Rule 412. Sex-Offense Cases: the Victim'S Sexual Behavior or Predisposition

(a) Prohibited uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) Evidence offered to prove that an alleged victim engaged in other sexual behavior; or

(2) Evidence offered to prove an alleged victim's sexual predisposition.

(b) Exceptions.

(1) Criminal cases. The court may admit the following evidence in a criminal case:

(A) Evidence of specific instances of an alleged victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;

(B) Evidence of specific instances of an alleged victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and

(C) Evidence whose exclusion would violate the defendant's constitutional rights.

(2) Civil cases. In a civil case, the court may admit evidence of specific instances of sexual behavior by an alleged victim offered to prove an alleged victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.

Committee Notes

Maine Restyling Note [November 2014] Maine's Rule 412 has generally followed its federal counterpart, but has differed in some respects in both structure and substance. The main differences are the ban on reputation and opinion evidence in the Maine Rule and the omission in the Maine Rule of any special procedure to determine admissibility. The proposed restyled version follows the federal version more closely, and deals with the prohibition of reputation and opinion evidence by making it clear that the only kind of evidence of sexual behavior that can be admitted under the Rule is evidence of specific acts that meets the requirements of subsection (b). The restyled Maine Rule follows the existing Rule in omitting any special procedure for determining admissibility.

Federal Advisory Committee Note The language of Rule 412 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Advisory Committee Note (February 1, 1983) This Rule prohibits any evidence of reputation or opinion of a victim's character in a prosecution for rape and other serious sexual offenses. It also severely restricts the use of evidence of specific instances of a victim's prior sexual behavior when offered by the defense. The rule is subject to the policy of Rule 402 on evidence constitutionally required to be admitted. The rule is patterned on new Federal Rule 412 which was enacted by Congress to curb perceived abuses in the use of evidence concerning the past sexual behavior of a victim of rape or sexual abuse. In some courts, wide latitude has been allowed defense counsel to introduce such evidence to show: A. Lack of overall credibility of the victim, particularly on the issue of consent; and B. An actual inference that the victim did consent on the specific occasion for which the defendant is charged. This does not seem to have been a serious problem in Maine where such testimony has been generally excluded. Some of the Maine cases, however, contain dicta that could be read to support admissibility of reputation evidence on credibility and perhaps on consent. See, e.g., State v. McFarland, 369 A.2d 227 (Me. 1977); State v. Dipietrantonio, 152 Me. 41 (1956); State v. Flaherty, 128 Me. 141 (1929). The danger in the admission of such evidence is the likelihood that it will provoke moral and emotional reactions in the trier of fact increasing the risk of unfair prejudice. For this reason, Federal Rule 412 has provided for an elaborate procedure designed to assess the risk of unfair prejudice before admission of such evidence, even to the extent permitted by the rule. In Maine it is not necessary to provide any specific procedure in light of the trial judge's power to control the presentation of the proof so as to minimize prejudice and the overall requirements of Rule 403. Prosecutors, defense counsel, and trial judges should be alert to the fact that Rule 403 does apply even to evidence made specifically admissible by Rule 412 (or any other rule). Where the prejudicial effect of such evidence outweighs the probative value, such evidence must be excluded under Rule 403. "Sexual behavior" is not specifically defined in the rule, but would include the behavior described by 17-A M.R.S.A. Section 251 (B, C and D). The word "past" in Rule 412 refers to occasions prior to trial and other than the occasions involved in the charges, whether prior or subsequent thereto in time. Rule 412(b)(1) would not affect the result in State v. Henderson, 158 Me. 364 (1958), upholding the admissibility of evidence of the victim's prior intercourse with persons other than the accused to attack "corroborating" evidence of the victim's pregnancy offered by the prosecution. Rule 412(b)(2) only applies to criminal prosecutions where consent of the victim is an issue. Rule 412 does not prohibit evidence of a statement by the victim about her past sexual conduct when the statement is relevant as a statement for impeachment or some other proper purpose. See, e.g., State v. Nelson, 399 A.2d 1327 (Me. 1979) (rape victim's prior inconsistent statements about her past sexual relations admissible to impeach). The prosecution may also "open the door" to evidence otherwise inadmissible under this rule by offering evidence of the victim's lack of sexual experience or chastity on direct. See State v. Gagne, 343 A.2d 186 (Me. 1975). [Note change by 1995 Amendment ] Rule 412 does not automatically render admissible evidence of prior sexual behavior in prosecutions for unlawful sexual contact, other criminal prosecutions, or civil cases. Admissibility of such evidence is governed by the other rules on relevancy and impeachment. See State v. Davis, 406 A.2d 900 (Me. 1979) (unlawful sexual contact-evidence of complainant's preoccupation with pulling down the pants of others was relevant to the complainant's state of mind and to rebut the inference that a child of her tender years would be too innocent of sexual matters to fabricate a charge). Obviously Rule 412 applies to the prosecution as well as to the defense. Thus unless a victim's lack of chastity is properly raised by the defense, the prosecution may not introduce evidence of the victim's chastity to support an inference of lack of consent.

