Hawaii Rules of Evidence

Amends the Hawaii Rules of Evidence to conform to the federal
rule with respect to sex offense cases and the relevance of the
victim's past behavior.  Adopts new rule that conforms to the
federal rule with respect to the admissibility of evidence of
similar acts in civil cases concerning sexual assault or child
molestation. (SD1)

THE SENATE                              S.B. NO.           829
TWENTIETH LEGISLATURE, 1999                                S.D. 1
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The purpose of this Act is to conform the Hawaii
 2 rules of evidence to the current federal rules of evidence with
 3 respect to sex offense cases and the relevance of the victim's
 4 past behavior (rule 412), in particular with respect to the
 5 admissibility of evidence in civil proceedings involving alleged
 6 sexual misconduct, and to adopt the current federal rule relating
 7 to evidence of similar acts in civil cases concerning sexual
 8 assault or child molestation (rule 415).  The legislature finds
 9 that this Act is necessary to provide further protection for
10 women and children who are the victims of sexual assault and
11 sexual harassment.
12      Hawaii was the first state to adopt rule 412 of the Hawaii
13 Rules of Evidence, the "rape shield law", for criminal cases
14 involving rape.  Recently, the federal government, as part of a
15 comprehensive change in the law to protect women from violence in
16 our society and in the workplace, modified the rule.
17 Specifically, there were changes made in rule 412 of the federal
18 rules of evidence so that the rape shield law protected women in
19 both civil and criminal proceedings involving sexual assault or
20 sexual harassment.  Rule 412 prevents victims of sexual assault

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 1 and harassment from being further victimized when they attempt to
 2 enforce their rights in the courts.  It is currently the strategy
 3 of many defendants, when charged with sexual assault or
 4 harassment, immediately to begin intensive investigation of the
 5 woman making the charges, literally going back to her first date.
 6 The harm done to the woman who asserts her rights can be
 7 terrible.  Immediately, every relationship she has ever had, even
 8 childhood sex abuse, is openly and viciously explored, merely
 9 because she sought to enforce laws designed to keep her free of
10 sexual assault and harassment.  The changes in rule 412 protect
11 women from these tactics.
12      In addition, the new federal rule 415 allows evidence of
13 prior sexual assaults by repeat offenders in civil and criminal
14 actions.  The changes in federal rule 412 went into effect in
15 December 1994.  Rule 415 became effective in federal court in
16 July 1995.  Currently, Hawaii's rule 412 applies only in criminal
17 proceedings, but not in civil cases.  Hawaii does not have a rule
18 415.
19      SECTION 2.  Section 626-1, Hawaii Revised Statutes, is
20 amended as follows:
21      1.  By adding a new rule 415 to read:
22      "Rule 415  Evidence of similar acts in civil cases
23 concerning sexual assault or child molestation.  (a)  In a civil

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 1 case in which a claim for damages or other relief is predicated
 2 on a party's alleged commission of conduct constituting an
 3 offense of sexual assault or child molestation, evidence of that
 4 party's commission of other offenses of sexual assault or child
 5 molestation is admissible and may be considered as provided in
 6 these rules.  For purposes of this rule, an offense of child
 7 molestation shall include any offense under section 707-730,
 8 707-731, 707-732, 707-733, 707-733.5, 707-750, 707-751,
 9 712-1202(1)(b), or 712-1203(1)(b) in which the victim is a minor
10 under the age of fourteen.
11      (b)  A party who intends to offer evidence under this rule
12 shall disclose the evidence to the party against whom it will be
13 offered, including statements of witnesses or a summary of the
14 substance of any testimony that is expected to be offered, at
15 least fifteen days before the scheduled date of trial or at a
16 later time as the court may allow for good cause.
17      (c)  This rule shall not be construed to limit the admission
18 or consideration of evidence under any other rule."
19      2.  By amending rule 412 to read:
20      "Rule 412  [Sexual assault] Sex offense cases; relevance of
21 victim's past behavior.(a)  Notwithstanding any other provision
22 of law, in a criminal case in which a person is accused of sexual
23 assault, reputation or opinion evidence of the past sexual

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 1 behavior of an alleged victim of [such] the sexual assault is not
 2 admissible to prove the character of the victim in order to show
 3 action in conformity therewith.
 4      (b)  Notwithstanding any other provision of law, in a
 5 criminal case in which a person is accused of sexual assault,
 6 evidence of an alleged victim's past sexual behavior other than
 7 reputation or opinion evidence is not admissible to prove the
 8 character of the victim in order to show action in conformity
 9 therewith, unless [such] the evidence is:
10      (1)  Admitted in accordance with subsection (c)(1) and (2)
11           and is constitutionally required to be admitted; or
12      (2)  Admitted in accordance with subsection (c) and is
13           evidence of:
14           (A)  Past sexual behavior with persons other than the
15                accused, offered by the accused upon the issue of
16                whether the accused was or was not, with respect
17                to the alleged victim, the source of semen or
18                injury; or
19           (B)  Past sexual behavior with the accused and is
20                offered by the accused upon the issue of whether
21                the alleged victim consented to the sexual
22                behavior with respect to which sexual assault is
23                alleged.

