Privileges and other policy exclusions - Past sexual conduct of a victim

Learning Outcomes

This article examines Federal Rule of Evidence 412, commonly known as the Rape Shield Law. It explains the general prohibition against admitting evidence of an alleged victim's past sexual behavior or predisposition in cases involving alleged sexual misconduct. It details the specific exceptions applicable in criminal and civil cases and outlines the procedural requirements for introducing such evidence. After reading this article, you will understand the scope of FRE 412 and its exceptions, enabling you to analyze its application in MBE fact patterns.

MBE Syllabus

For the MBE, you are required to understand the rules limiting the admissibility of evidence concerning an alleged victim's past sexual behavior or predisposition. This involves analyzing FRE 412 and its specific exceptions. You should be prepared to:

  • Identify the general rule excluding evidence of an alleged victim’s sexual behavior or predisposition.
  • Recognize the specific exceptions allowing such evidence in criminal cases (e.g., source of semen, consent).
  • Apply the balancing test for admitting such evidence in civil cases.
  • Distinguish between evidence of the victim's past sexual conduct (FRE 412) and evidence of the defendant's past sexual misconduct (FRE 413-415).
  • Understand the procedural requirements for offering evidence under FRE 412 exceptions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. In a federal prosecution for sexual assault, the defendant offers evidence that the alleged victim had consensual sex with three other men in the week prior to the alleged assault. The defendant claims this evidence shows the victim's propensity to consent to sex. Is this evidence likely admissible?
    1. Yes, because it is relevant character evidence offered by the accused.
    2. Yes, if its probative value substantially outweighs the danger of unfair prejudice.
    3. No, because FRE 412 generally bars evidence of an alleged victim's other sexual behavior to prove character or propensity.
    4. No, unless the victim first "opens the door" by testifying about her past sexual conduct.
  2. In a civil action for sexual harassment, the defendant seeks to introduce evidence of the plaintiff's manner of dress and flirtatious behavior in the workplace, arguing it shows the plaintiff welcomed the defendant's advances. Is this evidence likely admissible under FRE 412?
    1. Yes, because FRE 412 applies only in criminal cases.
    2. Yes, if the court determines its probative value substantially outweighs the danger of harm to the plaintiff and unfair prejudice.
    3. No, because evidence of an alleged victim's sexual predisposition is never admissible in civil cases.
    4. No, unless the plaintiff first offers evidence about her own sexual behavior or predisposition.
  3. Which of the following is a recognized exception under FRE 412 allowing evidence of specific instances of an alleged victim's sexual behavior in a criminal case?
    1. To prove the victim's motive to fabricate the charges.
    2. To prove that someone other than the defendant was the source of semen or injury.
    3. To generally attack the victim's character for truthfulness.
    4. To show the victim had previously made similar false accusations.

Introduction

Federal Rule of Evidence 412, often referred to as the "Rape Shield Law," represents a significant policy-based exclusion from the general rules of relevance and character evidence. It specifically addresses the admissibility of evidence concerning an alleged victim's past sexual behavior or sexual predisposition in proceedings involving alleged sexual misconduct. The primary policy behind FRE 412 is to protect alleged victims from the embarrassment and harassment associated with inquiries into their private sexual history, thereby encouraging the reporting and prosecution of sexual offenses, while also safeguarding a defendant's constitutional rights.

The rule establishes a general bar against this type of evidence but carves out specific, narrow exceptions for both criminal and civil cases. Understanding the general prohibition and its precise exceptions is essential for analyzing evidence questions on the MBE.

Key Term: Rape Shield Law A law, such as Federal Rule of Evidence 412, that generally prohibits the introduction of evidence of an alleged victim's past sexual behavior or predisposition in cases involving alleged sexual misconduct, subject to specific exceptions.

General Rule of Exclusion

FRE 412(a) states the broad rule: evidence offered to prove that an alleged victim engaged in other sexual behavior, or evidence offered to prove an alleged victim's sexual predisposition, is generally not admissible in any civil or criminal proceeding involving alleged sexual misconduct.

This exclusion applies regardless of whether the evidence is offered as substantive evidence or for impeachment purposes. It covers:

  • Other Sexual Behavior: Includes all activities involving sexual behavior other than the specific sexual misconduct alleged in the current case.
  • Sexual Predisposition: Refers to evidence suggesting a tendency or inclination towards certain sexual behaviors or attitudes, often inferred from reputation, opinion, or specific instances like mode of dress or speech.

