MRE 412 Statute

Evidence generally inadmissible. The following evidence is not admissible in any proceeding involving alleged sexual misconduct, except as provided in subsections 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.

Exceptions:

In a proceeding, the following evidence is admissible, if otherwise admissible under these rules:

  • 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;
  • 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;
  • Evidence the exclusion of which would violate the constitutional rights of the accused.

Procedure to Determine Admissibility

A party intending to offer evidence under subsection (b) of this rule must:

  • File a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is being offered unless the judge, for good cause shown, requires a different time for filing or permits during the trial; and serve the motion on the opposing party and the military judge and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative.
  • Before admitting evidence under this rule, the military judge must conduct a hearing which shall be closed. At this hearing, the parties may call witnesses, including the alleged victim, and offer relative evidence. The victim must be offered a reasonable opportunity to attend and be heard. In a case before a court-marshal composed of a military judge and members, the military judge shall conduct the hearing outside the presence of the members pursuant to Article 39(a). The motion, related papers, and the record of the hearing must remain sealed and remain under seal unless the court orders otherwise.
  • If the military judge determines on the basis of the hearing described in paragraph 2. of this subdivision that the evidence the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence may be admissible in the trial to the extent that an order made by the military judge specifies evidence that may be offered and areas with respect to which the alleged victim may be examined or cross-examined.

For purposes of this rule, the term “sexual behavior” includes any sexual behavior not encompassed by the alleged offense. The term “sexual predisposition” refers to an alleged victim’s mode of dress, speech, or lifestyle that does not directly refer to sexual activities or thoughts but may have a sexual connection for the fact finder.

A “nonconsensual sexual offense” is a sexual offense in which consent of the victim is an affirmative defense or in which a lack of consent is an element of the offense. This term includes rape, forcible sodomy, indecent assault, and attempts to commit such offenses.

Procedure to Determine Admissibility