Sex-offense cases: the rape shield rule and similar-acts evidence

Black-letter propositions

1. 01

   In a civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove that a victim engaged in other sexual behavior, or to prove a victim's sexual predisposition, is not admissible.

2. 02

   In a criminal case the court may admit specific instances of a victim's sexual behavior offered to prove that someone other than the defendant was the source of semen, injury or other physical evidence.

3. 03

   In a criminal case the court may admit specific instances of a victim's sexual behavior with the person accused, if offered by the defendant to prove consent or if offered by the prosecutor.

4. 04

   In a criminal case the court may admit evidence whose exclusion would violate the defendant's constitutional rights.

5. 05

   In a civil case the court may admit evidence of a victim's sexual behavior or predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party, and it may admit reputation evidence only if the victim has placed reputation in controversy.

6. 06

   A party who intends to offer evidence under an exception must file a motion that specifically describes the evidence and states its purpose, at least 14 days before trial unless the court sets a different time for good cause, serve it on all parties, and notify the victim.

7. 07

   Before admitting the evidence, the court must conduct an in camera hearing and give the victim and the parties a right to attend and be heard, and the motion, related materials and record of the hearing must remain sealed unless the court orders otherwise.

8. 08

   In this rule the term victim includes an alleged victim.

9. 09

   In a criminal case in which a defendant is accused of sexual assault, the court may admit evidence that the defendant committed any other sexual assault, and the evidence may be considered on any matter to which it is relevant.

10. 10

    In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation, and a child is a person below the age of 14.

11. 11

    In a civil case involving a claim based on a party's alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.

12. 12

    A prosecutor who intends to offer other-acts evidence under Rule 413 or 414 must disclose it to the defendant, with witnesses' statements or a summary of expected testimony, at least 15 days before trial or later for good cause, and these rules do not limit admission under any other rule.

Use this attack sequence under time

Common wrong turns

• The prosecutor may offer the victim's past sexual behavior with the accused, and the defendant may offer it to prove consent.
• Rule 412 protects reputation evidence in civil cases unless the victim puts reputation in controversy.
• Rules 413 to 415 let the court admit other acts for any relevant matter, so the ordinary bar on propensity does not control.

Worked example

A defendant on trial for sexual assault wants to show that the complainant had a sexual relationship with a third person last year, to suggest that she consented.

Practice this topic

The prohibition and exceptions in Rule 412

Federal Rule of Evidence 412(a) provides that the following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: evidence offered to prove that a victim engaged in other sexual behavior, and evidence offered to prove a victim's sexual predisposition. Rule 412(d) defines victim to include an alleged victim.

Rule 412(b)(1) allows a court in a criminal case to admit specific instances of a victim's sexual behavior offered to prove that someone other than the defendant was the source of semen, injury or other physical evidence, specific instances of sexual behavior with the person accused if offered by the defendant to prove consent or by the prosecutor, and evidence whose exclusion would violate the defendant's constitutional rights. Rule 412(b)(2) allows a court in a civil case to admit evidence of a victim's sexual behavior or predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party, and reputation evidence only if the victim has placed it in controversy.

Procedure for offering evidence under Rule 412

Rule 412(c)(1) requires a party who intends to offer evidence under Rule 412(b) to file a motion that specifically describes the evidence and states its purpose, do so at least 14 days before trial unless the court for good cause sets a different time, serve it on all parties, and notify the victim or the victim's guardian or representative.

Rule 412(c)(2) requires the court, before admitting the evidence, to conduct an in camera hearing and give the victim and parties a right to attend and be heard, and it says that unless the court orders otherwise the motion, related materials and the record of the hearing must remain sealed.

Other sexual assaults and child molestation

Rule 413(a) provides that in a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault, and the evidence may be considered on any matter to which it is relevant. Rule 414(a) provides the same for a defendant accused of child molestation, and Rule 414(d) defines a child as a person below the age of 14.

Rule 415(a) applies the same approach in a civil case involving a claim for relief based on a party's alleged sexual assault or child molestation. Rules 413(b), 414(b) and 415(b) require disclosure at least 15 days before trial, or later for good cause, including witnesses' statements or a summary of expected testimony, and Rules 413(c), 414(c) and 415(c) say the rules do not limit admission under any other rule.

Frequently asked questions