Exceptions in Criminal Cases

FRE 412(b)(1) provides limited exceptions where evidence of an alleged victim's past sexual behavior or predisposition may be admissible in a criminal case:

  1. Specific Instances to Prove Source: Evidence of specific instances of an alleged victim's sexual behavior is admissible if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence. This allows the defendant to present alternative source evidence directly relevant to the physical findings in the case.
  2. Specific Instances Regarding Consent: Evidence of specific instances of an alleged victim's sexual behavior with respect to the person accused (the defendant) is admissible if offered by the defendant to prove consent. If the defense theory is consent, prior consensual sexual activity between the victim and the defendant may be relevant and admissible. Evidence of the victim's sexual behavior with persons other than the defendant is generally inadmissible to prove consent.
  3. Constitutional Rights: Evidence whose exclusion would violate the defendant's constitutional rights (e.g., Sixth Amendment Confrontation Clause rights) must be admitted. This is a catch-all designed to ensure the rule does not unfairly prejudice the defendant's ability to present a defense, but its application is rare and fact-specific.

Key Term: Specific Instances of Conduct Particular past actions or behaviors used as evidence. Under FRE 412, specific instances of a victim's sexual behavior are admissible only under narrow exceptions, unlike general character evidence rules.

Worked Example 1.1

Defendant is charged with sexual assault. At trial, Defendant seeks to introduce testimony from Witness, who claims he saw the alleged victim engage in consensual sexual activity with another person at a party earlier the same evening as the alleged assault. Defendant argues this shows the victim was in a “promiscuous state of mind” and thus likely consented to sex with Defendant later that night. Is this evidence admissible?

Answer: No. This evidence constitutes evidence of the alleged victim's "other sexual behavior" offered to prove a propensity to consent. It does not fall under the exception for specific instances with the defendant to prove consent, nor does it relate to the source of physical evidence. FRE 412(a) generally bars this type of evidence offered to prove character or propensity.

Exception in Civil Cases

FRE 412(b)(2) governs admissibility in civil cases involving alleged sexual misconduct. Evidence offered to prove an alleged victim's sexual behavior or predisposition is admissible only if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.

  • Balancing Test: This is a reverse Rule 403 balancing test. The usual Rule 403 standard favors admissibility unless probative value is substantially outweighed by prejudice. Here, the evidence is excluded unless its probative value substantially outweighs prejudice and harm to the victim. This creates a strong presumption against admissibility in civil cases.
  • Reputation Evidence: Evidence of an alleged victim's reputation is admissible only if the victim has placed it in controversy.

Worked Example 1.2

Plaintiff sues her Employer for sexual harassment, alleging a hostile work environment created by her supervisor, Supervisor. Employer defends by arguing Plaintiff's conduct indicated she welcomed Supervisor's attention. Employer seeks to introduce testimony that Plaintiff frequently told explicit jokes and wore revealing clothing at work. Is this evidence admissible?

Answer: Maybe, but it faces a high bar. This evidence is offered to show Plaintiff's "sexual predisposition" and suggest she welcomed the conduct. Under FRE 412(b)(2), the court must determine if the probative value of this evidence substantially outweighs the danger of harm to Plaintiff (e.g., embarrassment, invasion of privacy) and unfair prejudice (e.g., jury focusing on Plaintiff's character instead of Supervisor's conduct). Given the potential for prejudice and harm, and often low probative value of such evidence regarding actual consent or welcome, courts frequently exclude it under this stringent balancing test.

Procedure to Offer Evidence

FRE 412(c) establishes specific procedures that a party must follow before offering evidence under one of the exceptions:

  1. Motion: The party must file a motion specifically describing the evidence and stating the purpose for which it is offered. This must be done at least 14 days before trial unless the court sets a different time.
  2. Notice: The motion must be served on all parties, and the alleged victim must be notified.
  3. Hearing: Before admitting the evidence, the court must conduct an in camera hearing (privately, outside the presence of the public and jury) and give the victim and parties a right to attend and be heard.

The court will admit the evidence only if it meets the requirements of one of the exceptions.

Distinction from Defendant's Conduct (FRE 413-415)

It is important to distinguish FRE 412, which limits evidence about the victim's past sexual behavior, from FRE 413-415, which concern the admissibility of evidence of the defendant's other sexual offenses. FRE 413-415 generally allow evidence of a defendant's prior similar acts in sexual assault and child molestation cases for any relevant purpose, including propensity. FRE 412 works in the opposite direction, presumptively excluding propensity-type evidence regarding the victim.

Key Point Checklist

This article has covered the following key knowledge points:

  • FRE 412 (Rape Shield Law) generally excludes evidence of an alleged victim's other sexual behavior or predisposition in cases involving sexual misconduct.
  • The rule aims to protect victims and encourage reporting, balancing this against defendants' rights.
  • In criminal cases, exceptions exist for specific instances proving an alternative source of physical evidence or prior sexual behavior with the accused to prove consent.
  • Constitutional rights of the defendant can override the rule's exclusion.
  • In civil cases, evidence is admissible only if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice.
  • Reputation evidence regarding the victim is admissible in civil cases only if placed in controversy by the victim.
  • Specific procedures (motion, notice, in camera hearing) must be followed to offer evidence under an exception.
  • FRE 412 (victim's conduct) must be distinguished from FRE 413-415 (defendant's conduct).

Key Terms and Concepts

  • Rape Shield Law
  • Specific Instances of Conduct
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