Let's Talk About Sex

If one views the purpose of a court or jury trial to be to determine the truth, one might assume that the plaintiffs contributions to the workplace atmosphere should be taken fully into account in the course of ascertaining whether a sexually hostile and offensive working environment existed. But a substantial barrier has been erected in the path toward the search for the truth, however, in the form of the revised Rule 412 of the Federal Rules of Evidence. An extension of the "rape shield" rule that prohibits a criminal defendant in a rape case from attacking the sexual history of the accuser, Rule 412 was applied to sexual harassment cases beginning in 1994 and it has produced a confusing and often counterintuitive jurisprudence in the decade that followed. Although courts initially applied the revised rule in a way that often made it impossible for a defendant to make use of the "welcomeness" defense in a sexual harassment case, some courts more recently have taken a more sensible view.