US Laws, Codes, Statutes & Cases

(1) If the defendant intends to offer evidence of specific instances of the victim's past sexual behavior, notice of such intention shall be given to the prosecuting attorney and filed with the court not later than fifteen days before trial.

(2) Upon motion to the court by either party in a prosecution in a case of sexual assault, an in camera hearing shall be conducted in the presence of the judge, under guidelines established by the judge, to determine the relevance of evidence of the victim's or the defendant's past sexual behavior. Evidence of a victim's past sexual behavior shall not be admissible unless such evidence is: (a) Evidence of past sexual behavior with persons other than the defendant, offered by the defendant upon the issue whether the defendant was or was not, with respect to the victim, the source of any physical evidence, including but not limited to, semen, injury, blood, saliva, and hair; or (b) evidence of past sexual behavior with the defendant when such evidence is offered by the defendant on the issue of whether the victim consented to the sexual behavior upon which the sexual assault is alleged if it is first established to the court that such activity shows such a relation to the conduct involved in the case and tends to establish a pattern of conduct or behavior on the part of the victim as to be relevant to the issue of consent.

Laws 1977, LB 38, § 36

Laws 1984, LB 79, § 4

Statements made by victim to examining physician that she had been molested for 4 years by her brother, that she has been sexually assaulted four times in high school, and that her 5-year-old child was the product of a sexual assault were not relevant and not admissible under the rape shield law. State v. Welch, 241 Neb. 699, 490 N.W.2d 216 (1992).

Under subsection (2) of this section, testimony regarding victim's past sexual behavior was improper. State v. Fraser, 230 Neb. 157, 430 N.W.2d 512 (1988).

Nebraska rape shield law is constitutional on its face and as applied in this case to exclude evidence of the victim's previous consensual sexual relations with third parties. State v. Schenck, 222 Neb. 523, 384 N.W.2d 642 (1986).

Although evidence of a victim's past sexual behavior may be admissible under subsection (2)(b) on the issue of consent, the trial court, nevertheless, may apply the balance found in Rule 403 of the Nebraska Evidence Rules. State v. Hopkins, 221 Neb. 367, 377 N.W.2d 110 (1985).

In order that a victim's past consensual behavior with a defendant be admitted as evidence relevant to a charge of sexual assault, the defendant must, by offer of proof at the in camera hearing, adduce some evidence tending to prove a defendant's claim that the victim consented to the sexual act which is the subject of the prosecuted charge against the defendant. State v. Hopkins, 221 Neb. 367, 377 N.W.2d 110 (1985).