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Evidence of Prior Sexual Assaults

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Rule 413(a) of the Federal Rules of Evidence provides:

In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
However, Dominique Strauss-Kahn, head of the IMF and leading candidate for President of France, is not charged with sexual assault in federal court.  Sexual abuse is a federal crime in certain places under federal jurisdiction, see 18 USC ยงยง2241-2242, none of which includes Times Square and vicinity.  See Bill's post and this AP story by Jennifer Peltz.  The case is being prosecuted, as it should be, in New York state court.

But New York does not have an equivalent to Rule 413(a).  Governor Pataki proposed it back in 1999 as part of the Sexual Assault Reform Act, but it did not make the cut in the final bill enacted the following year.  Evidence of prior misconduct is generally inadmissible with some exceptions.  See People v. Maggio, 70 A.D.3d 1258, 896 N.Y.S.2d 220 (2010).

So would a jury in the prosecution of M. Strauss-Kahn hear the testimony of Tristane Banon? Jamey Keaten reports for AP that she "is likely to file a criminal complaint accusing International Monetary Fund chief Dominique Strauss-Kahn of sexually assaulting her nine years ago, her lawyer said Monday."

Prosecutors would have to make the testimony fit one of the exceptions.  They shouldn't have to.  The New York Legislature should adopt a rule like FRE 413(a).

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