State of Iowa v. Michael D. Montgomery

IN THE SUPREME COURT OF IOWA

No. 19–1613

Submitted September 16, 2021—Filed November 19, 2021

STATE OF IOWA,

Appellee,

vs.

MICHAEL D. MONTGOMERY,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Sioux County, Julie Schumacher,

Judge.

Defendant seeks further review of his conviction for sexual abuse of a

child. DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND CASE

REMANDED FOR A NEW TRIAL.

Waterman, J., delivered the opinion of the court, in which Christensen,

C.J., Mansfield, McDonald, and Oxley, JJ., joined. Appel, J., filed a special

concurrence. McDermott, J., filed a separate special concurrence.

Michael J. Jacobsma (argued) of Jacobsma Law Firm, P.C., Orange City,

for appellant.
 2

Thomas J. Miller, Attorney General, and Sheryl Soich (argued), Assistant

Attorney General, for appellee.
 3

WATERMAN, Justice.

In this appeal, we must decide whether to overrule State v. Pearson, 514

N.W.2d 452, 455–56 (Iowa 1994) (en banc), and separately decide whether the

district court properly applied the “constitutional rights” exception to the rape

shield law, Iowa Rule of Evidence 5.412(b)(1)(C). The jury convicted the defendant

of sexual abuse of a child (his granddaughter) but acquitted him of lascivious

acts with the same child. The defendant appealed, arguing both crimes should

require proof he sought sexual gratification, an element Pearson held is not

required to prove sexual abuse. The defendant argues Pearson should be

overruled, which would result in the reversal of the sexual abuse conviction as

a result of his acquittal on the lascivious acts charges. The State responds that

Pearson remains good law and precludes reversal on that ground.

The defendant also argues the district court erred by excluding evidence

that another person, a teenager who testified for the State, sexually abused his

granddaughter, who simultaneously reported both abusers. The defendant made

an offer of proof that the teenager admitted abusing her and that a clinical

psychologist would testify his abuse affected her testimony. We transferred the

case to the court of appeals, which affirmed his conviction based on Pearson and

rule 5.412 while noting the scope of the “constitutional rights” exception to the

rape shield law is unclear. We granted the defendant’s application for further

review.

On our review, we apply stare decisis and decline to overrule Pearson. The

legislature codified a sexual gratification element for lascivious acts but not for
 4

sexual abuse, which can be proven by sexual contact without a motive of sexual

gratification. We reaffirm Pearson and again decline to engraft an additional

element the legislature omitted. We therefore reject defendant’s arguments based

on the allegedly inconsistent verdict. The evidentiary issue presents a closer

question. The victim simultaneously reported the abuse by the defendant and

the teenager, which involved similar acts and occurred close in time. The

defendant should have been allowed to cross-examine his granddaughter and

the teenager about their relationship as a source of her age-inappropriate sexual

knowledge and their bias or motive to testify against the defendant. Excluding

that evidence violated the defendant’s rights under the Confrontation and Due

Process Clauses and the constitutional rights exception to the rape shield law.

For the reasons explained below, we reverse his conviction and remand this case

for a new trial.

I. Background Facts and Proceedings.

In May 2016, when S.V. was eight years old, she confided in a friend that

her grandfather Michael Montgomery, age sixty, had touched her inappropriately

between her legs at his home in Hospers, Iowa. The friend urged S.V. to tell her

mother or another adult. S.V. told her mother, who promptly confronted

Montgomery. He became “angry and very defensive.” S.V.’s mother did not report

the abuse to the police that year because she feared losing custody of her

daughter to her ex-husband and because Montgomery was battling stage IV

cancer. During the same year, S.V. watched pornography at a friend’s house,

and her mother also caught her watching pornography at home.
 5

From 2015 to the summer of 2018, S.V. lived with her mother in Sheldon,

Iowa, at the home of her mother’s boyfriend and his son L.V. Although the adults

were unmarried, S.V. regarded L.V. as a “brother.” L.V. is four and one half years

older than S.V. In the summer of 2016, S.V. told L.V. that Montgomery had been

licking her and touching her for a long time in Montgomery’s bedroom. In the

ensuing months, L.V. began touching S.V. sexually, usually after L.V. let her

play on his phone. L.V. sexually abused S.V. on about six occasions, most often

in L.V.’s bedroom in Sheldon. The last time L.V. touched S.V. sexually was on

May 13, 2018. A few days later, S.V. told her friend that she had been

inappropriately touched by Montgomery and by L.V. The friend suggested S.V.

tell their school counselor and then walked with S.V. to the guidance office,

where S.V. revealed her abuse by both males. The guidance counselor reported

the allegations to the Iowa Department of Human Services and called S.V.’s

mother to let her know.

On May 16, S.V. was physically examined by a nurse and interviewed by

a forensic interviewer at the MercyOne Child Advocacy Center (CAC) in Sioux

City. The CAC nurse observed that S.V.’s physical exam was normal, which is

not uncommon for sexual abuse because vaginal tissue heals quickly. S.V.

disclosed she had been sexually abused by L.V. and also by Montgomery. In the

CAC interview, S.V. reported that Montgomery licked her and fingered her. He

would make her grab his private part and sometimes she woke up to him kissing

her. She reported that L.V. initially only kissed her. Then, L.V. began licking and

fingering her and making her grab his private part. S.V. suggested that L.V.
 6

started sexually touching her because she told him about what Montgomery did.

S.V. said she felt bad for telling on her “brother” and was worried that her mom

would be mad or L.V. would tell first and get her in trouble. L.V. admitted to his

sexual contacts with S.V. and was charged with sexual abuse in delinquency

proceedings.

In a videotaped police interview, Montgomery acknowledged that S.V.

sometimes slept in his bed with him and his wife Brenda. Montgomery admitted

to police that on one occasion, he was taking a shower and S.V. came in, took

her clothes off, and joined him in the shower. He told her to leave, and when she

remained, he left the shower. He also admitted that on another occasion, S.V.

grabbed his hand while they were in his bed and placed his hand on her groin.

He immediately pulled his hand away and told her that was inappropriate. When

S.V. again grabbed his hand and placed it on her groin, Montgomery kicked her

out of his bedroom. When asked if S.V. was clothed, Montgomery responded that

he was wearing clothes without answering with respect to S.V. When the

detective followed up to again ask if S.V. was clothed, Montgomery said he did

not remember whether S.V. was wearing clothes at that time. According to

Brenda, the grandchildren only watched movies with them in their bed two or

three times, and she remained in the bed.

