Also known as: FRE 412 · Rule 412 · rape shield rule
Written by attorneys · grounded in primary & secondary sources — see below
A rule of evidence that generally excludes evidence offered to prove that an alleged victim of sexual misconduct engaged in other sexual behavior or to prove the victim's sexual predisposition. Narrow exceptions permit admission of specific instances when offered to show that someone other than the defendant was the source of semen, injury, or other physical evidence, when offered to prove consent based on prior sexual conduct between the victim and the accused, or when exclusion would violate the defendant's constitutional rights.
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Farid Farahani stands trial for sexually assaulting Faith Fitzgerald after a business trip. The defense offers testimony that Fitzgerald had a reputation for initiating sexual encounters with colleagues to support a consent theory. The court excludes the evidence because Rule 412 bars use of the victim's other sexual behavior or predisposition even when the defendant seeks to introduce a pertinent trait.
Fiona Foster faces charges of sexually assaulting Felicia Fuentes in a hotel room. The defense seeks to introduce evidence that Fuentes made prior false accusations of assault against other men to impeach her credibility. The court excludes the evidence under Rule 412, and the appellate court upholds the ruling after balancing the policy against victim harassment with the defendant's confrontation rights.
Rule 412 creates a narrow exception allowing specific instances of the victim's sexual behavior when offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence. The exception applies only to that limited purpose and requires the evidence to consist of specific instances rather than reputation or opinion.
Rule 412 bars evidence offered to prove a victim's sexual predisposition regardless of whether the defendant frames the offer as impeachment or proof of motive. Courts reject attempts to circumvent the rule by relabeling propensity evidence as credibility attacks.
A defendant must demonstrate that exclusion of the evidence would violate constitutional rights such as the right to present a complete defense. Courts weigh the importance of the evidence to the defense theory against the risk of unfair prejudice to the victim and the danger that the jury will decide the case on improper grounds.
Rule 412 permits evidence of specific instances of sexual behavior between the victim and the accused when offered by the defendant to prove consent on the charged occasion. The exception is limited to conduct with the accused and does not extend to conduct with third parties.