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Piercing the Rape Shield: The Confrontation Clause and Rule 412 in Sex Offense Cases
by Maitri Mike Klinkosum

Mike Klinkosum is an Assistant Capital Defender for the Forsyth County Regional Ofce of the Capital Defender. Klinkosum obtained his undergraduate degree from UNC-Chapel Hill in 1992 and his law degree from the University of Miami School of Law in 1995. He was formerly an Assistant Public Defender with the Cook County Public Defenders Ofce in Chicago, Illinois, where he represented parents in Abuse and Neglect proceedings. Klinkosum was in private practice in Wilkesboro, North Carolina, concentrating in criminal defense, before relocating to Forsyth County.

efending a client accused of sex crimes is perhaps one of the most daunting tasks a criminal defense attorney can undertake. Aside from dealing with hostile prosecutors, the stigma of the charges, and comprehending the myriad areas of medical evidence surrounding an investigation of sexual assault, the criminal defense attorney is also faced with the fact that, if the client is convicted, he or she will not only face incarceration, but will also be further punished by being required to bear the life-long brand of a registered sex offender. It is the opinion of this writer that all of these pressures are increased tenfold when the criminal defense attorney is called upon to defend accusations involving children as the victims. Into this mixture is thrown the defenseprohibitive statute, N.C. Gen. Stat. 8C-1, Rule 412, also named the Rape Shield Statute. Rule 412 was designed to limit the admission of evidence related to the prior sexual behavior of an alleged victim. The only statutory exceptions to Rule 412 are four narrow provisions contained within Rule 412 itself. While this article is meant to aid the understanding of Rule 412 and the means through which prior sexual behavior may be introduced at trial under the rule, the primary focus is the interrelationship between the Confrontation Clause1 and Rule 412, and how a defendants Sixth Amendment rights supersede the policy considerations of Rule 412, thereby allowing the introduction of prior sexual conduct evidence that does not fall within the statutory exceptions to Rule 412, but which is both relevant and important to preserving the clients right to a fair trial. N.C. Gen. Stat. 8C-1, Rule 412 and its statutory exceptions are stated as follows: (b) Notwithstanding any other provision

of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior: (1) Was between the complainant and the defendant; or (2) Is evidence of specic instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or (3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendants version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or (4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged. In order to introduce prior sexual behavior into evidence, Rule 412 requires the defense to request that the court nd the behavior relevant to the trial.2 The request is made prior to asking any questions concerning evidence of prior sexual behavior.3 A request for a determination of relevance can be made pre-trial or during trial at the point when the defense seeks to introduce such evidence.4 After the request, the court must conduct an in camera hearing to determine the relevance/admissibility of the prior sexual behavior.5 The hearing is tranJUNE 2003

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scribed, the court must consider the defenses offers of proof, and either side may present evidence, including the testimony of witnesses.6 The defense has the burden of establishing the relevance of the evidence sought to be admitted under Rule 412, and relevance must also be established under the probative versus prejudice test of Rule 403.7 Even if the prosecution opens the

defendant. The Supreme Court found it crucial that the defendant be allowed to introduce evidence of victims cohabitation with her paramour.11 The Courts reasoning was premised upon its prior holding in Davis v. Alaska, which specically held the right to conduct reasonable cross-examination and expose a witnesss motivation in testifying is an important function of the right of cross-examination.12

Thus, in those cases in which the defense possesses evidence of a bias or motive on the part of the witness to fabricate testimony . . . the Confrontation Clause can be used to trump Rule 412.
door by mentioning the victims prior sexual behavior in its case, the defense is still required to request the in camera hearing prior to conducting any cross-examination concerning such behavior.8
The Confrontation Clause and Rule 412

The Sixth Amendment rights of a defendant to be confronted with the witnesses against him, conduct reasonable crossexamination, and present evidence in his own defense9 can all be utilized, both exclusively and cooperatively, to persuade the court to allow the defense to use evidence of a victims past sexual conduct and statements about past sexual conduct at trialeven though the evidence would be inadmissible under Rule 412. The most common situations at trial involve the right of a defendant to cross-examine the complainant for bias and motive for fabrication of the accusations, the right to impeach the prosecution witness with prior inconsistent statements, and the right of the defendant to present a theory of defense. Bias of the Prosecuting Witness In Olden v. Kentucky, the U.S. Supreme Court held the trial judges refusal to allow the defendant to cross-examine the victim about her cohabitation with her boyfriend violated the defendants Sixth Amendment rights.10 In Olden, the defense centered on the theory that the victim fabricated the rape story to protect her relationship with her boyfriend; who would have become suspicious upon seeing the victim with the

