b'\x0cEvidence:\nRape Shield Rule\n\nColin Miller\n\nCALI eLangdell\xc2\xae Press 2012\n\n\x0cNotices\nThis work by Colin Miller is licensed and published\n\nby CALI eLangdell Press under a Creative\nCommons Attribution-NonCommercial-ShareAlike 3.0 Unported\nLicense. CALI and CALI eLangdell Press reserve under copyright all\nrights not expressly granted by this Creative Commons license. 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The cover art design is a copyrighted work of CALI, all\nrights reserved. The CALI graphical logo is a trademark and may not\nbe used without permission.\nShould you create derivative works based on the text of this book or\nother Creative Commons materials therein, you may not use this\nbook\xe2\x80\x99s cover art and the aforementioned logos, or any derivative\nthereof, to imply endorsement or otherwise without written\npermission from CALI.\n\nii\n\n\x0cThis material does not contain nor is intended to be legal advice.\nUsers seeking legal advice should consult with a licensed attorney in\ntheir jurisdiction. The editors have endeavored to provide complete\nand accurate information in this book. However, CALI does not\nwarrant that the information provided is complete and accurate.\nCALI disclaims all liability to any person for any loss caused by errors\nor omissions in this collection of information.\n\niii\n\n\x0cAbout the Author\nProfessor Miller teaches Evidence, Criminal Procedure, Criminal\nLaw, and Civil Procedure. He is the creator and Blog Editor of\nEvidenceProf Blog of the Law Professor Blogs Network. He is the\nEditor of Illinois Criminal Procedure and drafted a 100 page report\ncomparing the Federal Rules of Evidence to Illinois evidentiary\nprinciples, which was used in the creation of the first Illinois Rules of\nEvidence.\nProfessor Miller received his B.A. degree with distinction from the\nUniversity of Virginia and his J.D. (Order of the Coif) from the\nWilliam & Mary Law School.\n\niv\n\n\x0cAbout CALI eLangdell Press\nThe Center for Computer-Assisted Legal Instruction (CALI\xc2\xae) is: a\nnonprofit organization with over 200 member US law schools, an\ninnovative force pushing legal education toward change for the\nbetter. There are benefits to CALI membership for your school, firm,\nor organization. eLangdell\xc2\xae is our electronic press with a mission to\npublish more open books for legal education.\nHow do we define "open?"\n\xef\x82\xb7\n\nCompatibility with devices like smartphones, tablets, and ereaders; as well as print.\n\n\xef\x82\xb7\n\nThe right for educators to remix the materials through more\nlenient copyright policies.\n\n\xef\x82\xb7\n\nThe ability for educators and students to adopt the materials\nfor free.\n\nFind available and upcoming eLangdell titles at elangdell.cali.org.\nShow support for CALI by following us on Facebook and Twitter,\nand by telling your friends and colleagues where you received your\nfree book.\n\nv\n\n\x0cTable of Contents\nNotices ..........................................................................................................ii\nAbout the Author ...................................................................................... iv\nAbout CALI eLangdell Press .................................................................... v\nTable of Contents ...................................................................................... vi\nPreface ........................................................................................................ vii\nRape Shield Rule Chapter ..................................................................... 1\nIntroductory Note .................................................................................... 1\nI. Historical Background ....................................................................... 1\nII. Rule 412(a)(1): The General Proscription ................................... 2\nIII. Rule 412(b)(1): Criminal Exceptions .......................................... 5\nIV. Rule 412(b)(2): Civil Exception .................................................. 11\nV. Rule 412(c): Procedure for Admissibility in Criminal Cases 17\nVI. Rape Shield Pleadings ................................................................... 22\n\nvi\n\n\x0cPreface\nThe Rape Shield Rule, contained in Federal Rule of Evidence 412\nand state counterparts is a Rule preventing the admission of evidence\nconcerning the sexual predisposition and behavior of an alleged\nvictim of sexual misconduct, subject to certain exceptions. Through a\nseries of cases and hypotheticals drawn from actual cases, this\nchapter gives readers a roadmap for how to address any Rape Shield\nRule issue in practice.\n\nvii\n\n\x0cRape Shield Rule Chapter\nIntroductory Note\nIn 2009, the Committee on Rules of Practice and Procedure of the\nJudicial Conference of the United States Courts decided to \xe2\x80\x9crestyle\xe2\x80\x9d\nthe Federal Rules of Evidence. The goal in this project was to make\nthe Rules more user friendly rather than to enact substantive changes.\nAt the end of each section of this casebook, there is a side-by-side\ncomparison between the prior language of each portion of Rule 412\nand the language of the new \xe2\x80\x9crestyled\xe2\x80\x9d Rule. Because the changes\nwere intended to be stylistic only, everything discussed in this chapter\nshould continue to be good law after the \xe2\x80\x9crestyled\xe2\x80\x9d Rules take effect\non December 1, 2011.\nI. Historical Background\nFor the better part of this country\'s history, defense attorneys in rape\nand sexual assault cases used to parade into court the alleged victim\xe2\x80\x99s\nsexual partners to, in effect, prove that she had a propensity to\nconsent to sexual relations and that she acted in conformity with this\npropensity, and thus consented, at the time of the alleged rape or\nsexual assault1. Or, more generally, defense attorneys used this\nevidence to prove that the alleged victim was a liar2.