Rule 412. Admissibility of Victim's Sexual Behavior or Predisposition

 

(a)   Prohibited Uses. The following evidence is not admissible in a criminal proceeding involving alleged sexual misconduct:

 

(1)   evidence offered to prove that a victim engaged in other sexual behavior; or

 

(2)   evidence offered to prove a victim’s sexual predisposition.

 

(b)   Exceptions. The court may admit the following evidence if the evidence is otherwise admissible under these rules:

(1)   evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;

(2)   evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; or

(3)   evidence whose exclusion would violate the defendant’s constitutional rights.

 

(c)   Procedure to Determine Admissibility.

 

(1)   Motion. If a party intends to offer evidence under Rule 412(b), the party must:

 

(A)   file a motion that specifically describes the evidence and states the purpose for which it is to be offered;

 

(B)   do so at least 14 days before trial unless the court, for good cause, sets a different time; and

 

(C)   serve the motion on all parties.

 

(2)   Notice to the Victim. The prosecutor shall timely notify the victim or, when appropriate, the victim's guardian or representative.

 

(3)   Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.

 

(d)   Definition of “Victim.” In this rule, “victim” includes an alleged victim.

 

2011 Advisory Committee Note. – The language of this rule has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

 

ADVISORY COMMITTEE NOTE

 

The Utah Supreme Court has recognized that evidence of an alleged victim's prior sexual conduct gives rise to unique evidentiary problems. In many cases, "such evidence, either of general reputation or specific prior acts, is simply not relevant to any issue in the rape prosecution including consent..." State v. Johns, 615 P.2d 1260, 1264 (Utah 1980). Moreover, even where such evidence has some slight relevance, it has "an unusual propensity to unfairly prejudice, inflame, or mislead the jury" and is "likely to distort the jury's deliberative process." State v. Dibello, 780 P.2d 1221, 1229 (Utah 1989). Because of this propensity, the Utah Supreme Court has held that the proponent of evidence of sexual conduct with someone other than the accused has the burden of showing that the probative value of the sexual conduct evidence outweighs the evidence's propensity to unfairly prejudice. State v. Dibello, supra.

 

In assessing whether a specific evidence rule should be adopted, the Committee has received comments from various interested groups and individuals, including the Governor's Council on Victims. Concerns have been raised that, notwithstanding the Utah case law limiting the evidence's admissibility, the absence of a specific rule has deterred victims from participating in prosecutions because of the fear of unwarranted inquiries into the victims' sexual behavior. Without a specific rule, including a required pretrial procedure for screening evidence, the uncertainty over what questions will be asked at trial is a significant deterrent to a victim participating in a case involving sexual misconduct.

 

In light of the foregoing, the Committee recommends the adoption of a new evidence rule, Rule 412, to further the policies identified by the Utah Supreme Court. The Committee has patterned Rule 412 on the provisions of the draft amended Rule 412 issued by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States in July of 1993. However, unlike the draft federal rule, the Committee has chosen, at the present time, to limit Rule 412's application to criminal cases because of the lack of judicial experience or precedent imposing these evidentiary restrictions in a civil context.

 

Rule 412 seeks to protect the fact finding process from evidence which has an "unusual propensity" to "distort the jury's deliberative process." State v. Dibello, supra. It also safeguards the alleged victim from the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact finding process. By affording victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in criminal proceedings against alleged offenders. See generally State v. Williams, 773 P.2d 1368, 1370 (Utah 1989) quoting State v. Johns, supra, 615 P.2d at 1264 (Evidence inadmissible unless "its probative value outweighs the inherent danger of unfair prejudice to the prosecutrix, confusion of issues, unwarranted invasion of the complainant's privacy, considerations of undue delay and time waste and the needless presentation of cumulative evidence.").

 

To achieve these objectives, Rule 412 creates a specific rule expressly disfavoring the admission of evidence of sexual behavior and predisposition in criminal proceedings. It bars the admission of such evidence, whether offered as substantive evidence or for impeachment, except in designated circumstances. The rule permits the evidence's admission in these designated circumstances because the probative value of the evidence significantly and ordinarily outweighs the possible harm to the victim or to the fact finding process. See generally State v. Johns, supra, 615 P.2d at 1264 ("[A]bsent circumstances which enhance its probative value, evidence of a rape victim's sexual promiscuity, whether in the form of testimony concerning her general reputation or testimony concerning specific acts with persons other than defendant is ordinarily insufficiently probative to outweigh the highly prejudicial effect of its introduction at trial.").

