Rule 412: Evidence of Previous Sexual Conduct in Criminal Cases

(a) Definition of “Victim.” In this rule, “victim” includes the alleged victim of an extraneous offense or act with respect to which evidence is introduced during the prosecution of an offense described in paragraph (b).

(b) Applicable Offenses. This rule applies to a proceeding in the prosecution of a defendant for an offense, or for an attempt or conspiracy to commit an offense, under any of the following provisions of the Texas Penal Code:

• (1) Section 20A.02(a)(3), (4), (7), or (8) (Trafficking of Persons);

• (2) Section 20A.03 (Continuous Trafficking of Persons), if the offense is based partly or wholly on conduct that constitutes an offense under Section 20A.02(a)(3), (4), (7), or (8);

• (3) Section 21.02 (Continuous Sexual Abuse of Young Child or Disabled Individual);

• (4) Section 21.11 (Indecency with a Child);

• (5) Section 22.011 (Sexual Assault);

• (6) Section 22.012 (Indecent Assault); or

• (7) Section 22.021 (Aggravated Sexual Assault).

(c) Reputation or Opinion Evidence. In the prosecution of an offense described in paragraph (b), reputation or opinion evidence of an alleged victim’s past sexual behavior is not admissible.

(d) Evidence of a Specific Instance of Past Sexual Behavior.

• (1) In General. Except as provided in paragraph (2), in the prosecution of an offense described in paragraph (b), evidence of a specific instance of an alleged victim’s past sexual behavior is not admissible.

• (2) Exceptions; Procedure for Offering Evidence. A defendant may not offer evidence of a specific instance of an alleged victim’s past sexual behavior unless the court:

• • (A) on a motion by the defendant made outside the presence of the jury, conducts an in camera examination of the evidence in the presence of the court reporter; and
• • (B) determines that the probative value of the evidence outweighs the danger of unfair prejudice to the alleged victim and that the evidence:
• • • (i) is necessary to rebut or explain scientific or medical evidence offered by the attorney representing the state;
• • • (ii) concerns past sexual behavior with the defendant and is offered by the defendant to prove consent, if the lack of consent is an element of the offense;
• • • (iii) relates to the alleged victim’s motive or bias;
• • • (iv) is admissible under Rule 609; or
• • • (v) is constitutionally required to be admitted.

(e) Record Sealed. The court must seal the record of the in camera examination conducted under paragraph (d)(1) and preserve the examination record as part of the record in the case.