Due to the policy considerations surrounding the Rape Shield Statute, in that the statute is designed to protect victims from unnecessary humiliation and embarrassment,13 the holding of Davis v. Alaska is an important component in the defenses strategy to obtain maximum latitude in cross-examination and to convince a court to admit evidence of prior sexual conduct. This is because Davis v. Alaska is premised upon the idea that although a state statute may be designed to protect a witness anonymity or protect a witness from embarrassment, such policies must yield to a defendants right to conduct meaningful cross-examination.14 When defense counsel possesses evidence bearing on the credibility or bias of a victim that may be construed as evidence of prior sexual conduct, sound strategy in a Rule 412 hearing requires defense counsel to illustrate to the court that, although Rule 412 is designed to protect a witness, that policy consideration must yield to the Confrontation Clause when the defendant seeks to illicit testimony or present prior sexual behavior evidence in order to test the witnesss credibility and potential for bias. Delaware v. Van Arsdall 15 and U.S. v. Stamper 16 illustrate that premise. In Van Arsdall, the Court held that a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness and thereby to expose

to the jury the facts from which the jurors . . . could appropriately draw inferences relating to the reliability of the witness.17 U.S. v. Stamper held that, although the federal version of Rule 41218 was implicated which contains a specic clause designed to protect the constitutional rights of the accused,19 the principles concerning the Confrontation Clause and the crossexamination of a witness for bias and/or motive remain applicable to state court criminal actions. Stamper held that the Confrontation Clause required admission of evidence of the victims prior false allegations because it was pivotal to the theory that the complainant was falsifying her allegations in the case being tried.20 In its decision, the Court utilized the public policy vs. right of cross-examination analysis enunciated in Davis v. Alaska: In order to confront the complainant effectively, to elucidate the facts and legal issues here in question fully, and to present a defense in a constitutionally viable trial, Defendant must be allowed to set before the jury the proffered evidence of ulterior motives of the complainant. The Sixth Amendment and Davis mandate that the proffered evidence be admitted. The Court in Stamper noted the lack of physical evidence concerning the charge of rape and further found that evidence of prior false allegations is so probative of the main issue in a sexual assault case that its exclusion could deny evidence critical to the defense and that the lack of physical evidence served to further compel such a conclusion.21 Thus, in those cases in which the defense possesses evidence of a bias or motive on the part of the witness to fabricate testimony, even if that evidence involves prior acts or statements involving sexual overtones and does not fall within one of the four statutory exceptions to Rule 412, the Confrontation Clause can be used to trump Rule 412 and provide powerful constitutional authority for the admission of such evidence. Impeachment Via Prior Inconsistent Statements In addition to arguing witness bias, arguing the right of cross-examination to impeach a

witness with prior inconsistent statements concerning past sexual behavior is an effective technique in circumventing Rule 412 prohibitions. Rule 412 is not an obstacle to the introduction of evidence, which would otherwise be inadmissible, if the evidence can be used to attack a witnesss credibility through the use of prior inconsistent statements.22 In State v. Younger, the defense sought to cross-examine the victim about certain statements made to an examining physician. The statements indicated the victim had been sexually active with a boyfriend and last had sex one month prior to the alleged rape. However, the victim testied at the preliminary hearing that she had sex on the night of the alleged rape. This was inconsistent with her statements to the examining physician, thus making those statements and subject matter relevant as impeachment material against her at trial.23 In Younger, the N.C. Supreme Court acknowledged the public policy behind Rule 412, but held the statute was not intended to shield the prosecuting witness from her own actions which have a direct bearing on the alleged sexual offense.24 Younger is premised on the right of the defense to cross-examine the victim in terms of her own credibility as well as the credibility of her testimony concerning the alleged assault. Although Rule 412 denes certain instances when the prior sexual behavior of a victim is relevant, the statute is not a revolutionary move to exclude evidence generally considered relevant in other trials of other crimes,25 and was not intended to act as a barricade against evidence that may be used to prove issues common to all trials. Therefore, as inconsistent statements are an issue common to all trials, even when such statements pertain to prior sexual conduct, such statements are not automatically barred in a sex crimes trial under 412.26 Since the use of prior inconsistent statements is a technique used in all types of trials with all types of witnesses, the use of the statements in Younger was not an attempt to impeach the complainants credibility by delving into her prior sexual conduct. It was a challenge to the credibility of the witness herself.27 Although crossexamination concerning prior inconsistencies may include references to prior sexual

