(concurring in result) — While I agree with the majority’s result, I disagree with its reasoning and *868analysis regarding the jury instruction on consent as well as application of the rape shield law to the facts of this case.
I. Jury Instruction Improperly Shifts Burden to Defendant To Prove Consent
¶194 Although the jury in a first degree rape case must be convinced beyond a reasonable doubt that sexual intercourse occurred as the result of forcible compulsion, RCW 9A.44.050(l)(a), i.e., “physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another will be kidnapped,” RCW 9A.44.010(6), the trial court instructed the jury that it was the burden of the defendant to prove consent:
Instruction 15. A person is not guilty if the sexual intercourse is consensual. “Consent” means that at the time of the act of sexual intercourse, there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual.
“Preponderance of the evidence” means that you must be persuaded considering all the evidence in the case that it is more probably true than not true.
18 Verbatim Report of Proceedings (18 RP) (Sept. 28, 2000) at 2889. The prosecutor was able to effectively shift the burden of proof to the defendant to show consent based upon this instruction by arguing in closing argument:
And the defendant doesn’t typically bear a burden in a criminal case. It’s the State’s burden to prove a crime beyond a reasonable doubt, absolutely, beyond a reasonable doubt. It’s a fair burden, and it’s a burden the State accepts. But when he says this is consensual, that’s his burden. And the Court’s instruction to you is that that’s his burden to prove that. Now that he says this is a consensual act, it’s his burden to prove it.
18 RP at 2971.
¶195 Consent is the reciprocal opposite of forcible compulsion. The majority, however, affirms this instruction *869based upon State v. Camara, 113 Wn.2d 631, 640, 781 P.2d 483 (1989), which in turn relied upon Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987). Allen Gregory now asks us to overrule Camara, arguing that Camara misconstrued Martin. I agree with Gregory and would overrule Camara.
¶196 Martin was not a rape case but an aggravated murder case. A self-defense instruction allowed acquittal if the jury found, by a preponderance of the evidence, Martin “had not precipitated the confrontation, that she had an honest belief that she was in imminent danger of death or great bodily harm, and that she had satisfied any duty to retreat or avoid danger.” Martin, 480 U.S. at 233. Thus self-defense did not negate any element the State was required to prove to obtain an aggravated murder conviction but rather provided an affirmative defense which the defendant had the burden to prove by a preponderance of the evidence if, and only if, the State proved each and every element of the charged crime beyond a reasonable doubt.47
¶197 However, in the context of first degree rape, forcible compulsion (an element of the offense) is absolutely incompatible with consent. The two cannot coexist. Nevertheless the jury was instructed that it was the defendant’s burden to prove “consent” by a preponderance of the evidence, notwithstanding the State’s burden to prove forcible compulsion beyond a reasonable doubt. This makes no sense. It is a contradiction. The due process clause of the Fourteenth Amendment to the United States Constitution prohibits shifting the burden to the defendant to prove or disprove an element of the crime. Mullaney v. Wilbur, 421 U.S. 684, 95 *870S. Ct. 1881, 44 L. Ed. 2d 508 (1975). Camara was wrongfully decided and harmfully so because it allows an unconstitutional shifting of the burden of proof. It should be overruled.
II. Rape Shield Statute
¶198 As may be gleaned from the discussion above, the evidentiary issue at the heart of this case is whether or not Robin Sehmel consented to sex as an act of prostitution rather than forcible compulsion. That was certainly Gregory’s version of the events. And Gregory offered to prove Robin Sehmel’s considerable prostitution history so as to enable the jury to evaluate the credibility of the competing stories. However, the trial court precluded Gregory from offering any evidence of prostitution which might have occurred prior to the evening in question. I submit this was error.
¶199 The rape shield law was enacted to protect rape victims, but it should not be used to shield disclosure of criminal conduct or undermine the right of a defendant to present probative evidence on a relevant, central issue.
