Tenth Circuit Closes the “Impeachment” Workaround: Rule 412 Bars Using a Child Victim’s Sexualized Online Fantasies for General Credibility Attacks; Constitutional Exception Limited to Bias or Motive

Introduction

United States v. Baker is a published Tenth Circuit decision affirming the exclusion of a child victim’s sexually suggestive, fictional YouTube videos under Federal Rule of Evidence 412 (the “rape-shield” rule) and upholding the ensuing convictions. The defendant, Sean Paul Baker, was convicted of multiple counts of aggravated sexual abuse and sexual abuse of a minor in Indian Country after a jury trial in the Eastern District of Oklahoma. On appeal, the central question was whether the district court erred by granting the government’s Rule 412 motion in limine to bar any mention of four videos the victim (D.P.), then approximately eleven years old, created and posted to YouTube.

Baker’s defense turned on credibility—he contended D.P. fabricated her allegations. He argued the videos were admissible to impeach D.P.’s credibility by showing her capacity for sexual fantasy, thus suggesting she could also have imagined the sexual abuse. He further contended that exclusion violated his Fifth Amendment right to present a defense and Sixth Amendment confrontation rights and, alternatively, that the government “opened the door” in closing argument by emphasizing D.P.’s credibility.

The Tenth Circuit rejected those arguments, holding that Rule 412 bars introducing such sex-related evidence for general impeachment and that the Constitution compels admission only when the evidence demonstrates bias or motive to lie, not merely a general propensity to fantasize. The Court also declined to find that routine credibility arguments in the government’s summation “opened the door” to otherwise barred evidence.

Summary of the Opinion

Rule 412 applies. The panel held the child’s sexually suggestive, fictional videos constitute evidence of “other sexual behavior” and/or “sexual predisposition” within Rule 412(a). The rule’s bar applies even when the defendant claims to offer the evidence for impeachment.
No “impeachment exception.” There is no general impeachment exception in Rule 412(b). Reading such an exception into the rule would swallow Rule 412, as credibility is almost always central in sexual-abuse prosecutions.
Constitutional exception is narrow. The Sixth Amendment and Due Process Clause do not mandate admission of general credibility evidence. The constitutional exception in Rule 412(b)(1)(C) is limited to evidence showing bias, prejudice, or a motive to lie (Davis v. Alaska and progeny). The proffered videos did not do that; they were general impeachment.
No “opening the door.” The government’s closing argument did not open the door to this evidence. Simply urging the jury to credit the victim’s testimony in a case where credibility is central is not the kind of “opening” that allows otherwise barred sexual-history or predisposition evidence.
Affirmance. The district court’s exclusion of the videos was affirmed, and Baker’s convictions stand.

Analysis

Precedents and Authorities Cited

United States v. A.S., 939 F.3d 1063 (10th Cir. 2019): The Tenth Circuit held the Constitution does not mandate admission of general impeachment evidence otherwise barred by Rule 412. Constitutionally compelled impeachment is confined to showing bias or motive to lie.
Davis v. Alaska, 415 U.S. 308 (1974) and Delaware v. Van Arsdall, 475 U.S. 673 (1986): Foundational confrontation-clause cases guaranteeing cross-examination directed at exposing a witness’s bias, prejudice, or motive to fabricate. The Court distinguishes this “particular” attack from a mere “general” credibility attack.
Michigan v. Lucas, 500 U.S. 145 (1991): Rape-shield statutes are not unconstitutional per se; exclusion of sexual-history evidence does not inherently violate the Sixth Amendment.
United States v. Willoughby, 742 F.3d 229 (6th Cir. 2014): A prior false accusation may fall outside Rule 412 when the predicate is that no sexual behavior occurred at all—thus the evidence is not about “other sexual behavior” or “sexual predisposition.”
United States v. Kettles, 970 F.3d 637 (6th Cir. 2020): Recognized admission of a prior false accusation; Baker reads Kettles consistently with Willoughby—as turning on the evidence not being sexual behavior/predisposition, rather than on an impeachment-purpose exception.
United States v. Withorn, 204 F.3d 790 (8th Cir. 2000): “Impeaching the victim’s truthfulness” is not an exception to Rule 412.
United States v. Begay, 937 F.2d 515 (10th Cir. 1991): An example of “opening the door” where the government relied on medical evidence of injury consistent with rape; the defense had a right to show an alternative source of the injury. Baker distinguishes Begay.
Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002): Statutory interpretation begins with the text.
United States v. Vonn, 535 U.S. 55 (2002): Advisory Committee Notes are a reliable interpretive aid in the absence of clear legislative mandate.
United States v. Harbin, 56 F.4th 843 (10th Cir. 2022): One Tenth Circuit panel cannot overrule another; A.S. controls unless the Supreme Court or the court en banc says otherwise.
Secondary sources: Rosanna Cavallaro, “Rape Shield Evidence and the Hierarchy of Impeachment” (critiquing the constitutional hierarchy) and Clifford Fishman, “Consent, Credibility, and the Constitution” (discussing door-opening and rebuttal).
Advisory Committee Notes to Rule 412: “Other sexual behavior” includes mental activities like fantasies and dreams; “predisposition” sweeps evidence with sexual connotation even if it does not directly reference sexual acts.
Black’s Law Dictionary and Webster’s: Definitions of “predisposition” and “prove” inform the Rule 412(a) analysis; “prove” includes “show” and “demonstrate,” making the rule’s bar purpose-agnostic.

