Rule 412 Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition
Article IV: Relevance and Its Limits
Rule Text
(a) Prohibited Uses. The following is not admissible in a criminal case involving an alleged sexual offense:
(1) reputation or opinion evidence of a victim’s past sexual behavior; and
(2) evidence of a victim’s past sexual behavior other than reputation or opinion, except under subdivisions (b) and (c).
(b) Exceptions. The court may admit evidence of:
(1) specific instances of a victim’s past sexual behavior:
(A) with a person other than the defendant, if offered by the defendant to prove that someone else was the source of semen, pregnancy, disease, or injury;
(B) with the defendant, if offered by the defendant to prove consent; and
(C) if constitutionally required to be admitted; and
(2) false allegations of sexual offenses made at any time before trial by the victim.
(c) Procedure to Determine Admissibility.
(1) Motion. A defendant who intends to offer evidence under subdivision (b) must:
(A) make a motion accompanied by an offer of proof describing the evidence;
(B) file the written motion and offer of proof at least 15 days before trial, unless the court sets a later time – including during trial – after determining:
(i) the evidence is newly discovered and with reasonable diligence could not have been discovered earlier; or
(ii) the issue is newly arisen; and
(C) serve all parties and the victim.
(2) Hearing and Order. When the offer of proof is sufficient, the evidence may be admitted only if the court:
(A) conducts a hearing in chambers to determine admissibility of the evidence;
(B) allows the parties to offer relevant evidence and call witnesses – including the victim – at the hearing;
(C) if the relevance of the evidence depends on whether a fact exists, determines – at this or a later hearing – whether the fact exists, notwithstanding Rule 104(b);
(D) finds that the probative value of relevant evidence outweighs the danger of unfair prejudice, except this subparagraph (D) does not apply when the evidence is offered under subparagraph (b)(1)(C); and
(E) makes an order that specifies:
(i) the admissible evidence; and
(ii) the areas about which the victim may be examined.
(d) Definitions. In this rule:
(1) “victim” includes an alleged victim; and
(2) “past sexual behavior” means sexual behavior other than the alleged offense.
[Restyled effective July 1, 2016.]