Sexual orientation and M.R.E. 412

Here's a nice little nugget in a recent criminal appeal, State v. Rackliffe, 2010 ME 70 []. 


 The defendant, a male, was convicted of gross sexual assault for raping another male in a mall restroom.  The defendant, who was claiming consent, argued on appeal that it was error to exclude evidence of the victim's sexual orientation.  The SJC affirmed, finding sexual orientation irrelevant per Rule 412(b), which provides that a victim’s "past sexual behavior" is normally irrelevant to a sexual misconduct case. The defendant argued that identification of sexual orientation is not the same as "past sexual behavior" within the meaning of Rule 412, and that the victim's orientation was relevant to the issue of consent.  The SJC, with Justice Alexander writing for the unanimous Court (everyone sitting but Justice Mead), disagreed:  "Evidence of a victim's sexual orientation, taken alone, is irrelevant to the issue of whether or not a victim consented to a sexual encounter."  (P 6.)



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