Mass. R. Evid. 412
Mass. Guid. Evid. 412
Subsections (a)(1) and (2). These subsections are derived from G. L. c. 233, § 21B (rape-shield statute), and Commonwealth v. Domaingue, 397 Mass. 693, 696-700 (1986). Evidence of a victim's sexual conduct cannot be introduced at a trial for any of the crimes on this nonexhaustive list: G. L. c. 265, §§ 13B, 13F, 13H, 22, 22A, 23, 24, and 24B, and G. L. c. 272, § 29A. Evidence in the form of reputation or opinion is not admissible to prove the complainant's reputation for unchastity. See Commonwealth v. Joyce, 382 Mass. 222, 227-228 (1981) (the rape-shield statute "reverses the common law rule under which evidence of the complainant's general reputation for unchastity was admissible" [citation omitted]). Note that the cases use the terms "victim" and "complainant" interchangeably.
"The rape-shield statute is principally designed to prevent defense counsel from eliciting evidence of the victim's promiscuity as part of a general credibility attack." Commonwealth v. Fitzgerald, 412 Mass. 516, 523 (1992). "The policy rationale for this law is that evidence of the victim's prior sexual conduct might divert attention from the alleged criminal acts of the defendant, inappropriately putting the victim on trial" (citations omitted). Commonwealth v. Houston, 430 Mass. 616, 621 (2000). In Commonwealth v. Parent, 465 Mass. 395, 404-405 (2013), the Supreme Judicial Court held that the trial judge did not abuse her discretion in ruling that a witness who overheard the victim speaking on a cell phone could testify that the victim invited a boy to visit her on the evening of the alleged sexual assault but would not be permitted to testify that the victim was overheard promising to engage in oral sex.
Subsection (a)(3). This subsection is derived from Commonwealth v. Butler, 97 Mass. App. Ct. 223, 237 (2020) (victim's sexual orientation not relevant to consent).
Subsection (b)(1). This subsection is taken from G. L. c. 233, § 21B. The complainant's prior sexual activity with the defendant may be relevant to the issue of consent, particularly to show the complainant's emotion to that particular defendant. Commonwealth v. Grieco, 386 Mass. 484, 488 (1982). Cf. Commonwealth v. Fionda, 33 Mass. App. Ct. 316, 321-322 (1992) (provocative conversation and kissing on prior occasion not probative of consent to intercourse on later occasion).
Subsection (b)(2). This subsection is taken from G. L. c. 233, § 21B. Prior acts with another person may be relevant to establishing an alternative cause for the complainant's physical condition. See, e.g., Commonwealth v. Fitzgerald, 402 Mass. 517, 521-522 (1988), S . C ., 412 Mass. 516, 521-525 (1992) (presence of sperm where defendant underwent a vasectomy); Commonwealth v. Cardoza, 29 Mass. App. Ct. 645, 648-649 (1990) (presence of foreign pubic hair not belonging to defendant should have been admitted).
Subsection (b)(3). This subsection is derived from Commonwealth v. Joyce, 382 Mass. 222, 227-229 (1981). While a defendant has a constitutional right to present a full defense, that right is not unfettered. See Commonwealth v. Thevenin, 33 Mass. App. Ct. 588, 592-593 (1992). To overcome the restrictions contained in the rape-shield statute, the defense must be "based on more than a vague hope or speculation," and a defendant cannot conduct "an unbounded or freewheeling cross-examination" that invites the jury to conjecture. Id.
"Where evidence of bias is available by other means, no evidence of the complainant's prior sexual history should be admitted." Commonwealth v. Gagnon, 45 Mass. App. Ct. 584, 589 (1998). See also Commonwealth v. Pyne, 35 Mass. App. Ct. 36, 38 (1993), citing Commonwealth v. Elder, 389 Mass. 743, 751 nn.11-12 (1983). Cf. Commonwealth v. Stockhammer, 409 Mass. 867, 875 (1991) (specific act evidence may be used to demonstrate the complainant's bias or motive to fabricate). Evidence may be used to show that the complainant made prior false allegations of rape or abuse. See Commonwealth v. Bohannon, 376 Mass. 90, 94-95 (1978) (evidence admissible where witness was the complainant at trial, consent was central issue, complainant's testimony was inconsistent and confused, and there was independent basis for concluding that prior allegations were false). Cf. Commonwealth v. Talbot, 444 Mass. 586, 590-591 (2005); Commonwealth v. Blair, 21 Mass. App. Ct. 625, 626-629 (1986). A defendant may introduce evidence that a complainant has been subjected to past sexual abuse to explain the complainant's inappropriate knowledge of sexual matters. See Commonwealth v. Ruffen, 399 Mass. 811, 814-817 (1987). See also Commonwealth v. Beaudry, 445 Mass. 577, 580-586 (2005). A trial judge has discretion to admit evidence of a complainant's prior conviction for a sexual offense, but must take into consideration the objectives of the rape-shield statute. See Commonwealth v. Harris, 443 Mass. 714, 723-728 (2005) (harmonizing G. L. c. 233, §§ 21 and 21B). "The judge must determine whether the weight and relevance of the proffered evidence of bias or motive to lie is sufficient to outweigh its prejudicial effect to the victim" (internal citation omitted). Commonwealth v. Noj, 76 Mass. App. Ct. 194, 198-199 (2010). See also Commonwealth v. Thomas, 89 Mass. App. Ct. 422, 425-427 (2016) (no error in excluding rape victim's prior convictions for "prostitution-related offenses" where "nothing about the facts" gave victim motive to lie, and case did not involve consent defense).
Conversely, "[i]n the exercise of this discretion a trial judge should consider the important policies underlying the rape-shield statute. He should exclude evidence of specific instances of a complainant's sexual conduct in so far [sic] as that is possible without unduly infringing upon the defendant's right to show bias." Commonwealth v. Joyce, 382 Mass. 222, 231 (1981).
Subsection (c). This subsection is derived from G. L. c. 233, § 21B; Commonwealth v. Jones, 472 Mass. 707, 720-731 (2015); and Commonwealth v. Harris, 443 Mass. 714, 721 (2005). See Commonwealth v. Cortez, 438 Mass. 123, 129-130 (2002); Commonwealth v. Joyce, 382 Mass. 222, 232-233 (1981) (Braucher, J., concurring).
In Commonwealth v. Jones, 472 Mass. 707 (2015), the Supreme Judicial Court held that the Sixth Amendment right to a public trial applies to a rape-shield hearing. Despite the language of G. L. c. 233, § 21B, before closing the courtroom, the court must make case-specific findings in accordance with the four-part test articulated in Waller v. Georgia, 467 U.S. 39, 48 (1984):
"[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; [2] the closure must be no broader than necessary to protect that interest; [3] the trial court must consider reasonable alternatives to closing the proceeding; and [4] it must make findings adequate to support the closure."
Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reason; Note "Validity of Claim of Privilege" to Section 511(b), Privilege Against Self-Incrimination: Privilege of a Witness.