\nSuch displays impacted not only jurors, but also judges. For instance,\nin its 1895 opinion in State v. Sibley, 33 S.W. 167, 171 (Mo. 1895), the\nSupreme Court of Missouri inanely concluded that \xe2\x80\x9c[i]t is a matter of\ncommon knowledge that the bad character of a man for chastity does\nnot even in the remotest degree affect his character for truth, when\nbased upon that alone, while it does that of a woman.\xe2\x80\x9d See Colin\n1 Colin Miller, New Zealand\xe2\x80\x99s New Rule?: NZ\xe2\x80\x99s Justice Ministry Proposes Rape Shield,\nEvidenceProf Blog (Aug. 27, 2008) http://lawprofessors.typepad.com/\nevidenceprof/2008/08/nz-rape-httpwww.html.\n2 Jason M. Price, Constitutional Law\xe2\x80\x94Sex, Lies and Rape Shield Statutes: The\nConstitutionality of Interpreting Rape Shield Statutes to Exclude Evidence Relating\nto the Victim\xe2\x80\x99s Motive to Fabricate, 18 W. New Eng. L. Rev. 541 (1996),\nhttp://digitalcommons.law.wne.edu/lawreview/vol18/iss2/5\n\n1\n\n\x0cMiller, New Zealand\'s New Rule?: NZ\'s Justice Ministry Proposes Rape\nShield\nLaw.\nEvidenceProf\nBlog,\n(Aug.\n27,\n2008.)\nhttp://lawprofessors.typepad.com/evidenceprof/2008/08/nz-rapehttpwww.html. They also led to the underreporting of rapes and\nhistorically low conviction rates in rape and sexual assault cases. See,\ne.g., State v. Hudlow, 659 P.2d 514, 522-23 (Wash. 1983).\nThis and related concerns led to the anti-rape movement, an offshoot\nof the civil rights movement of the 1960s and 1970s, being able to\nget rape shield laws passed in several states. See id. The Supreme\nCourt later followed suit by creating Federal Rule of Evidence 412,\nthe federal \xe2\x80\x9crape shield\xe2\x80\x9d rule. In effect, rape shield rules protect\ncomplainants from having their past sexual behavior and/or\npredispositions exposed in the courtroom unless defense counsel can\npoint toward a compelling theory of admissibility.\nSpecifically, as amended in 1994, Rule 412(a) now provides, \xe2\x80\x9cThe\nfollowing evidence is not admissible in any civil or criminal\nproceeding involving alleged sexual misconduct except as provided in\nsubdivisions (b) and (c): (1) Evidence offered to prove that any\nalleged victim engaged in other sexual behavior. (2) Evidence offered\nto prove any alleged victim\'s sexual predisposition.\xe2\x80\x9d Rule 412(a)\napplies not only in rape or sexual assault cases but also in other cases,\nincluding sexual harassment cases.\nII. Rule 412(a)(1): The General Proscription\nUnder Rule 412(a)(1), evidence of other sexual behavior by an alleged\nvictim is now inadmissible to prove her propensity to consent to\nsexual acts and her likely conformity with this propensity, and thus\nconsent, at the time of the alleged rape or similar crime in civil and\ncriminal cases. See, e.g., Ledesma v. Gov\xe2\x80\x99t of the Virgin Is., 159 F. Supp.2d\n863 (D.V.I. 2001). According to the Advisory Committee\xe2\x80\x99s Note, the\nphrase \xe2\x80\x9cother sexual behavior\xe2\x80\x9d includes not only \xe2\x80\x9call activities that\ninvolve actual physical conduct, i.e. sexual intercourse and sexual\ncontact, or that imply sexual intercourse or sexual contact,\xe2\x80\x9d but also\n\xe2\x80\x9cactivities of the mind, such as fantasies or dreams.\xe2\x80\x9d Thus, for\ninstance, in United States v. Papakee, 573 F.3d 569 (8th Cir. 2009), the\nEighth Circuit found that a district court properly precluded the\n\n2\n\n\x0cdefendant charged with sexual abuse from introducing evidence that\nthe alleged victim told the deputy questioning her about the crime\nthat he was cute and asked him if he wanted to crawl into bed with\nher because these statements were \xe2\x80\x9cother sexual behavior.\xe2\x80\x9d Courts\ngenerally have concluded that the rape shield rule precludes the\nadmission of evidence of the victim\xe2\x80\x99s other nonconsensual, as well as\nconsensual, \xe2\x80\x9csexual behavior.\xe2\x80\x9d See, e.g. Bryan v. State, 2010 WL\n1137038 (Tex.App. 2010); Colin Miller, Invasion Of Privacy: Court Of\nAppeals Of Texas Finds Trial Court Properly Excluded Evidence Of Alleged\nVictim\'s Prior Nonconsensual Sexual Acts Under Rape Shield Rule.\nEvidenceProf\nBlog\n(Apr.\n10,\n2010)\nhttp://lawprofessors.typepad.com/evidenceprof/2010/04/rapeshield--desmond-w-bryan-appellant-v-the-state-of-texas-state---sw3d------2010-wl-1137038texapp-fort-worth2010.html.\nMoreover, under Rule 412(a)(2), evidence of the sexual\npredisposition of alleged victims, such as their \xe2\x80\x9cmode of dress,\nspeech, or life-style will not be admissible.\xe2\x80\x9d Thus, for instance,\nevidence that an alleged victim of homosexual rape had previously\nengaged in consensual homosexual acts is inadmissible to prove her\npropensity to consent to such acts and her likely conformity with this\npropensity at the time of the alleged rape. See, e.g., People v. Murphy,\n919 P.2d 191 (Colo. 1996). Similarly, evidence that an alleged rape\nvictim had previously engaged in consensual extramarital affairs is\ninadmissible to prove her propensity to consent to such affairs and\nher likely conformity with that propensity at the time of an alleged\nrape by a man other then her husband. See, e.g., Truong v. Smith, 183\nF.R.D. 273 (D. Colo. 1998).\nHypothetical 1\nAleksandr Maksimenko is charged with several counts of\ncriminal sexual abuse after allegedly forcing several women to\nengage in sexual acts with him under threat of physical force\nagainst them. Before trial, the prosecution files a motion in\nlimine, seeking to preclude the defendant from interrogating\nthe alleged victims about their profession as exotic dancers.