conduct, that fact does not bar admission of such inconsistencies. The reference to sexual conduct is reviewed in terms of the degree of prejudice, which must be balanced against the probative value of the questions that defense seeks to ask.28 Even within the strictures of a 403 balancing test,29 Younger stands for the proposition that the credibility of a witness is of extreme importance and that the denial of the opportunity to impeach the prosecuting witness with prior inconsistent statements is highly prejudicial to the defense.
Language vs. Sexual Behavior While Rule

412 centers on past sexual behavior, prior inconsistent statements are not behavior. Instead, they are language. In State v. Durham, the Court of Appeals reversed the conviction and sentence of a defendant who was convicted of taking indecent liberties with a minor based upon such a distinction. In Durham, the defense sought to introduce evidence that the minors nightterrors involved fears of being touched and that they may have been due to a previous incident of alleged sexual abuse by the childs father.30 The trial court refused to allow the evidence and further refused to allow testimony of a witness-caretaker who would have testied that the child made a prior statement implicating her father as the perpetrator of the sexual abuse and not the defendant. Similar to Davis v. Alaska, the Court of Appeals noted the States interest in protecting a child from further brutalization by the trial process, but found answering questions posed by defense counsel in cross-examination no more traumatic than

describing the crime itself. The Court further stated that a child witness cannot be insulated entirely from a relevant area of questioning which puts at issue the childs credibility.31 Durham makes an important distinction between sexual behavior and language. In cases in which prior sexual behavior is sought to be introduced, Rule 412 is designed to prevent the introduction of such of evidence. However, in cases involving language or conversation, of which the topic may be sexual in nature, Rule 412 was not designed to exclude such evidence, assuming the evidence is otherwise admissible.32 In State v. Guthrie, the trial court erred when it barred cross examination of a victim regarding a letter she wrote to a friend in which she asked the friend to have sex with her.33 The letters relevance centered upon the fact that the State had introduced several letters written by the victim to the defendant inferring she would do things of a sexual nature for the defendant. The victim testied that the defendant dictated the letters to her and that she had not written the letters voluntarily. The defendants evidence showed the victim voluntarily wrote a similar letter to a different person, indicating she was inclined to write letters of that nature, thereby inferring that the victim wrote the other letters to the defendant voluntarily, thus contradicting her testimony.34 The Court of Appeals found the letters themselves were not evidence of sexual behavior as contemplated by Rule 412. Instead, the letters were language in which the topic was sexual. Guthrie afrms the proposition that language or conversation, even language or conversation

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of a sexual nature, is not deemed irrelevant by Rule 412.35 The language versus sexual behavior distinction is crucial for two reasons: 1) courts may confuse sexual language with actual sexual behavior. Once such a misconstruction is made, a court may then use Rule 412 to bar introduction of otherwise admissible evidence, whether or not the evidence is actual conduct or mere conversation; and 2) the distinction between sexual behavior and language bears directly on the implication of Rule 412. If language of a sexual nature is not behavior under Rule 412, then that language does not fall within the exclusionary limits of Rule 412 and, arguably, the rule is not implicated.36
Prior False Allegations The language vs. sexual behavior argument is also persuasive when the defense possesses evidence of a victims false allegations against other individuals. In such a case, the initial question is whether demonstrably false allegations of sexual abuse are evidence of past sexual behavior as contemplated by 412.37 If the allegations are not evidence of past sexual behavior, but are instead language, 412 should not apply.38 Although each state has an individual Rape Shield Statute, many jurisdictions have found that prior false allegations of sexual assault are not past sexual behavior as that term is dened by the Rape Shield Statutes.39 In State v. Baron, the trial court, misapplying Rule 412, barred the defense from presenting evidence and cross-examining the victim about false accusations of sexual abuse she made against a foster-parent, her brother, and a neighbor, prior to her allegations against the defendant. The trial court further denied the defense the right to present the testimony of the falsely accused individuals who would have denied the allegations under oath.40 The Court of Appeals reversed nding the Legislature intended only to exclude the actual sexual history of victims and not their prior accusations. Language or conversation does not constitute sexual behavior.41 Because the defense was not introducing evidence of sexual behavior, no reason existed to apply Rule 412 to the evidence. Thus, the trial courts misuse of Rule 412 prevented the defendant from attacking the complainants

