The new Federal rules allow for admission of evidence of other sexual misconduct by the perpetrator. The rules  protect the victim by barring any evidence of her sexual history. 




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Victims Given More Protection
Under Federal Rules

By Susan K. Smith, Atty.
Hartford & Avon, CT

• Display Table of Contents:

  • Evidence of Other Victims of Sexual Assault of Molestation Admissible for any Relevant Purpose under New Federal Rules

  • Traditional Bases for Admission of Other Victim Evidence

  • Practice Pointers

  • The Victim's Past Sexual Behavior and Predisposition is Generally Inadmissible under Rule 412

  • Conclusion

  • Endnotes

Evidence of Other Acts of Sexual Assault or Molestation  by Perpetrator Admissible for any Relevant Purpose under New Federal Rules

Rules 413, 414 and 415 of the Federal Rules of Evidence were adopted as part of the Violent Crime Control and Law Enforcement Act of 1994 (more commonly known as the Violence Against Women Act of 1994) and became effective in July of 1995. Rules 413⁽²⁾ and 414 specifically provide that in any case in which the defendant is accused of sexual assault or molestation, the defendant's commission of any other similar offenses is admissible "for its bearing on any matter to which it is relevant." Rule 415⁽³⁾ specifically extends the rule to any civil cases arising out of sexual assault or molestation. The drafters of the new provisions intended to create special rules for sexual offense cases in order to supersede F.R.E. 404(b)'s prohibition against the introduction of character or propensity evidence:

The new rules will supersede in sex offense cases the restrictive aspects of Federal Rule of Evidence 404(b). In contrast to Rule 404(b)'s general prohibition of evidence of character or propensity, the new rules for sex offense cases authorize admission and consideration of evidence of an uncharged offense for its bearing "on any matter to which it is relevant." This includes the defendant's propensity to commit sexual assault or child molestation offenses, and assessment of the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.⁽⁴⁾

The effect is to allow evidence of other victims to be admitted "on the same footing" as other types of relevant evidence.⁽⁵⁾ Evidence admitted under Rule 415 will be admitted without limiting instructions to the jury as to the applicability of the evidence or inferences that may be drawn from the evidence. Evidence of other sexual offenses may be admitted regardless of whether the charge or accusation led to a conviction,⁽⁶⁾ or whether the prior acts are remote in time to the currently charged offense.⁽⁷⁾ Other general rules of evidence continue to apply, including hearsay restrictions and the general prohibition against evidence whose probative value is substantially outweighed by its prejudicial effect under Rule 403.⁽⁸⁾ In support of the new rules, advocates argued that a history of similar acts in child molestation cases, for example, tends to be probative because it demonstrates an unusual disposition that does not exist in ordinary people. In addition, the difficulties proving cases of child sexual abuse were cited to Congress.

The new rules were adopted over vociferous objection of the Advisory Committee on Evidence Rules. The Committee reported to Congress that it represented the views of judges, lawyers, law professors and legal organizations opposing the proposal on the basis that the rules would allow the admission of unfairly prejudicial character evidence.⁽⁹⁾ The advisory committee argued that the Federal Rules of Evidence, as currently codified, would allow the admission of prior crime evidence in appropriate cases through the exceptions enumerated in Rule 404(b)⁽¹⁰⁾. The fact that Congress rejected the recommendation of the Advisory Committee clearly demonstrates its intent to provide for the admission of character and propensity evidence in this narrow range of cases.

The adoption of special rules for sexual offense cases reflects a trend that was developing in the state and federal courts. A number of commentators have noted that special lenient application of the Rule 404(b)-type exceptions to the prohibition on character evidence evolved to allow "prior bad act" evidence in sexual offense cases.⁽¹¹⁾ Some states have adopted specific exceptions to allow character and propensity evidence to be admitted in sexual molestation cases.⁽¹²⁾ The absence of corroborating evidence, the difficulty of proof and the validity of propensity evidence in sexual offense cases are often cited in support of the special treatment of character-type evidence in molestation and repeat-offender rape cases.

Traditional Bases for Admission of Other Victim Evidence

Under a traditional Rule 404(b) analysis, evidence of other crimes is admissible to show, e.g., motive, identity, pattern, plan, scheme, modus operandi, or absence of mistake. The list of examples provided in the rule is not meant to be exclusive. The rule was intended to be one of "inclusion," where evidence is excluded only if useful to prove nothing other than character or propensity.⁽¹³⁾ Evidence of other crimes is commonly admitted in sexual molestation cases to show a plan or common scheme ("unlinked plan"). A plan involves one or more acts that are connected and lead to a single goal. A common scheme or unlinked plan refers to a pattern of similar conduct in which the defendant repeatedly achieves similar results by similar means. Linked plans are rarely found in sexual molestation cases.⁽¹⁴⁾ Evidence of other abuse victims is also commonly admitted to prove motive and intent.⁽¹⁵⁾ Under traditional modes of analysis, evidence of the abuse of other victims is admissible to demonstrate absence of mistake.⁽¹⁶⁾ In addition, other victim evidence can be admitted on a variety of other grounds and theories.⁽¹⁷⁾

Practice Pointers

Practitioners should heed the Rules' requirement that notice must be given to the opposing party of any intent to admit evidence under Rule 413b, 414b or 415b 15 days prior to trial. The rules require that the evidence shall be disclosed, along with statements of the witnesses or a summary of the substance of any testimony that is expected to be offered. Because the validity of the new Rules has not been tested, it is highly recommended that practitioners cite traditional Rule 404b grounds for the admission of the other offense evidence to protect the record on appeal. Under a traditional analysis, the possibility of a secondary or tertiary inference of bad character should not bar introduction of the evidence, as long as there is a basis for admission other than character. Admitting the evidence under both theories, however, would become problematic at the time the jury is charged. Evidence admitted under the Rule 404b exceptions would require limiting instructions to the jury that the evidence could only be considered relative to the narrow basis for which the evidence was offered (i.e. to show absence of mistake). Evidence admitted under new Rule 415, however, can be considered for any purpose to which it is relevant, including the propensity of the defendant to commit the offense. Admitting the evidence on a dual basis therefore has the potential, therefore, of creating a conflicting or confusing charge to the jury.

The Victim's Past Sexual Behavior and Predisposition is Generally Inadmissible under Rule 412

Rule 412 of the Federal Rules of Evidence prohibits evidence of the victim's sexual behavior or predisposition. The most recent amendment to the rule specifically and expansively extended the rules protection to victims in civil cases. The new Rule 412⁽¹⁸⁾ was adopted to diminish confusion under the prior rule and to expand its protection to safeguard victims against "invasion of privacy, potential embarrassment, sexual stereotyping [and to] encourage victims of sexual misconduct to institute and to participate in legal proceedings."⁽¹⁹⁾ Sexual predisposition includes evidence relating to the victim's mode of dress, speech and life-style.⁽²⁰⁾Evidence concerning the victim's reputation is admissible only if it has been placed in controversy by the victim.

Proponents of any evidence coming within the purview of the Rule must give notice to the adverse party at least 14 days before trial. Before admitting evidence, the court is required to conduct an in camera examination of the evidence in order to determine whether its admissibility fits within the exceptions enumerated.⁽²¹⁾ The victim has an express right to be heard at the in camera hearing, the record of which will be sealed unless otherwise ordered by the court.⁽²²⁾

In civil cases, if evidence offered to prove the sexual behavior or predisposition of the victim is otherwise admissible under other rules of evidence, the proponent of the evidence has the burden of demonstrating that "its probative value substantially outweighs the danger of harm to any victim."⁽²³⁾ The drafters of the rule provided a balancing test to replace the usual Rule 403 balancing test used by courts to determine whether evidence is more prejudicial than probative.⁽²⁴⁾The balancing test under the new language of Rule 412 differs from the Rule 403 test in three significant ways. First, the burden is placed on the proponent of the evidence to demonstrate its admissibility, rather than placing the burden on the opponent of the evidence to convince the court that it should be excluded. Second, the victim is specifically placed on par with the parties. Third, the standard is more stringent and requires the proponent of the evidence to demonstrate that the probative value of the evidence substantially outweighs the proscribed dangers, including "harm to the victim" as well as "prejudice to any party."⁽²⁵⁾

Although discovery in civil cases will continue to be governed by Rule 26 of the Federal Rules of Civil Procedure, the drafters of the rule state that courts should enter appropriate orders in order not to undermine the value of Rule 412.

Conclusion

Taken together, the recent additions and modifications to Rules 412 through 415 of the Federal Rules of Evidence constitute a significant step forward for victims. Not only will proof of sexual assault and abuse be more readily available to parties, victims should be afforded more protection by the courts. The new rules will have force and effect in the federal court and will influence future rule making in the state courts as well.