\nShould the court grant the motion? Cf. United States v.\nMaksimenko, 2007 WL 522708 (E.D. Mich. 2007).\n\n3\n\n\x0cHypothetical 2\nMary Wilson brings a Title VII action against her former\nemployer asserting acts of discrimination based on gender\nand sexual harassment. According to Wilson, these acts\nconsisted, inter alia, of coworkers referring to her as a \xe2\x80\x9cbitch,\xe2\x80\x9d\n\xe2\x80\x9ccunt,\xe2\x80\x9d and \xe2\x80\x9cslut.\xe2\x80\x9d The defendant seeks to present evidence\nof Wilson\xe2\x80\x99s own engagement in sexually explicit language and\nbehavior in the workplace, such as talking about vibrators and\nmen\xe2\x80\x99s sexual organs. Is this evidence inadmissible under the\nRape Shield Rule? See Wilson v. City of Des Moines, 442 F.3d\n637 (8th Cir. 2006).\nHypothetical 3\nPreston Gaddis is charged with rape, sexual assault, and\nindecent assault after allegedly throwing a 19 year-old woman\nonto the floor and raping her in his Pennsylvania home. At\ntrial, Gaddis seeks to introduce evidence of the alleged\nvictim\'s relationship with another woman to prove that the\nalleged victim was uncertain about her sexual preference and\nwas using intercourse with him as an attempt to determine\nwhether she was homosexual or heterosexual. He claimed\nthat when the experience did not turn out the way that she\nexpected, she leveled the charges of rape against him despite\nthe sex being consensual. The prosecution opposes the\nintroduction of this evidence, claiming that it was\ninadmissible under Pennsylvania\'s version of the Rape Shield\nLaw. How should the court rule? See Colin Miller, Keystone\nCase: Pennsylvania Court Finds Evidence of Lesbian Relationship\nInadmissible Under Rape Shield Law. EvidenceProf Blog (Jan. 24,\n2008)\nhttp://lawprofessors.typepad.com/evidenceprof/2008/01/\nlast-april-pres.html.\n\n4\n\n\x0cPrior Rules Language:\n(a) Evidence Generally\nInadmissible. The following\nevidence is not admissible in any\ncivil or criminal proceeding\ninvolving alleged sexual\nmisconduct except as provided in\nsubdivisions (b) and (c):\n(1) Evidence offered to prove\nthat any alleged victim\nengaged in other sexual\nbehavior.\n\nRestyled Rules Language:\n(a) Prohibited Uses. The\nfollowing evidence is not\nadmissible in a civil or criminal\nproceeding involving alleged\nsexual misconduct:\n(1) evidence offered to prove\nthat a victim engaged in other\nsexual behavior; or\n(2) evidence offered to prove\na victim\xe2\x80\x99s sexual\npredisposition.\n\n(2) Evidence offered to prove\nany alleged victim\xe2\x80\x99s sexual\npredisposition.\nIII. Rule 412(b)(1): Criminal Exceptions\nFederal Rule of Evidence 412(b)(1), however, provides certain\nexceptions to this rule in criminal cases. It states that:\n(1) In a criminal case, the following evidence is admissible, if\notherwise admissible under these rules:\n(A) evidence of specific instances of sexual behavior\nby the alleged victim offered to prove that a person\nother than the accused was the source of semen,\ninjury, or other physical evidence;\n(B) evidence of specific instances of sexual behavior\nby the alleged victim with respect to the person\naccused of the sexual misconduct offered by the\naccused to prove consent or by the prosecution; and\n(C) evidence the exclusion of which would violate the\nconstitutional rights of the defendant.\nAn example of a court applying the exception contained in Rule\n412(b)(1)(A) can be found in United States v. Begay, 937 F.2d 515 (10th\n\n5\n\n\x0cCir. 1991), where the trial court refused to allow the defendant, who\nwas charged with aggravated sexual abuse, to present evidence that\nthe eight year-old alleged victim had been sexually assaulted on\nseveral occasions in the months preceding the crime at issue. On the\ndefendant\'s appeal, the Tenth Circuit reversed, finding that the\nprosecutor presented evidence about the alleged victim\'s enlarged\nhymenal opening and a vaginal abrasion; consequently, evidence of\nthe sexual assaults by other men was admissible, not to prove\npropensity and conformity, but to prove that those assaults, rather\nthan the defendant\'s alleged crime, could have caused her injuries.\nSee, Id. at 520.\nAdditionally, under Rule 412(b)(1)(B), evidence of previous\nconsensual sexual acts between the alleged victim and the defendant\nare admissible to prove that there are specific reasons to believe that\nthe alleged victim may have consented to sexual relations with the\ndefendant at the time of an alleged rape or sexual assault. For\ninstance, in State v. Sanchez-Lahora, 616 N.W.2d 810 (Neb. App. 2000),\nthe Court of Appeals of Nebraska found that a trial court erred by\nprecluding a defendant charged with sexual assault from introducing\nevidence that he had previously engaged in sexual relations with the\nalleged victim when they dated to rebut her claim that they dated but\nnever had sexual intercourse.\nIt is important to note that even if evidence satisfies either Rule\n412(b)(1)(A) or (B), the court can still exclude it if its probative value\nis substantially outweighed by the danger of unfair prejudice or any of\nthe other dangers listed in Federal Rule of Evidence 403. Thus, for\ninstance, in United States v. Pumpkin Seed, 2009 WL 2045690 (8th Cir.\n2009), the district court prevented the defendant charged with\naggravated sexual abuse from presenting evidence that the alleged\nvictim engaged in consensual sexual activity with other men within\ndays of the alleged abuse. On appeal, the defendant claimed that this\nruling was erroneous because it would have helped prove that the\nvictim\xe2\x80\x99s injuries could have come from those acts. See, id. at 557. The\nEight Circuit disagreed, concluding that the type and extent of\ninjuries suffered by the victim were generally inconsistent with\n\n6\n\n\x0cconsensual activity and that the evidence would have a high risk of\nunfair prejudice and confusion. See Id. at 558-59.