Evidence of uncharged sexual acts between the accused and the complainant (Witham-type evidence) remains admissible as evidence of a sexual relationship, without needing to satisfy the stricter Pfennig test for propensity evidence. However, whenever such evidence is admitted, the trial judge must direct the jury on its proper use — that it may be used to show the existence of a sexual relationship but not mere propensity — and the complete absence of such a direction is fatal to the convictions. The prosecution must carefully identify the particular incident constituting each charge and make that identification plain to the jury.
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