---
title: "Rape Shield Rule (FRE 412)"
type: Legal Rule
source: https://casebriefly.com/legal-rules/rape-shield-rule-fre-412
---

# Rape Shield Rule (FRE 412)

FRE 412 generally excludes evidence of a victim's past sexual behavior or sexual predisposition in sexual misconduct cases. Limited exceptions exist in criminal cases for evidence of specific instances with the accused, third parties (to show an alternative source), or when constitutionally required.

## Definition

Federal Rule of Evidence 412, commonly known as the Rape Shield Rule, generally prohibits the introduction of evidence of an alleged victim's other sexual behavior or sexual predisposition in any civil or criminal proceeding involving alleged sexual misconduct. The rule was enacted to protect victims from invasive and harassing inquiries into their sexual history, to encourage victims to report sexual assaults, and to prevent juries from making decisions based on irrelevant and prejudicial stereotypes about sexual conduct.

In criminal cases, FRE 412 provides three narrow exceptions. First, evidence of specific instances of the victim's sexual behavior with persons other than the accused is admissible to prove that someone else was the source of semen, injury, or other physical evidence. Second, evidence of specific instances of sexual behavior between the victim and the accused is admissible on the issue of consent. Third, evidence whose exclusion would violate the defendant's constitutional rights — typically the Sixth Amendment right to confrontation or the due process right to present a defense — must be admitted. The constitutional exception serves as a safety valve preventing the rule from unconstitutionally restricting the defendant's ability to mount a defense.

In civil cases, the rule is more flexible but still protective. Evidence of the victim's sexual behavior or predisposition is admissible if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party — a reverse-403 standard that tilts strongly toward exclusion. FRE 412 includes a procedural requirement: the party seeking to admit such evidence must file a motion at least 14 days before trial, serve it on all parties and notify the victim, and the court must conduct an in camera hearing. The rule applies broadly to all cases involving sexual misconduct, not just criminal rape prosecutions.

## Elements

- The case involves alleged sexual misconduct (criminal or civil)
- Evidence of the victim's other sexual behavior or sexual predisposition is offered
- Such evidence is generally inadmissible (FRE 412(a))
- Criminal exceptions: (1) specific instances with others to prove alternative source of physical evidence, (2) specific instances with the accused on consent, (3) constitutionally required evidence
- Civil exception: probative value must substantially outweigh harm to victim and unfair prejudice (reverse-403)
- Procedural requirement: 14-day pretrial motion, notice to parties and victim, in camera hearing

## Key Case

Olden v. Kentucky, 488 U.S. 227 (1988)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| Olden v. Kentucky | 488 U.S. 227 (1988) | Held that excluding evidence of the victim's sexual relationship with a third party violated the defendant's Sixth Amendment right to cross-examine when it was relevant to show the victim's motive to fabricate. |
| Stephens v. Miller | 13 F.3d 998 (7th Cir. 1994) | Discussed the constitutional exception to rape shield rules, holding that the defendant's right to present a defense may require admission of otherwise excluded evidence. |
| United States v. Saunders | 943 F.2d 388 (4th Cir. 1991) | Applied FRE 412 to exclude evidence of the victim's prior sexual history, illustrating the rule's strong presumption against admissibility. |
| Doe v. United States | 666 F.2d 43 (4th Cir. 1981) | Early case interpreting the rape shield rule and its procedural requirements, including the in camera hearing provision. |

## Exam Tips

- Always distinguish between criminal and civil cases when applying FRE 412 — the exceptions differ significantly. Criminal cases have three specific exceptions; civil cases use a reverse-403 balancing test.
- The constitutional exception is a critical safety valve in criminal cases — if excluding evidence would violate the defendant's Sixth Amendment or due process rights, the evidence must be admitted.
- Remember the procedural requirements: 14-day pretrial motion, notice, and in camera hearing. Failure to follow procedures can result in exclusion even if the evidence would otherwise be admissible.
- FRE 412 applies to all sexual misconduct cases, not just rape — it covers sexual assault, harassment, and other sex-related claims.

## Common Mistakes

- Assuming the rape shield rule creates an absolute bar — it has important exceptions, particularly the constitutional exception in criminal cases that preserves the defendant's right to present a defense.
- Applying the same standard in civil and criminal cases — the civil standard uses a reverse-403 balancing test, while the criminal standard uses three specific categorical exceptions.
- Forgetting the procedural requirements — even evidence falling within an exception may be excluded if the proponent fails to file the required pretrial motion and give notice.

## Mnemonic Or Memory Aid

FRE 412: The victim's past is generally off-limits. Criminal exceptions: 'Source, Consent, Constitution.' Civil: reverse-403 (must substantially outweigh harm).

## Related Rules

- character-evidence-rule-fre-404
- relevance-fre-401-403
- confrontation-clause-crawford-doctrine
- prior-bad-acts-fre-404b

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Source: [Rape Shield Rule (FRE 412) — CaseBriefly](https://casebriefly.com/legal-rules/rape-shield-rule-fre-412)