'Rape Shield' Statutes: Overview; Fed.R.Evid. 412; Mode of Dress, Statements of Sexual Nature or Intention

Over the last four decades, Congress and numerous state legislatures perceived a need to protect the privacy of an alleged rape victim from unwarranted public intrusion, and to make the prosecution of rape cases more effective and equitable for rape victims. In particular, the ordeal a woman had to undergo at trial was felt to account for the reluctance of many women to report a rape or to participate in the prosecution of an alleged rapist. Reassessment of the actual probative value in today’s sexually liberated society of other sexual behavior in light of the jury’s likelihood to overvalue such conduct was also one of the critical underpinnings of the legislative response in the form of statutes through the United States controlling the admissibility of evidence of past sexual behavior and predisposition of the alleged victim.Congress drafted Fed.R.Evid. 412 without the aid of a proposal from an Advisory Committee appointed by the Supreme Court. Fed.R.Evid. 412 provides that in a criminal proceeding involving alleged sexual misconduct, Fed.R.Evid. 412, and only Fed.R.Evid. 412, governs the admissibility of reputation and opinion evidence relating to any alleged victim’s sexual predisposition as well as the admissibility of evidence of specific instances of conduct of any alleged victim offered to prove that the alleged victim engaged in other sexual behavior.Fed.R.Evid. 412 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 factfinding process. By affording victims protection in most instances, the rule is designed to encourage victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders. Fed.R.Evid. 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 or for impeachment, except in designated circumstances in which the probative value of the evidence significantly outweighs possible harm to the victim.Mode of dress. Pursuant to Fed.R.Evid. 412(a)(2) in a criminal case evidence offered to prove any alleged victim’s sexual predisposition is inadmissible. Predisposition means bent, inclination, predilection, proclivity, mindset, etc., to commit a particular disputed act with a particular mental state central in the litigation. Mode in the context of dress refers to fashion or style, manner, method or way of doing or acting. Mode of dress may refer to either the way a person generally dresses or may refer to how that particular person was dressed at the time of conduct relevant in the litigation.With respect to the initial meaning of mode of dress, the Advisory Committee’s Note to the 1994 Amendment to Fed.R.Evid. 412 indicates that subject to Fed.R.Evid. 412(b)(2), which relates solely to a civil case, overall mode of dress is precluded predisposition evidence:The rule has been amended to also exclude all other evidence relating to an alleged victim of sexual misconduct that is offered to prove a sexual predisposition. This amendment is designed to exclude evidence that does not directly refer to sexual activities or thoughts but that the proponent believes may have a sexual connotation for the factfinder. Admission of such evidence would contravene Fed.R.Evid. 412’s objectives of shielding the alleged victim from potential embarrassment and safeguarding the victim against stereotypical thinking. Consequently, unless the (b)(2) exception is satisfied, evidence such as that relating to the alleged victim’s mode of dress, speech, or life-style will not be admissible.On the other hand, mode of dress in the sense of the alleged victim’s clothing worn at the moment in question is admissible at constituting an instance of sexual behavior by the alleged victim with the person accused of the sexual conduct offered to prove consent, Fed.R.Evid. 412(b)(1)(B). Thus, the fact that a woman sitting on a bar stool was wearing an extremely short skirt, etc., is rightly admitted in a sexual battery prosecution when the accused asserts after picking up the woman at the bar, they engaged in consensual sex.Statements of sexual nature or intention. The Advisory Committee’s Note to the 1994 Amendment to Fed.R.Evid. 412 speaks on three separate occasions as to the admissibility of statements of a sexual nature or intention. “Fantasies,” “dreams,” and statements of sexual desire and/or intent to act of a general nature are inadmissible pursuant to Fed.R.Evid. 412, while “fantasies,” “dreams” and statements of sexual desire and/or intent to act with the accused or with the “first person encountered on a particular occasion” as reasonably construed, are admissible pursuant to Fed.R.Evid. 412.