Ill. Admin. Code tit. 95 § 400.695

Current through Register Vol. 48, No. 49, December 6, 2024

Section 400.695 - Admissibility of Prior Sexual Activity and Offenses

a) Admissibility

1) When an accused is charged with predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse, criminal sexual abuse, or criminal transmission of HIV, and in prosecutions for battery/aggravated battery that involve sexual penetration or sexual conduct, evidence of the prior sexual activity or the reputation of the alleged victim or corroborating witness is inadmissible except:

A)as evidence concerning the past sexual conduct of the alleged victim or corroborating witness under Section 115-7.3 of the Code of Criminal Procedure with the accused when the evidence is offered by the accused upon the issue of whether the alleged victim or corroborating witness consented to the sexual conduct with respect to which the offense is alleged; or

B)when constitutionally required to be admitted.

2)No evidence admissible under this Section shall be introduced unless ruled admissible by the military judge after an offer of proof has been made at a hearing to be held in camera in order to determine whether the defense has evidence to impeach the witness in the event that prior sexual activity with the defendant is denied. The offer of proof shall include reasonably specific information as to the date, time and place of the past sexual conduct between the alleged victim or corroborating witness and the accused.

3)Unless the military judge finds that reasonably specific information as to the date, time or place, or some combination thereof, has been offered as to prior sexual activity with the accused, counsel for the accused shall be ordered to refrain from inquiring into prior sexual activity between the alleged victim or corroborating witness and the accused.

4)The military judge shall not admit evidence under this Section unless he or she determines at the hearing that the evidence is relevant and the probative value of the evidence outweighs the danger of unfair prejudice.

5)The evidence shall be admissible at trial to the extent an order made by the military judge specifies the evidence that may be admitted and the areas with respect to which the alleged victim or corroborating witness may be examined or cross-examined. [ 725 ILCS 5/115-7 ]

6) The military judge may not order mental examination of a sex victim. Except when explicitly authorized by the Code of Criminal Procedure or by the Rules of the Supreme Court of Illinois, no military judge may require or order a witness who is the victim of an alleged sex offense to submit to or undergo either a psychiatric or psychological examination. [ 725 ILCS 5/115-7.1]

7) Pursuant to Section 115-7.2 of the Code of Criminal Procedure, in a prosecution for an illegal sexual act perpetrated upon a victim, testimony by an expert, qualified by the military judge relating to any recognized and accepted form of post-traumatic stress syndrome shall be admissible as evidence. [ 725 ILCS 5/115-7.2] (Il. Mil. R. Evid. 412)

b) Similar Offenses

1) Evidence in Certain Cases. In a court-martial for an offense set forth in Section 115-7.3 of the Code of Criminal Procedure, or that of an identical or closely related offense under the law of the state where the offense occurred, evidence of the defendant's commission of another offense or offenses set forth in Section 115-7.3 is admissible, as provided in Section 115-7.3.

2) Evidence in Domestic Violence Cases. In a court-martial for an offense related to domestic violence as set forth in Section 115-7.4 of the Code of Criminal Procedure, to include that of a related offense under the law of the state where the offense occurred, evidence of the defendant's commission of another offense or offenses of domestic violence is admissible, as provided in Section 115-7.4.

3) Evidence of Prior Convictions. In a criminal case for the type of offenses set forth in Section 115-20 of the Code of Criminal Procedure, evidence of the defendant's conviction for an offense set forth in that Section is admissible when the victim is the same person who was the victim of the previous offense that resulted in the conviction of the defendant, as provided in Section 115-20.

Ill. Admin. Code tit. 95, § 400.695

Adopted at 41 Ill. Reg. 11931, effective 9/14/2017.