Character Evidence in Sexual Offense Cases

Question 1

What is the rape shield law?

Answer 1

• In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to show the alleged victim’s sexual behavior, sexual predisposition, and other sexual history is excluded
  o This includes actual sexual physical conduct as well as the use of contraceptives, fantasies, and any activities that imply sexual activity, as well as how a person dresses, lifestyle choices, and speech.

Question 2

What are some exceptions to the rape shield law?

Answer 2

• In a criminal case, specific past sexual acts are ADMISSIBLE to show:
  o Past sexual acts with THIS defendant which tend to show consent
  o Source of semen, injury, or other physical evidence.
  o Evidence that is constitutionally required

Question 3

What must be considered in a civil sexual offense case before admitting evidence under an exception to the rape shield law?

Answer 3

• In a civil case, such evidence is admissible ONLY if the probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party; different from the usual 403 balancing test.

Question 4

When may evidence of a victim’s reputation be admissible in a civil sexual assault case?

Answer 4

• Evidence of the victim’s reputation is admissible when it has been placed in controversy by the victim.

Question 5

Are specific acts admissible against an accused sexual offender in either a criminal or civil case?

Answer 5

• In a criminal case in which the defendant is accused of child molestation or sexual assault (Rules 413 and 414), specific acts by the defendant are admissible and may be considered as they bear on any relevant matter (including propensity, likelihood, and disposition to commit sex offenses).
• In a civil case (Rule 415) in which a claim for damages or other relief is predicated on a party’s alleged commission of sexual assault or child molestation, then the specific acts may be admitted.

Question 6

Is a conviction required before using specific acts against child molesters?

Answer 6

• Note that these prior acts used in criminal cases need not have been tried (i.e., a prior conviction or arrest is not required).

Question 7

Could the prosecutor use reputation or opinion evidence against child molesters?

Answer 7

• In such cases, reputation and opinion are NOT permitted.

Question 8

What requirement must the prosecutor satisfy before using specific act evidence against an alleged child molester?

Answer 8

• If the prosecutor intends to offer this evidence, the prosecutor must give notice to the defendant, including witnesses’ statements or a summary of the expected testimony at least 15 days before trial or at a later time that the court allows for good cause.

Question 9

Will Rule 403 preclude the use of specific acts from being admitted against child molesters?

Answer 9

• No, FRE 403 will not preclude these specific acts from being admitted.