After his police interview, a friend of Montgomery’s confronted him about

S.V.’s allegations. Montgomery responded that he “didn’t do anything that [S.V.]

didn’t initiate first” and “why would he do anything with [S.V.] when he has

Brenda.”
 7

In September, the State charged Montgomery with sexual abuse in the

second degree, in violation of Iowa Code sections 709.1, 709.3(1)(b), and 903B.1

(2015), and lascivious acts with a child for permitting or causing a child to fondle,

in violation of Iowa Code sections 709.1, 709.8(1)(a), 709.8(1)(b), 709.8(2)(a), and

903B.1. The State alleged Montgomery’s criminal acts occurred in 2015 or 2016.1

Montgomery pled not guilty, and the case proceeded to trial.

Before trial, Montgomery timely moved to admit evidence under Iowa Rule

of Evidence 5.412 and filed an offer of proof. Montgomery argued that under

Iowa’s rape shield law, he should be permitted to present evidence of L.V.’s

sexual abuse of S.V. as necessary for his “constitutional right to offer a defense

to the charges made against him.” He contended the evidence demonstrates that

S.V. may have made up the allegations against Montgomery to protect L.V. The

State resisted, arguing a defendant lacks a constitutional right to present

irrelevant information. Montgomery further argued the evidence should come in

to refute the nurse’s testimony about an injury without physical symptoms; the

State responded that the nurse made no finding of a physical injury.

The district court made a preliminary ruling excluding the evidence. The

court found that evidence of L.V.’s improper conduct did not fall within the

exceptions in rule 5.412 to rebut physical evidence, prove consent, or protect the

defendant’s constitutional rights, and found that the probative value of the

evidence “does not outweigh the substantial danger of unfair prejudice,

1The relevant portions of the Iowa Code are the same for 2015 and 2016. We refer to the

2015 Iowa Code.
 8

confusion of issues, misleading of the jury, and invasion of complainant’s privacy

which [Iowa’s] and other rape shield laws are designed to prevent.” At trial,

Montgomery renewed his motion to admit the evidence and made another offer

of proof supported by an expert psychologist who opined L.V.’s abuse affected

S.V.’s memories. The district court excluded the evidence.

The State played for the jury Montgomery’s videotaped police interview.

S.V. testified at trial that Montgomery kissed her back, tried to put his fingers in

her mouth, would take off her clothes and underwear, and touched her vagina

with his tongue or finger. She testified that she could feel the wetness from his

tongue and that his penis felt “textured” and “muscly.” The jury never heard that

S.V. had simultaneously reported abuse by L.V. as well as Montgomery.

S.V.’s trial testimony omitted any mention of L.V.’s abuse. The nurse

testified about her physical examination of S.V. without mentioning L.V. Her

typed history and examination report, admitted into evidence, showed she

identified Montgomery as her abuser but was redacted to remove S.V.’s

contemporaneous identification of L.V. as another abuser. S.V.’s friend testified

about S.V. disclosing Montgomery’s abuse to her, but without mentioning she

also disclosed L.V.’s abuse in the same conversation. The investigating deputy

testified without mentioning L.V.’s abuse. The State called L.V. as a witness to

testify about S.V. telling him about her grandfather’s abuse. L.V. did not testify

about his abuse of S.V. Montgomery’s defense counsel was prohibited from

cross-examining L.V. or any of the other trial witnesses about L.V.’s own sexual

abuse of S.V.
 9

Montgomery did not testify at trial. The district court limited the testimony

of Montgomery’s defense expert, clinical psychologist Dr. Rosanna Jones-

Thurman, barring her opinion that S.V.’s memories with Montgomery could be

contaminated by the sexual touching she experienced with L.V. and that she has

seen children accuse someone else to protect the real perpetrator. Dr. Jones-

Thurman was only allowed to testify that children are not very good at spatial

timing, exposure to pornography could influence a child’s memory, and she saw

no evidence Montgomery groomed S.V.

During its deliberations, the jury asked the court for clarification on jury

instruction No. 16 that used “sexual in nature” to define a “sex act” for the sexual

abuse in the second-degree charge. Montgomery urged the district court to

clarify that “sexual in nature” meant “for the purpose of satisfying the sexual

desires of defendant.” The State resisted. The district court declined

Montgomery’s proposed supplemental instruction and told the jury to “review

the instructions as a whole.”

After four hours of deliberations, the jury notified the district court that it

had reached a verdict on the lascivious acts charge but could not reach a

unanimous verdict on the sexual abuse charge. The court instructed the jury to

continue deliberations. Thirty minutes later, the jury returned a verdict finding

Montgomery guilty of sexual abuse in the second degree and not guilty of

lascivious acts with a child. The district court denied Montgomery’s motion for a

new trial. Montgomery was sentenced to twenty-five years in prison with a

mandatory minimum of seventy percent, or seventeen and half years.
 10

Montgomery appealed, arguing Pearson should be overruled to require

proof of a purpose of sexual gratification for a sexual abuse conviction. He raised

several related arguments that fail if Pearson remains good law: (1) the district

court erred by rejecting his supplemental jury instruction requiring such proof,

and (2) the jury verdict is inconsistent because his acquittal on the lascivious

acts charge requiring such proof precludes his conviction for sexual abuse.

Montgomery also argued the district court erred in excluding evidence of L.V.’s

sexual abuse of S.V. under the rape shield law. He further argued that the

prosecutor improperly vouched for S.V.’s credibility during his closing argument.

Finally, Montgomery argued his conviction was not supported by sufficient

evidence and was contrary to the great weight of the credible evidence.

We transferred the case to the court of appeals, which affirmed

Montgomery’s conviction. The court of appeals rejected Montgomery’s arguments

that the evidence of guilt was insufficient or against the greater weight of the

evidence, noting Montgomery’s own admissions supported the verdict. The court

of appeals concluded the jury verdict is not inconsistent because lascivious acts

is not a predicate offense of sexual abuse and separate incidents were alleged.

