Admissibility against Victim

Evidence of a prior sexual relationship between the alleged victim and the defendant is admissible on the issue of consent.{footnote} [3823]  FRE 412(b)(2)(B); Cal. § 1103(2)(b).{/footnote}  The modern rule is to exclude evidence of prior sexual relationships with anyone other than the defendant.{footnote}Ill. Rev. Stat. ch. 38, & 115-7(a).{/footnote}  See below.  

Reputation and Opinion Evidence.  The federal rules and some state statutes provide that reputation and opinion evidence of the past sexual behavior of an alleged sexual assault victim is inadmissible.{footnote}Accord Cal. § 1103; Ill. Rev. Stat. ch. 38, & 115-7(a)(except as to past sexual conduct with defendant).{/footnote}  The constitutionality of this provision is not yet settled. [Cases?]{footnote} [3826]  Check Chambers v. Mississippi, 410 U.S. 284 (  ); United States v. Nez, 661 F.2d 1203 (10th Cir. 1981).{/footnote} [what about as impeachment?]  Some states still admit such evidence, however, and permit the prosecution to rebut with evidence of good character and reputation.{footnote} [3827]  35 ALR 1452.{/footnote}

"Specific Instances".  The federal rules restrict the admissibility of evidence of specific sexual acts.{footnote}FRE 412(b).
{/footnote}  Such evidence is only admissible against an alleged rape victim where:

-admission is constitutionally required
-the evidence goes to whether the defendant was the
source of semen or injury, or
-evidence is of past sexual behavior with the accused
and is offered to show consent.{footnote}Accord Cal. § 1103(2)(b).{/footnote}

The defense must file a written motion and, if possible, give advanced notice to all parties, including the alleged victim.  The defense must also submit a written offer of proof and adduce evidence at a hearing in chambers.{footnote}FRE 412(b).{/footnote}

Past allegations by victim.  Evidence of prior false claims of sexual assault may be excluded under this Rule in some jurisdictions.{footnote}United States v. Cardinal, 782 F.2d 34 (6th Cir.) (exclusion proper); Cf. United States v. Bartlett, 794 F.2d 1285 (8th Cir. 1986) (exclusion required to ensure[ sp?] fair trial for defendant) [dicta?] [check].
{/footnote}  [What about as  impeachment??]  Cf. OTHER ACTS, TRANSACTIONS OR OCCURRENCES–Torts: Other Suits Brought by Plaintiff.

Source of semen or injury.{footnote}FRE 412(b)(2)(A). 

But see United States v. Shaw, 824 F.2d 601 (8th Cir. 1987)(prior sexual contacts not admissible to show that another was responsible for rupturing a young child’s hymen, as this did not constitute an "injury."), criticized in Saltzburg, Federal Rules of Evidence Manual Feb. 1988 Cum. Supp at 58.{/footnote}  It has been held that this exception can only be used by the prosecution, not by defendants.{footnote}United States v. Shaw, 824 F.2d 601 (8th Cir. 1987).{/footnote}

Exclusion on Grounds of Prejudice.  Evidence of a complainant’s sexual background may be excluded if it is irrelevant{footnote}People v. Tennin, 162 Ill. App. 3d 520, 515 N.E.2d 1056 (2d Dist. 1987)(defendant prosecuted for intimidation of another to engage in prostitution could not introduce evidence of victim’s past sexual conduct).{/footnote} or if its relevance is substantially outweighed by the danger of unfair prejudice or of misleading or confusing the jury.{footnote}United States v. Bear Ribs, 722 F.2d 420, 423 (8th Cir. 1983).{/footnote}

Pregnancy.{footnote}Check 62 ALR2d 1083.{/footnote}

Evidence Offered by Victim.  It has been held that rape shield law prevent the victim as well as the defendant from introducing evidence of sexual history.{footnote}People v. Kemblowski, 201 Ill. App. 3d 824, 559 N.E.2d 247 (1st Dist. 1990)(victim cannot testify as to her lesbianism to rebut allegation of consent).{/footnote}

Admissibility as Impeachment.  What if the alleged victim testifies as to her sexual past (e.g., her chastity) on direct and the defense has evidence that her testimony was false?  May the defense inquire into this area for the purpose of impeaching the victim-witness?  While FRE 412 does not expressly provide for such circumstances, the Confrontation Clause probably requires the court to permit the impeachment.  See below.  In any event, reputation, evidence, opinion testimony and all other forms of extrinsic evidence would be excluded by FRE 608.  See IMPEACHMENT.

Constitutional Problems.  The constitutionality of rape shield laws is as yet unresolved.{footnote} [3838]  Check Chambers v. Mississippi, 410 U.S. 284; United States v. Nez, 661 F.2d 1203 (10th Cir. 1981). {/footnote}  It has been held that such laws must give way to a defendant’s right to fully cross-examine and present his theory of the case.{footnote}People v. Gray, 209 Ill. App. 3d 407, 568 N.E.2d 219 (1st Dist. 1991).{/footnote}

Bibliography.

Clifford S. Fishman, Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant’s Past Sexual Behavior, 44 Cath. U. L. Rev. 709, 772-75 (1995).