaintiff if the court (in a motion proceeding described by the statute) concludes the evidence is relevant and is not barred under Evidence Code section 352 (requiring evidence be more probative than prejudicial). The district filed a motion for admission of the evidence under section 783. The trial court ruled that neither section 1106 nor section 783 applied, because "sexual conduct" was limited to voluntary sexual misconduct. The court then ruled the evidence was not barred by section 352.
The appellate court concluded that the trial court erred in interpreting sections 1106 and 783 to exclude involuntary sexual conduct. Section 1106 was intended both to exclude evidence of a civil plaintiff's character trait for promiscuity, and to encourage civil complainants to bring lawsuits without fear of having the sexual aspects of their lives scrutinized. The second, privacy-focused objective applies to both voluntary and involuntary sexual conduct. Further, interpreting the statute not to apply to sexual abuse would lead to absurd results, such as allowing admission of evidence of all sexual conduct of a person under 18. The weight of precedent in California and other states also interpreted "sexual conduct" to reach involuntary sexual conduct inflicted on a victim. Although the trial court erred, the appellate court ruled that the error was not prejudicial, because the section 352 analysis the court conducted adhered to all but one aspect of the section 783 motion procedure.
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