TRE 412 Permits Use of Past Sexual Behavior in Limited Circumstances

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Every state in these United States have what is known as “rape shield statutes”—laws that limit a criminal defendant’s ability to cross examine sexual assault victims about their past sexual behavior. Texas’ rape shield statute lies in Rule 412 of the Texas Rules of Evidence and explicitly applies only in sexual assault cases.  The, however, Rule is qualified to permit the use of “past sexual behavior” in certain situations: when it is necessary to rebut or explain scientific or medical evidence offered by the State, Subsection(b)(2)(A): when it is offered by the defendant upon the issue of whether the victim consented to the sexual behavior which is the basis for the charged offense, Subsection (b)(2)(B); and when it is relevant to show “motive or bias” on the part of the victim, Subsection (b)(2)(C).


Rule 412(c) sets forth the procedures for determining whether evidence of prior sexual behavior should be allowed:


“If the defendant proposes to introduce any documentary evidence or to ask any question, either by direct examination or cross-examination of any witness, concerning specific instances of the alleged victim’s past sexual behavior, the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under paragraph (b) of this rule. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.”


In 2007 the Texas Court of Criminal Appeals (“CCA”), in the case of James Thomas LaPointe, addressed both the procedures of Rule 412(c) and its underlying requirements. LaPointe was convicted of several offenses against his estranged wife, including three counts of aggravated sexual assault. At his trial, his defense attorney sought on cross-examination to question the victim about her past sexual behavior. This behavior included the contention that the victim had engaged in sex with multiple partners at various times. The trial judge refused to allow this line of questioning, opting to conduct an in camera hearing at which only the judge and victim would be present. While the judge denied defense counsel’s request to be present and address questions to the victim, the judge said he would ask the victim any questions defense counsel wanted to present to the victim.



Defense counsel also sought on cross-examination of a nurse, who had examined the victim, to question her about the victim’s prior sexual behavior. The trial judge invoked the same in camera procedure as he had with the victim. Defense counsel requested that the trial judge inquire about the victim’s “deep vaginal bruising,” whether such bruising could have been caused by the use of “sex toys,” and whether the victim had a history of sex-toy use. Specifically, defense counsel told the judge he wanted to know if the victim had engaged in sex with someone who “used an object that was deeply plunging” into her sex organ.


Following his client’s conviction, defense counsel appealed the way the trial judge conducted the in camera hearing; specifically, by not allowing defense counsel to be present and pose questions to the victim. The Third District Court of Appeals, sitting in Austin, reversed and remanded LaPointe’s convictions, but on rehearing sought by the State, the appeals court withdrew its opinion and substituted a new opinion. In its revised opinion, the appeals court remanded LaPointe’s case with instructions that the trial court conduct a retrospective in camera hearing with LaPointe’s attorney present and with the right to pose questions to the victim. Following the retrospective hearing, LaPointe once again appealed to the appeals court which rejected his claims and affirmed his conviction.


Both LaPointe and the State sought and secured discretionary review before the CCA. The primary issue before the court was whether the in camera hearing provisions of Rule 412(c) require an “adversarial hearing” at which the defendant has a right to be present and cross-examine the victim. The State argued strenuously that it did not but the appeals court did not find this argument persuasive. The court explained why:


“What we do find persuasive, however, is this Court’s interpretation of the precursor statute, § 21.13. In Allen v. State, we upheld the constitutionality of this provision against a Confrontation Clause challenge. In so doing, we discussed a North Carolina decision, State v. Fortney, which upheld its own rape-shield provision. We quoted extensively from the Fortney opinion’s language, which included a statement that past sexual history could be litigated at ‘an in camera hearing where opposing counsel may present evidence, cross-examine witnesses, and generally attempt to discern the relevance of the proffered testimony in the crucible of an adversarial proceeding away from the jury.’ We commented that while the North Carolina statute ‘is not totally like § 21.13, it is similar in many respects and the language in Fortney is here instructive.’ After discussing Fortney, we further stressed the importance of balancing the victim’s privacy interests with the confrontation right of the defendant by having the trial court hold a hearing that gives the defendant the opportunity to demonstrate the admissibility of the evidence:


“’The constitutional right to confront adverse witnesses is fundamental and is of such importance that a State’s interest in protecting a certain class of witnesses from embarrassment must fall before the right of confrontation and cross-examination. Thus a statute that purports to prohibit completely the introduction of the victim’s consensual sexual activity with persons other than the defendant is unconstitutional unless given a judicial gloss requiring a hearing out of the jury’s presence so that the defendant, upon motion, may be given an opportunity to demonstrate that due process requires the admission of such evidence because probative value in the context of that particular case outweighs its prejudicial effect on the prosecutrix.’


“In making these comments, we cited the New Hampshire case of State v. Howard. A review of Howard reveals that our comments were a close paraphrase of the language in that case. The Howard opinion went on to more fully describe the procedure to be followed. The Supreme Court of New Hampshire explained that the victim’s right to privacy was protected ‘at least to the extent that hearings held on the admissibility of the victim’s prior sexual activity may, upon request of the victim and in the exercise of sound discretion by the trial justice, be closed to those not party to the proceeding. Such pretrial procedures enable the court to balance and safeguard the rights of all the parties as applied to the facts of a particular case and avoid unnecessary prejudice to either the victim or the accused.’ From the comments in Allen, and its reliance on Fortney and Howard, we conclude that the Allen decision construed § 21.13 narrowly to avoid a constitutional violation and that, under this narrowing construction, the trial court was empowered to exclude spectators, but not the parties, from the in camera admissibility hearing [in the LaPointe case].”


