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Case 1:20-cr-00330-PAE Document 438 Filed 11/12/21 Page 42 of 54 on the victims for participating in the defendant’s crimes, embarrassing the victims and inviting the jury to engage in stereotyping and nullification. These are precisely the forms of harm the law elsewhere tries to mitigate. Cf Fed. R. Evid. 412 & Advisory Committee Note (restricting introduction of evidence of a victim’s other sexual behavior to encourage victims to come forward and avoid “invasion of privacy, potential embossment and sexual stereotyping”); 18 U.S.C. § 3771(a)(8) (giving victims the right to be treated with “respect for the victim’s dignity and privacy”). The probative value of such evidence is therefore significantly outweighed by the danger of prejudice. The Court should permit evidence of a minor victim’s consent to engage in sexual activity only if doing so would aid the jury to evaluate a legitimate defense theory, which the defense has not yet proffered. VII. Before Offering Evidence or Argument of the Defendant’s Failure to Commit Other Bad Acts, the Court Should Require the Defense to Proffer the Basis and Relevance of Such Evidence The defense has repeatedly suggested that any witness who did not observe the defendant participating in criminal conduct is exculpatory evidence. Specific-act propensity evidence is no more admissible to refute a criminal charge than it is to establish one. Accordingly, before the Court permits the defense to offer evidence or make argument regarding other crimes that did not involve the defendant, the Court should require the defense to proffer the basis and relevance of that evidence. “No less than evidence of a defendant’s prior ‘bad acts’ used to show that he committed the crime charged, . . . ‘good acts’ evidence is only relevant if we assume that a defendant acted in conformity with those prior good acts—i.e., if we make the exact propensity inference Rule 4] DOJ-OGR-00006402