Rule 412  Sexual offense and sexual
harassment cases; relevance of victim's past behavior.  (a) 
Notwithstanding any other provision of law, in a criminal case in which a
person is accused of a sexual offense, reputation or opinion evidence of the
past sexual behavior of an alleged victim of the sexual offense is not
admissible to prove the character of the victim to show action in conformity
therewith.



(b)  Notwithstanding any other provision of
law, in a criminal case in which a person is accused of a sexual offense,
evidence of an alleged victim's past sexual behavior other than reputation or
opinion evidence is not admissible to prove the character of the victim to show
action in conformity therewith, unless the evidence is:



(1)  Admitted in accordance with subsection (c)(1) and
(2) and is constitutionally required to be admitted; or



(2)  Admitted in accordance with subsection (c) and is
evidence of:



(A)  Past sexual behavior with persons other
than the accused, offered by the accused upon the issue of whether the accused
was or was not, with respect to the alleged victim, the source of semen or
injury; or



(B)  Past sexual behavior with the accused and
is offered by the accused upon the issue of whether the alleged victim
consented to the sexual behavior with respect to which sexual assault is
alleged.



(c) (1)  If the person accused of committing a sexual
offense intends to offer under subsection (b) evidence of specific instances of
the alleged victim's past sexual behavior, the accused shall make a written
motion to offer the evidence not later than fifteen days before the date on
which the trial in which the evidence is to be offered is scheduled to begin,
except that the court may allow the motion to be made at a later date,
including during trial, if the court determines either that the evidence is
newly discovered and could not have been obtained earlier through the exercise
of due diligence or that the issue to which the evidence relates has newly
arisen in the case.  Any motion made under this paragraph shall be served on
all other parties and on the alleged victim.



(2)  The motion described in paragraph (1) shall be
accompanied by a written offer of proof.  If the court determines that the
offer of proof contains evidence described in subsection (b), the court shall
order a hearing in chambers to determine if the evidence is admissible.  At the
hearing, the parties may call witnesses, including the alleged victim, and
offer relevant evidence.  Notwithstanding subsection (b) of rule 104, if the relevancy
of the evidence that the accused seeks to offer in the trial depends upon the
fulfillment of a condition of fact, the court, at the hearing in chambers or at
a subsequent hearing in chambers scheduled for this purpose, shall accept
evidence on the issue of whether the condition of fact is fulfilled and shall
determine the issue.



(3)  If the court determines on the basis of the
hearing described in paragraph (2) that the evidence that the accused seeks to
offer is relevant and that the probative value of the evidence outweighs the
danger of unfair prejudice, the evidence shall be admissible in the trial to
the extent an order made by the court specifies evidence that may be offered
and areas with respect to which the alleged victim may be examined or cross-examined.



(d)  In any civil action alleging conduct which
constitutes a sexual offense or sexual harassment, opinion evidence, reputation
evidence, and evidence of specific instances of plaintiff's sexual conduct, or
any of such evidence, is not admissible by the defendant to prove consent by
the plaintiff or the absence of injury to the plaintiff, unless the injury
alleged by the plaintiff is in the nature of loss of consortium.



(e)  Subsection (d) shall not be applicable to
evidence of the plaintiff's sexual conduct with the alleged perpetrator.



(f)  In a civil action alleging conduct which
constitutes a sexual offense or sexual harassment, if the plaintiff introduces
evidence, including testimony of a witness, or the plaintiff as a witness gives
testimony, and the evidence or testimony relates to the plaintiff's sexual
conduct, the defendant may cross-examine the witness who gives the testimony
and offer relevant evidence limited specifically to the rebuttal of the
evidence introduced by the plaintiff or given by the plaintiff.



(g)  Nothing in subsections (d), (e) or (f)
shall be construed to make inadmissible evidence offered to attack the
credibility of the plaintiff.



(h)  For purposes of this rule, the term
"past sexual behavior" means sexual behavior other than the sexual
behavior with respect to which a sexual offense or sexual harassment is
alleged. [L 1980, c 164, pt of §1; am L 1992, c 191, §2(1); am L 1999, c 89,
§2]



 



RULE 412 COMMENTARY



 



  This rule is identical with Fed. R. Evid. 412, except that
the federal rule applies to cases of "rape or of assault with intent to
commit rape," and this rule applies to cases of "rape or sexual
assault under any of the provisions of chapter 707, part V of the Hawaii Penal
Code."



