§ 10.07 Rape Shield Law: FRE 412
| Jurisdiction | United States |
Rule 404(a)'s exception for evidence of the victim's character is subject to Rule 412, the "rape shield law." In effect, Rule 412 trumps Rule 404(a).78
At common law, an accused charged with rape was permitted to introduce evidence of the victim's unchaste character as circumstantial proof of consent. This rule rested on the dubious assumption that a woman who had consented to premarital or extramarital intercourse was more likely to consent than a woman who had not consented to such intercourse.79 Beginning in the 1970s, this assumption, along with other aspects of rape prosecutions,80 came under vigorous attack by the feminist movement.81 Virtually all states responded by enacting "shield" laws, which limit the admissibility of evidence of the victim's character. Adopted in 1978, Rule 412 is the federal version.82
Rationale. Rape shield laws are designed to protect the complainant's sexual privacy by discouraging the tendency in rape cases to "try the victim" rather than the defendant. These laws may also encourage the reporting of rape. Finally, by excluding evidence that is unduly inflammatory, they are intended to aid in the truth-finding process.83
The critical point, however, is that the evidence is rarely relevant.84 The common law rule never took account of the fact that the prior sexual incidents were not followed by an accusation of rape, making those incidents fundamentally different from the charged offense. In addition, such a thing as "unchaste character" does not exist.
Scope of statute. The rape shield law, which applies to civil cases as well, excludes evidence of the alleged victim's other sexual behavior or sexual disposition, unless an exception applies.85 For example, the following evidence was excluded in one case: (1) the victim's "general reputation in and around the Army post"; (2) the victim's "habit of calling out to the barracks to speak to various and sundry soldiers"; (3) the victim's "habit of coming to the post to meet people and of her habit of being at the barracks at the snack bar"; (4) the victim's former landlord's "experience with her" alleged promiscuous behavior; and (5) a social worker's knowledge of the victim.86 Another case excluded a juvenile's sexually explicit language in text messages.87
The rule recognizes several exceptions.
[A] Exception: Source of Semen, Pregnancy, or Disease
Rule 412(b)(1)(A) excepts evidence of specific instances of the alleged victim's sexual behavior when offered to show that another person was the source of semen, injury, or other physical evidence (e.g., pregnancy or disease).88 This exception does not involve character as proof-of-conduct. It is sometimes called the "Scottsboro rebuttal."89 The infamous Scottsboro case involved a group of African-American men and teenagers charged with raping two white women on a freight train in Alabama during the Depression. The prosecutor offered evidence of semen to establish intercourse. The defense attempted to introduce evidence that the women had sex with other men the night before in a hobo camp in Chattanooga. (The rape charges were unsubstantiated. Indeed, one of the women recanted).90 Evidence offered under this exception is not automatically admissible.91
[B] Exception: Past Sexual Activity with Accused
Rule 412(b)(1)(B) excepts evidence of specific instances of sexual behavior involving the accused and the alleged victim. When offered by the accused, this exception is limited to the issue of consent.92 The probative value of past incidents is no more probative here than it is with third parties. Nevertheless, it would be nearly impossible to ask the jury to decide the case without knowing the relationship between the accused and the accuser. Even here, the evidence is not automatically admissible.93
[C] Exception: Constitutionally-required
Rule 412(b)(1)(C) recognizes a "constitutional exception." Because rape shield laws preclude evidence that is arguably exculpatory, their constitutionality has been questioned.94 Two Supreme Court cases, Davis v. Alaska95 and Chambers v. Mississippi,96are often cited in support of the defendant's right to introduce evidence of the victim's character, at least in some circumstances. In Davis, the Court held that a state statute excluding evidence of a juvenile adjudication (a type of shield law) violated the defendant's Sixth Amendment right of confrontation. In Chambers, the Court held that the application of state evidentiary rules that excluded critical and reliable defense evidence violated due process. Neither case involved a rape shield statute, and both required the defense evidence to be reliable and probative. Thus, it is not surprising that shield laws have survived constitutional scrutiny when attacked on their face.
In contrast, individual cases are sometimes a different matter. For example, in State v. Jala,97 the accused argued that the victim falsely accused him of rape after he had threatened to tell her parents of her sexual conduct with his son. This involved past sexual history but not character-as-proof-of-conduct; consent was not an issue. The appeals court held the evidence admissible. Application of the shield law at trial had precluded the defendant from establishing the complainant's motive to falsely accuse him, the core of his defense.98
In Olden v. Kentucky,99 the Supreme Court held that an accused had the right to introduce evidence of the complainant's relationship with another person to show motive for a false accusation. An alleged rape victim testified that Olden had tricked her into leaving a bar, raped her, and then drove her to the house of Bill Russell, where she was released. Russell, also a prosecution witness, testified that he had seen the victim leave Olden's car and that she had immediately complained of rape. The defense claimed consent, arguing that the victim and Russell were involved in an extramarital relationship and that the victim fabricated the rape story to explain to Russell why she was in the defendant's car. By the time of trial, the victim and Russell were living together, but the trial judge refused to permit cross-examination on this fact.100 The Supreme Court reversed per curiam. Olden had consistently maintained that the alleged victim lied because she feared jeopardizing her relationship with Russell. Thus, her current living arrangement with Russell was relevant to impeachment (bias), and the foreclosure of this line of inquiry violated the right of confrontation.
Prior false accusations. A number of cases have involved a defendant's attempt to introduce evidence of prior false accusations of rape. A rape accusation could be false in two different ways: (1) where there has never been sexual intercourse, and (2) where there has been intercourse, but it was consensual. The latter situation may fall within the purview of a rape shield law.101
In any event, false accusations involve untruthful character,102 not unchaste character. The probative value of this type of impeachment depends on the accusation's falsity.103The fact that an allegation was never prosecuted in not enough.104
Moreover, many courts require the evidence to be offered under a bias theory, as in Jalo and Olden, rather than under a more generalized attack on untruthful character.105Bias is considered a far more potent method of impeachment.106
Alternate sources of knowledge. Another situation in which a constitutional argument may be viable involves evidence showing an alternative source for a child victim's "sophisticated" sexual knowledge.107 This is analogous to rebuttal evidence on the source of semen or injury. The argument for admissibility is stronger on rebuttal because the prosecution has now injected the issue into the case.
Mens rea. Sometimes evidence of prior sexual behavior is offered on the issue of mens rea—i.e., to show the reasonableness of the defendant's belief that the alleged victim consented.108 This issue involves a different element of the crime of rape—not consent, but the mens rea for the element of consent.109 In effect, this is a "mistake of fact" defense, which is not an affirmative defense; it is simply an assertion that the defendant did not have the requisite mens rea, which the prosecution must prove beyond a reasonable doubt.110 A problem arises here because legislatures often fail to specify the mens rea for the consent element.111 Another problem is that mens rea will always be an element, and thus the possibility of introducing sexual history through the "backdoor" looms large in this context.112
Prostitution. Courts have differed on the admissibility of evidence that an alleged victim engaged in...
To continue reading
Request your trial