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In West, this court denied the State's petition for rehearing, but for purposes of clarification, addressed the rape-shield-law argument raised by the State but not specifically mentioned in the majority opinion.
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SUPPLEMENTAL OPINION DENYING PETITION FOR REHEARING
[290 Ark. 340-A] PER CURIAM.
We deny the State's petition for rehearing, but for purposes of clarification, we briefly address the Rape-Shield-law argument raised by the State but not specifically mentioned in the majority opinion, 290 Ark. 329, 719 S.W.2d 684. That law excludes evidence of any kind about the victim's prior "sexual conduct" and defines "sexual conduct" as deviate sexual activity, sexual contact or sexual intercourse. See Ark.Stat.Ann. §§ 41-1810.1 and 41-1810.3. As conceded in the State's petition, the victim's purported conduct, as proffered by appellant here, simply is not sexual conduct as that term is defined by law. Thus, appellant's proffered, relevant testimony clearly was not excludable under the Rape-Shield law, and the trial court, in ruling otherwise, committed error.
DUDLEY and HAYS, JJ., dissent.
HAYS, Justice, dissenting.
We were mistaken to decide this case initially without regard to the rape-shield statute. The case was certified to us by the Court of Appeals on that issue and the point was argued by the parties. I believe the rape-shield statute does apply and that the trial judge was right in ruling that defense counsel could not cross-examine the prosecuting witness about the alleged prior accusations. I offer three reasons in support of that conclusion:
I. The Rape-Shield Statute by its Terms is Applicable. The rape-shield statute begins by specifically defining its applicability:
In any criminal prosecution under Arkansas Statutes Annotated 41-1803 through 41-1810, ... opinion evidence, reputation evidence, or evidence of specific instances[290 Ark. 340-B] of the victim's prior sexual conduct with the defendant or any other person is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. Ark.Stat.Ann. § 41-1810.1 (Repl.1977).
It will be noted that the statute applies to any criminal prosecution under Sections 41-1803 through 41-1810. The charge in this case was filed under Section 41-1808.
The section excludes evidence of any kind, for any purpose, about the victim's prior "sexual conduct." Section 3 of the rape-shield statute defines "sexual conduct":
As used in this Act, unless the context plainly requires otherwise, "sexual conduct" means deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined by Section 41-1801. [§ 41-1810.3.]
The present case involves "sexual contact." That term is defined in the section referred to:
As used in this Chapter, unless the context plainly requires otherwise: ... (8) "Sexual contact" means any act of sexual gratification involving the touching of the sex organs or anus of a person, or the breast of a female. [§ 41-1801.]
Sexual conduct includes sexual contact, which in turn includes touching the breast of a female. That is the charge in this case. Inasmuch as the pertinent definitions are word-for-word the same in both the Criminal Code and the rape-shield statute, it would be difficult to say that "sexual conduct" means one thing as used in the charging statute but another thing in the rape-shield statute.
II. This Case is Within the Policy of the Rape-Shield Statute. We compared the earlier practice in rape cases with the practice under the rape-shield statute in Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978):
The courts have historically permitted a defendant's attorney to cross-examine in detail a victim as to her complete sexual history. This information is usually totally irrelevant to the charge of rape. Act 197 was obviously [290 Ark. 340-C] designed to limit this type of examination and protect the victim from unnecessary humiliation.
In a later case, Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979), we explained the policy in greater detail, pointing out that it may exclude testimony having some probative value:
After giving due deference to the right of the accused to present his defense, the statute seeks to protect the victim from unnecessary humiliation at trial based on irrelevant and prejudicial, though probative, evidence. [Citations omitted.] The appellant certainly has no constitutional right to present irrelevant evidence at trial. Here, for example, the fact that the victim has two illegitimate children and an alleged reputation as a prostitute is not relevant to the central fact in issue; i.e., whether the alleged act of sexual intercourse actually occurred....
... Here the statute is a valid exercise of the legislature's authority to shield the victim of a sexual offense from becoming, herself, the defendant.
The present case falls within the policy of the rape-shield statute. Whether someone attempted to touch the prosecutrix's breast at a concert had no substantial relevance to the main issue, i.e. did the defendant take the girl up Hyster Mountain and there forcibly squeeze her breast? Certainly the primary aim of the attempted cross-examination was to show that the prosecutrix is a liar, just as the law preceding the rape-shield statute permitted a defendant to show by cross-examination and by third persons that the prosecutrix had had sexual intercourse with other men, so that she might be found to have lied in saying that the accused used force to overcome her resistance when she claimed to have been raped. The rape-shield law is intended to prevent the victim "from becoming, herself, the defendant."
III. The Appellant's Remedy Was Under the Rape-Shield Statute. Section 1 of the rape-shield law, quoted earlier, excludes evidence of any kind, for any purpose, about the victim's prior sexual conduct. But Section 2 of the Act, § 41-1810.2, provides that notwithstanding that prohibition, if the defendant has relevant evidence of the victim's prior sexual conduct, a written motion "shall be filed" stating the purpose for which the evidence is believed to be relevant. An in-chambers hearing is then held. If the court finds that the offered proof is relevant to a fact in issue [290 Ark. 340-D] and that its probative value outweighs its prejudicial nature, the court may make a written order stating what evidence may be introduced by the defendant.
No such motion was made in this case, though it might have been made even after the court sustained the State's motion in limine to prohibit the expected cross-examination of the victim. The defense, however, elected not to proceed under the statute. Instead, counsel insisted upon the right to cross-examine the victim in a way that would have put her in a "no-win" situation. She would be asked if she had not made similar accusations about other men. If she said yes and then admitted that they were false, the defense would have shown her to be a liar. If she denied having made such accusations, or admitted them but said they were true, the defense would be in a position to call witnesses to show that the accusations had been made and were false. As the trial judge said to defense counsel in sustaining the motion in limine: "You're getting into totally separate trials on other sexual conduct is what you're doing by going into this."
The unfairness inherent in defense counsel's argument could have been easily avoided had they filed the motion permitted by the rape-shield statute. It must be remembered that the defense did not have an absolute right to prove the incident at the concert even if the prosecutrix stood her ground. What we held in Peters v. State, 103 Ark. 1191, 146 S.W. 491 (1912), and adhered to in our opinion in this case, is that the defense may show that the prosecutrix has a pronounced tendency for making such accusations. That is the effect of even the cases favorable to the appellant, the California and Michigan cases that we cited. I am aware of no case holding that a single incident of a false accusation is admissible. The in-chambers hearing would allow the issue to be fully explored, instead of letting the defense put the prosecutrix in a helpless position even though the defense might not in fact have evidence to justify those tactics.
Finally, had the motion been filed the evidence would have been preserved for the record. If the ruling had been adverse to the State, the rape-shield statute permits the prosecutrix to confer privately with the prosecuting attorney and permits the State to take an interlocutory appeal. A principal reason for the unusual difficulty we have experienced in ruling on this appeal is that the defense has not yet disclosed exactly what its testimony might be. We have dealt with an issue without full knowledge of [290 Ark. 341] the facts. If the defense testimony were before us, the issue would be clear-cut. Absent the required motion, the trial court's decision has not been shown to be wrong.
I would grant rehearing and affirm the judgment.
DUDLEY, J., joins in this dissent.