¶200 The majority confuses relevant evidence with unduly prejudicial evidence. Here, evidence of Robin Sehmel’s prostitution, including prior prostitution convictions in 1992 and 1995 and work for an escort service in 1996 and 1997, was certainly relevant because it was directly tied to Gregory’s defense that the allegations concerned consensual sex with a prostitute.
¶201 Sehmel’s and Gregory’s versions of events differed markedly. Robin Sehmel testified that on August 20, 1998, she went to her friend David Moon’s house on North 8th and Cedar Streets in Tacoma for a barbecue. She testified that she left Moon’s house at 1:30 am and walked down Cedar Street to 6th Avenue. Sehmel approached a Mustang she thought belonged to a friend, Joseph Daniels. After realizing the Mustang did not belong to her friend, Sehmel testified she nevertheless accepted a ride with the stranger *871(later identified as Gregory).48 Instead of taking her home, she claimed Gregory took her to a parking lot behind a nearby middle school where he pulled a knife and forced her to perform oral sex before raping her.
¶202 Gregory testified Sehmel is a prostitute who flagged him down to offer sex for money. He testified she willingly accompanied him to the middle school parking lot where they engaged in consensual sex. Gregory testified Sehmel then fabricated the rape story, retaliating against him for refusing to pay even more money after the condom broke.
A. Robin Sehmel’s Prostitution History
¶203 On August 8, 2001 defense counsel interviewed Sehmel. However, before the interview started the prosecutor told Sehmel that she did not have to answer any questions if she did not wish to. The State also prevented defense counsel from asking her about her criminal history, among other things.
¶204 Despite the inability to question Sehmel about her prior prostitution activities during the first interview, Gregory made an offer of proof based on independent investigation.
¶205 The Pierce County Law Enforcement Support Agency (LESA) listed numerous criminal matters involving aliases attributed to Robin Sehmel. In addition, LESA provided 10 pages of arrest and conviction reports regarding Sehmel. Included in the reports were records of a July 17, 1992 conviction for “sexual misconduct” in Tacoma Municipal Court; a March 28, 1995 conviction for prostitution in Tacoma Municipal Court; an August 30, 1991 arrest for prostitution; and a June 26,1996 arrest for “indec cond.” Clerk’s Papers (CP) at 210-11. The LESA records demon*872strated that Sehmel worked regularly as a prostitute in Tacoma. On August 30, 1991 she was observed on Pacific Avenue in Tacoma. The arresting officer saw her enter a car and then followed the car to a “dark secluded parking lot.” When the arresting officer approached the car, he observed Sehmel “performing oral intercourse” on the client. Id. at 538-39. Upon arrest the client stated he had paid Sehmel $20 for her services.
¶[206 On March 28, 1995 two undercover officers observed Sehmel on South Tacoma Way. The officers described this as a “high prostitution area.” Id. at 501. When the officers pulled to the curb, they asked Sehmel if she was “dating” and if she wanted to go for a “ride.” Id. She said “yes” and got in the car with both men. The officers told her they each had $40 to spend. Sehmel told them they could each receive a “blow job” for that price. Id. at 502. After the offer and agreement, she was arrested.
¶207 On May 11, 1996 a Tacoma police officer was “working a prostitution enforcement detail” on South Tacoma Way. Id. at 507. The officer observed Sehmel get into a car driven by a man and then drive to a secluded industrial park. The officer then observed her in the car engaged in sexual activity with the driver. Upon her arrest for “public indecency,” Robin Sehmel gave a false name. Id. at 510-11, 514. She admitted that the client had paid her $20 for her services.
¶208 On June 26, 1996 she was again observed on South Tacoma Way exposing her bare breasts to passing cars. Gregory also submitted the affidavit of David Moon, asserting that Sehmel was working regularly as a prostitute in 1998.
¶209 Prior to trial the State sought to prohibit defense inquiry into, inter alia, Robin Sehmel’s criminal history, prostitution activities, arrests, convictions, and indecent exposure, work as a police informant, and dependency proceedings.