The court of appeals found Montgomery failed to preserve error regarding the

supplemental jury instruction or the prosecutor’s closing argument and

determined that the district court did not abuse its discretion applying the rape

shield law because the probative value of evidence of L.V.’s abuse did not

outweigh the unfair prejudice. The court of appeals noted that it could not

overrule Pearson and that the scope of the constitutional rights exception to rule
 11

5.412 was unclear. Montgomery applied for further review, and we granted his

application.

II. Scope of Review.

We exercise our discretion to limit our review to deciding (1) whether to

overrule Pearson and determine if the jury was properly instructed or its verdict

inconsistent, and (2) to review the exclusion of evidence of L.V.’s abuse under

the rape shield law. The court of appeals decision shall stand as the final opinion

in this appeal on the remaining issues raised in Montgomery’s appeal. See

Papillon v. Jones, 892 N.W.2d 763, 765 (Iowa 2017).

“[W]e review challenges to jury instructions for correction of errors at law.”

State v. Benson, 919 N.W.2d 237, 241 (Iowa 2018) (alteration in original) (quoting

Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016)). “We also ‘review

refusals to give a requested jury instruction for correction of errors at law.’ ” Id.

at 242 (quoting Alcala, 880 N.W.2d at 707). “The consequence of a potentially

inconsistent jury verdict is a question of law, and accordingly, our review is

de novo.” State v. Merrett, 842 N.W.2d 266, 272–73 (Iowa 2014). “Questions of

statutory interpretation are reviewed for correction of errors at law.” State v.

Wilson, 941 N.W.2d 579, 584 (Iowa 2020).

We review rulings on the admissibility of evidence under the rape shield

law, Iowa Rule of Evidence 5.412, for abuse of discretion. State v. Walker, 935

N.W.2d 874, 877 (Iowa 2019). We apply a de novo standard of review to claimed

violations of the constitutional right to present a defense, State v. Clark, 814

N.W.2d 551, 560 (Iowa 2012), and the Sixth Amendment right to confrontation,
 12

see State v. Jones, 490 N.W.2d 787, 789 (Iowa 1992), overruled on other grounds

by State v. Plain, 898 N.W.2d 801, 824–26 (Iowa 2017).

III. Analysis.

A. State v. Pearson. We first address Montgomery’s argument to overrule

Pearson. The State contends that Montgomery failed to preserve error on his

claim that Pearson should be overruled because he never made that argument

at trial. Montgomery, however, did argue during trial that the district court

should include an element of sexual gratification to prove sexual abuse and

sought a supplemental jury instruction to that effect—the issue decided in

Pearson. The district court refused to give the supplemental instruction.

“Generally, error is preserved on an issue if (1) a party raises the issue before the

district court, (2) the district court rules upon the issue, and (3) the party again

raises the issue on appeal.” State v. Gross, 935 N.W.2d 695, 698 (Iowa 2019).

And Montgomery’s posttrial motion expressly called for Pearson to be overruled,

stating that “it is time that Iowa courts follow the directive of Justice Carter in

his partial dissent opined in Pearson and require that the [S]tate prove that the

act be committed with an intent of sexual gratification of the defendant or victim”

and following the statement with the citation “See Pearson at 457.” The district

court decided the issue by denying the motion. Montgomery raised the issue

again on appeal. We conclude he preserved the issue for our review.

1. Pearson’s “sexual in nature” definition. In Pearson, we decided that a sex

act for purposes of Iowa Code section 702.17 does not have to be made to arouse

or satisfy the sexual desires of the perpetrator or the victim, so long as the act is
 13

“sexual in nature.” 514 N.W.2d at 455. The defendant argued that because both

he and his victim remained clothed, there was no “sexual contact” required for a

conviction. Id. at 454. We noted the need to distinguish innocent contact and

sexual contact and held that for contact to be a “sex act” it “must be between the

specified body parts (or substitutes) and must be sexual in nature.” Id. at 455.

Among the circumstances to consider is “whether the contact was made to

arouse or satisfy the sexual desires of the defendant or the victim”; however, we

held that purpose is not required if other circumstances exist to show that the

contact is sexual. Id. Justice Carter dissented in part, stating,

I believe that it is axiomatic that any time two persons are
moving about in close proximity to one another innocent contact
may occur between sexual parts. The majority recognizes this and
attempts to distinguish prohibited sexual contact from innocent
contact. The majority includes, as a criterion for determining sexual
contact, “the purposefulness of the contact.” At the same time, it
disavows any requirement that there be an intent to act based on
sexual gratification of either the perpetrator or the victim. The
circumstances that the majority would consider in determining
whether sexual contact has occurred would also be relevant to show
an intent to act based on sexual gratification. However, by not
recognizing sexual gratification as an element of sexual contact, the
majority prohibits a defendant from attempting to negate the charge
by urging lack of such intent. I believe that this is unrealistic and
unfair.

Id. at 457 (Carter, J., concurring in part and dissenting in part).

Justice Snell’s separate dissent argued that under Pearson, individuals

can be convicted of sexual abuse without any sex involved. Id. at 460 (Snell, J.,

dissenting); see also State v. Monk, 514 N.W.2d 448, 452 (Iowa 1994) (en banc)

(Snell, J., dissenting) (“The holdings in State v. Pearson and State v. Monk have

transformed our sex abuse statutes into general assault statutes where the
 14

assault has some effect on the reproductive or excretory organs of the victim or

defendant.”).

Montgomery argues that Pearson’s reasoning is “unsound, confusing, and

unworkable” and that we should adopt the dissenting view to require a finding

of sexual gratification for a “sex act.” We disagree and view Pearson as correctly

decided. We also apply stare decisis and decline to overrule it. See Book v.

Doublestar Dongfeng Tyre Co., 860 N.W.2d 576, 594 (Iowa 2015) (“Stare decisis

alone dictates continued adherence to our precedent absent a compelling reason

to change the law.”). Pearson was decided twenty-seven years ago, and its

holding has not proven unworkable. “Under the doctrine of legislative

acquiescence, ‘we presume the legislature is aware of our cases that interpret its

statutes. When many years pass following such a case without a legislative

response, we assume the legislature has acquiesced in our interpretation.’ ”

State v. Iowa Dist. Ct., 902 N.W.2d 811, 818 (Iowa 2017) (quoting Ackelson v.

Manley Toy Direct, L.L.C., 832 N.W.2d 678, 688 (Iowa 2013)). Indeed, the

legislature recently amended section 709.3, defining sexual abuse, and section

702.17, defining “sex act,” without overruling Pearson. See 2021 Iowa Acts ch.

