May, J.
In this interlocutory appeal, James D. Frye appeals the trial court’s decision to grant the State’s request for a protective order to prohibit Frye from questioning the alleged victim (“AV”) about her sexual history with Frye. Frye makes several arguments, which we consolidate and restate as whether the trial court abused its discretion when it granted the State’s motion for a protective order. We reverse and remand.
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Frye challenges the trial court’s grant of the State’s protective order to prohibit him from deposing AV about her sexual history with Frye.
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The State argues “good cause” existed under Trial Rule 26(C) to limit Frye’s questions about the prior sexual relationship between himself and AV because of Indiana’s Rape Shield provisions.
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In “a civil or criminal proceeding involving alleged sexual misconduct[,]” evidence offered “to prove the victim . . . engaged in other sexual behavior” or offered to prove “a victim’s . . . sexual predisposition” is generally inadmissible. Evid. R. 412(a). However, if a criminal defendant asserts a defense of consent and seeks to offer evidence of “specific instances of a victim’s . . . sexual behavior with respect to the [defendant] . . . to prove consent[,]” the evidence may be admitted. Evid. R. 412(b)(1)(B).
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Indiana law also contains a “Rape Shield Statue” codified at Indiana Code section 35-37-4-4, which is similar, but not identical, to the Rape Shield Rule. Like the Rape Shield Rule, the Rape Shield Statute prohibits the admission of, as is relevant here, “evidence of the victim’s past sexual conduct[.]” Ind. Code § 35-37-4-4(a)(1). However, evidence of the “victim’s . . . past sexual conduct with the defendant . . . may be introduced if the judge finds . . . that it is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.” Ind. Code § 35-37-4-4(b)(1). The Rape Shield Statute “was designed to protect victims of sex crimes from a general inquiry into their sexual past.” Baker v. State, 750 N.E.2d 781, 783 (Ind. 2001).
Frye is charged with the Level 3 felony rape of AV because he allegedly had sexual intercourse with her while she was “unaware” the sexual activity was occurring, that is, while she was asleep. See Ind. Code § 35-42-4-1(a)(2)
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Given the similar statutory construction, we follow Nolan and hold the ability to consent is a “unifying theme to the separate situations of proscribed conduct” constituting Level 3 felony rape. Nolan, 863 N.E.2d at 403. Moreover, “whether a victim was ‘unaware’ involves looking at the facts . . . to determine if the victim was capable of voluntarily giving consent to the actor.” Id. Thus, Frye should be able to ask AV questions about their shared sexual history to determine whether there is any basis by which he could defend himself from the charge against him by arguing the alleged acts of January 6, 2023, were consensual.
Frye does not yet know what his defense to the criminal charge will be and he has been unable to conduct discovery. Although most information about a victim’s sexual history is, and certainly ought to be, inadmissible under our Rape Shield provisions, it is possible that details of AV’s prior sexual relationship with Frye may be relevant to the charge against Frye. See, e.g., Ind. Code § 35-37-4-4 (b)(1) (evidence of the “victim’s . . . past sexual conduct with the defendant . . . may be introduced if the judge finds . . . that it is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value”). To prohibit Frye from asking AV any questions about their prior shared sexual relationship is tantamount to allowing the State to use our Rape Shield provisions “both as a shield and a sword.” Steward v. State, 636 N.E.2d 143, 150 (Ind. Ct. App. 1994), aff’d on trans. Steward v. State, 652 N.E.2d 490 (Ind. 1995), reh’g denied. Frye must be permitted to ask AV questions – limited exclusively to their shared sexual relationship – to determine whether any form of consent defense is available to Frye. See Evid. R. 412(b)(1)(B) (rendering admissible “specific instances of a victim’s . . . sexual behavior with respect to the [defendant] . . . to prove consent”). We therefore conclude the trial court abused its discretion when it issued a protective order prohibiting Frye from asking AV questions about their shared sexual history.
The trial court abused its discretion when it granted the State’s protective order to prohibit Frye from asking AV about their shared sexual history. We therefore reverse and remand for proceedings consistent with this opinion.
Reversed and Remanded.
Brown, J., and Shepard, S.J., concur.