¶210 Defense counsel objected, arguing that the topics were relevant. The court ruled that evidence of Sehmel’s *873prostitution activities, arrests, and convictions were inadmissible because they were “too remote in time from the incident (8/21/98)” and “occurred in a completely different section of Tacoma from where she met [Gregory].” Id. at 275-76 (Order Den. Admis. of Victim’s Prior Sexual Conduct). The court also asserted that the declaration of David Moon contained only “vague statements that are based on hearsay and do not explain his basis for claiming it was ‘common knowledge’ that [Robin Sehmel] was a prostitute in 1998.” Id. The trial court also refused to consider evidence of other arrests, which did not result in convictions, claiming the arrests were not probative.
|211 When defense counsel objected and asked the court what offer of proof it would consider “sufficient,” the trial judge responded:
We don’t have anything that says in 1998 [Sehmel] was out on the streets on 6th Avenue. We don’t have anybody saying that she engaged in an act of prostitution with this victim.
Report of Proceedings (RP) (Aug. 21, 2000) at 276. (Of course, Gregory, “this victim,” testified she did in fact engage in prostitution with him.)
¶212 The trial court held as a matter of law there was insufficient evidence to even warrant a hearing under the rape shield statute; however, the court did allow the defense to interview Sehmel again and inquire into whether she had engaged in prostitution activity on the streets of Tacoma between 1995 and 1998. In that interview Sehmel admitted she worked as a prostitute in 1996-1997, worked for an escort service in 1997, and was still using drugs in 1998, but denied she worked as a prostitute that year.
¶213 Despite this confirmation of her more recent prostitution activities, the court again refused to allow Gregory to offer his evidence. CP at 445-46 (Suppl. Order Regarding Victim’s Sexual Conduct). At trial Gregory was prohibited absolutely from inquiring into or referencing any prostitution activity by Sehmel prior to August 21, 1998. Gregory *874was allowed only to argue she was acting as a prostitute on the night of her encounter with Gregory.
B. Robin Sehmel’s Prior Prostitution Is Relevant
¶214 Evidence of prostitution was essential to prove consent which, if established, would negate an element of the crime of rape — forcible compulsion. The evidence was also essential to establish Sehmel’s motive to lie or falsely accuse. However, that evidence which could have raised a reasonable doubt was withheld from the jury.
¶215 While the jury may have believed it is exceedingly unlikely that a woman who is not a prostitute would engage in the described sexual conduct with a stranger absent forcible compulsion, the excluded evidence demonstrates that the complaining witness had willingly participated in the exact same conduct with strangers on numerous occasions in the past. This evidence puts the claim in an entirely new light, a light not available to the jury to illuminate the evidence.
¶216 Denied his right to introduce evidence of prior prostitution history, Gregory was not only deprived of evidence to support his defense theory and his constitutional right to defend himself, but the State then used the absence of this relevant evidence of prostitution to its advantage. For example the State asked Sehmel questions on direct examination about her counseling at a sexual assault center and how she felt about the incident.
¶217 In closing argument the State also effectively used the absence of this evidence. For example the prosecutor faulted the defense for calling her a prostitute as a wanton insult:
Look at the tone that was taken with her in cross-examination. Look at the attempts to twist what she said. Look at the accusations made of her. He called her a prostitute. She denied it.
*87518 RP at 2915. Then later,
He has got to make Robin look like a prostitute, got to make her look bad.
Id. at 2923. And again:
So now he says, “I did have vaginal sex with her. And not only was it consensual, she is a prostitute,” a little extra insult to injury....
Id. at 2923-24.