\nFinally, Rule 412(b)(1)(C) is a catch-all exception, which allows for\nthe admission of an alleged victim\'s sexual history and predisposition\nfor purposes other than those covered by Rules 412(b)(1)(A) and (B)\nwhen its exclusion would violate Constitutional rights such as the\nDue Process or Confrontation Clause rights of a criminal defendant.\nThe case cited by the Advisory Committee in support of this\nexception involved a criminal defendant seeking to impeach his\nalleged victim by showing that an extramarital affair gave her a\nmotive to lie, Olden v. Kentucky, 488 U.S. 227 (1988); thereafter, the\nexception has since most commonly been used for impeachment\npurposes. For instance, in In re K.W., 666 S.E.2d 490 (N.C. App.\n2008), the Court of Appeals of North Carolina found that a trial\ncourt erred in precluding a defendant from impeaching an alleged\nrape victim who claimed to be a virgin with suggestive photos and\ncaptions on her MySpace page implying that she was not a virgin. See\nColin Miller, It\'s My Space. That\'s Why They Call It MySpace, Take 3:\nNorth Carolina Court Makes Erroneous MySpace Ruling In Rape Shield Case.\nEvidenceProf\nBlog\n(Sept.,\n18\n2008)\nhttp://lawprofessors.typepad.com/evidenceprof/2008/09/myspace412-in.html.\nIt is important to note that some state counterparts are more\nrestrictive than Federal Rule of Evidence 412(b)(1). For instance,\nunlike Federal Rule of Evidence 412(b)(1)(A), Minnesota\xe2\x80\x99s\ncounterpart, Minnesota Rule of Evidence 412(1)(B), does not allow a\ndefendant to present evidence of an alleged victim\xe2\x80\x99s other sexual\nbehavior to prove that someone else caused her physical injuries. See,\ne.g., State v. McBroom, 2009 WL 4251080 (Minn .App. 2009); Colin\nMiller, Excepted Exception: Appeal Reveals Limited Applicability Of\nMinnesota\'s Other Source Rape Shield Exception. EvidenceProf Blog (Dec.\n6,\n2009)\nhttp://lawprofessors.typepad.com/\nevidenceprof/\n2009/12/412-semenstate-of-minnesota-respondent-v-james-davidmcbroom-appellant----nw2d------2009-wl4251080minnapp2009.html. On the other hand, other state\ncounterparts add exceptions not contained in Federal Rule of\n\n7\n\n\x0cEvidence 412(b)(1). As an example, North Carolina Rule of Evidence\n412(b)(4) contains an exception to North Carolina\xe2\x80\x99s rape shield rule\nfor \xe2\x80\x9cevidence of sexual behavior offered as the basis of expert\npsychological or psychiatric opinion that the complainant fantasized\nor invented the act or acts charged.\xe2\x80\x9d See Colin Miller, But It Was Only\nA Fantasy: North Carolina Opinion Reveals Troubling Exception To The\nState\'s Rape Shield Rule EvidenceProf Blog (Nov. 2, 2009)\nhttp://lawprofessors.typepad.com/evidenceprof/2009/11/but-itwas-only-a-fantasy-north-carolina-opinion-reveals-troublingexception-to-the-states-rape-shie.html.\nFinally, across the country, courts continue to apply a common law\nexception to rape shield rules under which defendants can present\nevidence of prior false rape, sexual assault, or child molestation\nallegations brought by alleged victims. Although courts differ over\nexactly when defendants can present such evidence when (1) the\nalleged victim herself admitted that the prior allegation was false; or\n(2) the prior allegation was \xe2\x80\x9cdemonstrably false.\xe2\x80\x9d See, e.g., Wells v.\nState, 928 N.E.2d 651 (Ind. App. 2010).\nHypothetical 4\nBasketball player Kobe Bryant is charged with sexually\nassaulting a 19 year-old woman at a Colorado hotel. The\nwoman claims that she only had sex once in the days\nsurrounding the Bryant incident and that the man wore a\ncondom. In a closed hearing in the case, a DNA expert\ntestifies that the accuser had another man\'s semen on her\nthigh and inside her vagina during her medical examination. It\nwas noted that a physical exam of Bryant after the incident\nproduced no indication of a second man\'s DNA, leading the\nexpert to say that she believed that the accuser had sex with\nthe other man in the hours after she was with Bryant. Will\nBryant be able to present this evidence at trial? See Lance\nPugmire and David Wharton, Case Shadowed Cracks,\nExperts Say. Los Angeles Times, Sept. 2, 2004; Order Re:\nDefendant\xe2\x80\x99s Motion to Admit Evidence Pursuant to C.R.S. \xc2\xa7\n18-3-407 and People\xe2\x80\x99s Motions in Limine #5 and #7 (court\xe2\x80\x99s\n\n8\n\n\x0crape shield ruling), People v. Bryant, 94 P. 3d 624 (2004) (No.\n03CR204)3.\nHypothetical 5\nMonty Ramone is charged with sexually assaulting his exgirlfriend. According to the ex-girlfriend, after they had\nbroken up, Ramone showed up at her home drunk and high\non drugs and proceeded to violently sexually assault her. As a\nresult of this assault, the ex-girlfriend was left with a deep\nscalp wound along her hairline, a swollen eye, a swollen hand,\na bruised hip, and lips so swollen that she was unable to\nspeak for a day or two. Ramone admitted that he beat his exgirlfriend but alleged that she consented to the sexual acts. In\nhis defense, he seeks to present evidence that his ex-girlfriend\nand he previously engaged in several consensual sexual acts\nwhile they were dating. Should the court allow for the\nadmission of this evidence? See United States v. Ramone, 218\nF.3d 1229 (10th Cir. 2000).