Legal Reasoning

1) Rule 412’s Text and Scope Are Purpose-Agnostic

Rule 412(a) creates a categorical prohibition on “evidence offered to prove” a victim’s “other sexual behavior” or “sexual predisposition” in sexual-misconduct prosecutions. The panel emphasized the textual breadth of “prove,” understood through dictionary definitions as encompassing “show” or “demonstrate.” The Advisory Committee Notes further confirm the rule’s sweep: the bar applies whether the evidence is offered as substantive proof or “for impeachment.”

Crucially, the court held that the Rule’s application does not turn on the defendant’s proffered purpose. A defendant cannot relabel evidence as “impeachment” to escape Rule 412. Otherwise, because credibility is almost always central in sexual-assault cases—especially those with child victims and no physical evidence—the rape-shield would be effectively nullified.

2) The Child’s Sexualized Online Stories Are Covered by Rule 412

The videos portrayed fictional sexualized scenarios, and in one, the child expressly stated she “made up” the story. The panel reasoned these videos revealed an inclination or propensity to engage in sexual fantasy through storytelling—activity squarely within the Advisory Committee Notes’ understanding that “behavior” includes mental activities (fantasies, dreams). Whether characterized as “other sexual behavior” or as “sexual predisposition” (the court found they were at least one or the other), Rule 412(a) barred their admission.

3) No “General Impeachment” Exception Exists in Rule 412(b)

Rule 412(b)(1) recognizes limited purpose-based exceptions: (A) alternative source of semen/injury/physical evidence, (B) sexual behavior with the accused offered to prove consent (or by the prosecutor), and (C) evidence whose exclusion would violate constitutional rights. A free-standing “impeachment” exception is not listed, and the court refused to create one judicially, citing the policy choices embedded in the rule.

The panel reconciled Sixth Circuit decisions by clarifying that prior false accusations can be admissible not because they are offered for impeachment, but because wholly fabricated claims are not “other sexual behavior” or “predisposition” at all, and thus fall outside Rule 412. By contrast, the videos here were sexualized content created by the child, which directly implicates Rule 412.

4) Privacy and Policy Aims of Rule 412 Still Matter Even When Content Was Publicly Posted

Although D.P.’s videos were posted publicly on YouTube, the panel held that does not license courts to disregard Congress’s policy choices in Rule 412. The privacy, dignity, and anti-stereotyping aims of the rule remain salient in the formal, coercive environment of a criminal trial, particularly for a young victim. Courts may not craft ad hoc exceptions on the theory that the rule’s purposes are “imperfectly served” here.

5) The Constitutional Exception (Rule 412(b)(1)(C)) Did Not Apply

Under A.S. and Supreme Court precedent (Davis, Van Arsdall), the Confrontation Clause constitutionally compels admission only of impeachment directed at revealing bias, prejudice, or motive to lie—the “particular” attack. It does not constitutionally compel the admission of “general credibility” attacks, such as attempting to brand a witness a fantasist.

Because Baker’s theory relied on general impeachment—arguing that D.P.’s capacity to create sexualized fiction suggested she fabricated her allegations—the evidence did not qualify for the constitutional exception. The Court also noted scholarly criticism of this constitutional hierarchy but reaffirmed its binding effect in the Tenth Circuit unless abrogated by the Supreme Court or the court en banc.

6) No “Opening the Door” by the Government’s Closing

The panel rejected Baker’s claim that the government “opened the door” in closing argument by urging the jury to find D.P. credible. Credibility is foundational in these cases; routine summation emphasizing a victim’s credibility does not “open the door” to evidence that Rule 412 otherwise bars. Baker’s reliance on Begay was unavailing: Begay involved the government’s heavy reliance on medical evidence suggestive of rape, which in fairness permitted evidence of an alternative source of injury. No comparable use or invitation existed here. The Court suggested that “opening the door” in this context would require something markedly more specific and tethered to the barred subject matter than general credibility arguments.