C. Rape Shield Statute
1218 Rape shield statutes were enacted to promote important policies and “reverse certain antiquated misconceptions concerning rape.” Drake v. State, 108 Nev. 523, 526, 836 P.2d 52 (1992). However, when dealing with illegal acts of prostitution, the policies behind the rape shield laws largely disappear as this is different in kind from excludable evidence pertaining to marital history, promiscuity, et cetera. RCW 9A.44.020(2). As the Drake court pointed out, “Illegal acts of prostitution are not intimate details of private life. They are criminal acts of sexual conduct engaged in, for the most part, with complete strangers.” 108 Nev. at 527. Rape shield statutes were not intended to afford special protection to acts of illegal prostitution just because those acts happen to involve sexual conduct, nor were they intended to serve as a means to commit perjury or deprive defendants of their constitutional right to present a defense and confront witnesses.49
*876¶219 Even assuming evidence of prostitution is covered by the statute, past sexual behavior is still admissible if: (1) it is relevant, (2) its probative value is not substantially outweighed by a substantial danger of undue prejudice, and (3) its exclusion would result in denial of substantial justice to the defendant. RCW 9A.44.020(3).50
*877 1. Relevance
f220 As properly noted by the majority, evidence is relevant
if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ER 401. The threshold to admit relevant evidence is low, and even minimally relevant evidence is admissible. State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002).
Majority at 835 (emphasis added).
¶221 Under the rape shield statute, the relevance inquiry is heightened in the sense one must show something more than simply past consensual sex. See id. at 784-85 (“This court has concluded that the rape shield relevancy inquiry must be whether, under ER 401, ‘the [victim’s] consent to sexual activity in the past, without more, makes it more probable or less probable that [he or] she consented to sexual activity on this occasion.’ ” (emphasis added) (alterations in original) (quoting State v. Hudlow, 99 Wn.2d 1, 10, 659 P.2d 514 (1983))). Here there was something more.
¶222 The majority admits:
This case came down to a credibility contest between Gregory and R.S. . . . Because Gregory’s version of the events was that R.S. had consensual sex with him for money, admissible evidence of recent, factually similar prostitution would have been reasonably likely to impact the outcome of the trial.
Id. at 794.
¶223 While the majority properly identifies the applicable rules, it nevertheless fails to engage in a proper analysis of relevance. Instead, the majority incorrectly applies the remoteness standard to determine relevance rather than the weight to which the evidence is entitled and then skips ahead to conclude the prejudicial effect of the prostitution evidence outweighs any relevance the evidence has to the outcome of the case.
*878¶224 Sehmel’s admission (but not in the presence of the jury) that she engaged in prostitution for years, which she only claimed ceased close to the date in question, is evidence of recent, factually similar prostitution, which the majority admits would have likely impacted the outcome of the trial. Moreover, the evidence is particularized — she admitted to a history of streetwalking prostitution and arrests. However, the majority seems at ease accepting her testimony that she ceased streetwalking in 1995 and prostitution in 1997, asserting its remoteness goes to relevance, not weight. This is error. See United States v. Brito, 427 F.3d 53, 64 (1st Cir. 2005) (“The nature of the underlying felony generally goes not to its admissibility per se but, rather, to its weight in the balancing of probative worth and prejudicial impact.” (citing 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 609.05 [3] [b] (2d ed. 2005))); United States v. Evanoff, 10 F.3d 559, 563 (8th Cir. 1993) (“[T]he recency or remoteness of any particular activity simply affects the weight the court will give to that particular evidence.”); Manning-El v. Wyrick, 738 F.2d 321, 322-23 (8th Cir. 1984) (“[RJemoteness in time goes to the weight of the evidence, not the admissibility.”); State v. Harold, 45 Wn.2d 505, 510, 275 P.2d 895 (1954) (“Ordinarily, remoteness affects the weight, rather than the admissibility of the evidence.”).
¶[225 In State v. Morgan, 146 Wash. 109, 112, 261 P. 777 (1927), we held:
In the case of People v. Marino, 33 Cal. App. 448, 165 Pac. 564 [(1917)], it was held that the remoteness of prior acts may have lessened the weight of the evidence but did not destroy its relevancy. In Sykes v. State, 112 Tenn. 572, 82 S. W. 185 [(1903)], acts three years prior; State v. Dukes, 119 N. C. 782, 25 S. E. 786 [(1896)], acts two years prior; and State v. Markins, 95 Ind. 464 [(1884)] (quoted from in State v. Wood, 33 Wash. 290, 74 Pac. 380 [(1903)]) acts that would be barred by the statute of limitations, were held to be admissible in evidence.
