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What is a Rule 412 Motion?

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Rule 412 of the Federal Rules of Evidence is an evidentiary rule that pertains to an alleged victim’s prior sexual history. An alleged victim’s prior sexual history is usually not allowed to be submitted as evidence in a sexual assault or sexual abuse hearing. The courts have decided that an alleged victim’s sexual history is not relevant and cannot be brought into a court proceeding unless it is decided upon beforehand to be entered. Rule 412 aims to safeguard the alleged victim against invasion of privacy, potential embarrassment, sexual stereotyping that is associated with public disclosure of intimate sexual details, and the infusion of sexual innuendo into the factfinding process. Rule 412 is designed to encourage victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders. Rule 412 applies to both civil and criminal proceedings. However, there are some exceptions to Rule 412.

Rule 412 states:

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.


1.)   Criminal Cases. The Court may admit the following evidence in a criminal case:

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;

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

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.

Rule 412 does not prohibit the alleged offender from seeking evidence that is believed would challenge the alleged victim’s credibility and would facilitate further investigation by the defense. Rule 412 only precludes the use of evidence in proceedings when offered to prove that a victim engaged in other sexual behavior, or if offered to prove a victim’s sexual predisposition.

An instance of this includes, for example, when the alleged victim has had previous cases regarding sexual abuse that are significantly similar to the case at hand. To further illustrate, if an alleged victim has made a sexual assault claim against an acquaintance (claim A) and has a similar sexual assault claim against another acquaintance (claim B), and claim B is found to be baseless, then claim B and be used and introduced as evidence into the court proceedings to discredit claim A. However, one cannot use evidence of a victim’s prior sexual history that is not relevant to the case. Furthermore, a victim’s sexual promiscuity cannot be brought up in a case unless it is relevant to the case.


Procedure to Determine Admissibility.

(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) file the motion 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 about the motion, or, when appropriate, the victim’s guardian or representative.

(2) Hearing. Before admitting evidence under Rule 412, 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.

An in-camera hearing refers to meeting in the Judge’s chambers. This way, the hearing remains private to protect the privacy of the victim.

In conclusion, it is possible to get the sexual history of an alleged victim into a hearing if the proper steps are taken and if the evidence is relevant to the case. It is important to have an experienced legal professional draft the Rule 412 motion, as there are specific elements that must be included in the motion in order for it to succeed. Do not take the risk of drafting the motion alone; contact us today and we will draft the motion for you, and at a much more affordable rate than you would pay with an attorney.


If you are interested in retaining our services to prepare a Rule 412 motion, to move to dismiss a Rule 412 motion, or anything else, we can be contacted at (801) 855-6541 (text or call) and at If you have a project in mind that you would like us to work on, please click here to send us a project request and get a quote; alternatively, you can send us an email detailing the work you need performed, and we will write back to you promptly with a quote.