§412 Sex Crime Cases; Relevance of Victim's Past Conduct

• Library: Evidence Restated Deskbook (2021 Ed.)

§412 Sex Crime Cases; Relevance of Victim's Past Conduct

A. Evidence generally inadmissible. In criminal prosecutions for a sexual offense under Chapter 566, RSMo, or an offense against the family related to sexual conduct under Chapter 568, RSMo, the following evidence of the complaining witness's prior sexual conduct is not admissible except as provided in sections B and C:

1. Opinion and reputation

2. Specific instances

B. Exceptions. Specific instances of the complaining witness's prior sexual conduct or the absence of these instances, but only to the extent that the court finds the evidence relevant to a material fact or issue, when these specific instances are:

1. evidence of the sexual conduct of the complaining witness with the defendant to prove consent when consent is a defense to the alleged crime and the evidence is reasonably contemporaneous with the date of the alleged crime;

2. evidence of specific instances of sexual activity showing an alternative source or origin of semen, pregnancy, or disease;

3. evidence of the immediate surrounding circumstances of the alleged crime;

4. evidence relating to the previous chastity of the complaining witness in cases when, by statute, previously chaste character is required to be proved by the prosecution; or

5. evidence whose exclusion would violate the defendant's constitutional right to a fair trial.

C. Procedure to determine admissibility. If the defendant proposes to offer evidence of the sexual conduct of the complaining witness under subdivision B, the following must occur:

1. The defendant must file with the court a written motion accompanied by an offer of proof or make an offer of proof on the record outside the hearing of the jury.

2. The court shall hold an in camera hearing to determine the sufficiency of the offer of proof and may, at that hearing, hear evidence if the court deems it necessary to determine the sufficiency of the offer of proof.

3. If the court finds any of the evidence offered admissible under this section, the court shall make an order stating the scope of the evidence that may be introduced.

4. Objections to any decision of the court under this section may be made by either the prosecution or the defendant in the manner provided by law.

5. The in camera hearing shall be recorded, and the court shall set forth its reasons for its ruling. The record of the in camera hearing shall be sealed for delivery to the parties and to the appellate court in the event of an appeal or other posttrial proceeding.

Notes

The provision is based on § 491.015, RSMo 2016, "Prosecuting witness in certain cases not to be interrogated as to prior sexual conduct" (Missouri's "rape-shield" statute):

1. In prosecutions under chapter 566, RSMo, or prosecutions related to sexual conduct under chapter 568, RSMo, opinion and reputation evidence of the complaining witness' prior sexual conduct is inadmissible; evidence of specific instances of the complaining witness' prior sexual conduct or the absence of such instances or conduct is inadmissible, except where such specific instances are:

(1) Evidence of the sexual conduct of the complaining witness with the defendant to prove consent where consent is a defense to the alleged crime and the evidence is reasonably contemporaneous with the date of the alleged crime; or

(2) Evidence of specific instances of sexual activity showing alternative source or origin of semen, pregnancy or disease;

(3) Evidence of immediate surrounding circumstances of the alleged crime; or

(4) Evidence relating to the previous chastity of the complaining

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