(Emphasis added.) See also State v. Evans, 45 Wn. App. 611, 617, 726 P.2d 1009 (1986) (holding the lapse between the *879prior bad act and the present one affects the weight rather than the admissibility of the evidence).
¶226 Additionally, evidence of Sehmel’s prior prostitution, when viewed in the context of her pending child custody dispute and probationary status, goes toward establishing a motive to lie and thus doubly satisfies the “plus more” requirement of relevancy under the rape shield statute.
2. The Prostitution Evidence Is Not Unduly Prejudicial
¶227 Whether evidence may be excluded as unduly prejudicial requires a comparison between its probative value and “unfair” prejudice which might result from its admission.
¶228 ER 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
¶229 The majority opines this evidence was appropriately excluded because it was of little probative value due to its “remoteness.” However, other courts have found the passage of 2 or even 12 years does not render the evidence “too remote” to be probative. For example, the Ninth Circuit has held:
Given the similarity and relevance of the offenses, we are not troubled by the fact that they occurred seven and eight years earlier. This circuit has not adopted a bright line rule concerning remoteness in time, [United States v. ]Spillone, 879 F.2d [514,] 519[ (9th Cir. 1989)], and, where the prior acts were similar to those charged, previous decisions have upheld admission of evidence of acts up to twelve years old. See United States v. Ross, 886 F.2d 264, 267 (9th Cir. 1989) (acts occurring twelve years ago not too remote), cert. denied, 494 U.S. 1083, 110 S.Ct. 1818, 108 L.Ed.2d 947 (1990).
United States v. Rude, 88 F.3d 1538, 1550 (9th Cir. 1996). See also United States v. Meacham, 115 F.3d 1488, 1495 *880(1997) (“Similarity of prior acts . . . may outweigh concerns of remoteness in time.”); United States v. Hadley, 918 F.2d 848, 851 (9th Cir. 1990) (“The similarity of the prior act to the offense charged outweighs concerns regarding its remoteness.”) (admitting evidence of acts committed 10 years earlier under Fed. R. Evid. 404(b)).
¶230 Given there is no bright line rule with respect to remoteness, the prostitution activities, convictions, and arrests of Sehmel occurred up to and possiby continued at the time of the incident in question, as well as the similarity of the prior acts to the incident in question, the alleged “remoteness” would not render this highly relevant evidence inadmissible as unduly prejudicial because its probative value was not substantial. Its weight is for the jury to determine.
¶231 The majority also asserts the prejudicial effect of Sehmel’s prior criminal prostitution history renders the evidence otherwise inadmissible:
Gregory acknowledges but then ignores a related purpose that is evident from the plain language of RCW 9A.44.020(3)(d) — to eliminate prejudicial evidence that has little, if any, relevance to the issues of credibility or consent. The statute clearly contemplates that where there is a substantial danger of undue prejudice to the truth finding process, such evidence will be excluded. Hudlow, 99 Wn.2d at 16. Such prejudice might occur if the victim’s past sexual conduct “confuse[s] the issues, mislead[s] the jury, or cause[s] [it] to decide the case on an improper or emotional basis.” Id. at 14.
Majority at 783 (alterations in original). I submit if the evidence is irrelevant, we need not consider whether it is unduly prejudicial. However this evidence is directly relevant to credibility and consent for the reasons previously explored.
¶232 The majority then speculates about the prejudicial effect evidence of prostitution would likely have on the jury, stating: “[b]ecause the introduction of prior acts of prostitution could create substantial prejudice to the truth finding process, we decline the defendant’s invitation to make a *881sweeping ruling that the rape shield statute does not apply to prior acts of prostitution.” Id. at 783. But contrary to the reasoning of the majority, the only prejudice to the truth finding process in this case is the elimination of highly relevant evidence in a case that hinges on the issue of consent, credibility, and motive to lie.51 The jury must be told the truth before it can accurately find the facts. Possible embarrassment to the complaining witness cannot justify exclusion of such evidence. Hudlow, 99 Wn.2d at 13-14.