\nHypothetical 6\nDarrell Jackson was a family friend who babysat for A.C., a\ngirl who was between ten and twelve years-old between 1999\nand 2002. According to A.C., during this time period, Jackson\nsexually assaulted her more than 50 times. At trial, the\nprosecution emphasized that A.C.\'s behavior had deteriorated\nin significant ways starting about the time of the alleged\noffenses by Jackson and continuing up until the time of trial.\nIn his defense, Jackson sought to present evidence that\nbetween 1999 and 2002, A.C. also reported being sexually\nassaulted by two other juveniles, her stepfather, and an\nemployee at the Kansas Department of Social and\nRehabilitation Services. The trial court deems this evidence\ninadmissible because it does not quite fit within the exception\ncontained in Rule 412(b)(1)(A). Is there another ground upon\nThe court\xe2\x80\x99s order is available as a PDF at: http://www.courts.state.co.us/\nuserfiles/File/Court_Probation/5th_Judicial_District/Cases_of_Interest/People_v\n_Bryant/07-04/ShieldOrder.pdf\n3\n\n9\n\n\x0cwhich an appellate court could reverse? See State v. Jackson,\n2008 WL 538948 (Kan. Ct. App. 2008); See Colin Miller,\nDisturbing Behavior: Court of Appeals of Kansas Finds Trial Court\nFailed to Apply Constitutional Exception to Rape Shield Rule,\nEvidenceProf\nBlog\n(Nov.\n2,\n2009)\nhttp://lawprofessors.typepad.com/evidenceprof/2008/03/r\nule-412-state.html.\n\n10\n\n\x0cPrior Rules Language:\n(b) Exceptions.\n\nRestyled Rules Language:\n(b) Exceptions.\n(1) Criminal Cases. The\ncourt may admit the following\nevidence in a criminal case:\n\n(1) In a criminal case, the\nfollowing evidence is\nadmissible, if otherwise\nadmissible under these rules:\n(A) evidence of specific\ninstances of sexual behavior\nby the alleged victim offered\nto prove that a person other\nthan the accused was the\nsource of semen, injury or\nother physical evidence;\n\n(A) evidence of specific\ninstances of a victim\xe2\x80\x99s\nsexual behavior, if offered\nto prove that someone\nother than the defendant\nwas the source of semen,\ninjury, or other physical\nevidence;\n\n(B) evidence of specific\ninstances of sexual behavior\nby the alleged victim with\nrespect to the person accused\nof the sexual misconduct\noffered by the accused to\nprove consent or by the\nprosecution; and\n\n(B) evidence of specific\ninstances of a victim\xe2\x80\x99s\nsexual behavior with respect\nto the person accused of the\nsexual misconduct, if\noffered by the defendant to\nprove consent or if offered\nby the prosecutor; and\n\n(C) evidence the exclusion of\nwhich would violate the\nconstitutional rights of the\ndefendant.\n\n(C) evidence whose\nexclusion would violate the\ndefendant\xe2\x80\x99s constitutional\nrights.\n\nIV. Rule 412(b)(2): Civil Exception\nMeanwhile, Federal Rule of Evidence 412(b)(2) provides an\nexception to the Rape Shield Rule in civil cases:\nIn a civil case, evidence offered to prove the\nsexual behavior or sexual predisposition of\nany alleged victim is admissible if it is\notherwise admissible under these rules and its\nprobative value substantially outweighs the\n\n11\n\n\x0cdanger of harm to any victim and of unfair\nprejudice to any party. Evidence of an alleged\nvictim\'s reputation is admissible only if it has\nbeen placed in controversy by the alleged\nvictim.\nThe Advisory Committee\xe2\x80\x99s Note indicates that this exception was\nintended to be similar in effect to the criminal exception but that \xe2\x80\x9c[i]t\nemploys a balancing test rather than the specific exceptions stated in\nsubdivision (b)(1) in recognition of the difficulty of foreseeing future\ndevelopments in the law,\xe2\x80\x9d particularly with regard to \xe2\x80\x9cevolving causes\nof action such as claims for sexual harassment.\xe2\x80\x9d No judge in a civil\ncase, however, has applied Rule 412(b)(2) to allow for the admission\nof evidence concerning an alleged victim\'s sexual history or\npredisposition to prove a purpose not covered by one of the specific\nexceptions in Rule 412(b)(1).\nIndeed, as the Advisory Committee\'s Note makes clear, Rule\n412(b)(2) was drafted to make it more difficult to admit evidence\nconcerning an alleged victim\'s sexual history or predisposition in civil\ncases than it was in criminal cases. This is because evidence satisfying\na Rule 412(b)(1) exception is admissible as long as it does not violate\nFederal Rule of Evidence 403, which \xe2\x80\x9ctilts the balance in favor of\nadmission\xe2\x80\x9d of evidence by providing that relevant evidence may only\n\xe2\x80\x9cbe excluded if its probative value is substantially outweighed\xe2\x80\x9d by\nconcerns such as \xe2\x80\x9cthe danger of unfair prejudice.\xe2\x80\x9d In such cases,\nrelevant evidence will likely be admitted because the burden is upon\nthe party opposing the admission of evidence to prove affirmatively\nthat its probative value is substantially outweighed by the danger of\nunfair prejudice.\nConsider a hypothetical in which the prosecution charges the\ndefendant with rape and presents evidence that the alleged victim had\nscratches on her wrists. The defendant might seek, pursuant to Rule\n412(b)(1)(A), to present evidence of the alleged victim\'s other sexual\nacts committed in the days before and after the alleged rape to prove\nthat they could have caused her injuries. For the judge to exclude this\nevidence, the prosecutor would need to prove that its probative value\nfor establishing that these other acts could have caused her injuries\n\n12\n\n\x0cwas substantially outweighed by the danger of unfair prejudice that\nthe jury would misuse this evidence as an indication that the alleged\nvictim had a propensity to consent to sexual acts and thus likely\nconsented to the sexual act at issue. See, e.g., United States v. Begay, 937\nF.2d 515, 523 (10th Cir. 2001) (\xe2\x80\x9cWe feel there was an abuse of\ndiscretion in holding that such evidence was more prejudicial than\nprobative for purposes of Rule 403 and 412\xe2\x80\x9d).