36, §§ 1–2 (to be codified at Iowa Code § 702.17 (2022)); id. ch. 37, § 3 (to be

codified at Iowa Code § 709.3(1)(b) (2022)).

We again decline to engraft an additional element of sexual gratification

that the legislature chose to omit. The legislature knows how to require that

conduct be done for “the purpose of arousing or satisfying the sexual desires of

either” party because it has codified that element in other criminal statutes. See
 15

Iowa Code §§ 709.8 (lascivious acts with a child), .9 (indecent exposure from

masturbation), .12 (indecent contact with a child), .14 (lascivious conduct with

a minor), .15 (sexual exploitation by a counselor or therapist). We assume the

legislature intended to omit that element from the sexual abuse statute.

There are valid policy reasons why the legislature might want to

criminalize sexual abuse that is not for the purpose of sexual gratification. For

example, some sexual abuse is performed to exert power or control over the

victim without a motivation of sexual gratification. See, e.g., State v. Davis, 584

N.W.2d 913, 917 (Iowa Ct. App. 1998). We decline to modify our prior

interpretation of section 709.3. Pearson remains good law.

2. Allegedly inconsistent verdict. Montgomery argues that both lascivious

acts and sexual abuse require proof of a motive of sexual gratification such that

his acquittal on the former is inconsistent with his conviction on the latter.

Because we decline to overrule Pearson, Montgomery’s argument fails.

Under Pearson, the jury verdict finding Montgomery guilty of sexual abuse

and acquitting him of lascivious acts is not inconsistent. We begin with the

statutory language of the offenses. The statue defining lascivious acts with a

child provides: “It is unlawful for any person sixteen years of age or older to

perform any of the following acts with a child with or without the child’s consent

unless married to each other, for the purpose of arousing or satisfying the sexual

desires of either of them . . . .” Iowa Code § 709.8(1) (emphasis added). By

contrast, as we have just reaffirmed, a conviction for sexual abuse does not

require a motive of sexual gratification.
 16

“If jury verdicts are to be examined for inconsistency, the test to be applied

is whether the verdict is so logically and legally inconsistent as to be

irreconcilable within the context of the case.” Merrett, 842 N.W.2d at 275–76

(quoting State v. Fintel, 689 N.W.2d 95, 101 (Iowa 2004)). The jury’s decision to

acquit Montgomery of lascivious acts with a child and not sexual abuse in the

second degree is not legally impossible. Unlike lascivious acts with a child,

sexual abuse in the second degree does not have the requirement that the

defendant’s conduct be “for the purpose of arousing or satisfying the sexual

desires of either of them.” As the court of appeals correctly noted, lascivious acts

with a child is not a predicate offense or component of sexual abuse in the second

degree. Said another way, lascivious acts with a child does not include only

elements that are also elements of sexual abuse in the second degree. See State

v. Johnson, 950 N.W.2d 21, 24 (Iowa 2020) (applying legal-elements test).

Next, the jury’s decision to acquit Montgomery of lascivious acts with a

child and not sexual abuse in the second degree is not logically impossible. Even

though it appears that the jury did not credit much of S.V.’s testimony, the jury

could have relied in part on Montgomery’s own statements that S.V. used his

hand to explore herself and that he admittedly “didn’t do anything that [S.V.]

didn’t initiate first.” Consistent with Pearson, the jury could find Montgomery’s

hand made sexual contact with S.V.’s vagina twice, but without a motive of

sexual gratification. Thus, the jury verdict is not legally or logically inconsistent.

3. Jury instructions. Jury Instruction No. 14 stated for the sexual abuse

charge that the State had to prove “[o]n or between February 1, 2015, and
 17

August 16, 2016, Michael Montgomery did commit a sex act with S.V.” and

“Michael Montgomery performed the sex act while S.V. was under the age of 12

years.” Instruction No. 16 defined “sex act”:

Concerning Element Number 1 of Instruction No. 14, “sex act”
means any sexual contact:

Between the mouth of one person and the genitals of another;
or

Between the finger or hand of one person and the genitals or
anus of another person.

You may consider the type of contact and the circumstances
surrounding it in deciding whether the contact was sexual in nature.

Montgomery had not objected to those instructions. But during

deliberations, the jury asked for clarification of the last sentence of Instruction

No. 16. Montgomery’s counsel responded, “I do think that perhaps some

clarification should be given to the jury as to what ‘sexual in nature’ means in

that the action has to be for the purpose of satisfying the sexual desire of the

defendant.” The court declined, stating, “The Court finds no clarification is

necessary in regard to Instruction No. 16 and would direct the jury to review the

instructions as a whole in reaching their verdict and follow the instructions

previously given by the court.” Montgomery’s posttrial motion argued the court

should have provided a list of the Pearson factors as part of the clarifying

instruction. On appeal, Montgomery argues the Pearson factors should have

been a part of the original jury instruction defining “sex act.” Assuming without

deciding that he preserved error for his arguments concerning the “sex act” jury

instruction, we conclude the district court properly instructed the jury on what
 18

constitutes a “sex act” and correctly refused Montgomery’s proposed

supplemental instruction. The instructions given tracked the statutory elements

and Montgomery’s requested supplemental instruction was contrary to Pearson.

B. Exclusion of Evidence under Iowa Rule of Evidence 5.412. We must

decide whether Montgomery’s proffered evidence that L.V. abused S.V. was

properly excluded under the rape shield law. We begin with the text of the rule,

which provides in pertinent part:

a. Prohibited uses. The following evidence is not admissible in
a criminal proceeding involving alleged sexual abuse:

(1) Reputation or opinion evidence offered to prove that a
victim engaged in other sexual behavior.

(2) Evidence of a victim’s other sexual behavior other than
reputation or opinion evidence.

b. Exceptions.

(1) Criminal cases. The court may admit the following evidence
in a criminal case:

(A) Evidence of specific instances of a victim’s sexual behavior,
if offered to prove that someone other than the defendant was the
source of semen, injury, or other physical evidence.

(B) Evidence of specific instances of a victim’s sexual behavior
with respect to the person accused of sexual abuse, if the defendant
offers it to prove consent.

(C) Evidence whose exclusion would violate the defendant’s
constitutional rights.

....

c. Procedure to determine admissibility.

....