This past April, Fort Worth’s Second District Court of Appeals, in Green v. State [2011 Tex.App. LEXIS 2827] confronted the Rule 412 in camera proceedings in the wake of LaPointe. Steven Keith Green was found guilty by a jury of three counts of sexual assault of a child under seventeen years of age and sentenced to three consecutive 75-year terms. The victim was Green’s daughter who, at age eleven, moved in with Green and his second wife Melissa. When she was thirteen years of age, the daughter went on a trip with Green to California where they engaged sexual activity (oral sex) on a regular basis. The sexual relationship continued upon the pair’s return to Texas, ultimately arousing the suspicions of Melissa who confronted her husband with the suspicions at which time he denied them as being “disgusting.” Melissa finally moved out of the Green household after the daughter turned fifteen. Green and his daughter continued to live together sharing a sexual relationship.


Green’s daughter eventually told her “maternal uncle” about her incestuous relationship with her father. The uncle, Melissa, and another relative took this information to the Crowley Police Department who arrested Green.

On appeal Green argued that the trial court violated his “confrontation rights” by excluding evidence of his daughter’s past sexual behavior. He argued the evidence was admissible under Rule 412(b) because it showed the daughter had a bias against him and a “motive to falsely accuse him of sexual assault.” Green’s defense counsel attempted to offer this evidence premised on the theory that the daughter had leveled the sexual abuse charges “in retaliation” because her father had been instrumental in bringing charges against a boyfriend who was the father of her baby. The trial court granted Green’s attorney an opportunity to establish the relevance of his charges in a Rule 412 hearing.


At the hearing the daughter testified that when she was fifteen she had a “voluntary” sexual relationship with the 28-year-old boyfriend during which she became pregnant. In 2007 the daughter informed Green about the relationship, telling her father that the baby she was carrying was fathered by the boyfriend. Green forced her to report the relationship to the police and charges were brought against the boyfriend. During the Rule 412 hearing, the daughter stated she did not want to file charges against the boyfriend, but she “denied ever threatening Green that she would put him in jail if she found out that he had anything to do with [the boyfriend’s] prosecution. Within days after Green and his daughter learned that the boyfriend had accepted a 10-year plea deal, the daughter told her uncle about her sexual relationship with her father.


Green also testified at the Rule 412 hearing. He said he also did not want charges brought against the boyfriend but did tell the daughter that she could lose her baby if she “did not do what was right.” It was shortly after this encounter and the daughter’s decision to report the boyfriend to the police that she reportedly made the threat against Green.


The uncle also testified at the Rule 412 hearing, informing the court that his niece denied the relationship with the boyfriend and, in fact, had told her uncle she wanted the boyfriend prosecuted because “he had raped her.”

At the conclusion of the Rule 412 hearing, Green’s attorney argued that the evidence about the daughter’s relationship with the boyfriend and the threat she made against Green was admissible “to show bias or prejudice on the part of the victim in this case, that she made at least one threat she would see [Green] in jail over the [boyfriend] allegations and prosecution, and therefore, this is the linchpin of our defense.” The trial court denied the request, telling Green’s attorney that “if you want to put your client on in front of [the]jury, I’ll let you do it, and I’ll let you ask him … if [the victim] ever threatened him. But you won’t go into the underlying—any underlying sex on the part of this witness. That’s a violation of Texas law.”


The appeals court said it would “assume the trial court abused its discretion by prohibiting Green from introducing the proffered testimony to support his defensive theory and that the proffered evidence formed such a vital portion of Green’s case that its exclusion effectively precluded him from presenting a defense.” But the court said that did not end the inquiry. The court said it had to conduct a “harmless error analysis” under Rule 44.2(a) of the Texas Rules of Appellate Procedure. Under this rule, the court must reverse a conviction unless it determines beyond a reasonable doubt that the error complained of did not contribute to a defendant’s conviction or punishment. After concluding that the Green case involved more than limited “he said, she said” evidence, the appeals court said “the State presented scientific evidence showing that [the victim’s] epithelial cells and Green’s sperm cells were found on two towels next to the bed that they shared and on a sheet taken from their bed. Green’s ex-wife and [the victim’s] brother both testified to suspicious behavior between Green and [the victim], including that they shared a bedroom and spooned on the couch together with [the victim’s] face in Green’s crotch. Thus, while [the victim’s] testimony that her father had sexually abused her was no doubt important to the State’s case, the State also relied on other testimony and scientific evidence to establish that Green had sexually assaulted [the victim].”


Thus, while the appeals court reinforced the Rule 412(c) provisions and even assumed that the trial court abused its discretion by not allowing evidence about the daughter’s past sexual behavior, the court chose to conduct a Rule 44.2(a) harmless error analysis because there had been significant other evidence indicating Green’s guilt. Had it been purely a “he said, she said” evidence case, the appeals court would not have “assumed” the trial court erred by not admitting the evidence and would have been compelled to make a ruling about the “probative” value of the victim’s past sexual behavior with respect to “bias and motive” defense offered by Green.


The burden a criminal defense attorney carries in Rule 412(c) in camera hearings is an enormous one because the clear legislative intent of “rape shield” statutes is to protect a sexual assault victim’s right to privacy. It is only when the defendant can make a clear and convincing showing, under the circumstances of the case, that a refusal to admit the past sexual behavior evidence infringed upon his “confrontation rights.” Defense counsel must be ready, and fully prepared with convincing facts and compelling argument, when he enters these Rule 412(c) in camera hearings.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization