ADMISSIBILITY OF ALLEGED VICTIM'S SEXUAL
ALLEGED SEXUAL PREDISPOSITION IN CRIMINAL PROCEEDING
SEX-OFFENSE CASES: THE VICTIM'S SEXUAL BEHAVIOR OR PREDISPOSITION
(a) Evidence generally inadmissible. The following evidence is not admissible in
criminal proceeding involving alleged sexual misconduct except as provided in subdivisions
(b) and (c):
(1) evidence offered to prove that any alleged victim engaged in other sexual
(2) evidence offered to prove any alleged victim's sexual predisposition.
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim's sexual predisposition.
In a criminal case, the following evidence is admissible, if
admissible under these rules:
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(1) evidence of specific instances of sexual behavior by the alleged victim offered
that a person other than the accused was the source of semen, injury, or other physical
(A) evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(2) evidence of specific instances of sexual behavior by the alleged victim with
the person accused of the sexual misconduct, offered by the accused to prove consent or by
the prosecution; and
(B) evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(3) evidence the exclusion of which would violate the constitutional rights of the
(C) evidence whose exclusion would violate the defendant's constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition, if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim's reputation only if the victim has placed it in controversy.
(c) Procedure to Determine Admissibility.
(1) A party intending to offer evidence under subdivision (b) must:
(A) file a written motion at least 14 days before trial specifically describing the
and stating the purpose for which it is offered unless the court, for good cause requires a
different time for filing or permits filing during trial; and
(B) serve the motion on all parties and notify the alleged victim or, when
alleged victim's guardian or representative.
(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim's guardian or representative.
(2) Before admitting evidence under this rule, the court must conduct a hearing in
and afford the victim and parties a right to attend and be heard. The motion, related papers,
and the record of the hearing must be sealed and remain under seal unless the court orders
(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.
(d) Definition of "Victim." In this rule, "victim" includes an alleged victim.
Rule 412 was adopted, effective March 1, 1998. Rule 412 was amended, effective March 1, 2014.
Rule 412 is derived from Fed.R.Ev. 412. As explained in the federal advisory committee notes, the rule is designed to safeguard a victim from invasion of privacy, potential embarrassment and sexual stereotyping associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact finding process. By affording victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders.
Paragraph (b)(2) was added, effective March 1, 2014, to establish a standard for the admission of sexual behavior evidence in civil cases.
Subdivision (d) was added, effective March 1, 2014, to clarify that the definition of "victim" includes "alleged victim."
Rule 412 was amended, effective March 1, 2014, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Sources: Joint Procedure Committee Minutes
: of April 26-27, 2012,
September 26-27, 1996, pages 2-5; April 25, 1996, pages 12-15. Rule
Fed.R.Ev. 412 ,
Federal Rules of Evidence.
Superseded: N.D.C.C. §§ 12.1-20-14, 12.1-20-15, 12.1-20-15.1.