Rule 412 Sexual offense and sexual harassment cases; relevance of victim's past behavior. (a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sexual offense, reputation or opinion evidence of the past sexual behavior of an alleged victim of the sexual offense is not admissible to prove the character of the victim to show action in conformity therewith.

(b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sexual offense, evidence of an alleged victim's past sexual behavior other than reputation or opinion evidence is not admissible to prove the character of the victim to show action in conformity therewith, unless the evidence is:

(1) Admitted in accordance with subsection (c)(1) and (2) and is constitutionally required to be admitted; or

(2) Admitted in accordance with subsection (c) and is evidence of:

(A) Past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or

(B) Past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which sexual assault is alleged.

(c)(1) If the person accused of committing a sexual offense intends to offer under subsection (b) evidence of specific instances of the alleged victim's past sexual behavior, the accused shall make a written motion to offer the evidence not later than fifteen 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.

(2) The motion described in paragraph (1) shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subsection (b), the court shall order a hearing in chambers to determine if the evidence is admissible. At the hearing, the parties may call witnesses, including the alleged victim, and offer relevant evidence. Notwithstanding subsection (b) of rule 104, 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 chambers or at a subsequent hearing in chambers scheduled for this purpose, shall accept evidence on the issue of whether the condition of fact is fulfilled and shall determine the issue.

(3) If the court determines on the basis of the hearing described in paragraph (2) that the evidence that 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 the alleged victim may be examined or cross-examined.

(d) In any civil action alleging conduct which constitutes a sexual offense or sexual harassment, opinion evidence, reputation evidence, and evidence of specific instances of plaintiff's sexual conduct, or any of such evidence, is not admissible by the defendant to prove consent by the plaintiff or the absence of injury to the plaintiff, unless the injury alleged by the plaintiff is in the nature of loss of consortium.

(e) Subsection (d) shall not be applicable to evidence of the plaintiff's sexual conduct with the alleged perpetrator.

(f) In a civil action alleging conduct which constitutes a sexual offense or sexual harassment, if the plaintiff introduces evidence, including testimony of a witness, or the plaintiff as a witness gives testimony, and the evidence or testimony relates to the plaintiff's sexual conduct, the defendant may cross-examine the witness who gives the testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the plaintiff or given by the plaintiff.

(g) Nothing in subsections (d), (e) or (f) shall be construed to make inadmissible evidence offered to attack the credibility of the plaintiff.

(h) For purposes of this rule, the term "past sexual behavior" means sexual behavior other than the sexual behavior with respect to which a sexual offense or sexual harassment is alleged. [L 1980, c 164, pt of §1; am L 1992, c 191, §2(1); am L 1999, c 89, §2]

RULE 412 COMMENTARY

This rule is identical with Fed. R. Evid. 412, except that the federal rule applies to cases of "rape or of assault with intent to commit rape," and this rule applies to cases of "rape or sexual assault under any of the provisions of chapter 707, part V of the Hawaii Penal Code."

The purpose of this rule is to exclude general character evidence, including specific instances of conduct, as it relates to the past sexual behavior of rape and sexual assault victims. Fed. R. Evid. 412 was added to the federal rules in 1978, prior to which time this class of evidence was governed by the general victim provision in Rule 404(a)(2), which allowed the evidence in cases involving consent defenses provided the relevance was not substantially outweighed by the countervailing factors listed in Rule 403. This rule bars evidence of the character and past sexual behavior of victims of sexual assault unless: (1) the evidence is "constitutionally required to be admitted"; or (2) the evidence goes to the issue whether the accused was "the source of semen or injury"; or (3) the evidence consists of past sexual behavior with the accused, and is offered on the issue of consent. The reasons for exclusion are: (1) that the evidence has little or no relevance on the issues of consent and credibility; (2) that the evidence tends to be misleading and time consuming; and (3) that the general admissibility of this evidence has deterred significant numbers of sexual assault victims from reporting or from prosecuting these crimes.

