#11366 - Rule 412 Rape Shield Rule - Evidence Outline - Long

Rule 412 – Rape Shield Rule

Rule 412. Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition (also applies to sexual harassment cases]

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct [not necessary that there be crim charges pending against the accused, or that the misconduct would constitute a criminal offense]

(1) evidence offered to prove that a victim engaged in other sexual behavior; OR

(2) evidence offered to prove a victim’s sexual predisposition [evidence such as that relating to the alleged victim’s mode of dress, speech, or life style]

(b) Exceptions.

(1) Criminal Cases. The court may admit the following evidence in a criminal case:

(a) evidence of specific instances of a victim’s sexual behavior [sexual behavior includes sexual intercourse or sexual contact, or something that implies sexual intercourse or contact], if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence

(b) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the misconduct, if offered by the defendant to prove consent, or if offered by the prosecutor (prosecutor can introduce evidence of victims sexual behavior with the defendant for any reason)

(c) evidence whose exclusions would violate the defendant’s constitutional rights (redundant, this ALWAYS is the case)

(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.

Policy Reasons Behind the Rule: Rule aims to safeguard the lleged victim against invasion of proivacy, potential embarrassment, and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact finding process. BY affording such protection, the rule encourages victims of sexual misconduct to institute and to participate in legal proceedings against the offenders.

Old View on Rape Shied Laws

Abbot: Past sexual activity raises an inference of propensity to consent (more likely rape “victim” actually consented)

Sibley: Evidence of a bad reputation for chastise suggests a character of untruthfulness (that she is actually lying about the rape)

Past Allegedly False Accusations

State v. Smith: Convicted of attempted indecent behavior with a 12 year old. Court blocked evidence- D wanted to introduce testimony that V had made previous false allegations

• D argues that it is “impeachment” evidence used to attack V’s credibility

• Court holds that 412 does not apply in instances like this

**Side Note: Even if not really asked, once a witness volunteers some sort of character/reputation evidence, she is open to cross examination on that character

Proof of Bias

Olden v. Kentucky: D charged with forcible sodomy. D wants to introduce evidence of V’s affair to show V had a reason to lie (the affair partner saw her getting dropped off by the accused0

• Court holds in this instance that 412 violates D’s confrontation right to cross witness/victim and reverses conviction.

Stephens v. Miller: D was convicted of rape, wants to introduce evidence that there was consent – i.e., what he and she both said pissed her off and made her fabricate the rape accusation [doing it doggy style- asked her if she liked it bc he said some other guy said she did]

• D argues that he has a constitutional right to testify in his own defense (give testimony to suggest she is biased)

• Court stripped the substance of his testimony, D argued tht he had the right to tell a complete story (narrative integrity) [Old Chief]

  • Cour says Res gustae no longer applies, but it is 3 years before Old Chief

• “A criminal defendant’s right to testify is not unlimited and may bow to accommodate other legitimate interests in the criminal trial process”

• Seems like the evidence would have helped his story and maybe he did make her mad, but it is a pretty big leap from getting mad and kicked him out to calling the olice...