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ARE Rule 412: Admissibility of evidence relating to past sexual behavior of complaining witness in prosecution for criminal sexual conduct

Alabama Rules of Evidence

Article IV. Relevancy and Its Limits

Rule 412. Admissibility of evidence relating to past sexual behavior of complaining witness in prosecution for criminal sexual conduct

(a) As used in this rule, unless the context clearly indicates otherwise, the following words and phrases shall have the following respective meanings:

(1) COMPLAINING WITNESS. Any person alleged to be the victim of the crime charged, the prosecution of which is subject to the provisions of this rule.

(2) CRIMINAL SEXUAL CONDUCT. Sexual activity, including, but not limited to, rape, sodomy, sexual misconduct, sexual abuse or carnal knowledge.

(3) EVIDENCE RELATING TO PAST SEXUAL BEHAVIOR. Such term includes, but is not limited to, evidence of the complaining witness’s marital history, mode of dress, and general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards and opinion of character for those traits.

(b) In any prosecution for criminal sexual conduct or for assault with intent to commit, attempt to commit, or conspiracy to commit criminal sexual conduct, evidence relating to the past sexual behavior of the complaining witness, as defined in section (a) of this rule, shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or of other witnesses, except as otherwise provided in this rule.

(c) In any prosecution for criminal sexual conduct, evidence relating to the past sexual behavior of the complaining witness shall be introduced if the court, following the procedure described in section (d) of this rule, finds that such past sexual behavior directly involved the participation of the accused.

(d) The procedure for introducing evidence, as described in section (c) of this rule, shall be as follows:

(1) At any time before the defense shall seek to introduce evidence which would be covered by section (c) of this rule, the defense shall notify the court of such intent, whereupon the court shall conduct an in camera hearing to examine into the defendant’s offer of proof. All in camera proceedings shall be included in their entirety in the transcript and record of the trial and case;

(2) At the conclusion of the hearing, if the court finds that any of the evidence introduced at the hearing is admissible under section (b) of this rule, the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced; and

(3) The defense may then introduce evidence pursuant to the order of the court.

Advisory Committee’s Notes

Of those states that have adopted rules of evidence, only Mississippi has adopted verbatim Federal Rule of Evidence 412. Each of the others has either drafted its own corresponding rule or simply adopted a preexisting “rape shield” statute as its Rule 412. See G. Joseph & S. Saltzburg, Evidence in America § 22.2 (1987). The drafters of Ala.R.Evid. 412 have chosen the latter course. Alabama’s preexisting statute, applied in prosecutions for those crimes named in section (b), and providing for the general exclusion of evidence regarding the past sexual behavior of a victim of criminal sexual conduct, has been rewritten, with slight modifications, as Rule 412. Compare Ala. Code 1975, § 12-21-203 (superseded by this rule). This rule varies from the preexisting statute primarily in two regards. First, Rule 412(a)(3) expands the definition of “evidence relating to past sexual behavior” to include opinion evidence regarding the victim’s character. This change makes Rule 412 consistent with Rule 405(a), which provides that opinion may be offered as an alternative to reputation when proving character. The second change made in converting the preexisting statute into a rule is to add language in Rule 412(d)(1) providing that the defense, in notifying the court that it intends to introduce evidence of past sexual behavior that directly involved the accused, may give the court the required notice at any time before the defense seeks to introduce it.

Rule 412 is intended to effect no change in that line of well developed judicial authority interpreting Alabama’s preexisting “rape shield” statute. It continues the general exclusion of all evidence concerning the victim’s past sexual behavior. Such evidence, in whatever form, will become admissible only if the court determines that it relates to behavior that directly involved the participation of the accused. See McGilberry v. State, 516 So.2d 907 (Ala.Crim.App.1987); Smelcher v. State, 520 So.2d 229 (Ala.Crim.App.1987); Jackson v. State, 375 So.2d 1271 (Ala.Crim.App.), cert. denied, 375 So.2d 1274 (Ala.1979) (holding that the prosecutrix could not be cross-examined as to whether she was taking birth control pills at the time of the assault). See also C. Gamble, McElroy’s Alabama Evidence § 32.01 (4th ed. 1991) (sexual behavior of the victim).

While the term “in camera” is taken directly from Alabama’s rape shield statute, and therefore is not specifically defined in Rule 412, the committee assumes the term will carry its common law meaning, and the committee intends that the trial judge will have the discretion to decide the method by which the defendant’s offer of evidence is made. See Rule 412(d)(1).