REPORT TITLE:
Hawaii Rules of Evidence
DESCRIPTION:
Conforms Rule 412 of the Hawaii Rules of Evidence in civil cases
to the current rape shield laws with respect to sex offense cases
and the relevance of the victim's past behavior. (SB829 HD1).
829
THE SENATE S.B. NO. S.D. 1
TWENTIETH LEGISLATURE, 1999 H.D. 1
STATE OF HAWAII
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A BILL FOR AN ACT
RELATING TO THE HAWAII RULES OF EVIDENCE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
1 SECTION 1. The purpose of this Act is to conform the Hawaii
2 rules of evidence in civil cases to the current rape shield laws
3 with respect to sex offense cases and the relevance of the
4 victim's past behavior (rule 412). The legislature finds that
5 this Act is necessary to provide further protection for women and
6 children who are the victims of sexual offenses or sexual
7 harassment.
8 SECTION 2. SECTION 626-1, Hawaii Revised Statutes, is
9 amended by amending rule 412 to read as follows:
10 "Rule 412 Sexual [assault] offense and sexual harassment
11 cases; relevance of victim's past behavior.(a) Notwithstanding
12 any other provision of law, in a criminal case in which a person
13 is accused of a sexual [assault,] offense, reputation or opinion
14 evidence of the past sexual behavior of an alleged victim of
15 [such] the sexual [assault] offense is not admissible to prove
16 the character of the victim [in order] to show action in
17 conformity therewith.
18 (b) Notwithstanding any other provision of law, in a
19 criminal case in which a person is accused of a sexual [assault,]
20 offense, evidence of an alleged victim's past sexual behavior
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1 other than reputation or opinion evidence is not admissible to
2 prove the character of the victim [in order] to show action in
3 conformity therewith, unless [such] the evidence is:
4 (1) Admitted in accordance with subsection (c)(1) and (2)
5 and is constitutionally required to be admitted; or
6 (2) Admitted in accordance with subsection (c) and is
7 evidence of:
8 (A) Past sexual behavior with persons other than the
9 accused, offered by the accused upon the issue of
10 whether the accused was or was not, with respect
11 to the alleged victim, the source of semen or
12 injury; or
13 (B) Past sexual behavior with the accused and is
14 offered by the accused upon the issue of whether
15 the alleged victim consented to the sexual
16 behavior with respect to which sexual assault is
17 alleged.
18 (c) (1) If the person accused of committing a sexual
19 [assault] offense intends to offer under subsection (b)
20 evidence of specific instances of the alleged victim's
21 past sexual behavior, the accused shall make a written
22 motion to offer [such] the evidence not later than
23 fifteen days before the date on which the trial in
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1 which [such] the evidence is to be offered is scheduled
2 to begin, except that the court may allow the motion to
3 be made at a later date, including during trial, if the
4 court determines either that the evidence is newly
5 discovered and could not have been obtained earlier
6 through the exercise of due diligence or that the issue
7 to which [such] the evidence relates has newly arisen
8 in the case. Any motion made under this paragraph
9 shall be served on all other parties and on the alleged
10 victim.
11 (2) The motion described in paragraph (1) shall be
12 accompanied by a written offer of proof. If the court
13 determines that the offer of proof contains evidence
14 described in subsection (b), the court shall order a
15 hearing in chambers to determine if [such] the evidence
16 is admissible. At [such] the hearing, the parties may
17 call witnesses, including the alleged victim, and offer
18 relevant evidence. Notwithstanding subsection (b) of
19 rule 104, if the relevancy of the evidence [which] that
20 the accused seeks to offer in the trial depends upon
21 the fulfillment of a condition of fact, the court, at
22 the hearing in chambers or at a subsequent hearing in
23 chambers scheduled for [such] this purpose, shall
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1 accept evidence on the issue of whether [such] the
2 condition of fact is fulfilled and shall determine
3 [such] the issue.
4 (3) If the court determines on the basis of the hearing
5 described in paragraph (2) that the evidence [which]
6 that the accused seeks to offer is relevant and that
7 the probative value of [such] the evidence outweighs
8 the danger of unfair prejudice, [such] the evidence
9 shall be admissible in the trial to the extent an order
10 made by the court specifies evidence [which] that may
11 be offered and areas with respect to which the alleged
12 victim may be examined or cross-examined.
13 (d) In any civil action alleging conduct which constitutes
14 a sexual offense or sexual harassment, opinion evidence,
15 reputation evidence, and evidence of specific instances of
16 plaintiff's sexual conduct, or any of such evidence, is not
17 admissible by the defendant to prove consent by the plaintiff or
18 the absence of injury to the plaintiff, unless the injury alleged
19 by the plaintiff is in the nature of loss of consortium.
20 (e) Subsection (d) shall not be applicable to evidence of
21 the plaintiff's sexual conduct with the alleged perpetrator.
22 (f) In a civil action alleging conduct which constitutes a
23 sexual offense or sexual harassment, if the plaintiff introduces
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1 evidence, including testimony of a witness, or the plaintiff as a
2 witness gives testimony, and the evidence or testimony relates to
3 the plaintiff's sexual conduct, the defendant may cross-examine
4 the witness who gives the testimony and offer relevant evidence
5 limited specifically to the rebuttal of the evidence introduced
6 by the plaintiff or given by the plaintiff.
7 (g) Nothing in subsections (d), (e) or (f) shall be
8 construed to make inadmissible evidence offered to attack the
9 credibility of the plaintiff.
10 [(d)] (h) For purposes of this rule, the term "past sexual
11 behavior" means sexual behavior other than the sexual behavior
12 with respect to which a sexual [assault] offense or sexual
13 harassment is alleged."
14 SECTION 3. This Act does not affect rights and duties that
15 matured, penalties that were incurred, and proceedings that were
16 begun, before its effective date.
17 SECTION 4. Statutory material to be repealed is bracketed.
18 New statutory material is underscored.
19 SECTION 5. This Act shall take effect upon its approval.