Overview of Federal Rule of Evidence 412
Federal Rule of Evidence 412 first introduced in 1983 and subsequently amended in 1994, 1996, and 2000 is a federal rule of evidence limiting the admissibility of evidence regarding a victim’s sexual history and it places a great emphasis on the protection of a victim’s privacy. The rule is limited to cases that involve charges of sexual offenses or where sexual misconduct is an essential element of a charge and is the federal government’s response to the rape shield laws that have been only recently adopted by the states over the past three decades.
While often referred to as the Rape Shield Law, FRE 412 actually addresses three different evidentiary issues: (1) a victim’s sexual history with specific exceptions, (2) inadmissibility of consensual sexual conduct between the parties, and (3) the inadmissibility of evidence of a victim’s sexual reputation .
Under Rule 412(b), a defendant may offer evidence to the contrary on the following issues: The rules explaining the procedures for the defendant to follow are set out in FRE 412(c). Given the circumstances of the crime, the defendant may believe that it is essential to introduce evidence of these limited sexual acts with the complainant notwithstanding the stated purpose of both the state and federal rape shield laws that protect the complainant’s interest in not being tried for her sexual history. This is particularly so in cases where the defendant is being coerced or entrapped into acting against his or her will.
Core Components of Rule 412
At the heart of Rule 412 is a desire to protect the privacy and dignity of alleged sexual crime victims. Of primary concern to the drafters of the Rule and the legislators involved with its enactment is a victim’s fear that allowing evidence of her (or his) sexual behavior or predisposition into evidence would raise questions or concerns about her character, inhibiting or discouraging her willingness to come forward with accusations of sexual crimes. In a 1985 memorandum written for the Senate Judiciary Committee upon the passage of Rule 412 in the Senate, the purpose of the Rule was noted as follows: In the case of sexual assault, the committee determined that victims may be reluctant to press criminal charges against their attackers if they know that their prior sexual history will be used by the defendant to attempt to discredit or impeach them as witnesses or to paint them as unchaste or promiscuous. Thus, the committee has included in this legislation, new rule of evidence 412, to exclude evidence concerning a victim’s sexual predisposition or sexual behavior, except in certain limited circumstances. Senate Judiciary Committee Report, S.Rep. No. 99-315, 99th Cong., 2nd Sess. 22 (1986). The Rule itself is divided into five sections, each of which will be discussed in turn below:
What Are the Exceptions to Rule 412?
Notwithstanding its broad scope, as discussed in the last section, Federal Rule of Evidence 412 contains several exceptions, allowing for the admissibility of evidence concerning sexual behavior or sexual predisposition.
First, there is a permissive exception concerning evidence relevant to emotional, medical, or physical condition. Rule 412(f) allows for the admission of evidence concerning sexual conduct if "its exclusion would violate the Constitutional Rights of the defendant." This exception has been usefully summarized as follows: Where a plaintiff has placed her sexual history in issue by introducing relevant evidence about (1) her sexual condition, (2) her sexual diseases, infections or trauma or other relevant medical conditions, or (3) where the physical condition of a party is an element of the claim or defense and the sexual history would be relevant to that condition, the Court may admit evidence to rebut or explain that evidence.
(Note: This case law unfortunately does not address or discuss the sexual history of defendants —139 F.3d 1474, 1481 (11th Cir. 1998)).
Second, there is a unique provision, Rule 412(b)(1)(A), which allows the admission of evidence in cases in which the alleged victim "opens the door." That is, in cases where the alleged victim has introduced relevant evidence which the defendant then seeks to rebut. For example, in a case in which the victim alleges rape in a particular geographical area, and the defendant alleges he was miles away at the time of the incident, then the victim’s sexual conduct "in the same place at the same time" would open the door, making it admissible under the exception.
The Advisory Committee notes state that the Rule 412(b)(1)(B) exception is not inclusive and that "other exceptions are subject to a balancing process." Therefore, evidence of a victim’s sexually transmitted diseases or the fact that he or she is HIV positive could also be admissible, depending on whether it is relevant to a particular claim.
