Past Conduct of Victims of Certain Crimes

Evidence of the past sexual conduct of a victim of alleged criminal sexual conduct is admissible in very limited circumstances.  Minnesota Rule of Evidence 412 and Minnesota Statute § 609.347 are the result of many years of debate and analysis regarding the appropriate use of this type of evidence. The Rule and the statute continue to use slightly different language and clauses, and some uncertainty remains as to which should control when the two conflict.  Both the Rule and the statute must be reviewed carefully if the admissibility of a victim’s past sexual conduct will be an issue at trial.

Pursuant to Rule 412, evidence of a victim’s past sexual conduct is only admissible to establish consent or challenge the source of semen, disease, or pregnancy.  When evidence of the victim’s past conduct is offered to show consent, the defendant must be arguing consent rather than disputing the claimed act altogether.  Minn. R. Evid. 412, Advisory Committee Comment.  In order to argue that the contact at issue was consensual, an accused may introduce evidence of the victim’s past sexual conduct that rises to the level of a common scheme or plan, or of past relations with the accused in particular.  Minn. R. Evid. 412. In general, one past instance of conduct does not constitute a common scheme or plan. See State v. Booker, 348 N.W.2d 753 (Minn. 1984). Notably, Section 609.347 allows evidence of a common scheme or plan only if the prior conduct involved a fabricated claim of sexual assault.

Evidence of a victim’s past sexual conduct is also potentially admissible to rebut inferences that may be drawn from evidence of semen, pregnancy or disease introduced by the prosecution. See Minn. R. Evid. 412(1)(B). In response to such evidence, an accused may offer specific instances of past conduct of the victim to suggest that the evidence offered by the prosecution was the result of other sexual contact of the victim.  See id.

Evidence of the victim’s past sexual conduct is admissible only if its probative value is not substantially outweighed by its inflammatory or prejudicial nature, and only after compliance with the notice and hearing requirements set forth in Rule 412(2).  However, in rare cases evidence may be admissible even without authorization from Rule 412 when the proffered evidence is essential to the defendant’s right to confrontation and due process. Minn. R. Evid. 412, Advisory Committee Comment.