¶233 Moreover, any perceived prejudicial effect that evidence of Sehmel’s prostitution may have had could have been cured with a specific jury instruction to limit the purpose for which the evidence of prostitution was being admitted.52 See ER 105.
¶234 Additionally, the majority’s analysis ignores the approach we applied in Hudlow. The probative value of the evidence must be weighed before considering the prejudicial effect, and even then the court should “consider the effect of excluding such evidence on defendant’s right to a fair trial” and view that effect in light of the potential “prejudice to the truthfinding process itself.” Hudlow, 99 Wn.2d at 14, 13.
3. Denial of Substantial Justice to Defendant
1235 The Sixth Amendment, applied to the states through the Fourteenth Amendment, guarantees criminal defendants a fair opportunity to present exculpatory evidence free from arbitrary state evidentiary rulings to protect a defendant’s right to cross-examine witnesses. See *882Rock v. Arkansas, 483 U.S. 44, 56, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); State v. Johnson, 90 Wn. App. 54, 69, 950 P.2d 981 (1998); State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992).
¶236 The majority attempts to skirt the constitutional right of confrontation by asserting the evidence is irrelevant. Majority at 786 n.6 (“ ‘Of course, a criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense.’ ” (quoting Hudlow, 99 Wn.2d at 15)). However, as previously discussed, this evidence is highly relevant. Moreover, in a factually similar case the Supreme Court held the lower court’s decision to withhold certain evidence from the jury denied the defendant his Sixth Amendment right to confront witnesses. Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988).
¶237 In Olden an African-American defendant was convicted of sexually assaulting a Caucasian woman, Matthews. Matthews testified that after the assault the defendant and a friend drove her to the vicinity of the home of another African-American named Russell. Russell corroborated Matthews by testifying he heard a noise, saw Matthews get out of the defendant’s friend’s car, and Matthews immediately told him she had been raped by the defendant and his friend. The defendant asserted the defense of consent.
¶238 At the time of the alleged rape, Matthews and Russell were married to and living with other people but were involved in an extramarital relationship. The defense theory was Matthews concocted the rape story to protect her relationship with Russell, who otherwise would have grown suspicious upon seeing her disembark from the friend’s car. To show Matthews’ motive to lie, the defendant sought to introduce evidence that Matthews and Russell were cohabiting; however, the trial court granted the prosecutor’s motion in limine to keep all evidence of Matthews and Russell’s living arrangement from the jury. Although the Kentucky Court of Appeals affirmed on the basis of racial prejudice, the Supreme Court reversed:
*883“[T]he exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” . . . “[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ ”
Id. at 231 (citations omitted) (quoting Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986))).
¶239 The Olden Court held the evidence was not only relevant but crucial to demonstrate the alleged victim’s motive to lie:
It is plain to us that “[a] reasonable jury might have received a significantly different impression of [the witness’] credibility had [defense counsel] been permitted to pursue his proposed line of cross-examination.”
Id. at 232 (alterations in original) (quoting Van Arsdall, 475 U.S. at 680). The Court reasoned, “Speculation as to the effect of jurors’ racial biases cannot justify exclusion of cross-examination with such strong potential to demonstrate the falsity of [the alleged victim’s] testimony.” Id.
¶240 Our majority attempts to distinguish Olden by claiming the evidence in Olden was relevant to the victim’s motive to lie, majority at 786 n.6, 789-90; however, the claimed distinction is the precise issue we must confront— whether Robin Sehmel engaged in prostitution, rather than being raped, and then lied about it. Moreover, such evidence is relevant to establish a motive to retaliate and lie with respect to the issue of consent when viewed in context of her probationary status, pending child custody action, and past prostitution convictions.
*884¶241 Employing similar reasoning to Olden, the court in Johnson v. State, 332 Md. 456, 632 A.2d 152 (1993), held evidence of the complainant’s sexual relationship with the defendant was admissible where the evidence is relevant to suggest a motive to falsely accuse the defendant of rape.