(2) Hearing. . . .
 19

(C) If the court determines that the evidence is relevant and
that the probative value outweighs the danger of unfair prejudice,
the evidence will be admissible at trial to the extent the court
specifies, including the evidence on which the victim may be
examined or cross-examined.

Iowa R. Evid. 5.412.

The purpose of the rape shield rule “is to protect the victim’s privacy,

encourage the reporting and prosecution of sex offenses, and prevent the parties

from delving into distractive, irrelevant matters.” State v. Trane, 934 N.W.2d 447,

456–57 (Iowa 2019) (quoting State v. Edouard, 854 N.W.2d 421, 448–49 (Iowa

2014), overruled on other grounds by Alcala, 880 N.W.2d 669); see also State v.

Donahue, 957 N.W.2d. 1, 8 (Iowa 2021). The rule “substantially limits the

admission of evidence of specific instances of a complaining witness’s other

sexual behavior.” Trane, 934 N.W.2d at 456.

Evidence concerning L.V.’s sexual abuse of S.V. is subject to rule 5.412.

The rule generally prohibits evidence of specific instances of a victim’s “other

sexual behavior,” which includes previous instances of sexual abuse perpetrated

upon the victim. Jones, 490 N.W.2d at 790 (surveying rape shield cases and

following majority in holding “past sexual behavior” in rule 5.412 “clearly

encompasses prior sexual abuse perpetrated upon the victim”); see also Westley

v. State, 254 A.3d 106, 117 (Md. Ct. Spec. App. 2021) (construing “prior sexual

conduct” in Maryland’s rape shield law to include prior sexual abuse, not just

“prior willing sexual conduct”).

Montgomery’s proffered evidence is inadmissible unless an exception

applies. Montgomery relies on two exceptions: Iowa Rule of Evidence
 20

5.412(b)(1)(A) (source of semen, injury, or other physical evidence exception) and

rule 5.412(b)(1)(C) (constitutional rights exception). We address each exception

in turn.

The district court and court of appeals correctly rejected Montgomery’s

argument under the first exception that allows evidence to rebut the State’s

argument that the “defendant was the source of semen, injury, or other physical

evidence.” Iowa R. Evid. 5.412(b)(1)(A). We hold that under its plain meaning,

this exception is limited to physical evidence, such as semen, or a physical

injury. Neither is present here. Our interpretation is consistent with federal and

state cases interpreting the injury requirement.2 See United States v. Shaw, 824

F.2d 601, 603 n.2 (8th Cir.1987) (“Furthermore, it is clear that Rule 412’s injury

exception does not apply to emotional injuries unaccompanied by a cognizable

physical consequence.” (citing 124 Cong. Rec. 34,913 (1978) (subdivision

(b)(2)(A) applies to “certain physical consequences”))), abrogated on other grounds

by Idaho v. Wright, 497 U.S. 805 (1990); State v. Rolon, 777 A.2d 604, 613 n.18

(Conn. 2001) (“The defendant also made a ‘source of injury’ argument. Because

2We have looked to federal precedent as persuasive authority to interpret the same

language in Iowa Rule of Evidence 412 (now rule 5.412). See, e.g., Jones, 490 N.W. 2d at 790.
When, as here, our rule of evidence and its federal counterpart are worded identically in relevant
respects, “interpretations of the federal rule are often persuasive authority for interpretation of
our state rule.” State v. Paredes, 775 N.W.2d 554, 561 (Iowa 2009). “Federal case law, however,
is not binding, and we are free to develop our own approach to legal questions under the Iowa
rule.” Id. We have also noted that the “legislative history of federal rule 412 is instructive.” State
v. Clarke, 343 N.W.2d 158, 162 (Iowa 1984); see also State v. Harrington, 800 N.W.2d 46, 49 n.1
(Iowa 2011) (“Since many of the Iowa Rules here recommended are modeled after the Federal
Rules of Evidence, it is contemplated that judges and lawyers will look for guidance to the United
States Supreme Court Advisory Committee Notes.” (quoting Iowa R. Evid. official comment
(1983))).
 21

psychological trauma is not recognized as an ‘injury’ under [Connecticut’s rape

shield law], the court did not consider this argument.”).3

Montgomery has a better argument under the constitutional rights

exception in rule 5.412(b)(1)(C). That exception codifies a safety valve to avoid an

unconstitutional application of the rape shield rule. In addressing the

constitutionality of rape shield laws, the Supreme Court cautioned that

“[r]estrictions on a criminal defendant’s rights to confront adverse witnesses and

to present evidence ‘may not be arbitrary or disproportionate to the purposes

they are designed to serve.’ ” Michigan v. Lucas, 500 U.S. 145, 151 (1991)

(quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)); see also State v. Boyer, 460

P.3d 569, 580 (Utah Ct. App. 2020) (describing the constitutional rights

exception as a “high bar” requiring the defendant to “show that ‘the evidence in

question is essential to the presentation of [his] defense’ ” (quoting State v.

Thornton, 391 P.3d 1016, 1030 (Utah 2017))).

Other courts confronted with the necessity of accommodating
the competing interests of complaining witnesses and defendants in
such cases have concluded that rape shield statutes should be
construed and applied so as to uphold the constitutional rights of
defendants, while creating the least possible interference with the
legislative purpose reflected in the statutes.

Summit v. State, 697 P.2d 1374, 1376 (Nev. 1985). We agree.

Accordingly, we reiterate that “[t]he defendant’s constitutional rights must

be weighed against the recognized interest that the State has ‘to (1) protect the

3When State v. Rolon was decided, Connecticut’s rape shield law prohibited “evidence of
the sexual conduct of the victim . . . unless such evidence is (1) offered by the defendant on the
issue of whether the defendant was, with respect to the victim, the source of semen, disease,
pregnancy or injury.” Conn. Gen. Stat. § 54-86f (2001).
 22

privacy of the victims; (2) [to] encourage the reporting and prosecuting of sex

offenses; and (3) to prevent time-consuming and distracting inquiry into

collateral matters.’ ” Jones, 490 N.W.2d at 791 (quoting State v. Gettier, 438

N.W.2d 1, 3 (Iowa 1989)). And evidence can only be admitted if it is relevant and

its “probative value outweighs the danger of unfair prejudice.” Iowa R. Evid.