Prior Hawaii law on impeachment of sexual assault victims was contained in Hawaii Rev. Stat. §707-742 (1976) (repealed 1980) (originally enacted as L 1975, c 83, §1; am L 1977, c 109, §1). This statute mandated procedures very similar to those contained in subsection (c) of this rule, but on the substantive issue provided only that "if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant and is not inadmissible for any reason, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the question to be permitted." It thus appears that the admissibility of this class of evidence was discretionary with the court.

Subsection (a): Although Rule 404(a)(2) allows "evidence of a pertinent trait of character of the victim of the crime offered by an accused," Rule 412(a) specifically controls in all sexual assault cases, and interposes a flat bar to the receipt of reputation or opinion evidence "of the past sexual behavior of an alleged [sexual assault] victim."

Subsection (b): This subsection bars evidence of specific instances of past sexual behavior of the sexual assault victim except in three instances:

(1) The evidence may be "constitutionally required to be admitted," cf. Davis v. Alaska, 415 U.S. 308 (1974); Giles v. Maryland, 386 U.S. 66 (1967);

(2) If the prosecution evidence identifies the accused not only as the assailant but also as the source of semen or injury, past sexual behavior of the alleged victim within the relevant period of time possesses heightened probative value in rebutting the latter assertion;

(3) If the past sexual behavior was with the accused and is now offered on the issue of consent, the level of probative value will ordinarily justify admission.

Subsection (c): As noted earlier in this commentary, this subsection generally restates existing law. The in camera hearing is designed, as was its predecessor, Hawaii Rev. Stat. §707-742 (1976) (repealed 1980), "to prevent unnecessary embarrassment and humiliation of the complainant and to encourage the reporting and enforcement of rape cases." Because of the sensitive nature of this kind of evidence, the ordinary procedures specified in Rule 104 for the determination of preliminary admissibility questions need the specific augmentation provided in this subsection.

RULE 412 SUPPLEMENTAL COMMENTARY

The Act 191, Session Laws 1992 amendments to Rule 412 are in two sets. The first set, entirely nonsubstantive in character, eliminates the term "rape" in keeping with recent modifications to chapter 707 which have similarly eliminated that term in favor of "sexual assault," see Hawaii Rev. Stat. §§707-730 through 707-733 (Supp. 1992). Moreover, since all the crimes intended to be affected by this rule now bear the name "sexual assault", there is no longer any need for the language, "under any of the provisions of chapter 707, part V of the Hawaii Penal Code," which is, accordingly, eliminated.

The second set of changes adds the language "to prove the character of the victim in order to show action in conformity therewith" to the exclusions of subsections (a) and (b). This language, which parallels limitations contained in Rule 404(a) and (b), makes clear that what is excluded is evidence of the victim's character offered to show a propensity or inclination to behave similarly on the occasion in question. It is believed that this was the original intent of Rule 412, and that the omission of this language in the original draft was inadvertent. In any event, if the accused offers this evidence as relevant to his or her state of mind, the relevance is substantially heightened, see, e.g., Doe v. United States, 666 F.2d 43, 48 (4th Cir. 1981) (applying Fed. R. Evid. 412).

The Doe case, where the victim's reputation and past sexual behavior were known to the accused and were admissible to show the reasonableness of the latter's belief that the victim consented, reveals the force of the analogy between Rules 404 and 412. The character-propensity limitation of Rule 404, as the commentary to that rule suggests, has the salutary effect of rendering the rule inapplicable to an alleged victim's aggressive character traits and prior aggressive acts in cases where the accused knew of the victim's character and prior behavior and offers it, not to show propensity and action in conformity, but rather to prove the reasonableness of accused's fear of the victim, which is an element of a self-defense claim. Rule 404 being inapplicable, the evidence is governed by the general relevancy and balancing principles of Rules 401 and 403. Similarly, as in Doe, if an alleged sexual assault victim's reputation and past sexual behavior were related to or otherwise known by the accused, then the proffer of this material, not to show consent in fact, but rather to show accused's reasonable belief in consent, is to be governed not by this rule but by Rules 401 and 403. Notice that this theory of admissibility applies only where the accused offers evidence sufficient to support a finding, under Rule 104(b), that he or she knew of the material at issue, and so the limitation effected by the new language will not reverse the exclusion of victims' character evidence in the run of cases where the accused, at the time of the alleged sexual assault, was not aware of this material.

