Rule 412. Rape or sex offense cases; relevance of victim's past behavior.
Rule 412. Rape or sex offense cases; relevance ofvictim's past behavior.
(a) As used in this rule, the term "sexual behavior"means sexual activity of the complainant other than the sexual act which is atissue in the indictment on trial.
(b) Notwithstanding any other provision of law, the sexualbehavior of the complainant is irrelevant to any issue in the prosecutionunless such behavior:
(1) Was between the complainant and the defendant; or
(2) Is evidence of specific instances of sexual behavior offeredfor the purpose of showing that the act or acts charged were not committed bythe defendant; or
(3) Is evidence of a pattern of sexual behavior so distinctiveand so closely resembling the defendant's version of the alleged encounter withthe complainant as to tend to prove that such complainant consented to the actor acts charged or behaved in such a manner as to lead the defendant reasonablyto believe that the complainant consented; or
(4) Is evidence of sexual behavior offered as the basis ofexpert psychological or psychiatric opinion that the complainant fantasized orinvented the act or acts charged.
(c) Sexual behavior otherwise admissible under this rule may notbe proved by reputation or opinion.
(d) Notwithstanding any other provision of law, unless and untilthe court determines that evidence of sexual behavior is relevant undersubdivision (b), no reference to this behavior may be made in the presence ofthe jury and no evidence of this behavior may be introduced at any time duringthe trial of:
(1) A charge of rape or a lesser included offense of rape;
(2) A charge of a sex offense or a lesser included offense of asex offense; or
(3) An offense being tried jointly with a charge of rape or asex offense, or with a lesser included offense of rape or a sex offense.
Beforeany questions pertaining to such evidence are asked of any witness, theproponent of such evidence shall first apply to the court for a determinationof the relevance of the sexual behavior to which it relates. The proponent of suchevidence may make application either prior to trial pursuant to G.S. 15A‑952,or during the trial at the time when the proponent desires to introduce suchevidence. When application is made, the court shall conduct an in camerahearing, which shall be transcribed, to consider the proponent's offer of proofand the argument of counsel, including any counsel for the complainant, todetermine the extent to which such behavior is relevant. In the hearing, theproponent of the evidence shall establish the basis of admissibility of suchevidence. Notwithstanding subdivision (b) of Rule 104, if the relevancy of theevidence which the proponent seeks to offer in the trial depends upon thefulfillment of a condition of fact, the court, at the in camera hearing or at asubsequent in camera hearing scheduled for that purpose, shall accept evidenceon the issue of whether that condition of fact is fulfilled and shall determinethat issue. If the court finds that the evidence is relevant, it shall enter anorder stating that the evidence may be admitted and the nature of the questionswhich will be permitted.
(e) The record of the in camera hearing and all evidencerelating thereto shall be open to inspection only by the parties, thecomplainant, their attorneys and the court and its agents, and shall be usedonly as necessary for appellate review. At any probable cause hearing, thejudge shall take cognizance of the evidence, if admissible, at the end of thein camera hearing without the questions being repeated or the evidence beingresubmitted in open court. (1983, c. 701, s. 1.)