Endnotes

1. Susan K. Smith ([email protected]) is an attorney in private solo practice in Hartford, CT who has been involved in victims' issues and litigation for 15 years. Mrs. Smith is a graduate of Smith College (magna cum laude, Phi Beta Kappa, 1980) and the University of Connecticut School of Law (High Honors, 1984, Executive Editor, Connecticut Law Review, Hornbook Award recipient). She is a member of COVACS, co-founder and chair of the Connecticut Network of Victims' Attorneys, a member of the Board of Directors of the Connecticut Sexual Assault Crisis Services and served as a member and chair of the Connecticut Victims' Services Coordinating Council (1988-1992).

2. Rule 413. Evidence of Similar Crimes in Sexual Assault Cases

(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in U.S.C. 513 of Title 18) that involved--

(1) any conduct proscribed by 109A U.S.C. of Title 18;

(2) contact, without consent, between any part of the defendant's body or an

object and the genitals or anus of another person;

(3) contact, without consent, between the genitals or anus of the defendant and any part of another person's body;

(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or

(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).

3. Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation

(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

(b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

4. Congressional Discussion, Floor Statement of the Principal House Sponsor, Representative Susan Molinari, Cong. Rec. H8991-91 (Aug. 21, 1994).

5. Id.

6. Id. ("The practical effect of the new rules is to put evidence of uncharged offenses in sexual assault and child molestation cases on the same footing as other types of relevant evidence that are not subject to a special exclusionary rule.")

7. Id. The proponents of the bill argued that no time limit is imposed on uncharged offenses because evidence of other sex offenses by a defendant is often probative and properly admitted, regardless of the lapse in time between offenses. Citing e.g., United States v. Hadley, 918 F.2d 848, 850-51 (9th Cir. 1990) cert. dismissed, 113 S. Ct. 486 (1992) (evidence of offenses occurring up to 15 years earlier admitted); State v. Plymate, 345 N.W.2d (Neb. 1984) (other offenses occurred more than 20 years earlier). See also State v. Kulmac, 230 Conn. 43, 644 A.2d 887 (1994) (7 year lapse did not make prior crime inadmissible, remoteness in time but one factor for court to weigh); State v. Imsdahl, 1991 WL 191664 (Minn. App. 1991) (18 year-old prior similar act admitted as proof of common scheme in case against teacher).

8. Id. See, e.g. Frank v. County of Hudson, 924 F. Supp. 620 (D.N.J. 1996). Frank is the only reported case construing the new rule in civil cases. The court prohibited the evidence of another victim, but took great pains to preserve the rule and distinguish the factual setting and to state that the case was not of the type envisioned by the drafters of the rule. Frank was an adult workplace sexual harassment case wherein the victims attempted to introduce evidence of a childhood incest victim. Because of the dissimilarity and remoteness in time, the court held that under the circumstances the evidence was of slight probative value and therefore more prejudicial than probative.

9. Report of the Judicial Conference of the United States on the Admission of Character Evidence in Certain Sexual Misconduct Cases, transmitted to Congress in accordance with section 320935 of the Violent Crime Control and Law Enforcement Act of 1994 (Pub.L. No. 103-322). Eighty-four written comments were received in response to notices sent to all the federal judges, 900 evidence law professors, 40 women's rights organizations and 1,000 other interested individuals.

10. Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

(a) Character Evidence Generally. Evidence of a person's character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by prosecution to rebut the same;

(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by the accused, or by the prosecution to rebut the same, evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identification, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

11. See generally D. Bryden & R. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 Minn. L. Rev. 519 (1994). "Even before the effective date of the new evidence rules, courts have allowed such evidence to counteract the problem that arises frequently in sexual cases when an absence of witnesses reduces the case to a "swearing contest" between the defendant and the alleged victim." Frank v. County of Hudson, 924 F. Supp. 620, 1996 WL 195090, at *5 (D.N.J.). See also State v. Kulmac, 230 Conn. 43, 61, 644 A.2d 887 (1994) (Connecticut "is more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in sex related crimes than other crimes.")

