2015 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 163.266 (Trafficking in persons) (1)(b) or (c), 163.355 (Rape in the third degree) to 163.427 (Sexual abuse in the first degree), 163.670 (Using child in display of sexually explicit conduct) or 167.017 (Compelling prostitution), in a prosecution for an attempt to commit one of those crimes or in a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), the following evidence is not admissible:

(a) Reputation or opinion evidence of the past sexual behavior of an alleged victim 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 incited the crime or, in a proceeding under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), incited the sexual abuse, or indicated consent to the sexual acts that are alleged.

(2) Notwithstanding any other provision of law, in a prosecution for a crime or an attempt to commit a crime listed in subsection (1) of this section or in a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), evidence of an alleged 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 or an attempt to commit a crime listed in subsection (1) of this section or in a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), 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 or, in a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), by the respondent, 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 alleged victim; or

(D) Is otherwise constitutionally required to be admitted.

(4)(a) If the person accused of a crime or an attempt to commit a crime listed in subsection (1) of this section, or the respondent in a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), intends to offer evidence under subsection (2) or (3) of this section, the accused or the respondent 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, in a criminal proceeding, 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 or the respondent 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 or the respondent 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.

(d) An order admitting evidence under this subsection in a criminal prosecution may be appealed by the state before trial.

(5) For purposes of this section:

(a) "Alleged victim" includes the petitioner in a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required).

(b) "In camera" means out of the presence of the public and the jury.

(c) "Past sexual behavior" means sexual behavior other than:

(A) The sexual behavior with respect to which the crime or attempt to commit the crime listed in subsection (1) of this section is alleged; or

(B) In a proceeding conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required), the alleged sexual abuse.

(d) "Trial" includes a hearing conducted under ORS 163.760 (Definitions for ORS 163.760 to 163.777) to 163.777 (Fees or undertaking may not be required). [1981 c.892 §31; 1993 c.301 §1; 1993 c.776 §1; 1997 c.249 §20; 1999 c.949 §3; 2013 c.687 §21; 2013 c.720 §5]

(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); 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

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

(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)

Where state law completely precludes reliable, ma­te­ri­ally exculpatory evidence, exclusion of that evidence violates Due Process Clauses of United States Constitu­tion. State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010), aff'd State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

Oregon Evidence Code articulates min­i­mum standards of reliability that apply to many types of evidence for admissibility, including eyewitness identifica­tion evidence, and parties must employ code to address admissibility of eyewitness testimony. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

Law Review Cita­tions

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

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.


1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
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.