\nIn other words, assume that probative value and unfair prejudice\nwere scored from 1-100. If evidence of the other sexual acts had a\nprobative value of 60 and an unfair prejudice of 40, it would be\nadmissible because probative value would outweigh unfair prejudice.\nIf both probative value and unfair prejudice were 50, the evidence\nwould be admissible because probative value would equal unfair\nprejudice. Even if probative value was 48 and unfair prejudice was\n52, the evidence would be admissible because probative value would\nbe outweighed by unfair prejudice but not substantially outweighed by\nunfair prejudice. Only if probative value (e.g., 40) were substantially\noutweighed by unfair prejudice (e.g., 60) would the evidence be\ninadmissible.\nIn contrast, by stating that similar evidence offered in civil cases is\nadmissible only if its probative value substantially outweighs its\nunfairly prejudicial effect, as well as its \xe2\x80\x9charm to any victim,\xe2\x80\x9d Rule\n412(b)(2) \xe2\x80\x9creverses the usual approach\xe2\x80\x9d and tilts the balance toward\ninadmissibility in three regards according to the Advisory Committee.\nFirst, it \xe2\x80\x9craises the threshold for admission by requiring that the\nprobative value of the evidence substantially outweigh the specified\ndangers.\xe2\x80\x9d Second, it \xe2\x80\x9cshift[s] the burden to the proponent to\ndemonstrate admissibility rather than making the opponent justify\nexclusion of the evidence.\xe2\x80\x9d Third, it puts \xe2\x80\x9charm to the victim\xe2\x80\x9d \xe2\x80\x9con\nthe scale in addition to prejudice to the parties.\xe2\x80\x9d See, e.g., B.K.B. v.\nMaui Police Dept., 276 F.3d 1091, 1104 (9th Cir. 2002).\nThus, if we tweak the facts of the above hypothetical to make it a\ncivil sexual assault trial, it drastically alters the issue of admissibility.\nIn this case, for the judge to admit the \xe2\x80\x9cother sexual act\xe2\x80\x9d evidence of\nscratches, defense counsel would need to prove that its probative\nvalue substantially outweighs (1) the danger that the jury could\n\n13\n\n\x0cmisuse this evidence as an indication that the alleged victim had a\npropensity to consent to sexual acts and thus likely consented to the\nsexual act at issue (its unfairly prejudicial effect); as well as (2) the\nharm to the victim, including the invasion of her privacy, her\npotential embarrassment, and the potential for the jury to engage in\nstereotypical thinking with regard to her. See Advisory Committee\'s\nNote.\nAgain, assume that probative value and unfair prejudice (as well as\nharm to the victim) were scored from 1-100. Now, if evidence of the\nother sexual acts had a probative value equal to or lesser than unfair\nprejudice and harm to the victim \xe2\x80\x93 e.g., 50 vs. 50 (combined) \xe2\x80\x93 it\nwould be inadmissible. Even if the probative value of the evidence\nwere slightly higher than unfair prejudice \xe2\x80\x93 e.g., 52 vs. 48 (combined)\n\xe2\x80\x93 the evidence would be inadmissible because probative value would\noutweigh prejudicial effect but not substantially outweigh prejudicial\neffect. Only if probative value (e.g., 60) substantially outweighed\nunfair prejudice and harm to the victim (e.g., 40 combined) would the\nevidence be admissible\nRule 412(b)(2) also provides that \xe2\x80\x9c[e]vidence of an alleged victim\'s\nreputation is admissible only if it has been placed in controversy by\nthe alleged victim.\xe2\x80\x9d Thus, if a plaintiff brings an action alleging\nemployment discrimination based upon a sexually hostile work\nenvironment but does not seek reputational damages or make\nallegations relating to her professional reputation, she has not opened\nthe door for reputational evidence to be admitted. See, e.g., Macklin v.\nMendenhall, 257 F.R.D. 596, 604 (E.D. Cal. 2009) (\xe2\x80\x9cA review of the\nallegations and other information before the Court discloses no\nsufficient evidence showing that Plaintiff has placed her reputation in\ncontroversy in this matter\xe2\x80\x9d).\nThis per se portion of Rule 412(b)(2), however, only precludes\nevidence related to an alleged victim\xe2\x80\x99s reputation (e.g., for promiscuity).\nIn Seybert v. International Group, Inc., 2009 WL 3297304 (E.D. Pa.\n2009), the court rejected the plaintiff\xe2\x80\x99s argument that emails she sent\ncontaining sexual stories, jokes, images, and metaphors were per se\ninadmissible under Rule 412(b)(2), concluding that \xe2\x80\x9cnone of the\nemails bear on Mrs. Seybert\'s personal sexual \xe2\x80\x9creputation\xe2\x80\x9d per se, in\n\n14\n\n\x0cthat none of them involve her actual or alleged personal sexual\nactivity.\xe2\x80\x9d Id. at *3.\nRule 412(b)(2) technically only applies to the admissibility of evidence\nat trial while Federal Rule of Civil Procedure 26 addresses the extent\nto which evidence about an alleged victim\xe2\x80\x99s sexual behavior and/or\npredisposition is discoverable. That said, the Advisory Committee\xe2\x80\x99s\nNote to Rule 412 states that\nIn order not to undermine the rationale of\nRule 412, however, courts should enter\nappropriate orders pursuant to Fed. R. Civ. P.\n26(c) to protect the victim against\nunwarranted inquiries and to ensure\nconfidentiality. Courts should presumptively\nissue protective orders barring discovery\nunless the party seeking discovery makes a\nshowing that the evidence sought to be\ndiscovered would be relevant under the facts\nand theories of the particular case, and cannot\nbe obtained except through discovery. In an\naction for sexual harassment, for instance,\nwhile some evidence of the alleged victim\'s\nsexual behavior and/or predisposition in the\nworkplace may perhaps be relevant, non-work\nplace conduct will usually be irrelevant\xe2\x80\xa6.