discovered and could not have been obtained earlier
through the exercise of due diligence or that the issue to
which such evidence relates has newly arisen in the case.
Any motion made under this paragraph shall be served
on all other parties and on the alleged victim.
‘‘(2) The motion described in paragraph (1) shall be
accompanied by a written offer of proof. If necessary, the
court shall order a hearing in chambers to determine if
such evidence is admissible. At such hearing, the parties
may call witnesses, including the alleged victim and offer
relevant evidence. Notwithstanding subdivision (b) of rule
104, if the relevancy of the evidence which the defendant
seeks to offer in the trial depends upon the fulfillment of
a condition of fact, the court, at the hearing in chambers
or at a subsequent hearing in chambers scheduled for such
purpose, shall accept evidence on the issue of whether such
condition of fact is fulfilled and shall determine such issue.
‘‘(3) If the court determines on the basis of the hear-
ing described in paragraph (2) that the evidence that the
defendant seeks to offer is relevant and that the probative
value of such evidence outweighs the danger of unfair prej-
udice such evidence shall be admissible in the trial to the
extent an order made by the court specifies the evidence
which may be offered and areas with respect to which the
alleged victim may be examined or cross-examined. In its
order, the court should consider (A) the chain of reasoning
leading to its finding of relevance, and (B) why the pro-
bative value of the evidence outweighs the danger of unfair
prejudice given the potential of the evidence to humiliate
and embarrass the alleged victim and to result in unfair
or biased jury inferences.’’.
SEC. 403. SEXUAL HISTORY IN CIVIL CASES.
The Federal Rules of Evidence, as amended by sec-
tion 402 of this Act, are amended by adding after rule
412A the following new rule:
‘‘Rule 412B. Evidence of past sexual behavior in civil
cases
‘‘(a) Notwithstanding any other provision of law, in
a civil case in which a defendant is accused of actionable
sexual misconduct, as defined in subdivision (d), reputa-
tion or opinion evidence of the plaintiff’s past sexual be-
havior is not admissible.
‘‘(b) Notwithstanding any other provision of law, in
a civil case in which a defendant is accused of actionable
sexual misconduct, as defined in subdivision (d), evidence
of a plaintiff’s past sexual behavior other than reputation
or opinion evidence may be admissible if—
‘‘(1) admitted in accordance with the proce-
dures specified in subdivision (c); and
‘‘(2) the probative value of such evidence out-
weighs the danger of unfair prejudice.
‘‘(c)(1) If the defendant intends to offer evidence of
specific instances of the plaintiff’s past sexual behavior,
the defendant shall make a written motion to offer such
evidence not later than 15 days before the date on which
the trial in which such evidence is to be offered is sched-
uled to begin, except that the court may allow the motion
to be made at a later date, including during trial, if the
court determines either that the evidence is newly discov-
ered and could not have been obtained earlier through the
exercise of due diligence or that the issue to which such
evidence relates has newly arisen in the case. Any motion
made under this paragraph shall be served on all other
parties and on the plaintiff.
‘‘(2) The motion described in paragraph (1) shall be
accompanied by a written offer of proof. If necessary, the
court shall order a hearing in chambers to determine if
such evidence is admissible. At such hearing, the parties
may call witnesses, including the plaintiff and offer rel-
evant evidence. Notwithstanding subdivision (b) of rule
104, if the relevancy of the evidence which the defendant
seeks to offer in the trial depends upon the fulfillment of
a condition of fact, the court, at the hearing in chambers
or at a subsequent hearing in chambers scheduled for such
purpose, shall accept evidence on the issue of whether such
condition of fact is fulfilled and shall determine such issue.
‘‘(3) If the court determines on the basis of the hear-
ing described in paragraph (2) that the evidence that the
defendant seeks to offer is relevant and that the probative
value of such evidence outweighs the danger of unfair prej-
udice, such evidence shall be admissible in the trial to the
extent an order made by the court specifies evidence which
may be offered and areas with respect to which the plain-
tiff may be examined or cross-examined. In its order, the
court should consider (A) the chain of reasoning leading
to its finding of relevance, and (B) why the probative value
of the evidence outweighs the danger of unfair prejudice
given the potential of the evidence to humiliate and embar-
rass the alleged victim and to result in unfair or biased
jury inferences.
‘‘(d) For purposes of this rule, a case involving a
claim of actionable sexual misconduct, includes, but is not
limited to, sex harassment or discrimination claims
brought under title VII of the Civil Rights Act of 1964
(42 U.S.C. 2000(e)) and claims under section 301 of the
Violence Against Women Act of 1993.’’.
SEC. 404. EVIDENCE OF CLOTHING.
The Federal Rules of Evidence, as amended by sec-
tions 402 and 403 of this Act, are amended by adding
after rule 412B the following new rule:
‘‘Rule 413. Evidence of victim’s clothing as inciting
violence
‘‘Notwithstanding any other provision of law, in a
criminal case in which a person is accused of an offense
under chapter 109A of title 18, United States Code, evi-
dence of an alleged victim’s clothing is not admissible to
show that the alleged victim incited or invited the offense
charged.’’.
Subtitle B—Education and Train-
ing for Judges and Court Per-
sonnel in State Courts
SEC. 411. GRANTS AUTHORIZED
The State Justice Institute is authorized to award
grants for the purpose of developing, testing presenting,
and disseminating model programs to be used by States
in training judges and court personnel in the laws of the
States on rape, sexual assault, domestic violence, and
other crimes of violence motivated by the victim’s gender.
SEC. 412. TRAINING PROVIDED BY GRANTS.
Training provided pursuant to grants made under
this subtitle may include current information, existing
studies, or current data on—
(1) the nature and incidence of rape and sexual
assault by strangers and nonstrangers, marital rape,
and incest;
(2) the underreporting of rape, sexual assault,
and child sexual abuse;
(3) the physical, psychological, and economic
impact of rape and sexual assault on the victim, the
costs to society, and the implications for sentencing;
(4) the psychology of sex offenders, their high
rate of recidivism, and the implications for sentenc-
ing;
(5) the historical evolution of laws and attitudes
on rape and sexual assault;
(6) sex stereotyping of female and male victims
of rape and sexual assault, racial stereotyping of
rape victims and defendants, and the impact of such
stereotypes on credibility of witnesses, sentencing,
and other aspects of the administration of justice;
(7) application of rape shield laws and other
limits on introduction of evidence that may subject
victims to improper sex stereotyping and harassment
in both rape and nonrape cases, including the need
for sua sponte judicial intervention in inappropriate
cross-examination;