EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, April 8, 2021

Court of Appeals of Utah Finds Evidence of Victim's Bisexuality Inadmissible Under Rape Shield Rule

Similar to its federal counterpart, Utah Rule of Evidence 412(a) provides that

The following evidence is not admissible in a criminal proceeding involving alleged sexual misconduct: 

(a)(1) evidence offered to prove that a victim engaged in other sexual behavior; or

(a)(2) evidence offered to prove a victim’s sexual predisposition.

Under this "rape shield" rule, it is well established that evidence of an alleged victim's sexual orientation is typically inadmissible. An example of this can be seen in the opinion of the Court of Appeals of Utah in State v. Steele, 2021 WL 1307481 (Utah App. 20201).

In Steele

Thorpe Steele d[id] not deny he had sex with his trainee, Emma. Instead, he claim[ed] their sexual attraction was so significant that within thirty minutes of meeting, the two engaged in passionate sexual activity, during business hours, in the sleeper compartment of a semi-truck parked in their employer's parking lot. And he claim[ed] that they pledged to continue to do so daily for the next month. But within minutes after Steele left the truck, Emma, sobbing and hysterical, reported that she had been raped. Charges and a trial followed, and Steele...appeal[ed] his convictions for rape and forcible sodomy. He generally contend[ed] that his attorneys provided ineffective assistance based on the way they handled evidence of Emma's sexual orientation.


Steele claimed that Emma had told him she was bisexual and had not been “with a man” for several years. In response, the State filed a motion in limine (the rule 412 motion) to preclude any references to these statements at trial under rule 412 of the Utah Rules of Evidence—which provides that, absent a specific exception, “evidence offered to prove that a victim engaged in other sexual behavior ... [or] to prove a victim's sexual predisposition” is “not admissible.”...
Steele's trial attorneys (Counsel) filed a response in which they stipulated that Steele “ha[d] no objection to the State's motion to exclude statements that [Emma] made” that “she was bisexual” and that “she had not been ‘with a man’ for a number of years.”

In his appeal, Steele claimed that this stipulation was ineffective assistance, but the Court of Appeals found no issue with the stipulation because it was clear the evidence was inadmissible under Utah Rule of Evidence 412(a).



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