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01-Aug-2017 19:13

Consequently, unless the (b)(2) exception is satisfied, evidence such as that relating to the alleged victim's mode of dress, speech, or life-style will not be admissible.

The introductory phrase in subdivision (a) was deleted because it lacked clarity and contained no explicit reference to the other provisions of law that were intended to be overridden.

Rule 412 applies to both civil and criminal proceedings.

There is no requirement that there be a criminal charge pending against the person or even that the misconduct would constitute a criminal offense. Rule 412 does not, however, apply unless the person against whom the evidence is offered can reasonably be characterized as a “victim of alleged sexual misconduct.” When this is not the case, as for instance in a defamation action involving statements concerning sexual misconduct in which the evidence is offered to show that the alleged defamatory statements were true or did not damage the plaintiff's reputation, neither Rule 404 nor this rule will operate to bar the evidence; Rule 401 and 403 will continue to control. It does not connote any requirement that the misconduct be alleged in the pleadings. The terminology “alleged victim” is used because there will frequently be a factual dispute as to whether sexual misconduct occurred.

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The witness will, however, be protected by other rules such as Rules 404 and 608, as well as Rule 403.Under subdivision (b)(1)(A), evidence of specific instances of sexual behavior with persons other than the person whose sexual misconduct is alleged may be admissible if it is offered to prove that another person was the source of semen, injury or other physical evidence.

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