Rule 412 Sex-Offense Cases: the Victim's Sexual Behavior or Predisposition

COMMENT ON RULE 412

Rule 412 is a new "rape shield" rule. The rule is intended to provide the standard for the introduction of evidence of a victim’s sexual history. The rule supersedes the rape shield statute, W.Va. Code § 61-8B-11, to the extent that the statute is in conflict with the rule.

The rule was taken verbatim from the federal rules with two exceptions, which are intended to incorporate terms that are contained in West Virginia's current rape shield laws. The phrase "opinion evidence of the victim's sexual conduct and reputation evidence of the victim's sexual conduct" was retained in Rule 412(a)(3) and (b)(1)(C), and the phrase "mentally defective, or mentally incapacitated" was retained in Rule 412(a)(3).

Rule 412(a)(3) and (b)(1)(C) refer to "reputation and opinion evidence," but Federal Rule 412 does not make reference to "reputation and opinion evidence." In its original enactment in 1978, Federal Rule 412 referred to "reputation and opinion evidence" in two provisions. See PL 95–540, 1978 HR 4727. References to "reputation and opinion evidence" in the original rule were removed in a 1994 amendment. However, the Advisory Committee Notes to the 1994 amendment make clear that the current version of Federal Rule 412 still limits evidence to that "of specific instances of sexual behavior in recognition of the limited probative value and dubious reliability of evidence of reputation or evidence in the form of an opinion." 1994 Advisory Committee Notes, Federal Rule 412.

The 1994 amendment to Federal Rule 412 completely revised the rule. The intended effects of the revision are set out in the federal commentary, in part, as follows:

Rule 412 has been revised to diminish some of the confusion engendered by the original rule and to expand the protection afforded alleged victims of sexual misconduct. Rule 412 applies to both civil and criminal proceedings. The rule aims to safeguard the alleged victim against the invasion of privacy, 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 victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders.

Rule 412 seeks to achieve these objectives by barring evidence relating to the alleged victim's sexual behavior or alleged sexual predisposition, whether offered as substantive evidence of for impeachment, except in designated circumstances in which the probative value of the evidence significantly outweighs possible harm to the victim.

The revised rule applies in all cases involving sexual misconduct without regard to whether the alleged victim or person accused is a party to the litigation. Rule 412 extends to "pattern" witnesses in both criminal and civil cases whose testimony about other instances of sexual misconduct by the person accused is otherwise admissible. When the case does not involve alleged sexual misconduct, evidence relating to a third-party witness' alleged sexual activities is not within the ambit of Rule 412. The witness will, however, be protected by other rules such as Rules 404 and 608, as well as Rule 403.

The terminology "alleged victim" is used because there will frequently be a factual dispute as to whether sexual misconduct occurred. It does not connote any requirement that the misconduct be alleged in the pleadings. Rule 412 does not, however, apply unless the person against whom the evidence is offered can reasonably be characterized as a "victim of alleged sexual misconduct." When this is not the case, as for instance in a defamation action involving statements concerning sexual misconduct in which the evidence is offered to show that the alleged defamatory statements were true or did not damage the plaintiff's reputation, neither Rule 404 nor this rule will operate to bar the evidence; Rule 401 and 403 will continue to control. Rule 412 will, however, apply in a Title VII action in which the plaintiff has alleged sexual harassment.

The reference to a person "accused" is also used in a non-technical sense. There is no requirement that there be a criminal charge pending against the person or even that the misconduct would constitute a criminal offense. Evidence offered to prove allegedly false prior claims by the victim is not barred by Rule 412. However, the evidence is subject to the requirements of Rule 404.

1994 Advisory Committee Notes to Federal Rule 412.