Applying The Three "Narrow" Exceptions Of FRE 412(b)

In a prosecution of the defendant for sex trafficking of children, evidence of his victims' sexual behavior before and after the charged acts was inadmissible under FRE 412(b)(1) because the defendant failed to show the application of three narrow exceptions for this provided by the rule, in United States v. Elbert, 561 F.3d 771 (8th Cir. Apr. 6, 2009) (No. 08-1247)

Under FRE 412, in civil or criminal proceedings involving alleged sexual misconduct, any evidence about a victim’s sexual behavior is not admissible unless certain conditions are met. The three exceptions to FRE 412's exclusion of victim evidence allow the admission of evidence of a victim’s sexual behavior in a criminal case: “(1) to prove a person other than the accused was the source of semen, injury or other physical evidence; (2) to show the victim consented to sexual activity with the accused; and (3) to avoid violating the defendants' constitutional rights." FRE 412. Less than two years ago, the Eighth Circuit considered a case involving the applicability of all three exceptions. The circuit concluded that none of the three exceptions were satisfied, so evidence about the the victims' sexual behavior was not admissible.

In the case, during an undercover prostitution investigation, officers learned of three girls working as prostitutes for defendant Elbert. When the three children were arrested, officers discovered they were sisters. The Child Protective Services interviewed each child who described the circumstances in which they became prostitutes for the defendant and how he told them they were constantly being watched. He required them to each earn about $60 each night.

Defendant Elbert was charged with three counts of sex trafficking of a child. Before trial, he defendant filed three motions to admit evidence of the child victims' prior and subsequent sexual behavior, under FRE 412(c)(1)(A). The trial court denied the motions, concluding the evidence was irrelevant, had limited impeachment value and that denial of the motion would not infringe on his constitutional rights (by depriving him of a complete defense). Before trial, the defendant pled guilty to one count and reserved an appeal on the exclusion of his evidence.

In its review, the Eighth Circuit affirmed the exclusion of the victim sexual behavior evidence. The matter was so clear, it did not make a difference whether the review was for abuse of discretion or plain error. The circuit also noted it was “debatable whether Elbert’s alleged evidence actually exists” as apparently no offer of proof had been made. But even had this been done, the defendant's appeal would be unavailing. The defendant had moved to admit evidence of:

“(1) Statements of the alleged victims made to agents of the Federal Bureau of Investigation indicating that they had prostituted themselves before they were acquainted with the defendant; and (2) Medical records and statements of the alleged victims made to officers of the Kansas City, Missouri, Police Department indicating that they had prostituted themselves after the defendant already had been arrested for the offenses with which he currently is charged and was in custody of law enforcement officers.”
Elbert, 561 F.3d at 775-76.


The circuit did not need to consider whether any offer of proof had been submitted because the defendant’s claim was rejected. As described in the motion, the evidence was not admissible. The defendant failed to show the evidence was admissible under any of the three narrow exceptions under FRE 412. Elbert, 561 F.3d at 776 (citing Wilson v. City of Des Moines, 442 F.3d 637, 642, 643-44 (8th Cir. 2006) (“Rule 412 excludes, in civil or criminal proceedings involving alleged sexual misconduct, any evidence about a victim’s sexual behavior unless certain conditions are met.”; noting one purpose of FRE 412 is “‘to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details.’”) (quoting FRE 412 ACN))

The circuit then examined each of the FRE 412 exceptions. The first exception allowed in victim sexual behavior evidence “to prove that any alleged victim engaged in other sexual behavior,” under FRE 412(b)(1)(A). The circuit explained that this exception was inapplicable since “the government never attempted to prove Elbert caused any physical injury to the children or that he left behind semen or other physical evidence.” Elbert, 561 F.3d at 776. As no assault or abuse or injury was alleged in the sex trafficking charge, this exception was not applicable.

The second exception, “to prove any alleged victim’s sexual predisposition,” did not apply because the defendant “was not charged with having sexual contact with the children." He was only charged with prostituting them "and further, the minor children could not consent to sexual contact.” Elbert, 561 F.3d at 776 (citing FRE 412(b)(1)(B); see also United States v. Abad, 350 F.3d 793, 797 (8th Cir. 2003) (“‘[W]hen sexual assaults are committed upon children . . . , consent is not a defense.’”) (quoting Guarro v. United States, 237 F.2d 578, 581 (D.C. Cir. 1956))).