Impact

Baker is a significant, published Tenth Circuit clarification on how Rule 412 operates in the digital age and how the Constitution interfaces with the rape-shield in child-sex cases. Key consequences include:

Digital-era content is within Rule 412. Sexualized online creations by a complainant—stories, animations, “Gacha” videos, text-message narratives—can constitute “other sexual behavior” or “sexual predisposition,” including “activities of the mind.” Defense attempts to use such content to show a victim is a fantasist for general credibility purposes are barred.
No “impeachment” end-run. Counsel cannot evade Rule 412 by recasting sex-related evidence as “credibility impeachment.” The rule is purpose-agnostic save for its enumerated exceptions.
Constitutional exception is narrow and focused. Evidence offered to show bias, prejudice, or a motive to lie can be constitutionally compelled; generalized attacks on credibility are not. Defense teams must frame constitutional arguments around concrete bias or motive, not personality or propensity.
Prior false accusations remain a distinct category—but with limits. If a prior accusation is demonstrably fabricated “whole cloth,” some courts treat it as outside Rule 412, governed instead by Rules 403 and 608(b). But merely unproven accusations, or evidence reflecting sexual fantasies or suggestiveness, will typically remain within Rule 412’s bar in the Tenth Circuit.
“Public posting” does not strip rape-shield protections. Even widely accessible social-media content remains shielded within the courtroom’s evidentiary framework absent a qualifying exception.
“Opening the door” is hard to trigger. General credibility arguments by the government do not open the Rule 412 gate. Door-opening requires a specific use or invitation closely tied to the otherwise barred evidence (e.g., relying on physical-injury evidence that fairly invites an alternative-source response).
Practice pointers for defense:
- Identify concrete bias or motive to lie if invoking the constitutional exception, and articulate it clearly in the Rule 412 motion practice.
- Consider whether proposed evidence can be separated into non-sexual portions; Baker noted the defense did not argue divisibility.
- Where relying on “false accusation” evidence, be prepared to show demonstrable fabrication, not mere inconsistency or lack of corroboration.
Practice pointers for the government:
- Use Rule 412 pretrial motion practice to define the evidentiary boundaries and avoid inadvertent “door-opening.”
- When relying on medical or physical evidence, anticipate alternative-source arguments that may trigger admissible defense evidence.
Trial court management: Expect more Rule 412 litigation over social-media, animation, and text-based content. Courts should require specificity in proffers (timing, content, purpose), consider divisibility, and apply A.S. and Baker’s bias/motive framework to constitutional claims.

Complex Concepts Simplified

Rule 412 (“rape-shield”): Generally prevents introducing a sexual-abuse victim’s sexual history, behavior, or sexual predisposition. The rationale is to prevent humiliation, stereotyping, and unfair inferences that deter reporting and trial participation.
“Other sexual behavior” and “sexual predisposition”: Not limited to physical acts. They include mental activities—fantasies, sexualized stories, drawings—when used to suggest sexual inclination or character.
General credibility versus bias/motive impeachment:
- General credibility: Attacks on a witness’s character for truthfulness, suggestibility, or personality (e.g., “she is a fantasist”). Not constitutionally compelled.
- Bias/motive to lie: Specific reasons this witness might skew testimony in this case (e.g., to avoid probation revocation, to protect someone else, to retaliate). Constitutionally protected cross-examination.
“Opening the door”: If one party introduces or relies on a subject in a way that would mislead the jury if left unrebutted, the court may allow otherwise inadmissible counter-evidence for fairness. It is context-dependent and tightly constrained in the Rule 412 setting.
Constitutional exception (Rule 412(b)(1)(C)): Exclusion must yield only if excluding the evidence violates the defendant’s confrontation or due process rights—typically, where the evidence shows bias or motive to lie.
Prior false accusations: If truly fabricated—so that no sexual behavior occurred—some courts treat such evidence as outside Rule 412, then evaluate under Rule 403 and 608(b). But unproven or ambiguous accusations ordinarily remain within Rule 412’s protections.

Conclusion

Baker meaningfully develops Tenth Circuit law at the intersection of Rule 412 and modern digital content. It squarely holds that a complainant’s sexualized online stories are covered by Rule 412 and cannot be used for general credibility impeachment; the Constitution does not compel their admission absent a specific showing of bias or motive to lie. The decision also clarifies that routine credibility arguments in summation do not “open the door” to otherwise barred sexual-history evidence.

In a landscape where social media and online storytelling are common among adolescents, Baker provides critical guidance: courts will treat such content as “sexual behavior” or “sexual predisposition” within Rule 412, and parties must tailor constitutional arguments to concrete bias and motive, not general attacks on character. The ruling strengthens the protective purpose of the rape-shield while preserving a narrow but meaningful pathway for constitutionally compelled impeachment.