Rule 2:412.ADMISSIBILITY OF COMPLAINING WITNESS' PRIOR SEXUAL CONDUCT; CRIMINAL SEXUAL ASSAULT CASES; RELEVANCE OF PAST

Rule 2:412 is Virginia’s rape shield rule, applying in prosecutions under the sexual assault article of the criminal code, certain abduction provisions, and the indecent-liberties-with-children statutes it lists. Subdivision (a) starts with a categorical bar: general reputation or opinion evidence of the complaining witness’s unchaste character or prior sexual conduct is never admitted. Evidence of specific instances of the complaining witness’s prior sexual conduct is admissible only within three narrow paths, unless the complaining witness voluntarily agrees to broader disclosure — to offer an alternative explanation for physical evidence like semen, pregnancy, disease, or injury to intimate parts that the prosecution has introduced; to show sexual conduct between the complaining witness and the accused, offered to support a defense that the alleged offense was not accomplished by force, threat, intimidation, or the complaining witness’s incapacity, as long as that conduct occurred reasonably close in time to the charged offense; or to rebut evidence of the complaining witness’s prior sexual conduct that the prosecution itself introduced.

Subdivision (b) protects a different right: the accused’s ability to show the complaining witness had a motive to fabricate the charge. That evidence is not barred by subdivision (a), even when it touches on the complaining witness’s past sexual conduct with someone other than the accused — but if it does, the accused must give written notice generally describing the evidence before introducing any evidence or making an opening statement, whichever happens first.

Subdivision (c) puts a procedural gate in front of both categories. Evidence described in subdivisions (a) and (b) cannot be admitted or even referred to at a preliminary hearing or trial until the court first holds a closed evidentiary hearing — limited to the accused, the complaining witness, necessary witnesses, and required court personnel — and determines admissibility. Evidence the court clears at that hearing then comes in through the ordinary course of the proceeding. If the court initially rules evidence inadmissible but new information surfaces during the hearing or trial that might change that conclusion, the court must hold another evidentiary hearing to reassess admissibility before the evidence can be used.