ORS 40.210: Rule 412. Sex offense cases; relevance of victim’s past behavior or manner of dress.

(1) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.266 (1), 163.355 to 163.427, 163.670 or 167.017, in a prosecution for an attempt to commit one of those crimes or in a proceeding conducted under ORS 163.760 to 163.777, the following evidence is not admissible: (a) Reputation or opinion evidence of the past sexual behavior of an alleged victim or a corroborating witness; or (b) Reputation or opinion evidence presented for the purpose of showing that the manner of dress of an alleged victim incited the crime or, in a proceeding under ORS 163.760 to 163.777, incited the sexual abuse, or indicated consent to the sexual acts that are alleged. (2) Notwithstanding any other provision of law, in a prosecution for a crime or an attempt to commit a crime listed in subsection (1) of this section or in a proceeding conducted under ORS 163.760 to 163.777, evidence of an alleged victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless the evidence other than reputation or opinion evidence: (a) Is admitted in accordance with subsection (4) of this section; and (b) Is evidence that: (A) Relates to the motive or bias of the alleged victim; (B) Is necessary to rebut or explain scientific or medical evidence offered by the state; or (C) Is otherwise constitutionally required to be admitted. (3) Notwithstanding any other provision of law, in a prosecution for a crime or an attempt to commit a crime listed in subsection (1) of this section or in a proceeding conducted under ORS 163.760 to 163.777, evidence, other than reputation or opinion evidence, of the manner of dress of the alleged victim or a corroborating witness, presented by a person accused of committing the crime or, in a proceeding conducted under ORS 163.760 to 163.777, by the respondent, is also not admissible, unless the evidence: (a) Is admitted in accordance with subsection (4) of this section; and (b) Is evidence that: (A) Relates to the motive or bias of the alleged victim; (B) Is necessary to rebut or explain scientific, medical or testimonial evidence offered by the state; (C) Is necessary to establish the identity of the alleged victim; or (D) Is otherwise constitutionally required to be admitted. (4)(a) If the person accused of a crime or an attempt to commit a crime listed in subsection (1) of this section, or the respondent in a proceeding conducted under ORS 163.760 to 163.777, intends to offer evidence under subsection (2) or (3) of this section, the accused or the respondent shall make a written motion to offer the evidence not later than 15 days before the date on which the trial in which the evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which the evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties and, in a criminal proceeding, on the alleged victim through the office of the prosecutor. (b) The motion described in paragraph (a) of this subsection shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subsection (2) or (3) of this section, the court shall order a hearing in camera to determine if the evidence is admissible. At the hearing the parties may call witnesses, including the alleged victim, and offer relevant evidence. Notwithstanding ORS 40.030 (2), if the relevancy of the evidence that the accused or the respondent seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in camera or at a subsequent hearing in camera scheduled for the same purpose, shall accept evidence on the issue of whether the condition of fact is fulfilled and shall determine the issue. (c) If the court determines on the basis of the hearing described in paragraph (b) of this subsection that the evidence the accused or the respondent seeks to offer is relevant and that the probative value of the evidence outweighs the danger of unfair prejudice, the evidence shall be admissible in the trial to the extent an order made by the court specifies evidence that may be offered and areas with respect to which a witness may be examined or cross-examined. (d) An order admitting evidence under this subsection in a criminal prosecution may be appealed by the state before trial. (5) For purposes of this section: (a) “Alleged victim” includes the petitioner in a proceeding conducted under ORS 163.760 to 163.777. (b) “In camera” means out of the presence of the public and the jury. (c) “Past sexual behavior” means sexual behavior other than: (A) The sexual behavior with respect to which the crime or attempt to commit the crime listed in subsection (1) of this section is alleged; or (B) In a proceeding conducted under ORS 163.760 to 163.777, the alleged sexual abuse. (d) “Trial” includes a hearing conducted under ORS 163.760 to 163.777. [1981 c.892 §31; 1993 c.301 §1; 1993 c.776 §1; 1997 c.249 §20; 1999 c.949 §3; 2013 c.687 §21; 2013 c.720 §5; 2019 c.13 §20; 2023 c.217 §6]