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

Admissibility of evidence relating to complaining witness in prosecution for criminal sexual conduct.

(a) Evidence Generally Inadmissible. The following evidence is not admissible in any prosecution for criminal sexual conduct except as provided in sections (b) and (c):

(1) evidence offered to prove that any complaining witness engaged in other sexual behavior.

(2) evidence offered to prove any complaining witness's sexual predisposition.

(b) Exceptions. The following evidence is admissible, if otherwise admissible under these rules:

(1) evidence of specific instances of sexual behavior by the complaining witness offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(2) evidence of specific instances of sexual behavior by the complaining witness with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(3) evidence the exclusion of which would violate the constitutional rights of the defendant.

(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 a reasonable time before trial unless the court, for good cause, sets a different time; and

(C) serve the motion on all parties.

(2) NOTICE. Regardless of who brings the motion, the prosecution shall notify the complaining witness, or, when appropriate, the complaining witness's guardian or representative, of the motion.

(3) HEARING. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the parties a right to attend and be heard. If at the conclusion of the hearing 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 and in what manner the evidence may be introduced. All in camera proceedings shall be included in their entirety in the transcript and record of the trial and case;

(4) The party may then introduce evidence pursuant to the order of the court.

(d) Definitions. 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; and assault with intent to commit, attempt to commit, solicitation to commit, or conspiracy to commit criminal sexual conduct. [Amended 8-15-2013, eff 10-1-2013.]

Committee Notes

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 (A