Rule 412. Sex Offense Cases; Relevance of Victim’s Sexual Behavior

Advisory Commission Comments [1991]

This rule governs the admissibility of evidence of a sex crime victim’s sexual history in cases involving the sex crimes specified in the first sentence of the rule. It replaces the current rape-shield statute, T.C.A. § 40-17-119 [repealed], and is to be applied in lieu of Tennessee Rule of Evidence 404(a)(2) (character of crime victim) for the specified sex crimes. Like T.C.A. § 40-17-119 [repealed] and Federal Rule of Evidence 412, this rule strikes a balance between the paramount interests of the accused in a fair trial and the important interests of the sexual assault victim in avoiding an unnecessary, degrading, and embarrassing invasion of sexual privacy. Rule 412 recognizes the important interests of all involved —the victim, the public, and the criminal accused —and provides standards and procedures to assist courts in determining when such evidence is admissible. It specifically recognizes that, despite the embarrassing nature of the proof, sometimes the accused can only have a fair trial if permitted to introduce evidence of the alleged victim’s sexual history. On the other hand, the rule also takes into account that the public’s interest in prosecuting and convicting people guilty of various sexual offenses is frustrated when sexual assault victims refuse to report the offenses or to testify about them at trial because of the possible admission of evidence of their sexual history. Moreover, the rule seeks to minimize the likelihood that evidence of the alleged victim’s sexual history may cause the jury to be unfairly prejudiced against the victim.

This rule is much more comprehensive than T.C.A. § 40-17-119 [repealed], which deals only with proof of specific instances of a sexual assault victim’s sexual behavior with third persons and only when that evidence is to be used on the issue of consent. T.C.A. § 40-17-119 [repealed] does not address difficult questions of the admissibility of reputation and opinion evidence, of evidence of prior sexual activity with the accused, or of proof in sexual assault cases on issues other than consent. The narrow focus of this statute has resulted in Tennessee case law questioning its constitutionality in certain applications. See Shockley v. State, 585 S.W.2d 645 (Tenn. Crim. App. 1978).

Rule 412 deals with three types of proof: reputation, opinion, and specific acts. Subdivision (b) limits the use of reputation and opinion evidence about the victim’s sexual behavior. Because such evidence is embarrassing and seldom probative, it is admissible only in those unusual cases where the United States or Tennessee Constitution mandates admissibility. Cf. Doe v. United States, 666 F.2d 43 (4th Cir. 1981) (recognizes possibility that constitution could require admission of reputation and opinion evidence in extraordinary circumstances). When such evidence is admissible, the procedures outlined in subdivision (d) must be followed.

Subdivision (c) tells when specific acts of the victim’s sexual history may be admissible if the procedures in subdivision (d) are satisfied. Because of the infinite variety of factual situations that can arise in sex crime cases, no evidence rule can detail all the possible situations where evidence of sexual history is required by the accused’s Due Process rights. Subdivision (c)(1) recognizes this and provides that specific acts are admissible when required by the United States or Tennessee Constitution. Cf. State v. Jalo, 27 Or. App. 845, 557 P.2d 1359 (1976) (criminal accused’s confrontation rights entitle him to prove that rape victim charged him with crime to retaliate for his discovery of her sexual relations with his son); Commonwealth v. Black, 337 Pa. Super. 548, 487 A.2d 396 (1985) (confrontation clause permits criminal accused to prove sex crime victim’s bias; she allegedly reported crime so she could remove him from house in order to continue sexual relations with another house member and to punish him for interfering with this sexual relationship).

Subdivision (c)(2) provides that specific instances of the victim’s sexual behavior may also be admissible to rebut evidence presented by the prosecution about the victim’s sexual behavior. This exception is narrow, however. It only permits the defendant to prove specific acts when needed to rebut the specific evidence presented by the prosecution’s proof. It does not open the door to the victim’s entire sexual history.

Subdivision (c)(3) indicates that the victim’s sexual behavior with the accused may be admissible on the issue of consent. If consent is not an issue, this subdivision does not apply.

Subdivision (c)(4) lists three situations where the victim’s sexual behavior with persons other than the accused may be admissible. First, the proof may be used to rebut or explain scientific or medical evidence. Second, it may be used to prove or explain the source of semen, injury, or disease. For example, the defendant may prove that the victim, who testified that he or she contracted the AIDS virus from the defendant, actually contracted it from a named third party. Similarly, if it is alleged that the defendant’s illegal sexual activity caused the victim to become pregnant, the defendant may prove that the victim had sexual relations with a third party who fathered the child. See Shockley v. State, 585 S.W.2d 645 (Tenn. Crim. App. 1978) (rape defendant entitled to prove someone else caused victim’s pregnancy). This provision also permits proof of the source of knowledge of sexual matters. It will most frequently be used in cases where the victim is a young child who testifies in detail about sexual activity. To disprove any suggestion that the child acquired the detailed information about sexual matters from the encounter with the accused, the defense may want to prove that the child learned the terminology as the result of sexual activity with third parties. Third, the defendant may prove acts with third parties in the so-called “signature” cases to prove consent. These acts are so similar to the defendant’s version of the offense that they corroborate the defendant’s story.

In order to ensure that the victim’s privacy is not inappropriately compromised when the court assesses whether a given item of evidence is admissible under the rule, subdivision (d), like T.C.A. § 40-17-119 [repealed], provides specific procedures that must be followed before evidence is admitted under this rule. First, subdivision (d)(1) requires the defendant to file a written motion of an intent to offer evidence covered by the rule. The motion shall be filed 10 days before the trial unless the exceptions mentioned in the rule apply. The ten day rule is designed to provide the prosecution and the victim an opportunity to investigate the proposed proof and to contest the issue. The motion is to be served on all parties, the prosecuting attorney, and the victim. To facilitate preparation, the motion must describe both the evidence to be offered and the purpose for offering it.

If a motion is filed and the court determines that the evidence is the kind of evidence possibly covered by the rule, it should hold a hearing, pursuant to subdivision (d)(2). The victim’s privacy is somewhat protected since the proceeding must be held outside the hearing of the public. The rule specifically provides that the hearing may be held in chambers. The hearing must be on the record to permit appellate review, but the record of the hearing is sealed.

Subdivision (d)(3) indicates that the victim has a right to attend the hearing and that all parties may call witnesses and offer evidence on the issue whether the proof of the victim’s sexual behavior should be introduced.

In order to protect the defendant’s right to remain silent, the defendant may testify at his hearing without producing evidence admissible as substantive evidence at the trial. The defendant’s testimony at the hearing may, however, be used to impeach the defendant at the later trial.

After the hearing the court must balance the evidence’s probative value against the harm that disclosure will cause to the victim. This balance includes consideration of the harmful effect the proof may have on the victim. If the probative value outweighs the listed factors and the evidence is admitted, the court should issue an order specifying exactly which proof will be received and which issues may be explored during questioning.

Advisory Commission Comments [1996]

While Rule 412 applies only to criminal prosecutions, a statute shields the civil plaintiff’s sexual behavior in actions for sexual misconduct of therapists against patients. T.C.A. § 29-26-207 states that the victim’s sexual history is not admissible as evidence except to prove that the sexual behavior occurred with the therapist prior to the provision of therapy to the patient by the therapist.

Advisory Commission Comments [1999]

The amendment adds other sex offenses.

Advisory Commission Comments [2019]

The 2019 amendment adds five offenses to which this rule applies and reorders the listing to the order of appearance in the code.

Advisory Commission Comments [2022]

This amendment adds the requirement that motions required by subdivision (d)(1) of the Rule be filed under seal.