Section IV · Relevancy and Its Limits
Rule 412. Sex offense cases: The victim's sexual behavior or predisposition
2024 Manual for Courts-Martial, United States
Recent revisions Summary of changes Cited by (11)(a) Evidence generally inadmissible. The following evidence is not admissible in any proceeding involving an alleged sexual offense except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that a victim engaged in other sexual behavior; or
(2) Evidence offered to prove a victim's sexual predisposition.
(b) Exceptions. In a proceeding, the following evidence is admissible, if otherwise admissible under these rules:
(1) evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the accused was the source of semen, injury, or other physical evidence;
(2) evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the accused to prove consent or if offered by the prosecution; and
(3) evidence the exclusion of which would violate the accused's constitutional rights.
(c) Procedure to determine admissibility.
(1) A party intending to offer evidence under subdivision (b) must -
(A) file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is offered unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and
(B) serve the motion on the opposing party and the military judge and notify the victim or, when appropriate, the victim's guardian or representative.
(2) Before admitting evidence under this rule, the military judge must conduct a hearing, which shall be closed. At this hearing, the parties may call witnesses, including the victim, and offer relevant evidence. The victim must be afforded a reasonable opportunity to attend and be heard. However, the hearing may not be unduly delayed for this purpose. The right to be heard under this rule includes the right to be heard through counsel, including Special Victims' Counsel under section 1044e of title 10, United States Code. In a case before a court-martial composed of a military judge and members, the military judge shall conduct the hearing outside the presence of the members pursuant to Article 39(a). The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1113 and remain under seal unless the military judge, the Judge Advocate General, or an appellate court orders otherwise.
(3) If the military judge determines on the basis of the hearing described in paragraph (2) of this subdivision that the evidence that the accused seeks to offer is relevant for a purpose under subdivision (b)(1) or (2) of this rule and that the probative value of such evidence outweighs the danger of unfair prejudice to the victim's privacy, or that the evidence is described by subdivision (b)(3) of this rule, such evidence shall be admissible under this rule to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the victim may be examined or cross-examined. Any evidence introduced under this rule is subject to challenge under Mil. R. Evid. 403.
(d) Definitions. For purposes of this rule, the term "sexual offense" includes any sexual misconduct punishable under the Uniform Code of Military Justice, federal law or state law. "Sexual behavior" includes any sexual behavior not encompassed by the alleged offense. The term "sexual predisposition" refers to a victim's mode of dress, speech, or lifestyle that does not directly refer to sexual activities or thoughts but that may have a sexual connotation for the fact finder. For purposes of this rule, the term "victim" includes an alleged victim.
Cross-referencesCited by 11Cites 3Elsewhere 1
Cited by
Provisions elsewhere in the Manual whose text cites Rule 412. Each link opens the citing provision.
Rules for Courts-Martial
R.C.M. 309(b)(9)(A)(iii) — Pre-referral judicial proceedings
Mil. R. Evid. 412, 513, 514, or 615.
Mil. R. Evid. 412(a), except as provided in R.C.M. 405(j)(2).
Inadmissibility of certain evidence. In a case of an alleged sexual offense, as defined under Mil. R. Evid. 412(d), evidence offered to prove that any alleged victim engaged in other sexual behavior or evidence offered to…
the evidence would be admissible at trial under Mil. R. Evid. 412(b)(1) or (2); and
…of the accused or the public upon meeting the constitutional standard set forth in this Rule. See also Mil. R. Evid. 412(c)(2), 505(k)(3), and 513(e)(2). The accused may waive his right to a public trial. The fact that the prosecution and defense jointly seek…
Rules of evidence. Only Mil. R. Evid. 301, 302, 303, 305, 412, and Section V (Privileges) apply to proceedings under this rule, except Mil. R. Evid. 412(b)(1)(C) does not…
R.C.M. 1112(e)(3)(B)(ii) — Certification of record of trial; general and special courts-martial
…of a session that was ordered closed by the military judge, to include closed sessions held pursuant to Mil. R. Evid. 412, 513, and 514.
Military Rules of Evidence
Mil. R. Evid. 404(a)(2)(B) — Character evidence, crimes or other acts
Subject to the limitations in Mil. R. Evid. 412, the accused may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the…
Mil. R. Evid. 1101(d) — Applicability of these rules
Exceptions. Unless otherwise provided for in this Manual, these rules - except for Mil. R. Evid. 412 and those on privilege - do not apply to the following:
UCMJ Punitive Articles
Article 120, ¶ 60.c.(3) — Rape and sexual assault generally
Victim sexual behavior or predisposition and privilege. See Mil. R. Evid. 412 concerning rules of evidence relating to the sexual behavior or predisposition of the victim of an alleged…
Uniform Code of Military Justice
Art. 6b(e)(4)(C) — Rights of the victim of an offense under this chapter
Military Rule of Evidence 412, relating to the admission of evidence regarding a victim's sexual background.
Rule 412 cites
Provisions named in the text of Rule 412. Where the cited provision is on this site, the link opens it.