703.8Victim's Past Sexual Behavior [Rule 412]
- Rule 412 provides that evidence of sexual behavior of the complainant, other than the sexual act at issue in the trial, is not relevant unless it falls within one of four listed exceptions.
- Before offering or referring to such evidence in front of the jury, the proponent must ask the court for an in camera hearing to determine whether it is admissible.
- If admissible, the complainant’s sexual behavior must be proved by direct evidence, such as testimony from a person with knowledge, and not by reputation or opinion evidence.
- Notwithstanding Rule 412, evidence of the complainant’s past sexual behavior may be admitted for other permissible purposes such as impeachment, or to show bias or motive for fabrication.
The Basic Rule
Rule 412 – Rape or Sex Offense Cases; Relevance of Victim’s Past Behavior
(a) As used in this rule, the term “sexual behavior” means sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.
(b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:
(1) Was between the complainant and the defendant; or
(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or
(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or
(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.
(c) Sexual behavior otherwise admissible under this rule may not be proved by reputation or opinion.
(d) Notwithstanding any other provision of law, unless and until the court determines that evidence of sexual behavior is relevant under subdivision (b), no reference to this behavior may be made in the presence of the jury and no evidence of this behavior may be introduced at any time during the trial of any of the following:
(1) A charge of rape or a lesser included offense of rape.
(2) A charge of a sex offense or a lesser included offense of a sex offense.
(3) An offense being tried jointly with a charge of rape or a sex offense, or with a lesser included offense of rape or a sex offense.
(4) A charge of sexual servitude under G.S. 14-43.13.
Before any questions pertaining to such evidence are asked of any witness, the proponent of such evidence shall first apply to the court for a determination of the relevance of the sexual behavior to which it relates. The proponent of such evidence may make application either prior to trial pursuant to G.S. 15A-952, or during the trial at the time when the proponent desires to introduce such evidence. When application is made, the court shall conduct an in camera hearing, which shall be transcribed, to consider the proponent's offer of proof and the argument of counsel, including any counsel for the complainant, to determine the extent to which such behavior is relevant. In the hearing, the proponent of the evidence shall establish the basis of admissibility of such evidence. Notwithstanding subdivision (b) of Rule 104, if the relevancy of the evidence which the proponent seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the in camera hearing or at a subsequent in camera hearing scheduled for that purpose, shall accept evidence on the issue of whether that condition of fact is fulfilled and shall determine that issue. If the court finds that the evidence is relevant, it shall enter an order stating that the evidence may be admitted and the nature of the questions which will be permitted.
(e) The record of the in camera hearing and all evidence relating thereto shall be open to inspection only by the parties, the complainant, their attorneys and the court and its agents, and shall be used only as necessary for appellate review. At any probable cause hearing, the judge shall take cognizance of the evidence, if admissible, at the end of the in camera hearing without the questions being repeated or the evidence being resubmitted in open court.
Rule 412 replaced former G.S. 8-58.6, which was known as the “Rape Shield Statute,” so the current rule of evidence is still commonly referred to by that same name. Rule 412 limits the admissibility of evidence about the past sexual behavior (i.e., sexual activity other than the act which is at issue in the charged offense) of the victim (“complainant”) in all trials for charges of: (i) rape; (ii) sex offense; (iii) any lesser-included offense of rape or sex offense; (iv) any offense joined for trial with a rape or sex offense or a lesser-included offense of rape or sex offense; and (v) sexual servitude. G.S. 8C-412(d)(1)-(4).
The rule applies to not only direct evidence of “sexual behavior,” such as testimony about the complainant’s past sexual partners or details about those sexual encounters, see G.S. 8C-412(a), but also to indirect or inferential evidence of the complainant’s sexual behavior, such as the complainant’s use of birth control, see State v. Galloway, 304 N.C. 485 (1981), history of sexually transmitted diseases, see State v. Jacobs, 370 N.C. 661 (2018), or the presence of semen on the complainant’s clothing, see State v. Fortney, 301 N.C. 31 (1980).
What about the defendant’s past behavior?
Rule 412 does not address the admissibility of evidence about the defendant’s past sexual behavior. The admissibility of that evidence likely is governed by the rules governing character evidence or prior bad acts. For more information, see the related entries on Character Generally [Rule 404(a)] and Other Crimes, Wrongs, or Acts [Rule 404(b)].
