2007 ORS 40.210¹
Rule 412. Sex offense cases
  • relevance of victim’s past behavior or manner of dress

(1) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 (Rape in the third degree) to 163.427 (Sexual abuse in the first degree), or in a prosecution for an attempt to commit one of these crimes, the following evidence is not admissible:

(a) Reputation or opinion evidence of the past sexual behavior of an alleged victim of the crime or a corroborating witness; or

(b) Reputation or opinion evidence presented for the purpose of showing that the manner of dress of an alleged victim of the crime incited the crime or indicated consent to the sexual acts alleged in the charge.

(2) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 (Rape in the third degree) to 163.427 (Sexual abuse in the first degree), or in a prosecution for an attempt to commit one of these crimes, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless the evidence other than reputation or opinion evidence:

(a) Is admitted in accordance with subsection (4) of this section; and

(b) Is evidence that:

(A) Relates to the motive or bias of the alleged victim;

(B) Is necessary to rebut or explain scientific or medical evidence offered by the state; or

(C) Is otherwise constitutionally required to be admitted.

(3) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 (Rape in the third degree) to 163.427 (Sexual abuse in the first degree), or in a prosecution for an attempt to commit one of these crimes, evidence, other than reputation or opinion evidence, of the manner of dress of the alleged victim or a corroborating witness, presented by a person accused of committing the crime, is also not admissible, unless the evidence is:

(a) Admitted in accordance with subsection (4) of this section; and

(b) Is evidence that:

(A) Relates to the motive or bias of the alleged victim;

(B) Is necessary to rebut or explain scientific, medical or testimonial evidence offered by the state;

(C) Is necessary to establish the identity of the victim; or

(D) Is otherwise constitutionally required to be admitted.

(4)(a) If the person accused of committing rape, sodomy or sexual abuse or attempted rape, sodomy or sexual abuse intends to offer evidence under subsection (2) or (3) of this section, the accused shall make a written motion to offer the evidence not later than 15 days before the date on which the trial in which the evidence is to be offered is scheduled to begin, except that 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. Any motion made under this paragraph shall be served on all other parties, and on the alleged victim through the office of the prosecutor.

(b) The motion described in paragraph (a) of this subsection shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subsection (2) or (3) of this section, the court shall order a hearing in camera to determine if the evidence is admissible. At the hearing the parties may call witnesses, including the alleged victim, and offer relevant evidence. Notwithstanding ORS 40.030 (Rule 104. Preliminary questions) (2), if the relevancy of the evidence that the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in camera or at a subsequent hearing in camera scheduled for the same purpose, shall accept evidence on the issue of whether the condition of fact is fulfilled and shall determine the issue.

(c) If the court determines on the basis of the hearing described in paragraph (b) of this subsection that the evidence the accused seeks to offer is relevant and that the probative value of the evidence outweighs the danger of unfair prejudice, the evidence shall be admissible in the trial to the extent an order made by the court specifies evidence that may be offered and areas with respect to which a witness may be examined or cross-examined. An order admitting evidence under this subsection may be appealed by the government before trial.

(5) For purposes of this section:

(a) "In camera" means out of the presence of the public and the jury; and

(b) "Past sexual behavior" means sexual behavior other than the sexual behavior with respect to which rape, sodomy or sexual abuse or attempted rape, sodomy or sexual abuse is alleged. [1981 c.892 §31; 1993 c.301 §1; 1993 c.776 §1; 1997 c.249 §20; 1999 c.949 §3]

(Rule 412)

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)

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

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)

Chapter 40

Evidence Code

Annota­tions are listed under the heading "Under former similar statute" if they predate the adop­tion of the Evidence Code, which went into effect January 1, 1982.

Chapter 40

(Generally)

Notes of Decisions

General rule is that polygraph evidence is inadmissible in pro­ceed­ing governed by Oregon Evidence Code. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

Party could introduce results of polygraph test taken by spouse for purpose of showing that response of party upon learning polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

Law Review Cita­tions

59 OLR 43 (1980); 19 WLR 343 (1983)

1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­040.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­040ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.