5.412(c)(2)(C); see Thompson v. State, 492 N.W.2d 410, 415 (Iowa 1992) (holding

that evidence within a rule 5.412 exception “still would not be admissible if its

probative value did not outweigh the danger of substantial prejudice, confusion

of the issues, and misleading the jury”).

In addition to the heightened standard imposed by rule 5.412 to protect

victims of sexual abuse, evidence can be excluded “if its probative value is

substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time,

or needlessly presenting cumulative evidence.” Iowa R. Evid. 5.403; see also

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (holding that a trial court can

reasonably limit the right to confrontation when considering “harassment,

prejudice, confusion of the issues, the witness’ safety, or interrogation that

[would be] repetitive or only marginally relevant”); Laurie Kratky Doré, Iowa

Practice Series: Evidence § 5.412:1 (2020–2021 ed. 1999) [hereinafter Doré]

(“Iowa courts have repeatedly indicated that an accused does not have a

constitutional right to admit evidence of a victim’s other sexual behavior that is

irrelevant or whose probative value is outweighed by unfair prejudice.”).
 23

Montgomery relies on his due process right to a fair trial. U.S. Const.

amends. V, VI, XIV; Iowa Const. art. I, §§ 9–10. This includes the right to present

a defense and his Sixth Amendment right to confront the witnesses against him.

Clark, 814 N.W.2d at 560; State v. Clarke, 343 N.W.2d 158, 161 (Iowa 1984).

Cross-examination is essential to the defendant’s constitutional right of

confrontation. Davis v. Alaska, 415 U.S. 308, 315–16 (1974). “[T]he exposure of

a witness’ motivation in testifying is a proper and important function of the

constitutionally protected right of cross-examination.” Id. at 316–17.4

Montgomery argues his constitutional right to present a defense was

violated because he was unable to introduce evidence concerning L.V.’s sexual

abuse of S.V. Montgomery argues the evidence was admissible under the

constitutional rights exception to show S.V. conflated her memories of sexual

abuse, to explain S.V.’s age-inappropriate sexual knowledge, and to cross-

examine S.V. and L.V. regarding their motive or bias given the closeness of their

relationship. We address each argument in turn.

First, Montgomery argues his proffered expert testimony was admissible

to show S.V. confused her memory of abuse. According to Montgomery’s offer of

proof, Dr. Jones-Thurman’s supplemental testimony opined that S.V. has

“contaminated some of her memories about what was going on with [L.V.] with

what she could have conceived happening with [Montgomery].” The court of

appeals held Dr. Jones-Thurman’s testimony on memory contamination was

4Cross-examination has been recognized as “the ‘greatest legal engine ever invented for

the discovery of truth.’ ” California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 John Henry
Wigmore, Wigmore on Evidence § 1367 (3d ed. 1940)).
 24

inadmissible under State v. Dudley, which reaffirmed Iowa’s “law prohibiting an

expert witness from commenting on the credibility of a victim in a criminal sex

abuse proceeding.” 856 N.W.2d 668, 676 (Iowa 2014). The prohibition is

designed to respect the jury’s role in determining credibility of witnesses and to

avoid an expert “directly or indirectly . . . giving his or her scientific certainty

stamp of approval on the testimony even though an expert cannot accurately

opine when a witness is telling the truth.” Id. at 676–77. Yet Dudley would not

bar Dr. Jones-Thurman’s expert testimony that child victims generally may

conflate their memories of abuse. See id. at 676.

The State argues that it strains credulity to suggest S.V. would confuse

what her grandfather did with the acts of the teenaged L.V. The State relies on

State v. Jones, where we affirmed the district court’s rule 5.412 exclusion of

evidence because “[t]here is no likelihood” the victim confused her memories

when the alleged prior abuse occurred five years earlier when the victim was age

five and “involved completely different types of contact.” 490 N.W.2d at 791. By

contrast, L.V.’s abuse began shortly after Montgomery’s ended and involved

similar sex acts, and expert testimony was offered to suggest this influenced

S.V.’s testimony. It is possible that some of her memories of aspects of L.V.’s

abuse seeped into her descriptions of Montgomery’s abuse. But we likely would

not reverse on this ground alone.

Second, Montgomery argues evidence of L.V.’s abuse was admissible to

show another source for S.V.’s age-inappropriate sexual knowledge that a penis

feels “muscly” and thereby rebut the inference that her knowledge must have
 25

come from Montgomery’s abuse. “[A] child victim’s sexual knowledge [that]

resulted from an encounter with someone other than the defendant may be

relevant and material to a defendant’s defense of mistaken identity or false

accusation.” Walker, 935 N.W.2d at 877 (quoting State v. Cecil J., 913 A.2d 505,

512 (Conn. App. Ct. 2007)); see also id. at 882 (Appel, J., concurring specially)

(collecting cases); Westley, 254 A.3d at 132 (“We join the majority of state courts

that have considered this issue in determining that when a defendant seeks to

admit evidence of a victim’s prior sexual conduct to dispel a presumption of

sexual innocence, a court must assess on a case-by-case basis whether the

exclusion of such evidence would violate the defendant’s constitutional rights.”);

State v. Howard, 426 A.2d 457, 462 (N.H. 1981) (holding evidence of prior sexual

abuse should have been admitted under a rape shield law exception to show

source of knowledge because “the average juror would perceive the average

twelve-year-old girl as a sexual innocent”); State v. Pulizzano, 456 N.W.2d 325,

334–35 (Wis. 1990) (holding rape shield exclusion ruling violated defendant’s

constitutional right to cross-examine child complainant about prior sexual abuse

to show alternative source for sexual knowledge). But see State v. Erick L., 147

A.3d 1053, 1064 (Conn. App. Ct. 2016) (affirming exclusion of evidence because

“the sexual knowledge displayed in [the twelve-year-old victim’s] allegations

against the defendant was not unusual and was consistent with what middle

schoolers and high schoolers are commonly taught about sex”).

In State v. Westley, the Court of Special Appeals of Maryland identified a

threshold requirement for assessing whether excluding such evidence violates
 26

the defendant’s constitutional rights: “a court must first determine if the facts of

the case actually give rise to a presumption of sexual innocence.” 254 A.3d at

132. The court elaborated:

In doing so, a court should consider, among other relevant factors,
the age of the child, the maturity of the sexual behavior alleged,
whether the child’s allegations necessarily suggest sexual knowledge
beyond what a child of that age would presumedly [sic] possess,
whether the State has introduced evidence suggestive of sexual
innocence, and whether there is other evidence that the victim
possessed sexual knowledge before reporting the conduct at issue.

