Rule 412. Sex offense cases
- relevance of victim’s past behavior or manner of dress
Source:
Section 40.210 — Rule 412. Sex offense cases; relevance of victim’s past behavior or manner of dress, https://www.oregonlegislature.gov/bills_laws/ors/ors040.html.
Notes of Decisions
Under former similar statute (ORS 163.475)
The prohibition on the introduction of evidence of the complainant’s prior sexual conduct was held unconstitutional as a denial of the right of confrontation when the prior conduct was relevant in showing a motive for a false accusation of rape. State v. Jalo, 27 Or App 845, 557 P2d 1359 (1976)
In trial of defendant charged with rape, sodomy and sexual abuse, this section did not prevent state from introducing evidence of prior sexual acts between defendant and two victims, both of whom were under age of twelve at time incidents allegedly occurred. State v. Eggleston, 31 Or App 9, 569 P2d 1088 (1977), Sup Ct review denied
Evidence of particular sexual conduct by victim is admissible where relevant for purpose of eroding victim credibility. State v. Lantz, 44 Or App 695, 607 P2d 197 (1980), Sup Ct review denied
Provision of this section which authorizes in camera hearing to determine admissibility of evidence of victim’s prior sexual conduct does not violate right to public trial guaranteed by Article I, Sections 10 and 11 of the Oregon Constitution. State v. Blake, 53 Or App 906, 633 P2d 831 (1981); State v. MacBale, 353 Or 789, 305 P3d 107 (2013)
Under Evidence Code
Trial court’s denial of defendant’s request to cross-examine complaining witness because defendant had not complied with notice requirements of this rule was erroneous interpretation of rule and reversible error. State v. Reiter, 65 Or App 304, 672 P2d 56 (1983)
Where evidence of alleged prior sexual relations between defendant and complainant are relevant to defendant’s claim of jealously and anger as motive falsely to charge rape, evidence is admissible under this rule. State v. Morgan, 66 Or App 675, 675 P2d 513 (1984)
Evidence that victim’s relationship with another man involved “bondage and discipline” has no relevance to complainant’s alleged motive to falsify and is not admissible. State v. Bass, 69 Or App 166, 683 P2d 1040 (1984), Sup Ct review denied
Evidence of previous false accusations of sexual abuse by alleged victim is not evidence of past sexual behavior within meaning of Rape Shield Law and is not inadmissible. State v. LeClair, 83 Or App 121, 730 P2d 609 (1986), Sup Ct review denied
Trial court erred in addressing admissibility of items of evidence because particular items did not concern “past sexual behavior” of victim. State v. Wright, 97 Or App 401, 776 P2d 1294 (1989), Sup Ct review denied
Evidence of prior sexual abuse of victim is “past sexual behavior” but was not admissible because it is relevant neither to motive for victim to accuse this particular defendant nor to rebut any scientific or medical evidence that state offered. State v. Wright, 97 Or App 401, 776 P2d 1294 (1989), Sup Ct review denied
Evidence of victim’s hostility toward defendant and accusation of sexual abuse against another man by victim’s friend is not admissible because it is not “sexual behavior.” State v. Wattenbarger, 97 Or App 414, 776 P2d 1292 (1989), Sup Ct review denied
Evidence of victim’s abuse by other people after act with which defendant was charged but before trial is “past sexual behavior” but is not admissible because it does not establish bias or motive for victim to falsely accuse defendant. State v. Wattenbarger, 97 Or App 414, 776 P2d 1292 (1989), Sup Ct review denied
Evidence that does not concern victim’s past sexual behavior is not properly admitted or excluded in pretrial hearing. State v. Weeks, 99 Or App 287, 782 P2d 430 (1989), Sup Ct review denied
Hearing to determine admissibility of evidence of victim’s past sexual behavior is required to be held in judge’s chamber but public is not categorically excluded from hearing. State ex rel Davey v. Frankel, 312 Or 286, 823 P2d 394 (1991)
Notice requirement for presentation of sexual behavior evidence applies to both direct examination and cross-examination. State v. Lajoie, 316 Or 63, 849 P2d 479 (1993)
Admission of evidence to show motive does not require showing that victim has ill will toward defendant. State v. Beden, 162 Or App 178, 986 P2d 94 (1999)
State interest served by rape-shield law can outweigh defendant’s interest served by constitutional right to compulsory process. State v. Beeler, 166 Or App 275, 999 P2d 497 (2000), Sup Ct review denied
Admissibility of evidence regarding victim’s past sexual behavior is analyzed under three-step progression that considers form in which evidence is offered, whether evidence falls within listed exception and whether probative value outweighs prejudicial effect. State v. Fowler, 225 Or App 187, 200 P3d 591 (2009), Sup Ct review denied
Where defendant, convicted of rape in first degree and sodomy in first degree, sought to introduce evidence of victim’s prior sexual behavior toward other individuals on same night as incident leading to convictions, evidence was “past sexual behavior” because this section does not distinguish between behavior that occurred long before incident and shortly before incident, and thus was inadmissible without applicable exception. State v. Alcantar, 283 Or App 114, 388 P3d 1124 (2016), Sup Ct review denied
Allowing court to exclude defendant’s proffered evidence of past sexual conduct solely on basis that court does not find evidence to be credible violates defendant’s right to jury trial under Article I, section 11 of Oregon Constitution. State v. Zaldana-Mendoza, 299 Or App 590, 450 P3d 983 (2019)
Law Review Citations
Under former similar statute (ORS 163.475)
55 OLR 493-518 (1976)
Under Evidence Code
28 WLR 127 (1991); 71 OLR 497 (1992)
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