¶242 In Johnson the complainant acknowledged at a rape shield hearing that she was a crack addict and she would exchange sex for drugs (i.e., “freak”) when she wanted to get high. Id. at 472. She admitted “freaking” in the immediate neighborhood of the alleged rape for approximately six months, most recently one week before the alleged rape. Id. at 473. At trial the complainant testified that she was a crack addict, that she had spent all of her money on an eight-hour crack binge, but had obtained additional money from a friend, and was attempting to purchase more crack from a man, when he, the defendant, and another man raped her. The defendant alleged the complainant willingly had sex with the three men in exchange for their promise to deliver crack for sex, then falsely accused them of rape when the would-be supplier reneged. The Johnson court concluded her addiction created a “disposition” to “freak” and this disposition provided sufficient special relevance to overcome the inflammatory and prejudicial nature of the evidence. It then held it was reversible error to preclude the defendant from cross-examining the complainant about her “freaking”:
As we have seen, the critical issue in this case is whether, on this occasion, the victim was freaking for cocaine or was raped. And, because these are the only possible explanations for what occurred, evidence that she has freaked for cocaine in the past and, particularly, the very recent past, has special relevance to that issue; such evidence transcends mere evidence of bad character or, in the context of this case, sexual promiscuity. In turn, it is relevant to, and probative of, the victim’s motive. From a finding that on this occasion she was freaking for cocaine but did not receive the bargained for cocaine, the jury could then infer that the victim had an ulterior motive for making a false accusation of rape against the petitioner.
Id. at 471-72 (footnote omitted).
*885¶243 In summary, the Johnson court found the evidence admissible when: (1) there was proof that the complainant bartered herself for cocaine and (2) she had done so frequently, (3) there was greater similarity between the complainant’s prior conduct and the defendant’s version of events, and (4) the alleged motive to lie was plausible and persuasive.
¶244 Johnson is a close fit to the case at bar. First, Robin Sehmel admittedly engaged in a long history of prostitution in the city of Tacoma for several years continuing into at least 1997 — within one year of the incident at issue. Second, Sehmel engaged in acts remarkably similar to the incident in question by approaching a stranger’s car on a Tacoma street corner, getting in, driving with the stranger to a secluded spot, and then engaging in consensual sex for money. Next, there was great similarity between Sehmel’s prior conduct and Gregory’s version of events. Finally, like the complainant in Johnson, Sehmel’s motive to lie about the event in retaliation and to protect her custody dispute and probationary status was plausible and persuasive.
¶245 Exclusion of this evidence of prostitution therefore cut out the heart of the defendant’s right to confront his accuser and thereby defend himself. Forced to defend with his hands tied behind his back, he was denied his right to a fair trial.
III. Conclusion
¶246 In summary, even if the rape shield statute on its face related to evidence of prostitution, which I find most problematic, the trial court abused its discretion, if discretion it has, under RCW 9A.44.020(3)(c), by refusing to even order a threshold hearing to consider the proffered evidence in light of the statutory criteria relating to relevance, undue prejudice, and finally, to the substantial justice due the defendant in such a serious criminal proceeding.
¶247 I would hold the trial court’s jury instruction, which places the burden to prove consent on the defendant, violates his most fundamental due process right to have every element of the charge against him, including forcible com*886pulsion, proved by the State beyond a reasonable doubt. I would also hold that the trial court’s exclusion of highly relevant and probative evidence of prostitution was an abuse of its discretion under the rape shield statute and denied the defendant his constitutional right to confront witnesses against him and offer probative evidence in his own defense.
¶248 That said, the majority comes to the right result in this case for other reasons, although I would hope the trial court will not repeat the errors referenced in this concurring opinion in any future proceeding on remand.
¶249 Therefore I concur in result only.
Fairhurst, J., concurs with Sanders, J.