veracity, thereby defeating one of the primary functions of cross-examination.42

Concurrent Theories of Admissibility

The defense should also be prepared to show the court that all of the various Confrontation Clause arguments for the introduction of such evidence are not mutually exclusive and that one particular form of evidence may give rise to several different, but equally effective, arguments under the Confrontation Clause. In State v. Johnson, the defendant admitted having had sex with the victim and defended the case on the ground of consent. To prove consent, the defendant sought to introduce evidence that, while he was in the home of the victim, the two had a conversation in which the victim spoke about a prior sexual assault against her.43 The defendant contended that the only way he could have learned about the prior assault, an event of a highly personal nature, would be through the victims statements to him while the two were in her home discussing her past. The defendant argued the disclosure of such information would only be made to a person with whom the victim shared a physical or emotional intimacy, the inference being that the resulting sexual encounter was consensual. The defense also tried to show that the victims remarks about the prior assault were made to both the defendant and the examining physician but that, during the preliminary hearing, the victim denied making the statements to either individual. In Johnson, the defense used a two-pronged attack to seek admission of the statements: 1) using the statements as substantive evidence of consent; and 2) as impeachment material to question the credibility of the prosecuting witness. The Court of Appeals ruled the trial courts exclusion of the evidence prejudiced the defendant as to both issues. The Court held the exclusion of testimony regarding [the victims] prior rape prejudiced the defendant in his attempt to establish a defense on the basis of consent and the exclusion of the prior inconsistent statements was equally prejudicial to the defendant.xliv The error not only infringed on the right of cross-examination, but also the right of the defendant to present a defense. As in U.S. v. Stamper,45 Johnson illustrates

that, when the confrontation rights of a defendant and 412 are both implicated, and the relevance of 412 evidence can be established, in either attacking the credibility of a prosecution witness or proving the defenses theory, evidence which would be inadmissible under 412 can and should be introduced at trial.
Potential Sources for Confrontation Clause Exception Evidence

Evidence that casts doubt on the credibility of a victim can come in many forms. Such evidence may include statements of the victim as recorded by law enforcement, statements made to medical personnel conducting examinations for physical evidence, statements made to the Department of Social Services in cases involving minors, and testimony of the victims at preliminary hearings. Another potential source for evidence casting doubt on victim credibility, which can be of vital importance to the defense, includes testimony taken during a Rule 412 in camera hearing. Testimony from either a prosecution witness or a defense witness during the Rule 412 in camera hearing that contradicts earlier statements or testimony is fair game for use as impeachment material during trial. In State v. Najewicz, the Court of Appeals held 412 could not be used as a bar to cross-examination concerning inconsistencies in sworn testimony.46 In Najewicz, the prosecution cross-examined the defendant about prior inconsistent statements made at the in camera hearing. However, the Court stated even as regards the prosecuting witness, this Rule does not bar certain inconsistent statements.47 Clearly, in those instances when a prosecution witness testies during the in camera hearing, such testimony may nonetheless be available for impeachment purposes. In cases involving minors, the criminal investigation typically involves the Department of Social Services (DSS) or other child abuse agencies, since all cases of alleged abuse of minors must be reported to DSS.48 The defense should always ght to gain access to these les, as they often include statements of the minor, the social workers investigative notes, notes of law enforcement, documentation of any psychological treatment or counseling that the

child has received, as well as interviews of caretakers and individuals who have had contact with the minor child. The les may also include any notes or statements made by anyone reporting the alleged abuse, although the identities of these individuals will likely be kept condential. Because of the extensive record keeping that is supposed to accompany a DSS investigation, that agencys le can be a fertile ground for credibility-questioning evidence as well as evidence which may aid the theory of defense. Attempts to obtain a DSS le are often met with claims of privilege/condentiality. But it is possible to obtain the les or, at least, those portions of the le that may assist the defense. A defendant charged with sexual abuse of a child has a constitutional right to demand the records of the investigating agency be given to the trial court for an in camera review and for a determination of whether the records contain information favorable to the defendant.49 If the trial court determines the defendant is not entitled to anything from the agencys le, the le is then sealed and placed in the record for appellate review.50 The appellate court is then required to review the sealed records to determine if information was contained in the le that was favorable to the defendant.51 Favorable evidence is dened as evidence which tends to exculpate the accused, as well as any evidence adversely affecting the credibility of the governments witness.52 One method of obtaining exculpatory information in child sexual abuse cases is to le a motion requesting an order requiring DSS to turn over all records concerning the minor child to the court for an in camera inspection. The motion should request both the information concerning the charges in the particular case, as well as the agencys entire le on the minor. Sometimes, a child will have involvement with DSS on more than one occasion and may have made false allegations of sexual abuse in the past. In order to obtain this information, the motion must request the entire le on a child, not just the portion involving the defendant. A drawback to this method is that some courts may be unwilling to enter an order requiring DSS to hand over an entire le on a minor and may, instead, order production of those documents pertaining only to