Before the original statute was enacted in 1979, evidence of the victim’s prior sexual activity or general reputation for unchaste behavior could be used to attack the victim’s credibility and invite unfair prejudice by suggesting that the victim may have consented to the offense. See, e.g., State v. Banks, 295 N.C. 399 (1978), overruled on other grounds, State v. Collins, 334 N.C. 54 (1993). Under Rule 412, evidence about the complainant’s sexual behavior is now deemed relevant only if it falls into one of the four specified categories below.
Even if the behavior falls within one of these four categories and is otherwise admissible, Rule 412 states that it may only be proved through direct evidence such as testimony by a witness with personal knowledge of the purported facts. It may not be proved through reputation or opinion evidence. See G.S. 8C-412(c).
Prior Sexual Behavior Between the Complainant and the Defendant
Evidence of a prior, similar, consensual sexual encounter between the defendant on trial and the complainant is relevant if the defendant is claiming that the current offense was also consensual. G.S. 8C-412(b)(1). See State v. Ginyard, 122 N.C. App. 25 (1996) (“prior consent from a complainant to the defendant on trial is relevant to the complainant's subsequent consent to that defendant”); but see State v. Jenkins, 115 N.C. App. 520 (1994) (court may limit details regarding the prior behavior and exclude irrelevant past encounters between them).
Specific Instances of Sexual Behavior That Tend to Show That the Charged Act Was Not Committed by the Defendant
The defense may present evidence about the complainant’s sexual behavior if the evidence shows that the offense was committed by another person or provides an alternative explanation for the physical evidence in the case. G.S. 8C-412(b)(2). See, e.g., State v. Jacobs, 370 N.C. 661 (2018) (error to exclude evidence of complainant’s history of STD’s, which defendant did not have, since it refuted the complainant’s testimony that defendant regularly forced the complainant to have unprotected sex with him); State v. Ollis, 318 N.C. 370 (1980) (error to exclude evidence that complainant stated she was raped by another person on the same day that she alleged the defendant raped her, because it offered an alternative explanation for the physical findings described by the doctor who examined her).
Before allowing such evidence, the court must find that there is sufficient evidence that the sexual activity actually occurred, and if so, that it has the potential to explain the physical evidence. See, e.g., State v. Harris, 360 N.C. 145 (2005) (affirming exclusion of evidence that complainant engaged in “heavy petting” with her boyfriend, since it did not involve penetration and therefore was not relevant to explain physical evidence in the case such as cervical swelling and anal tears).
In cases involving child victims, courts have generally rejected defendants’ attempts to offer evidence of other sexual behavior by the child for the purpose of showing an “alternative explanation” for the child’s knowledge about sexual matters (unless the state specifically opens the door to such an inquiry), but the state is likewise barred from arguing that the fact that the child does have such knowledge is evidence of the defendant’s guilt. See State v. Trogden, 135 N.C. App. 85 (1999); State v. Bass, 121 N.C. App. 306 (1996).
Evidence of a Distinctive Pattern of Sexual Behavior That Tends to Prove Consent
Evidence of a distinctive pattern of consensual sexual behavior is relevant if the defendant claims: (i) that the current offense also was a consensual encounter; or (ii) that the defendant reasonably believed it was consensual because the behavior followed the distinctive pattern seen in prior consensual encounters, but only if the defendant was aware of that pattern. G.S. 8C-412(b)(3). See State v. Ginyard, 122 N.C. App. 25 (1996) (“Evidence of a distinctive pattern of sexual behavior is relevant to the issue of consent. […] The pattern may either establish that (1) the complainant consented to have sex with this defendant, because of the manner in which their sexual encounter took place or (2) because of the complainant's pattern, this defendant reasonably believed the complainant consented to have sex with him.”) (internal citation omitted).
To constitute a “distinctive pattern,” the prior behavior does not have to be exactly the same as the current behavior, but there must be sufficient distinguishing characteristics that are common to both instances. See, e.g., State v. Shoffner, 62 N.C. App. 245 (1983) (evidence allowed where it showed that “the prosecuting witness was the initiator, the aggressor, in her sexual encounters” and her “modus operandi was to accost men at clubs, parties (public places) and make sexual advances by putting her hands ‘all over their bodies,’” and the complainant acted in a similar manner with defendant on this occasion); see also State v. Fletcher, 125 N.C. App. 505 (1997) (suggesting, though not holding, that evidence that a complainant routinely traded sex for crack cocaine would be admissible under this exception).
Isolated or dissimilar sexual acts do not demonstrate a distinctive pattern under this exception. See, e.g., State v. Rhinehart, 68 N.C. App. 615 (1984) (“evidence of the complainant's prior consensual intercourse with her former boyfriend earlier in the evening of defendant's alleged offenses did not qualify for admission under the closely resembling pattern exception” because there was no pattern of distinctive similarity between that isolated incident and her encounter with the defendant, and the defendant was not aware of the prior incident at the time).