¶250
Quixotically the majority appears to find comfort in Dixon v. United States, 548 U.S. _, 126 S. Ct. 2437, 165 L. Ed. 2d 299 (2006), majority at 803 n.21, because “the Dixon Court did not explicitly overrule Martin . ...” Of course, why would the Dixon Court want to overrule Martin if Martin stands for the proposition that the burden to prove an affirmative defense may be placed on the defendant’s shoulders only when it does not negate an element of the offense? Dixon supports precisely that reading of Martin in that it stresses the burden of proof may be placed upon the shoulders of the defendant to prove duress because “the existence of duress normally does not controvert any of the elements of the offense itself.” Id. at 2441. Dixon therefore supports Gregory’s claim Camara was wrongfully decided and should be overruled.
At trial, defense counsel demonstrated that Sehmel’s testimony was suspect. David Moon testified Sehmel had never been to a barbeque at his home and she had not been to his home on the night in question. Moreover, the Department of Licensing records revealed that no Mustang had ever been registered to Sehmel’s friend Joseph Daniels.
When a trial court excludes defense evidence under evidentiary rules that “serve no legitimate purpose” or are “disproportionate to the ends that they are asserted to promote,” it violates due process. Holmes v. South Carolina, 547 U.S. 319, 326, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006). In Holmes the Court held it was improper for a trial judge to exclude evidence of a third party suspect based solely on the strength of the prosecutor’s case. Specifically, the Court said:
The point is that, by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is “arbitrary” in the sense that it does not rationally serve the end that the [evidentiary rule was] designed to further.
*876Id. at 331. When the trial court applied the rape shield statute here, it also violated due process because the exclusion did not rationally serve the end the statute was designed to further.
RCW 9A.44.020 provides:
(1) In order to convict a person of any crime defined in this chapter it shall not be necessary that the testimony of the alleged victim be corroborated.
(2) Evidence of the victim’s past sexual behavior including but not limited to the victim’s marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim’s consent except as provided in subsection (3) of this section ....
(3) In any prosecution for the crime of rape or for an attempt to commit, or an assault with an intent to commit any such crime evidence of the victim’s past sexual behavior including but not limited to the victim’s marital behavior, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is not admissible if offered to attack the credibility of the victim and is admissible on the issue of consent only pursuant to the following procedure:
(a) A written pretrial motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the past sexual behavior of the victim proposed to be presented and its relevancy on the issue of the consent of the victim.
(b) The written motion shall be accompanied by an affidavit or affidavits in which the offer of proof shall be stated.
(c) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and the hearing shall be closed except to the necessary witnesses, the defendant, counsel, and those who have a direct interest in the case or in the work of the court.
(d) At the conclusion of the hearing, if the court finds that the evidence proposed to be offered by the defendant regarding the past sexual behavior of the victim is relevant to the issue of the victim’s consent; is not inadmissible because its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice; and that its exclusion would result in denial of substantial justice to the defendant; the court shall make an order stating what evidence may be introduced by the defendant, which order may include the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.
(4) Nothing in this section shall be construed to prohibit cross-examination of the victim on the issue of past sexual behavior when the prosecution presents evidence in its case in chief tending to prove the nature of the victim’s past sexual behavior, but the court may require a hearing pursuant to subsection (3) of this section concerning such evidence.
See State v. Crims, 540 N.W.2d 860, 867 (Minn. Ct. App. 1995) (“[T]he rape shield statute serves to emphasize the general irrelevance of a victim’s sexual history, not to remove relevant evidence from the jury’s consideration.”).
The majority claims State v. Harold, 45 Wn.2d 505, 510, 275 P.2d 895 (1954), “emphasize[s] that whether evidence is too remote to be relevant is within the discretion of the trial court.” Majority at 786 n.5. Harold admitted into evidence testimony regarding prior acts of intercourse to show lustful disposition with an instruction telling the jury that this evidence was not proof of the commission of the crime charged, observing: “Ordinarily, remoteness affects the weight, rather than the admissibility of the evidence.” Harold, 45 Wn.2d at 510.