Laws of Minnesota 1987 

                        CHAPTER 114-S.F.No. 948 
           An act relating to crimes; permitting evidence showing 
          a tendency to fabricate allegations of sexual assault; 
          requiring three days' notice of intent to introduce 
          evidence of victim's prior sexual conduct; making 
          certain statutory changes for the purpose of 
          consistency with the rules of evidence; amending 
          Minnesota Statutes 1986, section 609.347.  
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1986, section 609.347, is 
amended to read:  
    609.347 [EVIDENCE.] 
    Subdivision 1.  In a prosecution under sections 609.342 to 
609.346, the testimony of a complainant victim need not be 
corroborated. 
    Subd. 2.  In a prosecution under sections 609.342 to 
609.346, there is no need to show that the complainant victim 
resisted the actor accused.  
    Subd. 3.  In a prosecution under sections 609.342 to 
609.346 or 609.365, evidence of the complainant's victim's 
previous sexual conduct shall not be admitted nor shall any 
reference to such conduct be made in the presence of the jury, 
except by court order under the procedure provided in 
subdivision 4, and only to the extent that the court finds that 
any of the following proposed evidence is material to the fact 
at issue in the case and that its inflammatory or prejudicial 
nature does not outweigh its probative value:.  The evidence can 
be admitted only if the probative value of the evidence is not 
substantially outweighed by its inflammatory or prejudicial 
nature and only in the circumstances set out in paragraphs (a) 
and (b).  For the evidence to be admissible under paragraph (a), 
subsection (i), the judge must find by a preponderance of the 
evidence that the facts set out in the accused's offer of proof 
are true.  For the evidence to be admissible under paragraph 
(a), subsection (ii) or paragraph (b), the judge must find that 
the evidence is sufficient to support a finding that the facts 
set out in the accused's offer of proof are true, as provided 
under Rule 901 of the Rules of Evidence. 
    (a) When consent or fabrication by the complainant of the 
victim is the a defense in the case, the following evidence of 
such is admissible: 
    (i) evidence of the victim's previous sexual conduct 
tending to establish a common scheme or plan of similar sexual 
conduct under circumstances similar to the case at issue on the 
part of the complainant, relevant and material to the issue of 
consent or fabrication.  Evidence of such conduct engaged in 
more than one year prior to the date of alleged offense is 
inadmissible.  In order to find a common scheme or plan, the 
judge must find that the victim made prior allegations of sexual 
assault which were fabricated; and 
    (ii) evidence of the victim's previous sexual conduct with 
the accused.  
    (b) When the prosecution's case includes evidence of 
specific instances of sexual activity showing the source of 
semen, pregnancy, or disease at the time of the incident or, in 
the case of pregnancy, between the time of the incident and 
trial;, evidence of specific instances of the victim's previous 
sexual conduct is admissible solely to show the source of the 
semen, pregnancy, or disease. 
    (c) Evidence of the complainant's past sexual conduct with 
the defendant; 
    (d) For purposes of impeachment, when such evidence is 
offered to rebut specific testimony of the complainant.  
    Subd. 4.  The defendant accused may not offer evidence 
described in subdivision 3 except pursuant to the following 
procedure: 
    (a) A motion shall be made by the defendant accused at 
least three business days prior to trial, unless later for good 
cause shown, stating to the court and prosecutor that the 
defendant has an setting out with particularity the offer of 
proof of the relevancy of the evidence of that the accused 
intends to offer, relative to the previous sexual conduct of the 
complainant which is proposed to be presented victim; 
    (b) If the court finds that deems the offer of proof is 
sufficient, the court shall order a hearing out of the presence 
of the jury, if any, and in such hearing shall allow 
the defendant accused to make a full presentation of the offer 
of proof; 
    (c) At the conclusion of the hearing, if the court finds 
that the evidence proposed to be offered by the defendant 
accused regarding the previous sexual conduct of the complainant 
victim is relevant and material to the fact of 
consent, admissible under subdivision 3 and is not so 
prejudicial as to be inadmissible that its probative value is 
not substantially outweighed by its inflammatory or prejudicial 
nature, the court shall make an order stating the extent to 
which evidence is admissible under subdivision 3 and prescribing 
the nature of questions to be permitted at trial.  The defendant 
accused may then offer evidence pursuant to the order of the 
court; 
    (d) If new information is discovered after the date of the 
hearing or during the course of trial, which may make evidence 
described in subdivision 3 admissible, the defendant shall 
accused may make the disclosures under an offer of proof 
pursuant to clause (a) of this subdivision and the court shall 
order an in camera hearing to determine whether the proposed 
evidence is admissible by the standards herein.  
    Subd. 5.  In a prosecution under sections 609.342 to 
609.346, the court shall not instruct the jury to the effect 
that: 
    (a) It may be inferred that a complainant victim who has 
previously consented to sexual intercourse with persons other 
than the defendant accused would be therefore more likely to 
consent to sexual intercourse again; or 
    (b) The complainant's victim's previous or subsequent 
sexual conduct in and of itself may be considered in determining 
the credibility of the complainant victim; or 
    (c) Criminal sexual conduct is a crime easily charged by a 
complainant victim but very difficult to disprove by a defendant 
an accused because of the heinous nature of the crime; or 
    (d) The jury should scrutinize the testimony of 
the complainant victim any more closely than it should 
scrutinize the testimony of any witness in any felony 
prosecution.  
    Subd. 6.  (a) In a prosecution under sections 609.342 to 
609.346 involving a psychotherapist and patient, evidence of the 
patient's personal or medical history is not admissible except 
when:  
    (1) the defendant accused requests a hearing at least three 
business days prior to trial and makes an offer of proof of the 
relevancy of the history; and 
    (2) the court finds that the history is relevant and that 
the probative value of the history outweighs its prejudicial 
value.  
    (b) The court shall allow the admission only of specific 
information or examples of conduct of the complainant victim 
that are determined by the court to be relevant.  The court's 
order shall detail the information or conduct that is admissible 
and no other evidence of the history may be introduced. 
    (c) Violation of the terms of the order is grounds for 
mistrial but does not prevent the retrial of the defendant 
accused.  
    Subd. 7.  [EFFECT OF STATUTE ON RULES.] Rule 404, paragraph 
(c) of the Rules of Evidence is superseded to the extent of its 
conflict with this section. 
    Sec. 2.  [EFFECTIVE DATE.] 
    Section 1 is effective August 1, 1987, and applies to 
proceedings commenced on or after that date. 
    Approved May 14, 1987