Sexual Behavior Offered as the Basis of Expert Psychological or Psychiatric Opinion that the Complainant Fantasized or Invented the Act Charged
There are very few cases applying this provision found in G.S. 8C-412(b)(4), so its scope and applicability are unclear. See generally State v. Heath, 77 N.C. App. 264 (1985), reversed, 316 N.C. 337 (1986) (citing Rule 412(b)(4) and other rules of evidence, the court of appeals held that “[w]here, as here, it is suggested the victim may have had a history of fantasizing or fabricating stories, expert psychological or psychiatric testimony should be admissible to show that the victim does or does not suffer from a mental condition suggestive of fabrication,” but the state supreme court reversed, without citing Rule 412(b)(4), finding it was an improper expert opinion under Rule 702 intended to bolster of the victim’s credibility).
Since witnesses in North Carolina cannot be ordered to undergo a psychiatric examination, see State v. Liles, 324 N.C. 529 (1989), it is unlikely that this provision will arise very often in practice.
Exceptions to Rule 412
Rule 412 states that “notwithstanding any other provision of law,” unless and until the court determines that the alleged behavior falls into one of the four specified categories listed above, the evidence is irrelevant and it may not be introduced or referenced in front of the jury. G.S. 8C-412(d).
However, even when such evidence does not fall within one of the four categories in Rule 412, the appellate courts have determined the evidence is admissible if it qualifies under one of the following exceptions.
Evidence that does not fall within any of the four categories allowed by Rule 412 may be admissible for the purpose of impeaching the testimony of the complainant, subject to a Rule 401/403 balancing test (probative value vs. risk of prejudice), if the purported past behavior or statement contradicts the complainant’s testimony at trial. See State v. Younger, 306 N.C. 692 (1982) (“impeachment by prior inconsistent statements is a practice invoked in all types of trials against all types of witnesses” and the rape shield statute “was not intended to act as a barricade against evidence which is used to prove issues common to all trials”); State v. Edmonds, 212 N.C. App. 575 (2011) (stating that “[t]he lack of a specific basis under Rule 412 for admission of the evidence does not end our analysis,” as the court must also consider admissibility for impeachment purposes, and “the relevance and probative value of such an inconsistent statement must be weighed against its prejudicial effect”); see also State v. Thompson, 139 N.C. App. 299 (2000) (“the rule only excludes evidence of the actual sexual history of the complainant” and therefore “it does not apply to false accusations” previously made by the complainant that may be used to impeach her current testimony or to prior statements by the complainant “whose topic might be sexual behavior”).
Bias or Motive to Fabricate
Courts have also allowed evidence about the complainant’s prior sexual behavior, even though it did not fall within one of the four permissible categories, if the evidence was relevant, not unfairly prejudicial, and otherwise admissible for the purpose of showing the complainant’s bias or motive for fabrication. See, e.g., State v. Martin, 241 N.C. App. 602 (2015) (holding that defendant should have been allowed to present evidence that the complainant, a high school student, was engaged in sexual activity with other students in the locker room, even though it did not fall within Rule 412, because the defense was premised on the theory that defendant discovered the activity and this was the complainant’s motive for fabricating allegations and testimony against the defendant); State v. Goins, 244 N.C. App. 499 (2015) (similar ruling, noting that the state’s case relied very heavily on the complainant’s testimony, so evidence establishing that the complainant had a motive to lie was relevant and admissible, even though the evidence involved prior sexual behavior that fell outside Rule 412); but see State v. Mbaya, 249 N.C. App. 529 (2016) (distinguishing Martin and Goins, affirming trial court’s ruling to exclude evidence of unrelated prior sexual behavior by the victim, and rejecting the defendant’s argument that it was relevant to show a motive for fabrication: “This evidence is precisely what the Rape Shield Statute was enacted to exclude: evidence with little relevance to the case and [that] has a low probative value”) (internal quotation omitted).
Opening the Door
Rule 412 does not prohibit the state from eliciting testimony from the complainant to establish that the complainant was not involved in a sexual relationship with anyone else at the time of the rape, or that the complainant did not have sexual contact with any other person on the same day as the assault, for the purpose of establishing that the complainant’s injuries, pregnancy, or other physical indicators must have been caused by the defendant’s assault. See State v. Stanton, 319 N.C. 180 (1987) (“Defendant cites no authority contrary to either Rule 412 or its predecessor statute, N.C.G.S. § 8–58.6, to prohibit a victim from willingly testifying as to the lack of sexual involvement for purposes of corroboration, and we decline to so construe it.”).