Advisory Committee Note (1995 Amendment) This amendment is to conform the terms of the Rules to changes in definition of crimes in the Maine Criminal Code. By 1989 amendment, the crimes of rape and gross sexual misconduct, as earlier defined by the Maine Criminal Code (17-A M.R.S.A. §§ 252, 253) were redefined and combined into the crime of gross sexual assault (17-A M.R.S.A. §253). The policies which made Rule 412 applicable to the crimes as earlier defined remain valid with respect to the redefined and renamed offense. This amendment also amends Evidence Rule 412 to cover prosecutions for unlawful sexual contact.

Advisory Committee Note (June 16, 2000 Amendment) The amendment to Rule 412 is designed to broaden the rule to cover civil as well as criminal cases. The formulation of the rule follows the current Maine Rule 412 rather than the new Federal Rule 412 because 1) the Maine rule has worked well to date, and 2) the structure of the Maine rule seems to lend itself better to application to civil as well as criminal cases. The amended rule would apply to any case, civil or criminal "in which a person is accused of sexual misconduct toward an individual." Cases involving sexual misconduct but not directed toward an individual (pornography?) would not be covered by either the language or the rationale of this rule. The term "sexual misconduct" is intended to include all forms of civil or criminal misconduct which involve sexual activity or verbal references to intimate sexual activity including sexual harassment, exposure, telephone sexual harassment, intentional infliction of emotional distress. It is not intended to include misconduct not involving sexual activity or verbal references to intimate sexual activity but which is directed at members of a sexually defined group such as some forms of "hate crimes." "Sexual behavior" is intended to include all forms of intimate sexual activity, whether or not consensual, as well as intimate conversation involving a sexual relationship or sexual gratification. In both civil and criminal cases reputation or opinion evidence of the sexual character of an alleged victim would be forbidden. There does not seem to be any more reason for this kind of evidence in civil cases than there is in criminal cases. In criminal cases the rule on evidence of specific instances of conduct would remain "as is." Evidence "constitutionally required" to be admitted (e.g. [State v.] Jacques, 558 A.2d 706 (1989)) is now included among the enumerated exceptions as is the case with the corresponding federal rule. Subdivision (c) proposes a somewhat broader rule for civil cases, requiring that the proponent of the evidence satisfy the judge that the probative value of the evidence on a controverted issue outweighs the danger of unfair prejudice, etc. Both the weight (probative value) and the focus (on a controverted issue) would be involved in the determination of admissibility. To cover the possibility that in a civil case an individual whose prior sexual conduct would be protected by this rule might not be the other party, the concept of "unwarranted harm to the individual" has been included in the balancing formula. This formulation erects a meaningful threshold to the use of this kind of evidence in civil cases, but does not forbid it entirely or restrict its use to artificial categories or for specific inferences. The threshold of admissibility under Rule 412 specifies that the evidence can only be admitted if the court find that the probative value of the evidence exceed the danger of unfair prejudice. This is contrasted to the threshold under Rule 403 whereby relevant evidence is admitted unless the danger of unfair prejudice substantially outweighs the probative value. The same kind of reasoning employed by the Law Court in administering the "constitutionally required" exception to criminal Rule 412 could be applied to administering Rule 412(c) in civil cases. Thus, where the proponent of evidence of prior sexual behavior of a victim could articulate an inference from the prior sexual behavior of the victim which would have a logical bearing directly on a controverted issue in the case, the evidence would be likely admissible in the absence of serious prejudice, confusion, etc. The court would ordinarily be expected to articulate the relevant inference for which the evidence would be admissible and how the evidence supported the inference. Such evidence can also be admitted in both civil and criminal cases if the opposing party "opens the door." This rule applies in civil cases to issues of both liability and damages. Rule 403 continues to give the court power to exclude evidence subject to Rule 412 based on considerations such as unnecessary presentation of cumulative evidence and waste of time. This rule would not restrict evidence of sexual activity of a party to a case other than one in which a person is accused of "sexual misconduct" toward an individual. Thus it would not apply to the defense of truth in a libel case or to proof of character in a custody case. These cases would continue to be governed by Rules 403-405. The proposed revised rule, as the current Maine Rule 412, does not spell out a special procedure for admissibility determinations. Confiding this matter to the good sense of court and counsel has worked well to date.