The third exception, concerning the admission of “evidence the exclusion of which would violate the constitutional rights of the defendant,” under FRE 412(b)(1)(C), was also inapplicable. The defendant asserted two constitutional rights, his Fifth Amendment Due Process right to present a “far more powerful defense” and his Sixth Amendment right to Confrontation. The circuit concluded neither applied. The Due Process right was not violated since:

“the evidence he wishes to admit does not provide a defense for the crime with which he was charged and convicted.... Because the victims were minors and could not legally consent, the government did not need to prove the elements of fraud, force, or coercion, which are required for adult victims. Instead, the government was only required to prove Elbert knowingly recruited, enticed, harbored, transported, provided, or obtained a minor, knowing the minor would be caused to engage in commercial sex acts. Whether the children engaged in acts of prostitution before or after their encounters with Elbert is irrelevant, and would only prove other people may be guilty of similar offenses of recruiting, enticing, or causing these victims to engage in a commercial sex act. The disputed evidence did not go to any element of the offense for which Elbert was charged, and the exclusion of such irrelevant evidence did not violate the Due Process Clause of the Fifth Amendment.”
Elbert, 561 F.3d at 777 (citations omitted).


Similarly, the Sixth Amendment confrontation right was not affected since the evidence concerning the sexual behavior of the victims was inadmissible. Specifically, the “unchastity of a victim has no relevance whatsoever to [the victim’s] credibility as a witness.” Elbert, 561 F.3d at 777 (quoting United States v. Kasto, 584 F.2d 268, 271-72 n.3 (8th Cir. 1978)) There was also no “impeachment value” from the evidence since it did “not contradict evidence the children engaged in the acts of prostitution for which Elbert has been charged. Assuming that impeachment of the minors engaging in other acts of prostitution had any probative value, the circuit concluded that the evidence "‘is substantially outweighed by the danger of unfair prejudice.’” Elbert, 561 F.3d at 777-78 (citing FRE 403; United States v. Bordeaux, 400 F.3d 548, 559 (8th Cir. 2005) (exclusion of victim’s statement that “her brother’s friend, Luke” may have “done bad things to her” without specifying what bad things he had done” did not violate the defendant’s Fifth and Sixth Amendments rights to introduce evidence in his own defense given “the minimal probative value of the evidence and the important purpose of the exclusion,” which “was not disproportionate to the purpose behind the exclusion”)).

On this last observation -- the applicability of the exception when violations of the Constitution was likely applies in two situations. First, under FRE 412(b)(1)(C), for civil cases involving alleged sexual misconduct, FRE 412 generally bars evidence offered to show “any alleged victim engaged in other sexual behavior” or “any alleged victim’s sexual predisposition.” FRE 412(a). In criminal cases, FRE 412(b)(1)(C) eliminates the prospect of any conflict with the Constitution by recognizing that a defendant may have a constitutional right to produce evidence in his defense. The examination of whether any of the exceptions to FRE 412 is commonly encountered: See, e.g.:

  • United States v. Kenyon, 397 F.3d 1071, 1079 (8th Cir. 2005) (“The evidence concerning A.L.’s alleged sexual activity with a local boy also was properly excluded. Kenyon’s offer of proof was based on hearsay from a third party, and it involved only an allegation that the boy had kissed A.L. and touched her in a private area. Even if true, this evidence of previous sexual behavior was inadmissible under Rule 412, unless exclusion would violate Kenyon’s constitutional rights. Fed. R. Evid. 412(b)(1)(C). We see no basis to find such a constitutional violation. The evidence would not have supported Kenyon’s theory that A.L. had an alternative source of knowledge concerning such things as male erections and semen, and the district court properly declined to receive it.”)
  • United States v. Torres, 937 F.2d 1469, 1473 (9th Cir. 1991) (incident six months after defendant allegedly sexually abused victim was not relevant and Confrontation Clause did not mandate defendant be allowed to cross examine victim), cert. denied, 502 U.S. 1037 (1992)
  • United States v. Begay, 937 F.2d 515 (10th Cir. 1991) (Confrontation Clause required admission of victim’s testimony when cross-examined about past sexual activity with third person and of doctor’s testimony on cross-examination of whether physical findings about victim’s condition were consistent with proof that third person had sexual intercourse with victim on at least two occasions several months before defendant’s act of sexual abuse; prosecution relied heavily on doctor’s testimony concerning enlarged hymen and abrasion in child victim

Other blog coverage of FRE 412 is found at: Exclusion Of A Victim's “Sexual Behavior” Includes The Victim's “Expressed” Sexual “Desires” and at Excluding Evidence Of Sex-Crime Victim’s Sexual History Under FRE 412 Did Not Deny Right To Present Defense.

Federal Rules of Evidence
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