the current allegations. In such a case, the defense should subpoena DSS and order that all of the records concerning the child be produced in court on a specic date. The defense should then le a motion requesting the right to inspect the records and/or requesting an in camera review of the le. Assuming the entire le is produced the court would then have the complete le before it and thus may be more inclined to review the entire le. In the event the court still decides to selectively review certain portions of the le instead of all the documentation, the court should still seal the entire le and place it in the record for the required appellate review.53 Even though the court will have refused to view the whole le, the subpoenamotion method may ensure the production of all documentation on a minor child and that the appellate court will have the entire DSS le available to review for error or misconduct in the in camera proceeding.
Limitations on Confrontation Clause Evidence

As with any rules, there are limitations on the admissibility of Confrontation Clause evidence. One such limitation is evidentiary Rule 403. Assuming the defenses proffer of admissibility is sufcient for the court to admit the evidence despite Rule 412, the defense must still persuade the court that the evidence passes the probative value vs. prejudicial effect test of Rule 403.54 Another limitation occurs when the defense seeks to introduce evidence of prior false allegations. To introduce such evidence, the defense must make the language vs. sexual behavior distinction and be prepared to show the court that the prior allegations are, in fact, false.55 The fact that any criminal charges arising out of the prior allegations were dismissed may not be sufcient to warrant the suspension of exclusionary provisions of Rule 412.56 While the quantum of evidence required for the court to conclude the prior allegations are false is uncertain, the defense should argue that the court view the evidence in a light most favorable to the defense. Further, the court should be requested to review such evidence under the favorable evidence standard: evidence which tends to exculpate the accused, as

well as any evidence adversely affecting the credibility of the governments witnesses.57 In child sex cases, in order to show through the prior allegations of the childwitness that a third party committed the acts, the defense must be prepared to show the court a temporal connection between the dates of the prior allegations and the evidence pointing to another perpetrator.58 Simply proffering that the victim has made prior allegations against another perpetrator is insufcient for a court to allow such prior statements into evidence. For instance, if a victim alleges the defendant committed the acts during a specic period of time and the defense uncovers evidence that the victim has made similar allegations against another individual, with such prior acts falling within the same period of months, the defense would therefore be able to show a temporal connection between the allegations at issue and the prior accusations. The prior accusations would therefore raise the inference that someone else committed the acts.59 A showing of temporal connection not only aids the defense in admitting evidence of another perpetrator under a Confrontation Clause analysis, but also is also effective when coupled with one of the statutory exceptions to Rule 412, namely exception (b)(2).60 Such evidence has been held to be admissible by the North Carolina Court of Appeals.61 The temporal connection issue is most often implicated in those cases involving both the existence of physical evidence of sexual assault and the defenses theory that another person committed the crime. Under this scenario, the defense is placed in a position of convincing the jury of an alternate explanation for the physical evidence, or that another individual committed the acts and therefore caused the existence of the physical evidence.

hese examples of Confrontation Clause evidence are not exhaustive of the evidence that defense counsel may introduce at trial, and the arguments and strategies for the admission of such evidence are myriad. The limits on theories of admissibility under constitutional principles are governed only by the creativity and zealous advoJUNE 2003

