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

Article IV. Relevance


Notwithstanding any other provision of law, in a criminal trial, preliminary hearing, deposition, or other proceeding in which a person is accused of an offense under Tenn. Code Ann. §39-13-309 [trafficking a person for a commercial sex act], § 39-13-502 [aggravated rape], §39-13-503 [rape], §39-13-504 [aggravated sexual battery], §39-13-505 [sexual battery], §39-13-506 [statutory rape], §39-13-507 [spousal sexual offenses], §39-13-509 [sexual contact by minor with an authority figure], §39-13-522 [rape of a child], §39-13-527 [sexual battery by an authority figure], Tenn. Code Ann. §39-13-528 [solicitation of minors for sexual acts], §39-13-531 [aggravated rape of a child], §35-13-532 [statutory rape by an authority figure], §39-13-533 [promoting travel for prostitution], §39-15-302 [incest] or the attempt to commit any such offense, the following rules apply:

(a) Definition of sexual behavior.  In this rule “sexual behavior” means sexual activity of the alleged victim other than the sexual act at issue in the case.

(b) Reputation or opinion.   Reputation or opinion evidence of the sexual behavior of an alleged victim of such offense is inadmissible unless admitted in accordance with the procedures in subdivision (d) of this Rule and required by the Tennessee or United States Constitution.

(c) Specific instances of conduct.   Evidence of specific instances of a victim’s sexual behavior is inadmissible unless admitted in accordance with the procedures in subdivision (d) of this rule, and the evidence is:

(1) Required by the Tennessee or United States Constitution, or

(2) Offered by the defendant on the issue of credibility of the victim, provided the prosecutor or victim has presented evidence as to the victim’s sexual behavior, and only to the extent needed to rebut the specific evidence presented by the prosecutor or victim, or

(3) If the sexual behavior was with the accused, on the issue of consent, or

(4) If the sexual behavior was with persons other than the accused,

(i) to rebut or explain scientific or medical evidence, or

(ii) to prove or explain the source of semen, injury, disease, or knowledge of sexual matters, or

(iii) to prove consent if the evidence is of a pattern of sexual behavior so distinctive and so closely resembling the accused’s version of the alleged encounter with the victim that it tends to prove that the victim consented to the act charged or behaved in such a manner as to lead the defendant reasonably to believe that the victim consented.

(d) Procedures.   If a person accused of an offense covered by this Rule intends to offer under subdivision (b) reputation or opinion evidence or under subdivision (c) specific instances of conduct of the victim, the following procedures apply:

(1) the person must file a written motion to offer such evidence.

(i) The motion shall be filed no later than ten days before the date on which the trial is scheduled to begin, except the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which the evidence relates has newly arisen in the case.

(ii) The motion shall be served on all parties, the prosecuting attorney, and the victim; Service on the victim shall be made through the prosecuting attorney's office.

(iii) The motion shall be accompanied by a written offer of proof, describing the specific evidence and the purpose for introducing it.

(2) Motions required by subdivision (d)(1) shall be filed under seal. When a motion required by subdivision (d)(1) is filed and found by the court to comply with the requirements of this rule, the court shall hold a hearing in chambers or otherwise out of the hearing of the public and the jury to determine whether the evidence described in the motion is admissible. The hearing shall be on the record, but the record shall be sealed except for the limited purposes of facilitating appellate review, assisting the court or parties in their preparation of the case, and to impeach under subdivision (d)(3)(iii).

(3) At this hearing

(i) The victim may attend in person,

(ii) The parties may call witnesses, including the alleged victim, and offer relevant evidence, and

(iii) the accused may testify but the testimony during this hearing may not be used against the accused in the preliminary hearing, trial, or other proceeding, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify at the preliminary hearing, trial, or other proceeding.

(4) If the court determines that the evidence which the accused seeks to offer satisfies subdivisions (b) or (c) and that the probative value of the evidence outweighs its unfair prejudice to the victim, the evidence shall be admissible in the proceeding to the extent an order made by the court specifies the evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined.

[As added by order entered January 25, 1991, effective July 1, 1991; amended by order entered January 26, 1999, effective July 1, 1999; as amended by order filed January 8, 2019 effective October 1, 2019 and as amended order filed December 14, 2021 effective July 1, 2022.]

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 filed by subdivision (d)(1) of the rule shall be filed under seal.

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