 

In addition to limiting admissibility, the rule creates a procedure for determining the admissibility of evidence falling within one of the rule's exceptions. This procedure should reduce or eliminate, prior to trial, the victim's uncertainty over the admissibility of this evidence thereby encouraging victims to participate at trial. The procedure also serves to focus the bench and bar's attention on the unique characteristics of this evidence.

 

The rule applies in all criminal cases involving sexual misconduct, even if the sexual misconduct is not included in the charges or is not criminal. When the case does not involve alleged sexual misconduct, the rule does not exclude relevant evidence relating to a witness' alleged sexual activities. The witness may, however, be protected by other rules such as Rules 403, 404, and 608.

 

The phrase "alleged victim" is used because there will often be a factual dispute whether sexual misconduct occurred. There is no requirement that the misconduct be alleged in the charging document. The rule applies if a defendant's sexual misconduct is to be a matter of proof, even though the crime charged is not a sex offense. For example, if the prosecutor wants to show rape as a motive in a kidnapping prosecution, Rule 412 will come into play. Rule 412 does not, however, apply unless the person against whom the evidence is offered can reasonably be characterized as a victim of alleged sexual misconduct.

 

Evidence offered to prove allegedly false prior claims by the victim is not barred by Rule 412. However, this evidence is subject to the requirements of Rule 404.

 

Paragraph (a). Rule 412 bars evidence offered to prove the victim's sexual behavior or sexual predisposition. Evidence, which might otherwise be admissible under Rules 402, 404(b), 405, 607, 608, 609, or some other rule of evidence, must be excluded if Rule 412 so requires.

 

The phrase "other sexual behavior" in paragraph (a)(1) is used to suggest some flexibility in admitting evidence of acts of sexual conduct involving the victim which are "intrinsic" to the alleged sexual misconduct at issue in the case. For example, the rule does not exclude evidence of sexual behavior which is inextricably intertwined with the crime charged. Cf. United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990)(Under Rule 404(b), evidence is "'intrinsic' when the evidence of the other act and the evidence of the crime charged are 'inextricably intertwined' or both acts are part of a 'single criminal episode' or the other acts were 'necessary preliminaries' to the crime charged.").

 

Past sexual behavior connotes all activities that involve actual physical conduct (i.e. sexual intercourse and sexual contact) or that imply sexual intercourse or sexual contact. See, e.g., United States v. One Feather, 702 F.2d 736, 739 (8th Cir. 1983)(birth of an illegitimate child inadmissible under Rule 403); State v. Carmichael, 727 P.2d 918, 925 (Kan. 1986)(evidence of venereal disease inadmissible); 23 C. Wright & K. Graham, Jr., Federal Practice and Procedure, § 5384 at p. 544 (1980)(use of contraceptives within Rule 412 since use implies sexual activity). In addition, the word "behavior" includes mental activities, such as fantasies or dreams. See 23 C. Wright & K. Graham, Jr., supra, § 5384 at p. 548 ("While there may be some doubt under statutes that require 'conduct,' it would seem that the language of [former federal] Rule 412 is broad enough to encompass the behavior of the mind.").

 

The rule also excludes all evidence of the alleged victim's sexual predisposition. It excludes evidence that does not directly refer to sexual activities or thoughts but that may have a sexual connotation for the fact finder. Consequently, unless the proponent satisfies the (b)(3) exception, evidence of the alleged victim's dress, speech, or life-style would not be admissible. Several reasons exist for applying the rule to all criminal cases where sexual misconduct is involved and for not limiting it to cases where a sexual misconduct crime is charged. The strong social policy of protecting a victim's privacy and encouraging victims to report criminal acts is not confined to cases that involve a charge of sexual assault. For example, the need to protect the victim is equally great when a defendant is charged with kidnapping, and evidence of the defendant's alleged rape of the victim is offered to prove motive or as background. Moreover, the propensity of evidence of the victim's past sexual behavior to distort a jury's fact finding exists regardless of the crime charged. See, e.g., State v. Young, 853 P.2d 327, 345 (1993); Id. at 386 (J. Durham opinion)(discussing admissibility of victim's prior sexual behavior in case where rape was an aggravating factor in capital murder case).

