Admissibility of Evidence of Sexual Reputation and Conduct

• Publication year: 2000
• Pages: 71
• Citation: Vol. 29 No. 11 Pg. 71

29 Colo.Law. 71 Colorado Lawyer 2000.

2000, November, Pg. 71. Admissibility of Evidence of Sexual Reputation and Conduct

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71

Vol. 29, No. 11, Pg. 71

The Colorado Lawyer
November 2000
Vol. 29, No. 11 [Page 71]

Specialty Law Columns
Civil Evidence
Admissibility of Evidence of Sexual Reputation and Conduct
by John C. Lowrie

Q: Is evidence of a plaintiff’s sexual reputation revealing manner of dress, and consensual relationships with co-workers admissible in a sexual harassment case

A: Possibly, depending on the circumstances

Erin is a former associate of a small Denver law firm who worked at the firm for several years as a legal assistant prior to obtaining her law degree. Erin was fired from the firm for failing to abide by its business-casual dress policy and for failing to meet the firm’s minimum level of productivity. Prior to her discharge, Erin had been warned by her supervisor to improve the "appropriateness" of her wardrobe (she was wearing revealing clothing) and to increase her work load to help sustain her salary raise.

Erin sues the firm for wrongful discharge, sexual harassment, and retaliatory discharge in the District Court for the City and County of Denver. She claims that her boss and a former associate made unwelcome sexual advances toward her. Erin also claims that her termination was a result of her complaints to management about sexual harassment. The firm removes the case to federal court pursuant to 28 U.S.C. § 1331.

Prior to trial, Erin moves in limine to exclude evidence of her consensual relationships with two male associates at the firm, including the associate whom she claims sexually harassed her. Erin also moves to exclude evidence relating to her revealing attire and sexual reputation.

Discussion

Federal Rule of Evidence ("F.R.E.") 412 deals expressly with the admissibility of evidence regarding a person’s sexual behavior, predisposition, and reputation in civil cases. F.R.E. 412 is commonly referred to as the "rape-shield" law because it was adopted to protect the privacy of sex-abuse victims and to prevent scrutiny of their sex lives, thereby encouraging the reporting of sexual abuse.1

Under F.R.E. 412(b)(2), "evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially...