Class 12: Rape Shield Law; Propensity in Sexual Assault and Child Molestation Cases - Feb. 15

Question 1

Is evidence that a defendant previously committed sexual assault or child molestation admissible if the defendant does not open the door? (Q)

Answer 1

Yes. Evidence that a defendant previously committed sexual assault or child molestation is admissible in both criminal and civil cases directly involving sexual assault and child molestation, regardless of whether the defendant opens the door.

Question 2

Must a party give prior notice if it intends to introduce evidence of a defendant’s prior sexual misconduct? (Q)

Answer 2

Yes. A party must give prior notice if it intends to introduce evidence of a defendant’s prior sexual misconduct. Generally, the party must inform the defendant at least 15 days before trial.

(FRE 415)

Question 3

Is evidence of a defendant’s prior sexual misconduct limited to sexual misconduct for which the defendant has been convicted or formally charged? (Q)

Answer 3

No. Evidence of a defendant’s prior sexual misconduct is not limited to sexual misconduct for which the defendant has been convicted or formally charged. The defendant need only have committed the sexual misconduct. Courts apply a preponderance-of-the-evidence standard to determine whether, in the absence of a conviction, evidence of prior sexual misconduct is admissible.

(FRE 415)

Question 4

Does a court have discretion to exclude evidence of a defendant’s prior sexual misconduct? (Q)

Answer 4

Yes. A court has discretion to exclude evidence of a defendant’s prior sexual misconduct.

(FRE 403)

Question 5

Is evidence of a defendant’s prior sexual assault or child molestation admissible in all cases involving sexual misconduct? (Q)

Answer 5

No. Evidence of a defendant’s prior sexual assault or child molestation is not admissible in all cases involving sexual misconduct. Evidence of a defendant’s prior sexual assault is admissible only in cases in which the defendant is charged with sexual assault, and evidence of a defendant’s prior child molestation is admissible only in cases in which the defendant is charged with child molestation.

Question 6

What procedure must a prosecutor follow before the prosecutor can offer evidence of a defendant’s prior sexual assault or child molestation as evidence in a trial for a similar crime? (Q)

Answer 6

If a prosecutor intends to offer evidence of a defendant’s prior sexual assault or child molestation as evidence in a trial for a similar crime, the prosecutor must first disclose it to the defendant at least 15 days prior to trial, unless the court permits later notice for good cause. The disclosure must include witness statements and a summary of the expected testimony.

Question 7

The defendant was charged in federal court with sexual assault. At trial, the prosecutor called a woman who testified that the defendant raped her five years before. The defendant was charged with sexual assault in that case as well, but pled guilty to battery. The defendant objected and moved to strike the testimony as improper character evidence.

How should the court rule on the objection?

Answer 7

The court should overrule the objection. If a defendant is charged with sexual assault, the prosecutor may offer evidence that the defendant committed any other sexual assault. Evidence of a previous sexual assault is admissible for any relevant purpose, including as character evidence to prove propensity (i.e., to show that a person has a specific character or character trait and therefore likely acted in a way that was consistent with that character or trait).

Here, evidence that the defendant’s committed another sexual assault is relevant to prove his propensity to commit sexual assault. Therefore, the evidence is admissible even if it did not result in a conviction.

Question 8

Sam is on trial for raping Rosemary. Sam wishes to call Frank as one of his witnesses. Frank knows Rosemary well and used to date her. He will testify that he is familiar with Rosemary’s reputation and that she is known as a woman who frequently engages in casual sexual intercourse. He will also testify that when he dated her, she was “sexually aggressive” and frequently initiated sex with him. Is Frank’s testimony admissible? (Merritt)

Answer 8

No. Rule 412 precludes the defendant in a sexual assault case from offering any evidence about a victim’s sexual predisposition. (Ch 32 Quiz)

Question 9

Gary and Charlotte went out on a date, and at the end of the date, they had sexual intercourse. Charlotte called the police the next morning and told them that Gary had raped her. When Gary was arrested, he claimed that the sex was consensual. Gary is now on trial for rape.

Gary testifies that two nights before the alleged rape, he and Charlotte had gone out on a date which had ended in he and Charlotte kissing and engaging in other sexual activity short of intercourse. The prosecutor objects to this testimony. How should the judge rule? (Merritt)

Answer 9

Admit the evidence, because it is relevant to the case and there is an exception to the rape shield law for sexual conduct between the victim and the defendant. Rule 412(b)(1)(B) allows the defendant to offer evidence of the victim’s sexual behavior with respect to the defendant if offered to prove consent. (Ch 32 Quiz)

Question 10

Oswald is accused of sexually assaulting his 17-year-old stepdaughter. The prosecutor calls a doctor to the stand to testify that she examined the stepdaughter one week after the alleged assault and found abrasions to the girl’s genitals which are consistent with forcible intercourse. The defendant seeks to admit evidence that a few days before this incident, the stepdaughter had been sexually assaulted by a 16-year-old who was living with her in a foster home at the time. Is this evidence admissible? (Meritt)

Answer 10

Yes, but only if the abrasions could have been caused by the earlier incident. Rule 412 generally bars any evidence of prior sexual conduct on the part of the victim, but Rule 412(b)(1)(A) allows for such evidence if offered to prove that someone other than the defendant was the source of physical evidence. (Ch 32 Quiz)

Question 11

Linda drank too much alcohol at a college fraternity party and passed out on a bed upstairs. While she was unconscious, someone came into the room and sexually assaulted her, although the perpetrator left no DNA evidence. After she woke up, Linda discovered what had happened and reported the incident to the police. The police conducted an investigation and ultimately arrested Daniel, one of the members of the fraternity that hosted the party, and charged Daniel with sexual assault. Daniel maintains his innocence, arguing that he never went upstairs at all during the party and never even saw Linda that night.

The prosecutor wishes to call (1) George, one of Daniel’s fraternity brothers, who will testify that he knows Daniel well and that Daniel has a reputation for taking advantage of women who had been drinking and making sexual advances towards women against their will; and (2) Jane, who met Daniel when she was drinking at a fraternity party six months ago, and who will testify that Daniel had fondled her breasts even though she repeatedly told him to stop and continuously tried to push him away. Should George and/or Jane be allowed to testify? (Merritt)

Answer 11

Although Rule 404(a) generally bars evidence of a defendant’s propensity if offered to prove that he acted in accordance with that propensity, Rule 413 creates an exception to that rule if the prosecutor offers evidence of specific acts of sexual assault in a case where the defendant is accused of sexual assault. Rule 413 does not allow a prosecutor to admit reputation or opinion evidence, so George’s reputation evidence about Daniel is still barred by Rule 404(a). (Ch 33 Quiz)

Question 12

Does FRE 413 allow the prosecutor to admit reputation or opinion evidence? (Merritt)

Answer 12

No.

Question 13

Is evidence of a sexual assault victim’s past sexual behavior or sexual predisposition generally admissible in civil and criminal cases involving alleged sexual misconduct? (Q)

Answer 13

No. In civil or criminal cases involving alleged sexual misconduct, evidence that the alleged victim engaged in other sexual behavior or has a sexual predisposition is generally not admissible.

(FRE 412)

Question 14

Under what circumstances is evidence of a sexual assault victim’s past sexual behavior or predisposition admissible in a criminal case that involves allegations of sexual misconduct? (Q)

Answer 14

Evidence of a sexual assault victim’s past sexual behavior or predisposition is admissible in a criminal case that involves allegations of sexual misconduct if:

offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
offered by the defendant to prove consent; or
offered by the prosecutor for any reason.
In addition, evidence of a victim’s past sexual behavior or predisposition is admissible if its exclusion would violate the defendant’s constitutional rights.

Question 15

In a criminal case, how does a party prove a sexual assault victim’s past sexual behavior or predisposition? (Q)

Answer 15

In a criminal case, a party can generally prove a sexual assault victim’s past sexual behavior or predisposition only through specific instances of conduct. Neither party can call a witness to testify about the victim’s reputation or to give an opinion about the victim’s sexual past sexual behavior or predisposition unless required by the U.S. Constitution.

