Rape-Shield & Sex-Offense Evidence — Florida and Federal Court

The Evidence Code · Topic Guide

§ 794.022, Fla. Stat.; § 90.404(2)(b) · Fed. R. Evid. 412–415 · Phillips, Hunt & Walker

Sex-offense evidence law has a particular structure: it flips ordinary evidentiary presumptions in both directions. Evidence of the alleged victim’s other sexual conduct is generally out; evidence of the defendant’s other sexual conduct is generally in. That double reversal — the rape shield running one way, the propensity exceptions running the other — is what makes this the most procedurally demanding area of trial evidence.

The rape-shield rule — protecting the alleged victim

Federal — Rule 412

Fed. R. Evid. 412 — In any civil or criminal proceeding involving alleged sexual misconduct, the following evidence is not admissible:

Evidence offered to prove that a victim engaged in other sexual behavior; or
Evidence offered to prove a victim’s sexual predisposition.

Narrow criminal exceptions (412(b)(1)):

Specific instances of the victim’s sexual behavior offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
Specific instances of the victim’s sexual behavior with the defendant offered on consent, or offered by the prosecutor; and
Evidence whose exclusion would violate the defendant’s constitutional rights.

Civil exception (412(b)(2)): admissible only if probative value substantially outweighs the danger of harm to any victim and unfair prejudice — the reverse of the ordinary Rule 403 balance. Reputation evidence comes in only if the victim placed reputation in controversy.

Mandatory procedure (412(c)): written motion specifically describing the evidence and stating its purpose, filed at least 14 days before trial (unless the court sets a different time for good cause), served on all parties and notifying the victim. Before admitting, the court must conduct an in camera hearing; the motion, related materials, and the record of the hearing must be sealed unless the court orders otherwise.

Florida — § 794.022

Florida’s rape shield sits outside the Evidence Code. The core protection is in the sexual-battery statute at § 794.022, Fla. Stat. Prior sexual behavior of the alleged victim is generally inadmissible, subject to narrowly drawn exceptions and a similar in camera admissibility hearing.

The propensity exceptions — running the other direction

Rule 413 — Similar crimes in sexual-assault cases

Fed. R. Evid. 413 — In a criminal case in which the defendant is accused of sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant — including propensity.

Disclosure (413(b)): the prosecutor must disclose the evidence, including witness statements or a summary, at least 15 days before trial or at a later time for good cause.

Florida: no direct equivalent broadly admitting propensity evidence in adult sexual-assault cases. The nearest provision is § 90.404(2), Fla. Stat., the Williams rule.

Rule 414 — Similar crimes in child-molestation cases

Fed. R. Evid. 414 — The child-molestation companion to Rule 413. Same 15-day prosecutorial disclosure applies.

Florida: § 90.404(2)(b), Fla. Stat., is the closest state analog.

Rule 415 — Civil-case propensity in sexual-misconduct actions

Fed. R. Evid. 415 — The civil-case extension. Same 15-day disclosure, party-to-party. Florida has no direct counterpart admitting propensity evidence in civil sexual-misconduct cases.

Rule 403 still screens

Rules 413–415 permit the propensity inference but do not eliminate the Rule 403 screen. Trial courts must still weigh probative value against unfair prejudice, confusion, misleading, delay, or cumulative evidence. Rule 403 is where much of the litigation actually happens.

The mandatory procedure — do not skip it

Rule 412 rape-shield motion. Written, specific, filed at least 14 days before trial, served on all parties, notice to the victim, sealed in camera hearing.
Rules 413/414/415 disclosure. Prosecutor (or civil proponent) must disclose the evidence with witness statements or a summary at least 15 days before trial (later for good cause).

Miss either window and the evidence is out regardless of the merits.

Constitutional overlay

Federal Rule 412(b)(1)(C) expressly preserves an exception for evidence whose exclusion would violate the defendant’s constitutional rights — codifying that Sixth Amendment confrontation and due-process rights can require admission of otherwise-barred evidence in a criminal case.

Practical points from the trial bar

Calendar the 14-day rape-shield motion the day you take the case.
Rule 412 in civil cases flips the burden. “Substantially outweighs” runs against the proponent.
Rule 413/414 disclosure is the defense’s handle. Demand specificity.
Rule 403 screening survives. Bring the 403 fight alongside the 413/414/415 issue.
Limiting instructions. Request an instruction telling the jury the permitted use and the impermissible propensity use.
Constitutional exceptions. Federal 412(b)(1)(C) is a real tool — cite the Confrontation Clause and the right to present a defense.