The Act 89, Session Laws 1999 amendment, among other things, added subsections (d), (e), (f), and (g), to provide that: (1) in any civil action alleging conduct constituting a sexual offense or sexual harassment, evidence of specific instances of plaintiff's sexual conduct is not admissible by the defendant to prove consent by the plaintiff, unless the injury alleged by the plaintiff is in the nature of loss of consortium, and if the plaintiff introduces evidence relating to the plaintiff's sexual conduct, the defendant may cross-examine the witness and offer relevant evidence limited specifically to the rebuttal of the evidence introduced; and (2) in civil cases, Rule 412 does not make inadmissible evidence offered to attack the plaintiff's credibility.

Law Journals and Reviews

Rape and Child Sexual Assault: Dispelling the Myths. 14 UH L. Rev. 157 (1992).

The Protection of Individual Rights Under Hawai‘i's Constitution. 14 UH L. Rev. 311 (1992).

Criminal Procedure Rights Under the Hawaii Constitution Since 1992. 18 UH L. Rev. 683 (1996).

Case Notes

Strong evidence of force destroys issue of consent to render complaining witness' past sexual conduct irrelevant. 62 H. 420, 616 P.2d 219 (1980).

Evidence of complainant's past sexual behavior with persons other than the accused on the issue of consent is inadmissible. 62 H. 572, 617 P.2d 1214 (1980).

Complaining witness' statements of past sexual experience was relevant to the issue of consent; defendant had a right to cross-examine on this issue. 71 H. 115, 785 P.2d 157 (1989).

Admissibility of evidence of complainant's fantasies, discussed. 74 H. 479, 849 P.2d 58 (1993).

Where a defendant seeks to admit allegedly false statements made by a complainant regarding an unrelated sexual assault, the trial court must make a preliminary determination based on a preponderance of the evidence that the statements are false; where the trial court is unable to determine by a preponderance of the evidence that the statements are false, defendant has failed to meet his or her burden, and evidence may be properly excluded. 95 H. 452, 24 P.3d 648 (2001).

Defendant constitutionally entitled to elicit evidence of complainant's past sexual behavior, not to attack complainant's character, but to determine whether complainant was mentally defective and whether defendant knew that complainant was mentally defective. 81 H. 447 (App.), 918 P.2d 254 (1996).

Trial court did not abuse its discretion by refusing to allow minor to be impeached by excluding evidence that minor had falsely denied having prior sexual experiences when minor was interviewed by doctor; evidence would have had limited probative value given the circumstances of the statement, i.e., a fifteen year old being asked intimate questions by a stranger, it would have been cumulative, since the trial court had allowed defendant significant latitude in impeaching minor with prior instances of untruthfulness, and evidence would have been unduly prejudicial and confusing since it would have focused attention on minor's prior sexual history. 116 H. 125 (App.), 170 P.3d 861 (2007).

Where defendant presented no evidence linking any third person to decedent's death and failed to show how evidence of decedent's prior sexual behavior could sufficiently link identifiable third persons to decedent's death, defendant did not demonstrate that decedent's prior sexual behavior was relevant by establishing that it had a "tendency to make the existence of any fact that is of consequence" to defendant's defense that someone else killed the decedent "more probable or less probable"; circuit court thus properly excluded evidence of decedent's prior sexual behavior. 126 H. 40 (App.), 266 P.3d 448 (2011).