Profs on the Evidence Profs Listserv (a group that knows how to party) got into a discussion of FRE 412(b)(1)(B) allowing "evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor." One prof (in response to a student question) wondered why the prosecution would offer evidence of prior sexual contact between the victim and defendant.
The discussion produced the following possible instances:
a) Prove the limits of consent -- the past instances are used to show what the complainant/victim previously consented to, with the inference that the complainant did not consent to the act in question. (A kind of "setting limits" argument.).
b) Narrative integrity (related to (a)) -- evidence to describe the entire relationship between victim and defendant.
c) Removing the sting -- allowing the prosecution to preempt evidence that the defense is expected to offer. (Similar to why a party will offer evidence of its own witness' criminal conviction).
d) Incidental -- the past sexual conduct establishes the victim's prior relationship with the defendant, which might explain other aspects of the case. For example, why the defendant might have access to the victim's apartment when identity is disputed.
e) Vestigial work-around of FRE 404(b) (and, somewhat, FRE 403). It allows the prosecution to offer evidence of a defendant's prior sexual behavior. FRE 413-415 did not exist when FRE 412 was enacted. Their later enactment renders the "by the prosecution" language of 412(b)(1)(B) superfluous--the prosecution can offer prior acts of sexual misconduct through the newer rules. But many rules are redundant; sometimes it is not worth the work (and the risk of unintended consequences) to remove them.
