| (1) | Evidence as to the character of an accused or as to the character of any person against or in connection with whom a sexual offence as contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, is alleged to have been committed, shall, subject to the provisions of subsection (2), be admissible or inadmissible if such evidence would have been admissible or inadmissible on the 30th day of May, 1961. |
| (2) | No evidence as to any previous sexual experience or conduct of any person against or in connection with whom a sexual offence is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no evidence or question in cross examination regarding such sexual experience or conduct, shall be put to such person, the accused or any other witness at the proceedings pending before the court unless— |
| (a) | the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put such question; or |
| (b) | such evidence has been introduced by the prosecution. |
| (3) | Before an application for leave contemplated in subsection (2)(a) is heard, the court may direct that any person, including the complainant, whose presence is not necessary may not be present at the proceedings. |
| (4) | The court shall, subject to subsection (6), grant the application referred to in subsection (2) (a) only if satisfied that such evidence or questioning is relevant to the proceedings pending before the court. |
| (5) | In determining whether evidence or questioning as contemplated in this section is relevant to the proceedings pending before the court, the court shall take into account whether such evidence or questioning— |
| (a) | is in the interests of justice, with due regard to the accused's right to a fair trial; |
| (b) | is in the interests of society in encouraging the reporting of sexual offences; |
| (c) | relates to a specific instance of sexual activity relevant to a fact in issue; |
| (d) | is likely to rebut evidence previously adduced by the prosecution; |
| (e) | is fundamental to the accused's defence; |
| (f) | is not substantially outweighed by its potential prejudice to the complainant's personal dignity and right to privacy; or |
| (g) | is likely to explain the presence of semen or the source of pregnancy or disease or any injury to the complainant, where it is relevant to a fact in issue. |
| (6) | The court shall not grant an application referred to in subsection (2) (a) if, in its opinion, such evidence or questioning is sought to be adduced to support an inference that by reason of the sexual nature of the complainant's experience or conduct, the complainant— |
| (a) | is more likely to have consented to the offence being tried; or |
| (b) | is less worthy of belief. |
| (7) | The court shall provide reasons for granting or refusing an application in terms of subsection (2)(a), which reasons shall be entered in the record of the proceedings. |
[Section 227 substituted by section 68 of Act No. 32 of 2007]