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 1      (c)  (1) If the person accused of committing sexual assault
 2           intends to offer under subsection (b) evidence of
 3           specific instances of the alleged victim's past sexual
 4           behavior, the accused shall make a written motion to
 5           offer [such] the evidence not later than fifteen days
 6           before the date on which the trial in which [such] the
 7           evidence is to be offered is scheduled to begin, except
 8           that the court may allow the motion to be made at a
 9           later date, including during trial, if the court
10           determines either that the evidence is newly discovered
11           and could not have been obtained earlier through the
12           exercise of due diligence or that the issue to which
13           [such] the evidence relates has newly arisen in the
14           case.  Any motion made under this paragraph shall be
15           served on all other parties and on the alleged victim.
16      (2)  The motion described in paragraph (1) shall be
17           accompanied by a written offer of proof.  If the court
18           determines that the offer of proof contains evidence
19           described in subsection (b), the court shall order a
20           hearing in chambers to determine if [such] the evidence
21           is admissible.  At [such] the hearing, the parties may
22           call witnesses, including the alleged victim, and offer
23           relevant evidence.  Notwithstanding subsection (b) of

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 1           rule 104, if the relevancy of the evidence [which] that
 2           the accused seeks to offer in the trial depends upon
 3           the fulfillment of a condition of fact, the court, at
 4           the hearing in chambers or at a subsequent hearing in
 5           chambers scheduled for [such] this purpose, shall
 6           accept evidence on the issue of whether [such] the
 7           condition of fact is fulfilled and shall determine
 8           [such] the issue.
 9      (3)  If the court determines on the basis of the hearing
10           described in paragraph (2) that the evidence [which]
11           that the accused seeks to offer is relevant and that
12           the probative value of [such] the evidence outweighs
13           the danger of unfair prejudice, [such] the evidence
14           shall be admissible in the trial to the extent an order
15           made by the court specifies evidence [which] that may
16           be offered and areas with respect to which the alleged
17           victim may be examined or cross-examined.
18      (d)  For purposes of this rule, the term "past sexual
19 behavior" means sexual behavior other than the sexual behavior
20 with respect to which sexual assault is alleged.
21      (e)  The following evidence is not admissible in any civil
22 proceeding involving alleged sexual misconduct except as provided
23 in subsection (f):

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 1      (1)  Evidence offered to prove that any alleged victim
 2           engaged in other sexual behavior; and
 3      (2)  Evidence offered to prove any alleged victim's sexual
 4           predisposition.
 5      (f)  In a civil case, evidence offered to prove the sexual
 6 behavior or sexual predisposition of any alleged victim is
 7 admissible if it is otherwise admissible under these rules and
 8 its probative value substantially outweighs the danger of harm to
 9 any victim and of unfair prejudice to any party.  Evidence of an
10 alleged victim's reputation is admissible only if it has been
11 placed in controversy by the alleged victim.
12      (g)  Procedure to determine admissibility.
13      (1)  A party intending to offer evidence under subsection
14           (f) shall:
15           (A)  File a written motion at least fourteen days
16                before trial specifically describing the evidence
17                and stating the purpose for which it is offered,
18                unless the court, for good cause, requires a
19                different time for filing or permits filing during
20                trial; and
21           (B)  Serve the motion on all parties and notify the
22                alleged victim or, when appropriate, the alleged
23                victim's guardian or representative.

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 1      (2)  Before admitting evidence under this rule, the court
 2           shall conduct a hearing in camera and afford the victim
 3           and parties a right to attend and be heard.  The
 4           motion, related papers, and the record of the hearing
 5           shall be sealed and remain under seal unless the court
 6           orders otherwise."
 7      SECTION 3.  This Act does not affect rights and duties that
 8 matured, penalties that were incurred, and proceedings that were
 9 begun, before its effective date.
10      SECTION 4.  Statutory material to be repealed is bracketed.
11 New statutory material is underscored.
12      SECTION 5.  This Act shall take effect upon its approval.