Notes of Advisory Committee on Rules

Historical Note

As adopted by Congress effective Oct. 28, 1978, P.L. 95-540, § 2(a), 92 Stat. 2046, and amended in minor respects effective Nov. 18, 1988, P.L. 100-690, Title VII, Subtitle B, § 7046(a), 102 Stat. 4400, this "rape shield law" read:

(a) 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 [18 USCS §§ 2241 et seq.], reputation or opinion evidence of the past sexual behavior of an alleged victim of such offense is not admissible.

(b) 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 [18 USCS §§ 2241 et seq.], evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is—(1) admitted in accordance with subdivisions (c)(1) and (c)(2) and is constitutionally required to be admitted; or (2) admitted in accordance with subdivision (c) and is evidence of—

(A) past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or
(B) past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which such offense is alleged.

Committee Note on Preliminary Draft of Proposed Amendments

The changes to Rule 412 are intended to diminish some of the confusion engendered by the rule in its current form and expand the protection afforded to all persons who claim to be victims of sexual misconduct. The expanded rule would exclude evidence of an alleged victim's sexual history in civil as well as criminal cases except in circumstances in which the probative value of the evidence is sufficiently great to outweigh the invasion of privacy and potential embarrassment that always is associated with public exposure of intimate details of sexual history.

The revised rule applies in all cases in which there is evidence that someone was the victim of sexual misconduct, without regard to whether the alleged victim or person accused is a party to the litigation. The terminology "alleged victim" is used because there will frequently be a factual dispute as to whether sexual misconduct occurred, and not to connote any requirement that the misconduct be alleged in the pleadings. Similarly, the reference to a person "accused" is 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.

Subdivision (a). The amendment eliminates three parts of existing subdivision (a): the confusing introductory phrase, "(n)otwithstanding any other provision of law;" the limitation of the rule to "a criminal case in which a person is accused of an offense under chapter 109A of title 18, United States Code;" and the absolute statement that "reputation or opinion evidence of the past sexual behavior of an alleged victim of such offense is not admissible." The Committee believes that these eliminations will promote clarity without reducing unnecessarily the protection afforded to alleged victims.

The introductory phrase in subdivision (a) was unclear and has been deleted because it contained no explicit reference to the other provisions of law that were intended to be overridden. The legislative history of the provision provided little guidance as to the purpose of the phrase. In eliminating it, the Advisory Committee intends that Rule 412 will apply and govern in any case, civil or criminal, in which it is alleged that a person was the victim of sexual misconduct and a litigant offers evidence concerning the past sexual behavior or predisposition of the alleged victim. Rule 412 applies irrespective of whether the evidence concerning the alleged victim is ostensibly offered as substantive evidence or for impeachment purposes. Thus, evidence, which might otherwise be admissible under Rules 402, 404(b), 405, 607, 608, 609, or some other evidence rule, must be excluded if Rule 412 so requires.

The reason for extending the rule to all criminal cases is obvious. If a defendant is charged with kidnapping, and evidence is offered, either to prove motive or as a background, that the defendant sexually assaulted the victim, the rule in its current form is inapplicable. The need for protection of the victim is as great in the kidnapping case as it would be in a prosecution for sexual assault. There is a strong social policy in protecting the victim's privacy and to encourage victims to come forward to report criminal acts, and that policy is not confined to cases that involve a charge of sexual assault. Although a court might well exclude sexual history evidence under Rule 403 in a kidnapping or similar case, the Advisory Committee believes that Rule 412 should be extended so that it explicitly covers all criminal cases in which a claim is made that a person is the victim of sexual misconduct.

The reason for extending Rule 412 to civil cases is equally obvious. A person's privacy interest does not disappear simply because litigation involves a claim of damages or injunctive relief rather than a criminal prosecution. There is a strong social policy in not only punishing those who engage in sexual misconduct, but in also providing relief to the victim. Thus, in any civil case in which a person claims to be the victim of sexual misconduct, evidence of the person's past sexual behavior or predisposition will be excluded except in circumstances in which the evidence has high probative value as recognized by amended Rule 412.

The conditional clause, "except as provided in subdivision (b) and (c)" is included in subdivision (a) to emphasize that evidence described in subdivisions (b)(1) through (b)(4) is not automatically admissible. To be admitted, the evidence must not only meet one of the four listed reasons, but also must satisfy the procedural requirements for admissibility contained in subdivision (c). Additionally, subdivision (b) notes that the exceptions only apply if the evidence is otherwise admissible under other rules of evidence. For example, in determining admissibility, the court would have to consider Rules 402 and 403, and perhaps other Rules such as Rules 404 and 405.

Subdivision (b). As it currently stands, subdivision (b) excludes evidence of a victim's past sexual behavior in the limited category of criminal cases to which the rule applies unless the Constitution requires admission, the evidence relates to sexual behavior with persons other than the accused and is offered to show the source of semen or injury, or the evidence relates to sexual behavior with the accused and is offered to show consent. As amended, Rule 412 will be virtually unchanged in criminal cases, but will provide protection to any person alleged to be a victim of sexual misconduct regardless of the charge actually brought against an accused.

Under subdivision (b)(1) the exception for evidence of specific instances of sexual behavior with persons other than the person whose sexual misconduct is alleged is admissible if it is offered to prove that another person was the source of semen, physical evidence, or injury. Although the language of the amended rule is slightly different from the language found in existing (b)(2)(A), the difference is explicable by the extension of the rule to civil cases. Evidence offered for the specific purpose identified in this subdivision is likely to have high probative value, and the probative value is likely to be the same in civil and criminal cases where the evidence is relevant.