Question 16

The defendant was charged in federal court with sexually assaulting a woman at a party. The defendant argued that he and the victim had consensual sex. He offered two pieces of evidence to support his theory of the case: (1) a character witness who would testify that the victim had a reputation in the community for her willingness to have sex and (2) a bartender who would testify that the victim had sex with a different person every night. The prosecutor objected that this evidence was inadmissible.

Is the prosecutor correct? (Q)

Answer 16

Yes. The prosecutor is correct. The evidence is inadmissible evidence of a victim’s sexual behavior or predisposition. In a criminal case involving sexual misconduct, a defendant cannot introduce evidence of a sexual assault victim’s past sexual behavior or predisposition unless it is (1) offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (2) offered by the defendant to prove consent; or (3) constitutionally required. Although a criminal defendant can offer evidence of a victim’s pertinent trait, that option is not available in sexual misconduct cases.

Here, the defendant’s evidence showed that the victim tended to engage in promiscuous sex. It was not offered to prove someone else was the source of physical evidence, was not offered to show consent, and was not constitutionally required. Thus, the prosecutor is correct.

Question 17

The defendant was charged in federal court with sexual assault. The prosecutor alleged that the victim and defendant met at a bar. The defendant offered to drive the victim home, raped her in the back of the car, and then dropped her off at home. When the victim got home, she was crying and told her live-in boyfriend that she had been raped. The defendant argued that he and the victim had consensual sex in the car and that she fabricated the rape story in order to protect her already rocky relationship with her boyfriend. The defendant filed a motion indicating his intent to introduce evidence regarding the victim’s romantic history with her boyfriend. The prosecutor objected, arguing that the defendant could not offer evidence of the victim’s sexual behavior or sexual predisposition in a sexual assault case.

Should the court allow the defendant to introduce the evidence? (Q)

Answer 17

Yes. The court should allow the defendant to introduce the evidence. A party generally cannot introduce evidence of a sexual assault victim’s past sexual behavior. However, this evidence can be admissible in a criminal case that involves allegations of sexual misconduct if its exclusion would violate the defendant’s constitutional rights. A defendant has a Sixth Amendment right to introduce evidence that the victim had a motive for bringing false charges against the defendant. The defendant can cross-examine the victim and introduce independent evidence to prove the improper motive.

Here, the defendant is using evidence of the victim’s relationship to show that she had a motive to falsify rape charges in order to protect that relationship, which is admissible. Thus, the court should allow the defendant to introduce the evidence.

Question 18

Under what circumstances is evidence of a sexual assault victim’s past sexual behavior or predisposition admissible in a civil case that involves allegations of sexual misconduct? (Q)

Answer 18

Evidence of a sexual assault victim’s past sexual behavior or predisposition is admissible in a civil case that involves allegations of sexual misconduct if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. A party cannot call a witness who will testify to the victim’s reputation unless the alleged victim has put his or her reputation into controversy.

Question 19

Must a party who plans to offer evidence of a victim’s past sexual conduct under an exception to the general rule barring this evidence provide notice to the victim? (Q)

Answer 19

Yes. A party planning to offer evidence of a victim’s past sexual conduct under an exception to the rule barring this evidence must file a motion to do so at least 14 days in advance of trial and must provide notice to the victim. In addition, the court must conduct an in camera hearing, at which parties have the right to be heard, to determine the admissibility of the evidence.

(FRE 412)

Question 20

In a case involving allegations of sexual misconduct, do some courts allow a defendant to introduce into evidence a victim’s past accusations of rape that turned out to be false? (Q)

Answer 20

Yes. In a case involving allegations of sexual misconduct, some courts allow a defendant to introduce evidence of a victim’s past accusations of rape that turned out to be false. However, other courts treat evidence of a victim’s previous false allegations of sexual misconduct as evidence of past sexual behavior and exclude the evidence.