FRE 412


People used to (and some still do) view the victim as bringing the crime upon herself. Abbot and Sibley below illustrate this view.

People v. Abbot

19 Wend. (N.Y. Sup. Ct.) 192 (1838).

The court takes the view that the victim had a predisposition to sexual activity because she was a prostitute. For this reason, the court found it reasonable to admit evidence of her prior activity with other men to show that she may have consented on the occasion for which she is claiming there was no consent.

State v. Sibley

131 Mo. 519 & 132 Mo. 102 (1895).

Sibley had abused his step daughter and she testified at trial of these actions. The purpose of the testimony was introduced to impeach him as a witness but went against his character as an improper chastity moral ground. This the court found objectionable, stating the evidence should not have been admitted.

The Shield Law

The rape shield law is a reform that protects victims of rape from admitting as evidence past instances of sexual conduct used to establish the victim had a predisposition to sexual activity. Why? Because the victim in question, regardless of her sexual conduct previously, is asserting that on this particular occasion, there was no consent.


Other Sexual Behavior or Predisposition

In State v. Steele, 2021 Ut. App. 39, Emma was a bisexual who was married to a woman and lived on a farm. She obtained a trucking job and on the first day was raped by her supervisor. The state wants to admit the wife’s testimony but exclude references to her bisexuality. Steele wanted to exclude any evidence that the complainant was married to a woman. So, can the wife testify? She was permitted to testify as a close acquaintance to the victim.

Explaining the Source of Physical Evidence

In United States v. Walker, 917 F.3d 1004 (8th Cir. 2019), Walker was charged and convicted of having sexual conversations with a minor over a dating website. Although the website required users to be 18, the victim was 14 at the time and informed the defendant of her age. During trial, the defendant sought to introduce evidence of the victim having other intimate conversations with men on the site. This evidence was excluded at trial. On appeal certain images were admitted because the defendant was able to show that other men (source) had enticed the images, not him. 609(b)(1)(B).

Past Behavior with the Accused

In People v. Jovanovic, 700 N.Y.S.2d 156 (App. Div. 1999), the defendant engaged in painful intimate relations with the victim and claimed they were consensual. He wished to present evidence from past emails outlining intimate conversations they had together. These were excluded at trial. The analysis to be conducted is to first determine whether this falls under the exception of 412(b)(1)(B), were the emails sexual behavior, does it survive a 403 analysis? On appeal, these should have been admitted.

Past False Accusations

Admissible if fine under 608(b).

State v. Smith

743 So. 2d 199 (La. 1999).

Smith is the grandfather of a victim who is accusing him of indecent touching spread throughout several years. The victim’s testimony is the only evidence. At trial, the defendant sought to present evidence that the victim had made several other allegations about other family members, but this testimony was excluded on objection by the state. On appeal, the court said the testimony should have been considered as proper impeachment evidence (going towards her untrustworthiness rather than her chastity), subject to rules 403, 404, and 608(b).

Consider State v. Alvey, 458 N.W.2d 85) (Iowa), abrogated by State v. Baker, 679 N.W.2d 7 (Iowa 2004). In this case, the defendant sought to call a witness who would testify that the victim and another man had engaged in consensual activities before she accused him of rape. This is barred on the face based on 412 (goes to whether she consented to a past sexual encounter). However, this may be admissible under 412(b)(1)(C) and 608.

In People v. Vasquez, No. E071610, 2020 WL 3969860 (Cal. Ct. App. July 14), the defendant was charged with molesting his niece. The niece had put images of herself online and when confronted, lied about it. Now the defendant is attempting to establish admissibility of the evidence by means of the lie. At trial, the court permitted the word “texting” but not “sexting” to describe the evidence. Admissible based on 6089(b)

Style of Evidence—404(b)

What if Rule 412 was instead encompassed in 404(b), would there be different results. Consider the following cases.

Olden v. Kentucky

488 U.S. 227 (1988).

Olden and Harris were charged with kidnap, rape, and forced sodomy of the victim. After the incident, the victim was dropped off at her partner’s home and told her partner that she had just been raped. Olden sought the defense of consent, said the three of them were engaged in extramarital affairs, and that the victim had fabricated the story to protect her relationship with her then partner. At trial, the defendant was not permitted to cross-examine the partner about their relationship targeting the potential bias the parties would have had. On appeal, this was reversed and remanded.

Johnson v. State, 490 S.W.3d 895 (Tex. Crim. App. 2016). Here, the defendant was a church leader accused of assaulting one of the teens in the congregation. The defendant sought to present evidence of the victim’s home life to show that the the victim had fabricated the story to deflect attention from the victim’s negative actions.

Stephens v. Miller

13 F.3d 998 (7th Cir. 1994).

Stephens and the victim tell two very different stories. The victim states that Stephens forced himself upon her, she fled, and he fled. Later Stephens told a friend to testify that he had been dropped off at a different location. Stephen’s story says that he and the victim were in a consensual act when he made a comment about the position and past intimate relations the victim had with another man. These comments were excluded at trial and the defendant was convicted. He argues that these statements were necessary for the storytelling of what happened. However, the court disagreed, stating that he had his full defense other than those comments and that he was still free to say “I said something that upset her.” The dissent argued that the words were essential to his defense and should have been admitted.

United States v. Knox

1992 WL 97157 (U.S.A.F. Ct. Mil. Rev. 1992).

Knox was accused of raping the victim as she was asleep. She recounts that when she woke up and discovered the activity, she was angry resulting in Knox’s fear of her anger and his portrayed remorse. Knox’s story was that she was awake and consented to the encounter and that he did not make any statements of remorse or admission of guilt. To testify as to his belief that the victim was awake, he sought to present evidence of the victim’s highly active sexual activities, that he had known about these activities, and he believed these activities meant she had consented in the present case. This evidence was excluded because it is the exact reason rule 412 was enacted in the first place: it was “presented to portray the allege rape victim as a bad person who got no more than she deserved.”


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

Show Your Support


Table of Contents