  The purpose of this rule is to exclude general character
evidence, including specific instances of conduct, as it relates to the past
sexual behavior of rape and sexual assault victims.  Fed. R. Evid. 412 was
added to the federal rules in 1978, prior to which time this class of evidence
was governed by the general victim provision in Rule 404(a)(2), which allowed
the evidence in cases involving consent defenses provided the relevance was not
substantially outweighed by the countervailing factors listed in Rule 403. 
This rule bars evidence of the character and past sexual behavior of victims of
sexual assault unless:  (1) the evidence is "constitutionally required to
be admitted"; or (2) the evidence goes to the issue whether the accused
was "the source of semen or injury"; or (3) the evidence consists of
past sexual behavior with the accused, and is offered on the issue of consent. 
The reasons for exclusion are:  (1) that the evidence has little or no
relevance on the issues of consent and credibility; (2) that the evidence tends
to be misleading and time consuming; and (3) that the general admissibility of
this evidence has deterred significant numbers of sexual assault victims from
reporting or from prosecuting these crimes.



  Prior Hawaii law on impeachment of sexual assault victims was
contained in Hawaii Rev. Stat. §707-742 (1976) (repealed 1980) (originally
enacted as L 1975, c 83, §1; am L 1977, c 109, §1). This statute mandated
procedures very similar to those contained in subsection (c) of this rule, but
on the substantive issue provided only that "if the court finds that
evidence proposed to be offered by the defendant regarding the sexual conduct
of the complaining witness is relevant and is not inadmissible for any reason,
the court may make an order stating what evidence may be introduced by the
defendant, and the nature of the question to be permitted."  It thus
appears that the admissibility of this class of evidence was discretionary with
the court.



  Subsection (a):  Although Rule 404(a)(2) allows
"evidence of a pertinent trait of character of the victim of the crime
offered by an accused," Rule 412(a) specifically controls in all sexual
assault cases, and interposes a flat bar to the receipt of reputation or
opinion evidence "of the past sexual behavior of an alleged [sexual
assault] victim."



  Subsection (b):  This subsection bars evidence of specific
instances of past sexual behavior of the sexual assault victim except in three
instances:



  (1)  The evidence may be "constitutionally required to
be admitted," cf. Davis v. Alaska, 415 U.S. 308 (1974); Giles v. Maryland,
386 U.S. 66 (1967);



  (2)  If the prosecution evidence identifies the accused not
only as the assailant but also as the source of semen or injury, past sexual
behavior of the alleged victim within the relevant period of time possesses
heightened probative value in rebutting the latter assertion;



  (3)  If the past sexual behavior was with the accused and is
now offered on the issue of consent, the level of probative value will
ordinarily justify admission.



  Subsection (c):  As noted earlier in this commentary, this
subsection generally restates existing law.  The in camera hearing is designed,
as was its predecessor, Hawaii Rev. Stat. §707-742 (1976) (repealed 1980),
"to prevent unnecessary embarrassment and humiliation of the complainant
and to encourage the reporting and enforcement of rape cases."  Because of
the sensitive nature of this kind of evidence, the ordinary procedures
specified in Rule 104 for the determination of preliminary admissibility questions
need the specific augmentation provided in this subsection.



 



RULE 412 SUPPLEMENTAL COMMENTARY



 



  The Act 191, Session Laws 1992 amendments to Rule 412 are in
two sets.  The first set, entirely nonsubstantive in character, eliminates the
term "rape" in keeping with recent modifications to chapter 707 which
have similarly eliminated that term in favor of "sexual assault," see
Hawaii Rev. Stat. §§707-730 through 707-733 (Supp. 1992).  Moreover, since all
the crimes intended to be affected by this rule now bear the name "sexual
assault", there is no longer any need for the language, "under any of
the provisions of chapter 707, part V of the Hawaii Penal Code," which is,
accordingly, eliminated.



  The second set of changes adds the language "to prove the
character of the victim in order to show action in conformity therewith"
to the exclusions of subsections (a) and (b).  This language, which parallels
limitations contained in Rule 404(a) and (b), makes clear that what is excluded
is evidence of the victim's character offered to show a propensity or
inclination to behave similarly on the occasion in question.  It is believed
that this was the original intent of Rule 412, and that the omission of this
language in the original draft was inadvertent.  In any event, if the accused
offers this evidence as relevant to his or her state of mind, the relevance is
substantially heightened, see, e.g., Doe v. United States, 666 F.2d 43, 48 (4th
Cir. 1981) (applying Fed. R. Evid. 412).