\nConfidentiality\norders\nshould\nbe\npresumptively granted as well.\nNumerous courts have relied upon this language to issue protective\norders and confidentiality orders when defendants seek discovery of\nevidence of plaintiffs\xe2\x80\x99 sexual pasts when such evidence is unlikely to\nbe admissible under the rape shield rue. See, e.g., E.E.O.C. v. Donohue,\n746 F. Supp.2d 662, 665 (W.D. Pa. 2010).\nHypothetical 7\nTanya Giron brings a Section 1983 action for violation of her\nEighth Amendment rights against Torres, claiming that she\nwas forcibly raped by him while she was an inmate. During\ndiscovery, Torres asks Giron to respond to an interrogatory\nthat asks her to identify and give extensive information about\n\n15\n\n\x0call persons with whom she had had sexual contact, without\nany time restriction. The Magistrate Judge entered an order\ncompelling Giron to respond to the interrogatory by listing\n\xe2\x80\x9cpersons with whom she has had sexual contacts in the five\nyears prior to and the time period since the rape which forms\nthe basis of the complaint.\xe2\x80\x9d You represent Giron in her\nappeal of this order. What arguments do you make on her\nbehalf? See Giron v. Corrections Corp. of America, 981 F. Supp.\n1406 (D. N.M. 1997).\nHypothetical 8\nRebecca Collins, a former assistant prosecutor, brings a civil\naction against Michael Allen, her former boss, sounding in\nsexual harassment and retaliation. Before trial, Allen files a\ncounterclaim in which he seeks to present evidence of\nCollins\xe2\x80\x99 reputation for promiscuity on the basis that Collins\n\xe2\x80\x9cput her reputation into question when she filed her frivolous\nsexual harassment claim.\xe2\x80\x9d Will he be able to present this\nevidence? See Collins v. Allen, 2005 WL 1073369 (S.D.Ohio\n2005).\n\n16\n\n\x0cPrior Rules Language:\n(2) In a civil case, evidence\noffered to prove the sexual\nbehavior or sexual predisposition\nof any alleged victim is\nadmissible if it is otherwise\nadmissible under these rules and\nits probative value substantially\noutweighs the danger of harm to\nany victim and of unfair\nprejudice to any party. Evidence\nof an alleged victim\xe2\x80\x99s reputation\nis admissible only if it has been\nplaced in controversy by the\nalleged victim.\n\nRestyled Rules Language:\n(1) Civil Cases. In a civil case,\nthe court may admit evidence\noffered to prove a victim\xe2\x80\x99s\nsexual behavior or sexual\npredisposition if its probative\nvalue substantially outweighs the\ndanger of harm to any victim\nand of unfair prejudice to any\nparty. The court may admit\nevidence of a victim\xe2\x80\x99s reputation\nonly if the victim has placed it in\ncontroversy.\n\nV. Rule 412(c): Procedure for Admissibility in Criminal Cases\nFederal Rule of Evidence 412(c) contains procedures for providing\nnotice and determining the admissibility of evidence offered in\ncriminal cases pursuant to the exceptions contained in Rule\n412(b)(1)(A), (B), or (C). The purpose of this Rule is to give notice to\nthe opposing party in a criminal case to a similar degree as the notice\nthat Federal Rule of Civil Procedure 26 affords to civil litigants as\npart of the discovery process. Cf. Sonia F. v. Eighth Judicial Dist. Court,\n315 P.3d 705 (Nev. 2009); Colin Miller, Rape Shield Redux: Supreme\nCourt Of Nevada Finds Rule 26 Applies Where Rape Shield Law Doesn\'t.\nEvidenceProf Blog (Sep. 15, 2009) http://lawprofessors.typepad.\ncom/evidenceprof/2009/09/rape-shield-redux-supreme-court-ofnevada-finds-rule-26-applies-where-rape-shield-law-doesnt.html\n.\nAccording to the Rule,\n(1) A party intending to offer evidence under subdivision (b)\nmust\n(A) file a written motion at least 14 days before trial\nspecifically describing the evidence and stating the\npurpose for which it is offered unless the court, for\n\n17\n\n\x0cgood cause requires a different time for filing or\npermits filing during trial; and\n(B) serve the motion on all parties and notify the\nalleged victim or, when appropriate, the alleged\nvictim\'s guardian or representative.\n(2) Before admitting evidence under this rule the court must\nconduct a hearing in camera and afford the victim and parties\na right to attend and be heard. The motion, related papers,\nand the record of the hearing must be sealed and remain\nunder seal unless the court orders otherwise.\nCourts consistently have held that a defendant\xe2\x80\x99s failure to file a\nmotion for a Rule 412(c) hearing under seal is a \xe2\x80\x9cflagrant violation\xe2\x80\x9d\nof the Rule, justifying a decision by the trial judge to exclude the\nproffered evidence. See, e.g., S.M. v. J.K., 262 F.3d 914, 919 (9th Cir.\n2001). Only one federal appellate court has addressed the issue of\nwhether an alleged victim can immediately appeal a trial court\xe2\x80\x99s\ndecision to admit evidence of her sexual behavior and/or\npredisposition after a Rule 412(c) hearing without violating the final\njudgment rule contained in 28 U.S.C. \xc2\xa7 1291. Under \xc2\xa7 1291, courts of\nappeals only have jurisdiction over final decisions, but courts have\nchosen to given the final judgment rule a \xe2\x80\x9cpractical rather than a\ntechnical construction.\xe2\x80\x9d Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152\n(1964). In Doe v. United States, 666 F.2d 43 (4th Cir 1981), the Fourth\nCircuit applied \xc2\xa7 1291 practically to allow an immediate appeal by an\nalleged victim of an adverse rape shield ruling because \xe2\x80\x9cthe injustice\nto rape victims in delaying an appeal until after the conclusion of the\ncriminal trial is manifest.