Federal Rule of Evidence 412 eliminates from the jury's consideration during a criminal rape trial evidence of the victim's past sexual experiences in all but a few narrowly drawn circumstances. In enacting Rule 412, Congress' primary purpose was to spare victims of rape the degrading and unwarranted intrusions into intimate details of their private lives that had formerly been common practice in the federal courts. Part I of this comment discusses the background, structure and rationale of Federal Rule of Evidence 412. Part II argues that the justifications for the enactment of Rule 412 in the context of rape also exist in the context of sexual harassment claims. Part III examines the applicability of Rule 412's exceptions to civil cases of sexual harassment under Title VII and concludes that most exceptions are also warranted in a civil analogue to Rule 412; Part III also proposes an additional exception, one that some have argued should have been included in Rule 412. Finally, this comment concludes that a Federal Rule of Evidence, parallel to Federal Rule 412, should be enacted and in an Appendix proposes such a model Rule of Evidence.
Sexual Harassment Cases and the Law of Evidence: A Proposed Rule, 1989 U. CHI. LEGAL F. 219