2017 Nebraska Revised Statutes
Chapter 27 - COURTS; RULES OF EVIDENCE
27-412 Sex offense cases; relevance of alleged victim's past sexual behavior or alleged sexual predisposition.

27-412. Sex offense cases; relevance of alleged victim's past sexual behavior or alleged sexual predisposition.

(1) The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subsections (2) and (3) of this section:

(a) Evidence offered to prove that any victim engaged in other sexual behavior; and

(b) Evidence offered to prove any victim's sexual predisposition.

(2)(a) In a criminal case, the following evidence is admissible, if otherwise admissible under the Nebraska Evidence Rules:

(i) Evidence of specific instances of sexual behavior by the victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(ii) Evidence of specific instances of sexual behavior of the victim with respect to the accused offered by the accused to prove consent of the victim if it is first established to the court that such behavior is similar to the behavior involved in the case and tends to establish a pattern of behavior of the victim relevant to the issue of consent; and

(iii) Evidence, the exclusion of which would violate the constitutional rights of the accused.

(b) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any victim is admissible if it is otherwise admissible under the Nebraska Evidence Rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of a victim's reputation is admissible only if it has been placed in controversy by the victim.

(3)(a) A party intending to offer evidence under subsection (2) of this section shall:

(i) File a written motion at least fifteen days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause, requires a different time for filing or permits filing during trial; and

(ii) Serve the motion on all parties and notify the victim or, when appropriate, the victim's guardian or representative.

(b) Before admitting evidence under this section, the court shall conduct a hearing in camera outside the presence of any jury.

Source

• Laws 2009, LB97, § 3.

Annotations

• The term "sexual behavior" under this section refers to specific instances of conduct and the term "sexual predisposition" refers to more generalized evidence in the form of opinion or reputation testimony about the complaining witness's character. But questions about the existence of a relationship between the complaining witness and a third party does not, by itself, implicate either type of evidence prohibited by this section. Evidence is not barred by this section simply because it might indirectly cause the finder of fact to make an inference concerning a complaining witness's prior sexual conduct. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).

• This section is not meant to prevent defendants from presenting relevant evidence, but to deprive them of the opportunity to harass and humiliate the complaining witness and divert the jury's attention to irrelevant matters. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).