Id. These factors support admissibility here: S.V. was age ten in her CAC

interview and presumably most girls of that age would not know an erect penis

feels muscly. The Westley court also included “the proximity in time between the

prior sexual conduct and the complainant’s allegations” as another factor to

consider. Id. Here, L.V.’s abuse began shortly after Montgomery’s alleged abuse.

The Wisconsin Supreme Court separately identified five other

requirements in State v. Pulizzano, holding that

to establish a constitutional right to present otherwise excluded
evidence of a child complainant’s prior sexual conduct for the limited
purpose of proving an alternative source for sexual knowledge, prior
to trial the defendant must make an offer of proof showing (1) that
the prior acts clearly occurred; (2) that the acts closely resembled
those of the present case; (3) that the prior act is clearly relevant to
a material issue; (4) that the evidence is necessary to the defendant’s
case; and (5) that the probative value of the evidence outweighs its
prejudicial effect.

456 N.W.2d at 335; see also Rolon, 777 A.2d at 623 (adopting same factors);

State v. Johnson, 944 P.2d 869, 878 (N.M. 1997) (“We also agree with the

Wisconsin Supreme Court that a showing sufficient under the five-pronged

[Wisconsin] test establishes a constitutional right to present evidence otherwise
 27

excluded by our [rape shield] statute.”). Those five factors are satisfied here.5 L.V.

admitted to the same conduct allegedly committed by Montgomery (having S.V.

touch his penis), satisfying the first two factors. Evidence of L.V.’s abuse rebuts

the inference that S.V.’s knowledge could only have come from Montgomery,

satisfying the next three factors. Particularly salient here is the temporal

proximity of Montgomery’s alleged abuse and L.V.’s abuse that closely followed,

together with S.V.’s ongoing relationship with L.V., a witness for the prosecution,

at the time she simultaneously reported abuse by both of them.

We find State v. Twardoski to be persuasive because the allegations

against the teenager and Montgomery are similar. 491 P.3d 711, 719–21 (Mont.

2021). In Twardoski, the Montana Supreme Court held that the trial court erred

by excluding evidence of prior sexual abuse committed by another man

criminally charged for an identical sexual game of truth or dare allegedly

performed by the defendant less than two weeks later as relevant to show the

same victim’s source of “detailed sexual knowledge.” Id.

Iowa’s precedent on the constitutional rights exception is limited. In State

v. Walker, the twenty-six-year-old defendant was convicted of sexually abusing

5Our district courts should determine admissibility of such evidence under the
constitutional rights exception in rule 5.412(b)(1)(C) case by case. We quote the factors
considered by other courts “to suggest a possible framework” while recognizing “[t]here may be
other showings that are equally sufficient” to meet the constitutional rights exception to the rape
shield rule. Johnson, 944 P.2d at 878; see also State v. Townsend, 233 S.W.3d 680, 684–85 (Ark.
2006) (concluding that Wisconsin’s “analytical approach has merit when ruling on the
admissibility of a child’s previous sexual experiences” to “prevent the jury from assuming that
the defendant is responsible for the child’s lack of sexual innocence”); State v. Guthrie,
518 S.E.2d 83, 95–96 n.20 (W. Va. 1999) (stating the Wisconsin test “may be a viable analytical
tool for constitutional analysis of an evidentiary issue brought under our rape shield statute,”
while declining to adopt the test in that case).
 28

his four-year-old niece. 935 N.W.2d at 876, 878. He appealed the district court’s

rape shield ruling excluding evidence that family members were concerned the

victim’s eight-year-old brother might have sexually abused her. Id. at 877. The

defendant argued the evidence would show the victim’s age-inappropriate sexual

knowledge did not come from him. Id. We affirmed, in part because Walker failed

to show the brother had in fact abused her and also on grounds that the proffered

evidence was unduly prejudicial because it would confuse the issues, mislead

the jury, and create a trial within a trial. Id. at 877–78. Walker, however, is

distinguishable because L.V. admitted abusing S.V. and was charged with sexual

abuse in delinquency proceedings.

The State again relies on Jones, 490 N.W.2d 787, which we find to be

distinguishable. In Jones, Jones claimed the evidence of prior abuse by another

person five years before Jones’ alleged abuse was relevant to explain how the

child knew of age-inappropriate information to make the allegations against him.

490 N.W.2d at 791. The victim was age thirteen years at trial and had attended

sexual counseling as well as sex education classes before she testified. Id. We

concluded those other sources of her sexual knowledge made it “unlikely that a

jury would infer that the victim could only describe the act because Jones had,

in fact, done it.” Id. We noted “the rather unexplicit nature” of her testimony

about Jones kissing and touching her. Id. at 791, 791 n.1. By contrast, S.V.

explicitly described her abuser’s penis as feeling “textured” and “muscly”—

awareness not likely attributable to S.V. viewing pornography. Furthermore, the

“completely different” nature of the prior abuse in Jones, and the fact it occurred
 29

five years earlier, explained our determination that the prior abuse was only

“marginally relevant” to show the victim’s age-inappropriate knowledge related

to what Jones did. Id. But on the record here, we conclude Montgomery should

have been allowed to introduce evidence of L.V.’s contemporaneous, similar

abuse to explain S.V.’s age-inappropriate knowledge, and thereby rebut the

inference that Montgomery’s abuse was the source of her knowledge.

Third, Montgomery argues his proffered evidence is admissible to show

motive and bias. See Twardoski, 491 P.3d at 720–21 (holding evidence of another

abuser favored by the victim should have been allowed to show her “motive to

fabricate” allegations against the defendant whom she wanted “out of her

mother’s life”). S.V. favored L.V. and didn’t want to get him in trouble. Dr. Jones-

Thurman would have testified that in her experience, children sometimes accuse

another to protect the real perpetrator. The State called L.V. as a witness at trial,

thereby opening the door to cross-examination about his own sexual activity with

S.V. “[I]n a case that hinges on a victim’s credibility, evidence that impeaches

one of the victim’s few corroborating witnesses is, without question, favorable to

the accused.” State v. Leedom, 938 N.W.2d 177, 188 (Iowa 2020) (quoting

DeSimone v. State, 803 N.W.2d 97, 105 (Iowa 2011)).