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cacy of defense counsel. The central theme, which should permeate all attempts to introduce such evidence at trial, is that the rights of the accused have no lesser standing in a court of law to the rights of an alleged victim and that, at all times, the defendants rights to cross-examination and a fair trial are of paramount importance.
U.S. Const. Amend. VI. N.G. Gen. Stat. 8C-1, Rule 412. 3 Id. 4 Id. 5 State v. McNeil, 99 N.C.App. 235, 393 S.E.2d 123 (1990). 6 State v. Najewicz, 112 N.C.App. 280, 436 S.E.2d 132 (1993). 7 NORTH CAROLINAS EVIDENCE SHIELD RULE IN RAPE AND SEX OFFENSE CASES, Administration of Justice Memorandum. Farb, Robert L. and Kim, Anne, S., 1994. 8 Id. Citing State v. Degree, 322 N.C. 302, 367 S.E.2d 679 (1988); State v. Fenn, 94 N.C.App. 127, 379 S.E.2d 715, disc. rev. denied, 325 N.C. 548, 385 S.E.2d 504 (1989). 9 U.S. Const. Amend. VI. 10 Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480 (1988). 11 Id. 12 Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105 (1974). 13 State v. Younger, 306 N.C. 692, 295 S.E.2d 453 (1982). 14 Davis v. Alaska, supra note 12. 15 Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). 16 U.S. v. Stamper, 766 F.Supp. 1396, 34 Fed.R.Evd.Serv. 69 (1991). 17 Delaware v. Van Arsdall, supra note 15. 18 28 U.S.C.A., Rule 412. 19 28 U.S.C.A., Rule 412(C). 20 U.S. v. Stamper, supra note 16. 21 Id. 22 State v. Younger, 306 N.C. 692, 295 S.E.2d 453 (1982). 23 Id. 24 Id. 25 State v. Fortney, 301N.C. 31, 269 S.E.2d 110 (1980).
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State v. Younger, supra note 22. Rule 412 specically bars evidence of prior sexual behavior from being introduced into evidence to attack a victim. In Younger, the inconsistent statements themselves, and not the subject matter of the statements, were being used to attack the victims credibility. 28 Id. 29 N.C. Gen. Stat. 8C-1, Rule 403. 30 State v. Durham, 74 N.C.App. 159, 327 S.E.2d 920 (1985). 31 Id. 32 Id. 33 State v. Guthrie, 110 N.C.App. 91, 428 S.E.2d 853 (1993). 34 Id. 35 Id. 36 As 412 only implicates sexual behavior as being barred from introduction into evidence, language or verbal communications, in and of itself, is not behavior and thus falls outside the parameters of 412. 37 U.S. v. Stamper, supra note 16. 38 Id. 39 Footnote 2 in the decision in U.S. v. Stamper references numerous cases from several jurisdictions in which each jurisdiction applied its own version of Rule 412 and determined that prior allegations of sexual abuse are not past sexual behavior. 40 State v. Baron, 58 N.C.App. 150, 292 S.E.2d 741 (1982). 41 Id. 42 Id. 43 State v. Johnson, 66 N.C.App. 444, 311 S.E.2d 50 (1984). 44 Id. 45 U.S. v. Stamper, supra note 16. 46 State v. Najewicz, 112 N.C.App. 280, 436 S.E.2d 132 (1993). 47 Id. 48 Any person or institution who has cause to suspect that any juvenile is abused, neglected, or dependent as dened by G.S. 7B-101, or has died as the result of maltreatment, shall report the case of that juvenile to the director of the department of social services in the county where the juvenile resides or is found. 49 Pennsylvania v. Ritchie, 480 U.S. 39, 58 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); State v. McGill 141 N.C.App. 98, 539 S.E.2d 351 (2000). 50 State v. Mcgill, Id., citing State v. Hardy, 293 N.C. 105, 235 S.E.2d. 828 (1977).
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51 Id., citing Hardy, 293 N.C. at 127-28, 235 S.E.2d at 842; State v. Jarrett, 137 N.C.App. 256, 527 S.E.2d 233 (2000). 52 U.S. v. Trevino, 89 F.3d. 187 (4th Cir., 1996) 53 Pennsylvania v. Ritchie, supra note 49. 54 N.C. Gen. Stat. 8C-1, Rule 403. 55 State v. Anthony, 89 N.C.App. 93, 365 S.E.2d 195 (1988). 56 Id. 57 U.S. v. Trevino, supra. Note 52. 58 State v. Holden, 106 N.C.App. 244, 416 S.E.2d 415 (1992). 59 State v. Maxwell, 96 N.C.App. 19, 384 S.E.2d 83 (1990). 60 N.C. Gen. Stat. 8C-1, Rule 412(b)(2): evidence of specic instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant. 61 State v. Wright, 98 N.C. 658, 392 S.E.2d 125 (1990). The Court held that testimony by the prosecuting witnesss grandmother, who observed complainant masturbate with a washcloth on several occasions, provided an alternative explanation for the complainants physical condition and should have been admitted as evidence.


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