  The Doe case, where the victim's reputation and past sexual
behavior were known to the accused and were admissible to show the
reasonableness of the latter's belief that the victim consented, reveals the
force of the analogy between Rules 404 and 412.  The character-propensity
limitation of Rule 404, as the commentary to that rule suggests, has the
salutary effect of rendering the rule inapplicable to an alleged victim's
aggressive character traits and prior aggressive acts in cases where the
accused knew of the victim's character and prior behavior and offers it, not to
show propensity and action in conformity, but rather to prove the
reasonableness of accused's fear of the victim, which is an element of a
self-defense claim.  Rule 404 being inapplicable, the evidence is governed by
the general relevancy and balancing principles of Rules 401 and 403. 
Similarly, as in Doe, if an alleged sexual assault victim's reputation and past
sexual behavior were related to or otherwise known by the accused, then the
proffer of this material, not to show consent in fact, but rather to show
accused's reasonable belief in consent, is to be governed not by this rule but
by Rules 401 and 403.  Notice that this theory of admissibility applies only
where the accused offers evidence sufficient to support a finding, under Rule
104(b), that he or she knew of the material at issue, and so the limitation
effected by the new language will not reverse the exclusion of victims'
character evidence in the run of cases where the accused, at the time of the
alleged sexual assault, was not aware of this material.



  The Act 89, Session Laws 1999 amendment, among other things,
added subsections (d), (e), (f), and (g), to provide that:  (1) in any civil
action alleging conduct constituting a sexual offense or sexual harassment,
evidence of specific instances of plaintiff's sexual conduct is not admissible
by the defendant to prove consent by the plaintiff, unless the injury alleged
by the plaintiff is in the nature of loss of consortium, and if the plaintiff
introduces evidence relating to the plaintiff's sexual conduct, the defendant
may cross-examine the witness and offer relevant evidence limited specifically
to the rebuttal of the evidence introduced; and (2) in civil cases, rule 412
does not make inadmissible evidence offered to attack the plaintiff's
credibility.



  Rape and Child Sexual Assault:  Women's Perspectives Required
to Dispel the Myths.  14 UH L. Rev. 157.



  The Protection of Human Rights Under Hawai`i's Constitution. 
14 UH L. Rev. 311.



  Criminal Procedure Rights Under the Hawaii Constitution Since
1992.  18 UH L. Rev. 683.



 



Law Journals and Reviews



 



  Rape and Child Sexual Assault:  Women's Perspectives Required
to Dispel the Myths.  14 UH L. Rev. 157.



  The Protection of Individual Rights Under Hawai`i's Constitution. 
14 UH L. Rev. 311.



  Criminal Procedure Rights Under the Hawaii Constitution Since
1992.  18 UH L. Rev. 683.



 



Case Notes



 



  Strong evidence of force destroys issue of consent to render
complaining witness' past sexual conduct irrelevant.  62 H. 420, 616 P.2d 219.



  Evidence of complainant's past sexual behavior with persons
other than the accused on the issue of consent is inadmissible. 62 H. 572, 617
P.2d 1214.



  Complaining witness' statements of past sexual experience was
relevant to the issue of consent; defendant had a right to cross-examine on
this issue.  71 H. 115, 785 P.2d 157.



  Admissibility of evidence of complainant's fantasies,
discussed. 74 H. 479, 849 P.2d 58.



  Where a defendant seeks to admit allegedly false statements
made by a complainant regarding an unrelated sexual assault, the trial court
must make a preliminary determination based on a preponderance of the evidence
that the statements are false; where the trial court is unable to determine by
a preponderance of the evidence that the statements are false, defendant has
failed to meet his or her burden, and evidence may be properly excluded.  95 H.
452, 24 P.3d 648.



  Defendant constitutionally entitled to elicit evidence of
complainant's past sexual behavior, not to attack complainant's character, but
to determine whether complainant was mentally defective and whether defendant
knew that complainant was mentally defective.  81 H. 447 (App.), 918 P.2d 254.



  Trial court did not abuse its discretion by refusing to allow
minor to be impeached by excluding evidence that minor had falsely denied
having prior sexual experiences when minor was interviewed by doctor; evidence
would have had limited probative value given the circumstances of the
statement, i.e., a fifteen year old being asked intimate questions by a
stranger, it would have been cumulative, since the trial court had allowed
defendant significant latitude in impeaching minor with prior instances of
untruthfulness, and evidence would have been unduly prejudicial and confusing
since it would have focused attention on minor's prior sexual history.  116 H.
125 (App.), 170 P.3d 861.