But if the state “opens the door” with this line of questioning, the defendant will likely be permitted to attempt to impeach the complainant’s testimony on cross-examination by asking about the complainant’s sexual behavior, to the extent that it is relevant. See, e.g., State v. Degree, 322 N.C. 302 (1988) (after the complainant, who became pregnant, testified that she had not had sex with anyone but the defendant; defense counsel was properly precluded from undertaking a “fishing expedition” about other possible partners; however, if the defendant had “possessed evidence of the victim’s sexual behavior which he contended was relevant for impeachment purposes, he could have requested an in camera hearing to determine its relevancy and admissibility); State v. Fenn, 94 N.C. App. 127 (1989) (following Degree).
The North Carolina Supreme Court has held that Rule 412 does not violate the defendant’s constitutional right to confront the witnesses against him because there is no right to confront a witness with irrelevant questions. See State v. Fortney, 301 N.C. 31 (1980). However, if the defense contends that evidence of the complainant’s sexual behavior is relevant for another legitimate purpose (e.g., motive, fabrication, or an alternative explanation), the trial court must evaluate the defendant’s confrontation rights and the admissibility of the evidence on a case-by-case basis. See, e.g., Olden v. Kentucky, 488 U.S. 227 (1988) (where the defense contended that the victim had fabricated a rape accusation against the defendant rather than admit to her boyfriend that she had engaged in consensual sex with the defendant, the defense should have been permitted to introduce evidence of the relationship between the complainant and her boyfriend); Barbe v. McBride, 521 F.3d 443 (4th Cir. 2008) (where expert witness testified that the victim fit the “psychological profile as a victim of child sexual abuse,” it was error to bar the defense from asking witness about the fact that the victim had also accused others of sexual abuse, since abuse by others could account for the expert’s findings).
Procedure for Admitting Rule 412 Evidence
The defendant may not admit into evidence, or reference in any way in front of the jury, the complainant’s past sexual behavior “unless and until” he obtains a determination from the court that the evidence is relevant and admissible. G.S. 8C-412(d); see also State v. Okwara, 223 N.C. App. 166 (2012) (affirming trial court order holding defense attorney in contempt for asking witness a question in violation of Rule 412 without first obtaining a ruling on its admissibility). The defendant may request a determination either before or during trial, but if the defendant fails to ask for a determination before attempting to introduce or referring to the evidence, the judge should exclude the evidence. See State v. Norris, 101 N.C. App. 144 (1990).
If the defendant requests a determination, the judge must conduct an in camera hearing, on the record, to evaluate the proposed evidence. G.S. 8C-1, Rule 412(d). The court will hear an offer of proof and arguments of counsel, and the proponent bears the burden to “establish the basis of admissibility of such evidence.” Id. The court may not admit the evidence conditionally or subject to certain other testimony or facts being established at trial; instead, the court must conduct a full hearing and receive an offer of proof sufficient to make a determination within the hearing itself. Id.
The preferred method of making an offer of proof is through direct and cross-examination of the witness. An informal offer of proof, such as a “proffer” by the attorney that summarizes what the testimony would show, is less desirable but it has been upheld on appellate review. See State v. Martin, 241 N.C. App. 602 (2015) (at trial on sexual offense charges, informal offer of proof was sufficient to preserve issue for appellate review of admissibility of evidence of victim's other sexual behavior under rape shield statute). Cf. State v. Cook, 195 N.C. App. 230 (2009) (finding that defense failed to make a sufficient offer of proof where counsel represented to the court that a witness “could testify,” but the witness was not actually called and there was no “actual proof of the sexual activity” offered). The record of the hearing is open only to the complainant, the parties, their attorneys, and the court, and may be used only as necessary for appellate review. G.S. 8C-412(e).
If the judge finds that the evidence is relevant and decides to allow it, he or she “shall enter an order stating that the evidence may be admitted and the nature of the questions which will be permitted.” G.S. 8C-412(d).
Compromise is possible
Remember that the court’s order can limit the type and nature of questions that the defendant will be permitted to ask in front of the jury, so the rulings on evidence under Rule 412 do not have to be “all or nothing.” See, e.g., State v. Harrell, 168 N.C. App. 241 (2005) (unpublished) (trial judge allowed defense to ask complainant about her “dating” relationship with her boyfriend, but properly excluded questions or evidence about any “sexual” relationship between them).