\xe2\x80\x9d See also Colin Miller, Passing Judgment: 10th\nCircuit Case Cites to 4th Circuit Case Allowing Immediate Appeal of Rape\nShield\nRuling.\nEvidenceProf\nBlog,\n(Dec.\n4,\n2008)\nhttp://lawprofessors.typepad.com/evidenceprof/2008/12/passingjudgm-1.html.\nAlthough most courts have not addressed the issue, it seems likely\nthat a court\xe2\x80\x99s failure to hold a Rule 412(c) hearing will not entitle a\ndefendant to a new trial because the Rule is designed to protect the\nalleged victim rather than the defendant. Instead, as long as the trial\n\n18\n\n\x0ccourt allows the defendant to present arguments for why the\nevidence he seeks to introduce qualifies for admission under an\nexception to the Rape Shield Rule, failure to hold a Rule 412(c)\nhearing should not lead to reversal as long as the record is sufficient\nfor the appellate court to review his evidentiary appeal. See Nevelow v.\nState, 2011 WL 2899377 (Tex.App.-Houston [14 Dist. 2011]); Colin\nMiller, Can You Hear Me?: Court of Appeals of Texas Finds Failure to Hold\nin Camera Rape Shield Hearing Isn\xe2\x80\x99t Reversible Error. EvidenceProf Blog\n(Aug.\n29,\n2011)\nhttp://lawprofessors.typepad.com/evidenceprof/2011/08/can-youhear-me-court-of-appeals-of-texas-finds-failure-to-hold-in-camerarape-shield-hearing-isnt-r.html. That said, a trial court likely violates\nthe Rape Shield Rule or the right to counsel if it holds a Rule 412(c)\nhearing but does not allow the defendant to attend or be represented\nat it by an attorney. See LaPointe v. State, 225 S.W.3d 513, 520-21 (Tex.\nCrim. App. 2007).\nHypothetical 9\nDanny Raplinger is charged with sexually exploiting a minor.\nAt the close of the prosecution\xe2\x80\x99s case, Raplinger offers\nDefendant\xe2\x80\x99s Exhibits A, B, C, and D as \xe2\x80\x9ca late attachment\xe2\x80\x9d\nto a previously filed Sealed Motion. These Exhibits consist of\npreviously sent sexually explicit letters from the alleged\nvictim\xe2\x80\x99s Yahoo! Profile to Raplinger and a sexually explicit\ndigital image posted next to her name. Raplinger claims that\nthis evidence is admissible under Rule 412(b)(1)(B), but the\nprosecution counters that the evidence is inadmissible\nbecause the alleged victim statutorily could not have\nconsented to her exploitation. Is there another reason why\nthe evidence is inadmissible? See United States v. Raplinger, 2006\nWL 3455266 (N.D. Iowa 2006).\nHypothetical 10\nJonathan Pablo is charged with rape. At trial, he seeks to\npresent evidence (1) that the alleged victim was seen\nundressed with two other men on the night of the rape; and\n(2) that the alleged victim made sexual advances towards\n\n19\n\n\x0cPablo\xe2\x80\x99s co-defendant on the night of the alleged rape. Pablo\nacknowledges that this argument is covered by Rule 412 but\nbelieves that it qualifies for admission under Rule\n412(b)(1)(C). Pablo did not file a written motion under Rule\n412(c)(1)(A). Pablo, however, claims that the government\nrelieved him of his obligation to comply with Rule 412(c) by\nproviding its own written notice to the court a month before\nindicating that Pablo might introduce some evidence that\nwould fall within Rule 412\xe2\x80\x99s scope. Is he correct? See United\nStates v. Pablo, 625 F.3d 1285 (10th Cir. 2010).\n\n20\n\n\x0cPrior Rules Language:\n(c) Procedure To Determine\nAdmissibility.\n\nRestyled Rules Language:\n(c) Procedure to Determine\nAdmissibility.\n\n(1) A party intending to offer\nevidence under subdivision (b)\nmust\xe2\x80\x94\n\n(1) Motion. If a party intends\n\n(A) file a written motion at\nleast 14 days before trial\nspecifically describing the\nevidence and stating the\npurpose for which it is\noffered unless the court, for\ngood cause requires a\ndifferent time for filing or\npermits filing during trial;\nand\n\n(A) file a motion that\nspecifically describes the\nevidence and states the\npurpose for which it is to be\noffered;\n\nto offer evidence under Rule\n412(b), the party must:\n\n(B) do so at least 14 days\nbefore trial unless the court,\nfor good cause, sets a\ndifferent time;\n(C) serve the motion on all\nparties; and\n\n(B) serve the motion on all\nparties and notify the alleged\nvictim or, when appropriate,\nthe alleged victim\xe2\x80\x99s guardian\nor representative.\n\n(D) notify the victim or,\nwhen appropriate, the\nvictim\xe2\x80\x99s guardian or\nrepresentative.\n\n(2) Before admitting evidence\nunder this rule the court must\nconduct a hearing in camera\nand afford the victim and\nparties a right to attend and be\nheard. The motion, related\npapers, and the record of the\nhearing must be sealed and\nremain under seal unless the\ncourt orders otherwise.\n\n(2) Hearing. Before admitting\nevidence under this rule, the\ncourt must conduct an in\ncamera hearing and give the\nvictim and parties a right to\nattend and be heard. Unless the\ncourt orders otherwise, the\nmotion, related materials, and\nthe record of the hearing must\nbe and remain sealed.\n\n21\n\n\x0cVI. Rape Shield Pleadings\nSome concise examples of motions connected to evidence sought to\nbe admitted or excluded under the Best Evidence Rule can be found\nat:\n\xef\x82\xb7 Velez-Lopez v. Long Life Home, Inc., 2009 WL 2590030 (D.Puerto\nRico 2009) (Defendants\xe2\x80\x99 Opposition to Plaintiff\xe2\x80\x99s Motion in Limine);\n\xef\x82\xb7 Maner & Goodman III v. Board of Education of Fayette County, 2007 WL\n4300140 (Ky. Cir. Ct. 2007) (Response to Plaintiff Maner\xe2\x80\x99s Motion in\nLimine); and\n\xef\x82\xb7 Horne v. Russell County Commissioner, 2005 WL 2302984 (M.D. Ala.\n2005) (Plaintiff\xe2\x80\x99s Motion in Limine Regarding Sexual History).\n\n22\n\n\x0c'