Yes, for the most part. The court said that the rape shield rule blocks any evidence about the victim's general reputation, rumors, or what other people thought about her sex life. This kind of information is considered unfair and irrelevant to whether she consented on a specific occasion. However, the court made an exception for what Black himself knew before the incident. He was allowed to tell the jury about his phone calls with the victim and what others had told him, but only to explain his own thinking and why he might have believed she was consenting. It could not be used to prove she was a 'bad' person.

Yes, the victim can appeal the judge's decision right away because Rule 412 is meant to protect rape victims' privacy. It would be unfair to make them wait until after the trial. Evidence about the victim's sexual history usually isn't allowed under Rule 412, unless it's absolutely necessary for the accused person's rights or if it relates to what they thought about consent. Here, the court agrees with some of the judge's decision but not all of it. They say reputation evidence can only be used if it's directly related to what Black knew and was thinking, but the rest can't be used.

This Court has said that "the admission of evidence of an alleged victim's past sexual behavior is constitutionally required only in extraordinary circumstances."

—allowing victim in a rape prosecution to appeal admission of evidence concerning her prior sexual activity

—granting a rape victim interlocutory appeal from an adverse rape shield ruling, “No other party in the evidentiary proceeding shares these interests to the extent that they might be viewed as a champion of the victim' s rights.”

—holding that evidence of the victim's "promiscuity" was admissible to support the defendant's assertion that he reasonably but mistakenly believed that the victim had consented to sex

—for example, the United States Court of Appeals, interpreting the Federal rape shield provision (Fed. R. Evid. 412), held that telephone conversations that an accused sex offender had with the complainant, as well as evidence of his state of mind as a result of what she had said to him, were relevant and admissible in spite of their suggestion of sexual conduct by …

As a final matter, ICE points out that some circuits have carved out exceptions to this default rule of criminal procedure.

—an interlocutory appeal by the rape victim from an erroneous trial court denial of rape shield protections.

R. Evid. 412 (a), the court concluded, "There is no indication, however, that this evidence was intended to be excluded when offered solely to show the accused's state of mind."

—general reputation in and around the Army post”;(2) the victim' s “habit of calling out to the barracks to speak to various and sundry soldiers”;(3) the victim' s “habit of coming to the post to meet people and of her habit for being at the barracks at the snack bar”;(4) evidence from the alleged victim' s former landlord regarding his experience with her promiscuity; and (5) a …

—ruling inadmissible evidence of a rape victim's general demeanor and reputation as sexually promiscuous

Yes, Federal Rule of Evidence 412 prohibits the admission of such evidence. The rule imposes a general ban on reputation and opinion evidence of a victim's past sexual behavior because Congress deemed it irrelevant to the issues of consent or veracity. The court held that general reputation evidence, evidence of the victim's alleged 'habits' of interacting with soldiers, and information from a landlord or social worker about her alleged promiscuity are inadmissible character evidence under Rule 412(a). However, the court distinguished this from evidence of the defendant’s own state of mind. Black's testimony about his own phone conversations with the victim and what he knew of her past from others before the incident is admissible not as character evidence, but solely to show his state of mind and intent at the time of the alleged crime. The court also held that a rape victim has an implicit right under Rule 412 to an immediate appeal of a pre-trial order permitting evidence of her sexual history, as a post-trial appeal cannot remedy the invasion of privacy the rule is designed to prevent.

Yes, the victim has the right to an interlocutory appeal from an adverse rape shield ruling under Rule 412 because the rule was enacted for the special benefit of rape victims and appeal after trial would not adequately protect the privacy interests Congress sought to safeguard. Evidence of the victim's past sexual behavior is generally inadmissible under Rule 412, except in extraordinary circumstances where it is constitutionally required to preserve the defendant's rights or when it is relevant to the accused's state of mind regarding consent. Here, the court affirms in part and reverses in part the district court's order, allowing reputation and opinion evidence only to the extent it relates directly to the defendant's knowledge and state of mind, while excluding the rest.

Doe v. United States

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