Key Cases and Influential Jurisdictions
The federal courts have made a variety of rulings regarding the applicability of Federal Rule of Evidence 412 in both criminal and civil proceedings. One of the foremost cases is Michigan v. Lucas, in which the United States Supreme Court examined the constitutionality of Rule 412’s "rape shield" provisions. The Court held that a defendant’s right to present exculpatory evidence is not unlimited, and that states may enact provisions that exclude prejudicial evidence that does not materially advance a defendant’s case. California v. Green reached a similar conclusion, and the Court there held that the rape shield law did not infringe on the defendant’s right to confront witnesses.
More recent rulings have sought to clarify Rule 412’s definitions, including the definition of "sexual behavior." In U.S. v. Irvin, the Northern District of Indiana held that an alleged victim’s use of drugs and alcohol is not sexual behavior within the meaning of the rule, even though the court recognized that the use of chemical substances constituted evidence of immoral or indecent conduct. Other rulings have addressed the rights of alleged victims under Rule 412 in criminal proceedings against alleged rapists, and have recognized both the constitutional and statutory underpinnings of Rule 412 while addressing how the rule applied in a given case.
How Does Rule 412 Impact Victims and Litigated Cases?
Evidence of the victim’s sexual background may go farther than a common law prohibition, and can be quite damaging. When such evidence is made an issue it is because a carefully planned and executed trial strategy has been abandoned by a decision, over the objection of the victim, which essentially ratifies the defense attorney’s plan to blame the victim.
It is the hope and intent of Rule 412 and 415 that this will not happen again.
Some of the background behind Rule 412 and 415 reveal that the implementers of the law sought to place absolute prohibitions on any question about sexual conduct as a means to insure the integrity of the rape kit evidence, so to improve prosecution rates in rape cases. History shows that the question of sexual conduct was raised so often that any juror could be assured they were getting the full story. The recent sexual offense prosecutions have raised the question of the balance to be struck between the new ban on sexual conduct in cases where evidence of prior sexual conduct is otherwise inadmissible, and the right of counsel to probe beyond the textbook for explanations of evidence that may appear to counsel to be of probative value, but which is specious .
The balance, we would think, is struck in the Federal rules by barring only those questions which are premised on the philosophy that a victim may be damaged goods who brought their attack upon themselves. Prior sexual conduct divorced from community standards is not relevant. Prior sexual activity which is relevant is activity which reasonably and with a modicum of reliability can be construed as raising doubt surgical strikes at the specific conduct giving rise to the charges.
If the victim has an STD, the diagnosis must be disclosed to the defendant, notwithstanding a confidentiality order, when it is necessary to show that no STD was found when the rape kit evidence was collected for use at the trial of the defendant. The STD disclosure must be done with due respect for the privacy rights of the victim keeping secret only the name of the STD.
Controversy Surrounding the Rule and Its Interpretation
Despite its laudable purpose, Rule 412 is not without its critics. Opponents, largely from the defense bar, contend that Rule 412 has a "chilling effect" on defendants’ ability to present a full defense. They argue that while the Rule allows admission of evidence regarding the complainant’s sexual behavior with the accused, it places unnecessary restrictions on defendants when it comes to evidence of the complainant’s history related to other individuals. Furthermore, reversing the logic embodied by the Rule, some argue that the exclusion of other evidence of sexual behavior (or sexual predisposition) leads to perpetrator-blaming that loses sight of the primary threat at play: that of false accusation. Even Judge Richard Posner, writing for a panel of the Seventh Circuit in 2005, criticized the rule for "[s]erv[ing] the legislative purpose in limiting the admissibility of evidence of a victim’s sexual history," but serving "no additional purpose in a trial for the crime of rape." Doe ex rel. Doe, 403 F.3d 572 (7th Cir. 2005); cert. denied, Doe ex rel. Doe v. McLean County, Ill., 546 U.S. 1170 (2006). In his view, the only relevant inquiry was consent and the scope of consent given.
Opponents of the Rule also contend that the Rule "carves out" an exception for other rape shield statutes that does not promote uniformity in the law. Section 412(b)(2), for instance, permits admission of evidence of the complaining witness’s sexual conduct with the defendant when the conduct is offered by the defendant to prove consent or if the exclusion of the evidence would violate the defendant’s constitutional rights. Others have equally taken the opposite position, asserting that this exception is too expansive. In this view, the Rule’s exceptions, particularly the constitutional right exception, are so broad as to be rendered meaningless – or worse, as a tool of sexual assailants engaging in creative efforts to fit their proposed testimony within the exception.