 

Paragraph (b). Paragraph (b) spells out the specific circumstances in which the court may admit evidence otherwise inadmissible under the general rule expressed in paragraph (a). Evidence is admissible under paragraph (b) only if it falls within one of the exceptions and if it also satisfies the other requirements of the Utah Rules of Evidence, including Rule 403. Subparagraphs (b)(1) and (b)(2) require proof in the form of specific instances of sexual behavior in recognition of the limited probative value and dubious reliability of reputation or opinion evidence. But see State v. Howard, 544 P.2d 466 (Utah 1975)(requiring the admission of reputation evidence under the facts of that case).

 

Under subparagraph (b)(1), evidence of specific instances of sexual behavior with persons other than the accused may be admissible if offered to prove that another person was the source of semen, injury or other physical evidence. Where the prosecution has directly or indirectly asserted that the physical evidence originated with the accused, the defendant must be afforded an opportunity to prove that another person was responsible. See United States v. Begay, 937 F.2d 515, 523 & n.10 (10th Cir. 1991).

 

Under the exception in subparagraph (b)(2), evidence of specific instances of sexual behavior involving the alleged victim and the accused may be admissible if offered to prove consent, or if offered by the prosecution. This exception might admit evidence of specific sexual activities between the alleged victim and the accused, as well as statements in which the alleged victim expressed an intent to engage in sexual intercourse with the accused, or voiced sexual fantasies involving the specific accused. In a prosecution for child sexual abuse, for example, evidence of uncharged sexual activity between the accused and the alleged victim offered by the prosecution may be admissible under this exception and Rule 404(b) to show a pattern of behavior. Evidence relating to the victim's alleged sexual predisposition is not admissible pursuant to this exception.

 

Evidence offered for the purposes identified in subparagraphs (b)(1) and (2) may still be excluded if it does not satisfy requirements of the other evidence rules, including Rule 403. See State v. Williams, supra.

 

Subparagraph (b)(3) states a truism. A court may not exclude evidence of an alleged victim's sexual behavior or predisposition if to do so would deny the accused Constitutional protections. The United States Supreme Court has recognized that in various circumstances a defendant may have a right under the Confrontation Clause to introduce evidence otherwise precluded by an evidence rule. See, e.g., Olden v. Kentucky, 488 U.S. 227 (1988)(defendant in rape cases had right to inquire into alleged victim's cohabitation with another man to challenge credibility). The precise scope of the accused's constitutional right turns on the case's specific facts. Compare State v. Moton, 749 P.2d 639 at 643-44 (trial court properly excluded some evidence of ten year old's sexual experience, offered to show knowledge)(opinion of J. Howe) with State v. Butterfield, 817 P.2d 333, 338-41 (Utah App. Ct. 1991)(trial court properly admitted evidence of fourteen year old's experience, offered to explain hymen condition and to show knowledge.)

 

Paragraph (c). Paragraph (c) is intended to alleviate victims' fears that their past sexual behavior or predisposition will unexpectedly become an issue at trial. This is accomplished by requiring a pretrial motion and hearing as a precondition to the evidence's admission. These procedures apply equally to the accused who seeks admission under subparagraphs (b)(1), (2), & (3) and to the prosecutor who seeks admission under subparagraph (b)(2).

 

The court may consider a late filed motion upon a showing of good cause. Such a showing could include newly discovered evidence which could not have been obtained earlier through the exercise of due diligence; or new issues which arise unexpectedly at trial.

 

The rule requires that before admitting evidence that falls within the prohibition of Rule 412(a), the court must hold a hearing in camera at which the alleged victim must be afforded the right to be present and an opportunity to be heard. To safeguard alleged victims and their privacy, the prosecutor, rather than the accused or the accused's attorney, is responsible for notifying the alleged victim of the motion and hearing.

 

All papers connected with the motion and any record of a hearing on the motion must be kept and remain under seal during the course of the trial and appellate proceedings, unless otherwise ordered. This is to assure that the privacy of the alleged victim is preserved in all cases in which the court rules that proffered evidence is not admissible, and in which the hearing refers to matters that are not received, or are received in another form.