§ 27-412 — Sex offense cases; relevance of alleged victim's past sexual behavior or alleged sexual predisposition; evidence of victim's consent; when not admissible

Nebraska § 27-412

• Jurisdiction: Nebraska
• Ch. 27: Courts; Rules of Evidence

Text

(1) The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subsections (2) and (3) of this section:
(a) Evidence offered to prove that any victim engaged in other sexual behavior; and
(b) Evidence offered to prove any victim's sexual predisposition.
(2)(a) In a criminal case, the following evidence is admissible, if otherwise admissible under the Nebraska Evidence Rules:
(i) Evidence of specific instances of sexual behavior by the victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
(ii) Evidence of specific instances of sexual behavior of the victim with respect to the accused offered by the accused to prove consent of the victim if it is first established to the court that such behavior is similar to the behavior involved in the case and tends to establish a pattern of behavior of the victim relevant to the issue of consent; and
(iii) Evidence, the exclusion of which would violate the constitutional rights of the accused.
(b) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any victim is admissible if it is otherwise admissible under the Nebraska Evidence Rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of a victim's reputation is admissible only if it has been placed in controversy by the victim.
(3)(a) A party intending to offer evidence under subsection (2) of this section shall:
(i) File a written motion at least fifteen days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause, requires a different time for filing or permits filing during trial; and
(ii) Serve the motion on all parties and notify the victim or, when appropriate, the victim's guardian or representative.
(b) Before admitting evidence under this section, the court shall conduct a hearing in camera outside the presence of any jury.
(4) Evidence of the victim's consent is not admissible in any civil proceeding involving alleged:
(a) Sexual penetration when the actor is nineteen years of age or older and the victim is less than sixteen years of age; or
(b) Sexual contact when the actor is nineteen years of age or older and the victim is less than fifteen years of age.

Legislative History

Source: Laws 2009, LB97, § 3; Laws 2019, LB478, § 1. Annotations: In a sexual assault prosecution, the trial court did not abuse its discretion in prohibiting the defendant from asking the complaining witness about an allegation that she made against a doctor regarding inappropriate touching during a prenatal examination. State v. Ali, 312 Neb. 975, 981 N.W.2d 821 (2022). A trial court did not abuse its discretion in determining that the defendant could not question the victim about previous sexual encounters because they were not similar enough to be relevant. The victim's encounter with the defendant occurred when the defendant was 18 years old and the victim was 10 years old and involved sexual penetration; the victim's previous encounters involved sexual touching between other similarly aged children. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019). A false accusation of rape where no sexual activity is involved is itself not "sexual behavior" involving the victim, and such statements fall outside of the rape shield law. State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). Before defense counsel launches into cross-examination about false allegations of sexual assault, a defendant must establish, outside of the presence of the jury, by a greater weight of the evidence, that (1) the accusation or accusations were in fact made, (2) the accusation or accusations were in fact false, and (3) the evidence is more probative than prejudicial. State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). In limited circumstances, a defendant's right to confrontation can require the admission of evidence that would be inadmissible under the rape shield statute. State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). Subject to several exceptions, subsection (1) of this section bars evidence offered to prove that any victim engaged in other sexual behavior and evidence offered to prove any victim's sexual predisposition in civil or criminal proceedings involving alleged sexual misconduct. State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). The term "sexual behavior" under this section refers to specific instances of conduct and the term "sexual predisposition" refers to more generalized evidence in the form of opinion or reputation testimony about the complaining witness's character. But questions about the existence of a relationship between the complaining witness and a third party does not, by itself, implicate either type of evidence prohibited by this section. Evidence is not barred by this section simply because it might indirectly cause the finder of fact to make an inference concerning a complaining witness's prior sexual conduct. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014). This section is not meant to prevent defendants from presenting relevant evidence, but to deprive them of the opportunity to harass and humiliate the complaining witness and divert the jury's attention to irrelevant matters. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014). Pursuant to subdivision (2)(a) of this section, a court does not err in excluding evidence about a victim's sexual history prior to an assault when the State does not open the door to such evidence, when the evidence does not directly relate to the issue of consent, and when the evidence would not give the jury a significantly different impression of the victim's credibility. State v. McSwine, 24 Neb. App. 453, 890 N.W.2d 518 (2017).