Under the exception in subdivision (b)(2), evidence of specific instances of sexual behavior with the person whose sexual misconduct is alleged is admissible if offered to prove consent. Although the language of the amended rule is slightly different from the language found in existing (b)(2)(B), the difference is explicable by the extension of the rule to civil cases. Evidence offered for the specific purpose identified in the subdivision is likely to have high probative value, and the probative value is likely to be the same in civil and criminal cases where the evidence is relevant.

Under (b)(3), evidence of specific instances of conduct may not be excluded if the result would be to deny a criminal defendant the protections afforded by the Constitution. Recognition of this basic principle is found in existing subdivision (b)(1), and is carried forward in subdivision (b)(3) of the amended rule. The United States Supreme Court has recognized that in various circumstances a defendant may have a right to introduce evidence otherwise precluded by an evidence rule under the Confrontation Clause. See, e.g., Olden v. Kentucky, 488 U.S. 227 (1988) (defendant in rape case had right to inquire into alleged victim's cohabitation with another man to show bias).

It is not nearly as clear in civil cases as it is in criminal cases to what extent constitutional protections, such as the right to confrontation, provide protection to civil litigants against exclusion of evidence that arguably has sufficient probative value that exclusion would undermine confidence in the accuracy of a judgment against the person whose evidence is excluded. The Committee concluded that exclusion of evidence that is essential to a fair, determination of a claim or defense is undesirable and thus provided in subdivision (b)(4), infra, of the amended rule that evidence otherwise excluded by the rule would be admissible when exclusion "would deprive the trier of fact of evidence which is essential to a fair and accurate determination of a claim or defense." This amendment provides a civil litigant with protection akin to that provided to a criminal defendant, but recognizes that some specific constitutional provisions may require admission of evidence in a criminal case that would not be admitted under the amended Rule 412. The inclusion of a specific reference to the constitution in (b)(3) is not intended to reject the argument that Rule 412 evidence would not be otherwise subject to constitutional scrutiny, as would any other rule of evidence. Instead, as with the original version of Rule 412, the amended version states that certain evidence should be excluded unless the Constitution requires admission.

Subdivision (b)(4) is new. It provides a civil analog to (b)(3), recognizing that there are a limited number of civil cases in which exceptions (b)(1) and (b)(2) would not apply but admission of the evidence should be admissible. Two alternative provisions have been offered for public comment. The first recognizes that some evidence might be "essential to a fair and accurate determination of a claim or defense." One example might be a case in which the plaintiff claims defamation and this evidence might be essential to show that the alleged defamatory statements were true or did not damage the plaintiff's reputation. The exception alters for this type of evidence the normal standard of relevancy prescribed by Rule 402 by specifying that the evidence must be essential to an accurate determination of an issue. In specifying that the evidence must be essential to a "fair" determination of an issue, the exception also requires the court to consider the legitimate privacy interests of the alleged victim, a concern that may not be adequately covered by Rule 403, particularly if the victim is not a party to the action. Unlike the rules governing criminal cases, which bar all such evidence, reputation and character evidence may be received in a civil case if it meets the stringent test set out in (b)(4).

The alternative language for civil cases in (b)(4) is a balancing test in present Rule 412(c)(3). This alternative might prove easier to administer than a test requiring that the evidence be essential to a fair and accurate determination. The balancing test focuses directly on the need for the evidence, prejudice to the parties, and harm to the alleged victim. It raises the threshold for admission set out in the present rule by requiring that the value of the evidence substantially outweigh its dangers.

Subdivision (c). Amended subdivision (c) is more concise and understandable than the existing subdivision. The requirement of a motion 15 days before trial is continued in the amended rule, as is the provision that a late motion may be permitted for good cause shown. In deciding whether to permit late filing, the court may take into account the conditions previously included in the rule: namely whether the evidence is newly discovered and could not have been obtained earlier through the existence of due diligence, and whether the issue to which such evidence relates has newly arisen in the case. The amended rule requires that any motion be filed under seal and, unless otherwise ordered, it must remain under seal during the course of trial and appellate proceedings. This is to assure that the privacy of the alleged victim is preserved in all cases in which the court rules that proffered evidence is not admissible, and in which the hearing refers to matters that are not received, or are received in another form.

The amended rule provides that the alleged victim and any party may be heard in chambers with respect to any motion, and that the court will rule on admissibility and the form in which any evidence will be received.

One substantive change made in subdivision (c) is the elimination of the following sentence: "Notwithstanding subdivision (b) of rule 104, if the relevancy of the evidence which the accused 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 schedules for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue." On its face, this language would appear to authorize a trial judge to exclude evidence of past sexual conduct between an alleged victim and an accused or a defendant in a civil case based upon the judge's belief that such past acts did not occur. Such an authorization raises questions of invasion of the right to a jury trial under the Sixth and Seventh Amendments. See 1 S. Saltzburg & M. Martin, Federal Rules of Evidence Manual, 396-97 (5th ed. 1990).

The Advisory Committee concluded that the amended rule provided adequate protection for all persons claiming to be the victims of sexual misconduct, and that it was inadvisable to continue to include a provision in the rule that has been confusing and that raises substantial constitutional issues.

Also eliminated from former subdivision (c) is the balancing test for admissibility. The Committee believes that, with respect to evidence described in subdivision (b)(1) to (b)(4), [Cf. alternate language proposed for (b)(4), supra] it is appropriate to apply the standards stated in Rule 403.