12. See, e.g., Haakonson v. Alaska, 760 P.2d 1030 (1988) (special exceptions to Rule 404(b) to allow other victim evidence); Clark v. State, 913 S.W.2d 297 (Ark. 1996) (pedophile exception to Arkansas Rule 404(b)); State v. Tobin, 602 A.2d 528, 531-32 (R.I. 1992) (lewd disposition exception); State v. Lachterman, 812 S.W.2d 759, 768 (Mo. Ct. App. 1991) cert. denied, 112 S. Ct. 1666 (1992) ("depraved sexual instinct" exception in a case involving homosexual sodomy with young boys). See also Brooks v. State, 242 So. 2d 865, 869 (Miss. 1971); Johnson v. State, 472 N.E.2d 892, 911 (Ind. 1985); State v. MacFarlin, 110 Ariz. 225, 517 P.2d 87 (1973); State v. Raye, 326 S.E.2d 333, 335 (N.C. Ct. App. 1985) rev. denied 332 S.E.2d 183 (N.C. 1985) (abuse of other victim admissible to show intent and "unnatural lust"); State v. Edward Charles L., 398 S.E.2d 123, 131 (W. Va. 1990) (evidence admissible to show the defendant's "lustful disposition" toward his children).

13. United States v. Butler, 56 F.3d 941 (8th Cir. 1995); United States v. Yellow, 18 F.3d 1438, 1441 (8th Cir. 1994); United States v. Sneezer, 983 F.2d 920 (9th Cir. 1992).

14. D. Bryden & R. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 Minn. L. Rev. 519, 547 (1994) (cases cited). See, e.g. United States v. Sneezer, 983 F.2d 920 (9th Cir. 1992) (evidence of almost identically executed sexual assault 3 years prior admissible to show intent and plan); State v. Kulmac, 230 Conn. 43, 644 A.2d 887 (1994); State v. Esposito, 192 Conn. 166, 169-70, 471 A.2d 949 (1984); State v. Moore, 819 P.2d 1143 (Idaho 1991) (plan to abuse trust of female children in household); Friedrich v. State, 398 N.W.2d 763 (Wis. 1987) (other victim evidence admissible to show plan because defendant involved in a system of criminal activity to obtain sexual gratification from young girls); Scadden v. State, 732 P.2d 1036 (Wyo. 1987) (plan to exploit trust of volleyball team members in order to molest them); Gilstrap v. State, 450 S.E.2d 436 (Ga. App. 1994), cert. denied (1995) (prior uncharged act of child molestation admissible as similar transaction evidence). State v. Bennett, 672 P.2d 772 (Wash. Ct. App. 1983) (noting plan to harbor and abuse runaways).

15. See, e.g. United States v. Butler, 56 F.3d 941 (8th Cir. 1995); United States v. Bender, 33 M.J. 111 (C.M.A. 1991) (testimony of other victim admissible to show motive to derive sexual gratification from female child); Flanagan v. State, 586 So.2d 1085 (Fla. App. 1991) (evidence regarding similar act committed on other child admissible to show intent or motive).

16. See, e.g. State v. Wermerskirchen, 497 N.W.2d 235 (Minn. 1993) (testimony of other victims admissible to rebut defendant's claim that contact was "at most" accidental); State v. Imsdale, 1991 WL 191664 (Minn. App. 1991) (evidence concerning eight other student victims allowed in case against teacher to demonstrate plan and to rebut claim of "inadvertent" touching).

17. See L. Jorgenson, P. Sutherland, S. Bisbing, Evidence of Multiple Victims in Therapist Sexual Misconduct Cases, Trial Magazine 1995 (Publication of American Trial Lawyers Association).

18. Rule 412. Sex Offense Case; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition

(a) Evidence Generally Inadmissible. The following evidence is not admissible in any civil or 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 behavior;

(2) Evidence offered to prove any alleged victim's sexual predisposition.

(b) Exceptions.

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of may alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

(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 evidence and stating the purpose for which it is offered unless the curt, 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 appropriate, the alleged victim's guardian or representative.

(2) Before admitting evidence under this rule the court must conduct a hearing in camera 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 otherwise.

19. Rule 412, Notes of Advisory Committee, 1994 Amendment. See    United States v. Roman, 884 F.Supp. 124, 125 (S.D.N.Y. 1995)(citing Advisory Committee notes, applying rule and prohibiting evidence of a paternity test that would tend to infer that the victim engaged in promiscuous sexual conduct).

20. Id.

21. F.R.E. Rule 412(c).

22. F.R.E. Rule 412(c).

23. F.R.E. Rule 412(a)(2).

24. Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

25. F.R.E. 412(b)(1)(C), Notes of Advisory Committee.

Copyright 1996-2002 by Susan K. Smith