Using the “this ain’t the first rodeo” defense by a Texas Sexual Assault Lawyer

Sexual Assault & the Promiscuity Defense

Texas Rules of Evidence, Rule 412 generally does not allow evidence of past sexual behavior by the alleged victim. However, evidence of specific instances of conduct of the alleged victim’s past sexual behavior is allowed if it is evidence:

(A) that is necessary to rebut or explain scientific or medical evidence offered by the state; 

(B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged; 

(C) that relates to the motive or bias of the alleged victim; 

(D) is admissible under Rule 609 (prior criminal convictions); or 

(E) that is constitutionally required to be admitted; and 

(3) its probative value outweighs the danger of unfair prejudice. 

Procedure for Offering Evidence of Past Sexual Behavior

If the defendant proposes to introduce any documentary evidence or to ask any question, either by direct examination or cross-examination of any witness, concerning specific instances of the alleged victim’ s past sexual behavior, the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under paragraph (b) of this rule. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits nor refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury. 

Sexual Conduct of Child as a Defense in a Texas Sexual Assault Case.

The accused in a sexual assault case has the right to produce evidence of promiscuous sexual conduct of a child 14 years old or older as a defense to sexual assault, aggravated sexual assault, indecency with a child or an attempt to commit any of the foregoing crimes.

Examples of Texas Promiscuity Defense in a Sexual Offender Case.

Evidence that is necessary to rebut or explain scientific or medical evidence offered by the state. Rule 412(b)(2)(A); Landry v. State, 958 S.W.2d 942, 943-4 (Tex. App.—Beaumont 1998, pet. ref’d). 

Evidence of past sexual behavior with the accused offered on the issue of consent. Rule 412(b)(2)(B). 


Evidence that relates to the motive or bias of the alleged sexual assault victim. Rule 412(b)(2)(C); Hammer v. State, 296 S.W.3d 555, 567 (Tex. Crim. App. 2009). 

Evidence that is admissible under Rule 609 (impeachment by evidence of conviction or crime). Rule 412(b)(2)(D). 


Evidence that is constitutionally required to be admitted. Rule 412(b)(2)(E).Where the promiscuity defense is permitted by a Texas sexual assault lawyer, it is available: 

to a defendant regardless of the gender of the victim or defendant. Walker v. State, 727 S.W.2d 759, 761 (Tex. App.—Tyler 1987, no pet.); Evidence of a victim’s prior sexual activity may be admissible under Rule 412, the Texas Rape Shield Law, when offered to establish the victim’s motive or bias against the defendant. Hammer v. State, 296 S.W.3d 555, 567 (Tex. Crim. App. 2009). 

How a Sexual Assault Lawyer offer the Promiscuity Defense.

Promiscuity does not refer to an isolated incident of sexual relations with one particular person, but rather, denotes the indiscriminate grant of sexual favors to persons of the opposite sex without any requirement of love. Connally v. State, 838 S.W.2d 646, 647 (Tex. App.—Corpus Christi 1992, no pet.).

The promiscuity defense requires proof that the complainant had engaged in consensual sexual relations with a variety of partners, continuing over a reasonable period of time. Harling v. State, 899 S.W.2d 9, 13 (Tex. App.—San Antonio 1995, pet. ref’d). 

A single instance of sexual conduct does not constitute promiscuity for purposes of the promiscuity defense. Rankin v. State, 821 S.W.2d 230, 234 (Tex. App.—Houston [14th Dist.] 1991, no pet.).

In order to raise the promiscuity defense, the defendant, through his sexual assault attorney must show that the promiscuous conduct occurred prior to the commission of the offense on trial. Johnson v. State, 933 S.W.2d 195, 199 (Tex. App.—Waco 1996, pet. ref’d). 

The defendant does not have to claim consent in order to use the promiscuity defense. Pawson v. State, 865 S.W.2d 36, 36 (Tex. Crim. App. 1993); Hernandez v. State, 861 S.W.2d 908, 910 (Tex. Crim. App. 1993). 

A 15-year-old complainant who had had voluntary sex with 4 older men, two or three instances of which occurred in a single day, and who had a dating relationship with only one of them was promiscuous as a matter of law. Ormand v. State, 697 S.W.2d 772, 773 (Tex. App.—Corpus Christi 1985, no pet.). 

On the other hand, where the victim was so enthralled by a man that she committed various sexual acts involuntarily at his direction a rational trier of fact can find that her conduct was not promiscuous beyond a reasonable doubt. Riley v. State, 953 S.W.2d 354, 359 (Tex. App.—Austin 1997, pet. ref’d). 

A sexual assault victim’ s alleged statements that she had engaged in prior sexual conduct were not admissible under hearsay exception for statements against interest absent a showing that, at the time the statements were made, they would have subjected the victim to criminal or civil liability, or were contrary to her pecuniary or proprietary interests. Rankin, 821 S.W.2d at 233. 

Using the “this ain’t the first rodeo” defense, is a tool Texas Sexual Assault Lawyers use to show consent amongst the involved persons.