Also known as:Federal Rule of Evidence 412 · Rule 412 · rape shield rule
Written by attorneys · grounded in primary & secondary sources — see below
A rule of evidence that generally prohibits introduction of evidence offered to prove an alleged victim's other sexual behavior or sexual predisposition in any civil or criminal proceeding involving alleged sexual misconduct. The rule contains narrow exceptions in criminal cases for evidence of specific instances showing an alternative source of physical evidence, prior acts with the accused offered to prove consent, or evidence whose exclusion would violate the defendant's constitutional rights. Procedural requirements including notice and an in camera hearing apply before any excepted evidence may be admitted.
Sources & Authorities· 2 primary sources
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Federal Rules
Casebooks
How it applies
Common Examples
2
Civil Suit Over Conference Assault
Faith Fitzgerald sued her regional manager after alleging an assault at a hotel during a sales conference. The defense sought to introduce testimony that Faith had consensual relationships with two physicians she called on for sales, claiming the evidence showed a pattern of using sex professionally and made consent more likely. The court excluded the testimony because it concerned the plaintiff's other sexual behavior and sexual predisposition in a proceeding involving alleged sexual misconduct.
Criminal Assault With Physical Evidence
Fernando Farrell faced criminal charges after a complainant alleged sexual assault in his hotel room. A rape kit revealed semen and abrasions. The defense offered testimony that the complainant had consensual sex with another person earlier that day at a nearby hotel, arguing the evidence explained the physical findings. The court admitted the testimony after an in camera hearing because it was offered to prove an alternative source of the semen and injuries.
State v. Gettier438 N.W.2d 1, 5-6 (Iowa 1989)
Common questions
Frequently Asked
5
What is the basic prohibition under FRE 412?+
The rule bars evidence offered to prove that an alleged victim engaged in other sexual behavior or to prove the victim's sexual predisposition. This exclusion applies in both civil and criminal cases involving alleged sexual misconduct.
Supporting sources
When may a defendant in a criminal case introduce evidence of a victim's prior sexual behavior with the accused?+
The rule permits specific instances of the victim's sexual behavior with the accused when offered to prove consent. The evidence must still satisfy notice and in camera hearing requirements.
How does FRE 412 interact with the defendant's right to offer evidence of a victim's pertinent trait under Rule 404(a)(2)(B)?+
Rule 404(a)(2)(B) expressly makes the defendant's right to offer a victim's pertinent trait subject to the limitations in Rule 412. Evidence of sexual history or predisposition therefore remains excluded unless a specific exception applies.
Supporting sources
What exception allows evidence to explain physical findings in a sexual assault prosecution?+
A defendant may offer specific instances of the victim's sexual behavior to prove that someone other than the defendant was the source of semen, injury, or other physical evidence. The evidence must be relevant to that narrow purpose and survive the required hearing.
Supporting sources
Does FRE 412 apply in civil cases involving sexual misconduct?+
Yes. The general prohibition on evidence of other sexual behavior and sexual predisposition applies in civil proceedings. Admission is possible only if the probative value substantially outweighs the danger of harm to the victim and unfair prejudice.
Supporting sources
EvidenceRelevancy and reasons for excluding relevant evidence · Character and related conceptsUBEIntermediate