Rape Shield Rule Chapter

• Author: Colin Miller
• Pages: 1-22

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Rape Shield Rule Chapter

Introductory Note

In 2009, the Committee on Rules of Practice and Procedure of the

Judicial Conference of the United States Courts decided to “restyle”

the Federal Rules of Evidence. The goal in this project was to make

the Rules more user friendly rather than to enact substantive changes.

At the end of each section of this casebook, there is a side-by-side

comparison between the prior language of each portion of Rule 412

and the language of the new “restyled” Rule. Because the changes

were intended to be stylistic only, everything discussed in this chapter

should continue to be good law after the “restyled” Rules take effect

on December 1, 2011.

I. Historical Background

For the better part of this country's history, defense attorneys in rape

and sexual assault cases used to parade into court the alleged victim’s

sexual partners to, in effect, prove that she had a propensity to

consent to sexual relations and that she acted in conformity with this

propensity, and thus consented, at the time of the alleged rape or

sexual assault

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. Or, more generally, defense attorneys used this

evidence to prove that the alleged victim was a liar

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.

Such displays impacted not only jurors, but also judges. For instance,

in its 1895 opinion in State v. Sibley, 33 S.W. 167, 171 (Mo. 1895), the

Supreme Court of Missouri inanely concluded that “[i]t is a matter of

common knowledge that the bad character of a man for chastity does

not even in the remotest degree affect his character for truth, when

based upon that alone, while it does that of a woman.” See Colin

1

Colin Miller, New Zealand’s New Rule?: NZ’s Justice Ministry Proposes Rape Shield ,

EvidenceProf Blog (Aug. 27, 2008) http://lawprofessors.typepad.com/

evidenceprof/2008/08/nz-rape-httpwww.html.

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Jason M. Price, Constitutional Law—Sex, Lies and Rape Shield Statutes: The

Constitutionality of Interpreting Rape Shield Stat utes to Exclude Evidence Relating

to the Victim’s Motive to Fabricate, 18 W. New Eng. L. Rev. 541 (1996),

http://digitalcommons.law.wne.edu/lawreview/vol18/iss2/5

2

Miller, New Zealand's New Rule?: NZ's Justice Ministry Proposes Rape

Shield Law. EvidenceProf Blog, (Aug. 27, 2008.)

http://lawprofessors.typepad.com/evidenceprof/2008/08/nz-rape-

httpwww.html. They also led to the underreporting of rapes and

historically low conviction rates in rape and sexual assault cases. See,

e.g., State v. Hudlow, 659 P.2d 514, 522-23 (Wash. 1983).

This and related concerns led to the anti-rape movement, an offshoot

of the civil rights movement of the 1960s and 1970s, being able to

get rape shield laws passed in several states. See id. The Supreme

Court later followed suit by creating Federal Rule of Evidence 412,

the federal “rape shield” rule. In effect, rape shield rules protect

complainants from having their past sexual behavior and/or

predispositions exposed in the courtroom unless defense counsel can

point toward a compelling theory of admissibility.

Specifically, as amended in 1994, Rule 412(a) now provides, “The

following evidence is not admissible in any civil or criminal

proceeding involving alleged sexual misconduct except as provided in

subdivisions (b) and (c): (1) Evidence offered to prove that any

alleged victim engaged in other sexual behavior. (2) Evidence offered

to prove any alleged victim's sexual predisposition.” Rule 412(a)

applies not only in rape or sexual assault cases but also in other cases,

including sexual harassment cases.

II. Rule 412(a)(1): The General Proscription

Under Rule 412(a)(1), evidence of other sexual behavior by an alleged

victim is now inadmissible to prove her propensity to consent to

sexual acts and her likely conformity with this propensity, and thus

consent, at the time of the alleged rape or similar crime in civil and

criminal cases. See, e.g., Ledesma v. Gov’t of the Virgin Is., 159 F. Supp.2d

863 (D.V.I. 2001). According to the Advisory Committee’s Note, the

phrase “other sexual behavior” includes not only “all activities that

involve actual physical conduct, i.e. sexual intercourse and sexual

contact, or that imply sexual intercourse or sexual contact,” but also

“activities of the mind, such as fantasies or dreams.” Thus, for

instance, in United States v. Papakee, 573 F.3d 569 (8th Cir. 2009), the

Eighth Circuit found that a district court properly precluded the