Rule 412 in the Real World
The practical application of Federal Rule of Evidence 412 can be challenging for both attorneys and judges. The rule requires careful navigation of sensitive topics while simultaneously giving the alleged victim a significant role in determining what information is admissible or inadmissible. Sometimes the practical difficulties are a direct result of the wording of the rule. Other times, it is the attorney’s failure to properly understand and apply the rule. Still other times, it is the judge’s failure to properly understand and apply the rule.
When a defense attorney, seeking to introduce evidence of the alleged victim’s (the "victim") prior, "specific instances of sexual behavior" or "sexual behavior" consulting with the victim about "consent" to such evidence is encouraged. While the underlying legal question as to admissibility may remain ultimately a question of law to be determined by the court, such consultation could minimize the risk of unnecessary mental distress to the victim. It also encourages the victim to more freely share relevant details with the prosecution and/or the law enforcement officer who interviewed him/her and, arguably, may increase the likelihood that such evidence will not be withheld from the prosecution. However this practice presents unique challenges when the victim is a minor.
As indicated above, the defense attorney must initially ask the victim for consent to disclose his/her "sexual behavior" or "consent" to such disclosure. This practice also raises additional concerns as the victim may not wish to speak to the defense attorney who is representing the accused, his/her own parent, and/or the law enforcement officer who may have interviewed him/her. Nor may the victim wish to speak to the victim’s parent without the accused also being present for questioning. And, depending on the nature of the underlying charges, a parent may not want to be present because it could jeopardize the acquittal of his/her child.
But, if the victim is a minor, such consultation must occur with the parent present. See FEDERAL RULE OF EVIDENCE 412(c)(2). To be sure, the practical application of this provision is fraught with problems. For example, it is not uncommon for the accused to be the step-father or step-mother of the victim. In such cases, permitting the parent to be present may in and of itself be prejudicial to the victim. At minimum, it can affect the victim’s willingness to make a disclosure. It can also create legal problems for the attorney working on behalf of the State . To illustrate, it is a violation of the confidential relationship between an attorney and his/her client for an attorney to disclose to a third party facts known to the client unless the client consents to such disclosure. Thus, the attorney working on behalf of the State must try to keep the identity of the victim confidential while also complying with the express directive of Rule 412. But, in keeping with or trying to comply with the terms of the rule, the attorney runs the risk of releasing information that may be discoverable by the accused. And if the accused is the step-father or step-mother of the victim, he/she may subsequently contact the victim and either ask or even demand to know what was said. The practical reality is that the victim-interviewed may see the accused again, at least on a couple occasions: i.e., in court and in a deposition. When the victim is a minor, that circumstance could be especially damaging because the child is more likely to be significantly traumatized by such contact. In addition, a parent of a minor victim may object to the accused being permitted to see the child in court and/or in a deposition. As noted in FEDERAL RULE OF EVIDENCE 412, the trial court has the discretion to determine whether the accused may observe the victim in court and/or be present at the deposition. The court’s ruling in this regard could also be problematic because it might be seen as a concession of the father’s alleged guilt or evidence that the trial court already has doubts about the defense case. Arguably, such a ruling might violate the accused’s right of due process under the Fifth and/or Fourteenth Amendment to the United States Constitution. This can be compounded if the victims are also in the courtroom at the same time as the parent of the accused (to include those crimes that occur on an Indian reservation) -see 18 U.S.C. §§ 3241-2 to determine if the accused has changed gender or otherwise looks like a woman or if a father of a sexual abuse victim is now a woman. The situation becomes even more complex when the parent of the victim has not been charged with any crime but still might want to prevent his/her child from disclosing the same information to the accused or any third person. Such prevention may be vital to the interests of both a prosecutor and defense in preparing for any pre-trial and post-trial interviews with the victim. But at the same time, if the defense attorney is not permitted to inquire as to the victim’s "consent" for this purpose, then the attorney may not have sufficient information to effectively prepare for trial and subsequently present a defense on behalf of the accused. Basic constitutional rights may be violated in the process.