Federal precedent is compelling. In Olden v. Kentucky, the trial court

excluded evidence that a key witness, Russell, was cohabitating with the victim.

488 U.S. 227, 230 (1988) (per curiam). The defense theory of the case was that

the complainant fabricated the rape allegations to protect her relationship with

Russell. Id. Olden and Harris were charged with kidnapping, rape, and forcible
 30

sodomy. Olden was found guilty of forcible sodomy; Harris was acquitted. Id.

According to the complainant, she was raped twice by Olden, during one of which

Harris held her arms down. Id. at 228. According to the defendants, the sex was

consensual. Id. at 229. Russell testified for the state that he saw the complainant

get out of Harris’s car and then she immediately told him that she had been

raped. Id. By the time of trial, Russell, a Black man, was living with the

complainant, a white woman. Id. at 230–31. The defense sought to admit

evidence of their cohabitation, which the trial court excluded under a rape shield

law because “its probative value [was] outweighed by its possibility for prejudice.”

Id. at 230. The Kentucky Court of Appeals affirmed, concluding that Olden’s

“right to effective cross-examination was outweighed by the danger that revealing

[the complainant’s] interracial relationship would prejudice the jury against her.”

Id. at 232.

The United States Supreme Court reversed, holding that the exclusion of

the cohabitation evidence violated Olden’s Sixth Amendment right to confront

the witnesses against him. Id. at 231. The Court reasoned that the evidence

could alter a reasonable juror’s impression of Russell’s credibility. Id. at 232. The

Supreme Court concluded that “[s]peculation as to the effect of jurors’ racial

biases cannot justify exclusion of cross-examination with such strong potential

to demonstrate the falsity of [the complainant’s] testimony.” Id. The Court

emphasized that the State’s case hinged on the credibility of the complainant

and Russell’s corroborating testimony. Id. at 233.
 31

In United States v. Platero, the United States Court of Appeals for the Tenth

Circuit applied Olden to allow “cross-examination and other evidence” of “a

romantic or sexual relationship between” the complainant and a witness for the

prosecution. 72 F.3d 806, 815–16 (10th Cir. 1995). Platero claimed he had

consensual sex with the complainant moments before she rejoined the witness,

who testified she immediately told him Platero had raped her. Id. at 808. Platero’s

theory of defense was that she “fabricated her sexual assault allegations . . . to

protect her relationship” with the witness. Id. The witness and complainant

denied they were in a romantic relationship at the time of Platero’s assault but

were living together by time of trial. Id. at 808–09. The Tenth Circuit limited use

of the relationship evidence on remand, directing that the jury “first determine

whether there was a romantic or sexual relationship between [the witness and

complainant] at the time of [Platero’s] alleged assault,” and only if so, could the

jury then consider the relationship evidence “in determining Platero’s innocence

or guilt.” Id. at 816 (emphasis added). The Platero court’s limiting principle on

the timing of the relationship (and accompanying motive to fabricate) is satisfied

here. Shortly after Montgomery allegedly abused S.V., L.V. started sexually

abusing S.V., which continued until she reported Montgomery’s abuse to her

guidance counselor.

Other decisions are instructive on allowing evidence of contemporaneous

sexual relations between the victim and a witness for the prosecution. In Lewis

v. Florida, the defendant was convicted of sexually assaulting a child. 591 So. 2d

922, 923 (Fla. 1991). His theory of defense was that his stepdaughter fabricated
 32

the allegations in order to prevent her mother and the defendant from discovering

that she was sexually active with her boyfriend. Id. When the defendant sought

to enter evidence regarding his stepdaughter’s relationship with her boyfriend,

the trial court limited the testimony:

Accordingly, cross-examination before the jury established
only that [the defendant’s] accuser had a boyfriend, whom [he] and
her mother did not want her to see, and that they placed her on
restriction because of some letters she had written to the boyfriend.
The jury was also allowed to learn that the victim’s mother and
stepfather told her she could not have a car. The jury, therefore, did
not hear any of the facts regarding the stepdaughter’s sexual
activity, her concealing that activity when asked by her mother, or
her attempts to prevent her mother and stepfather from confirming
such activity through the scheduled gynecological exam.

Id. at 924. The appellate court determined the limitation unreasonably denied

the defendant “the opportunity to confront his accuser and present his defense.”

Id. at 925 (quoting Lewis v. State, 750 So. 2d 412, 419 (Fla. Dist. Ct. App. 1990)

(Allen, J., dissenting)). The limitation prevented the defense from arguing the

stepdaughter fabricated allegations to prevent discovery of her sexual

relationship with her boyfriend. Id. But see Erick L., 147 A.3d at 1070 (affirming

exclusion of evidence of victim’s sexual relations with boyfriend offered to show

her motive for falsely accusing defendant who grounded her because trial court

permitted sanitized cross-examination on retaliation motive).

In People v. Peppers, defendant was convicted of aggravated criminal

sexual abuse of a fifteen-year-old girl. No. 3–13–0343, 2016 WL 285180, at *1,

*3 (Ill. App. Ct. 2016). According to the complainant, Nicholas Ferreira walked in

on the defendant having sex with her and asked them to go elsewhere. Id. at *2.

The defendant forced the complainant downstairs to finish having sex. Id. That
 33

night, the complainant told Ferreira that the defendant raped her. Id. The

defendant argued the sex was consensual and he reasonably believed the

complainant to be seventeen years old. Id. at *3. The trial court ruled that the

complainant’s previous sexual history with the State’s witness, Ferreira, was

inadmissible under the rape shield law. Id. at *2. The appellate court reversed,

holding that the defendant should have been permitted to cross-examine Ferreira

about the relationship to show his bias resulting from the lack of criminal

charges against him, to highlight his motive to fabricate testimony for someone

he cared about, and to support the defendant’s claim he reasonably believed that

the complainant was seventeen years old because Ferreira had slept with her.

Id. at *5.

Finally, excluding evidence of L.V.’s abuse presented a misleadingly

incomplete picture to the jury. Multiple witnesses testified about S.V. coming

forward in May 2018 to report Montgomery’s abuse, without any mention that

she simultaneously reported L.V.’s abuse. The jury was unaware that the nurse’s

physical examination of S.V. was three days after L.V. last abused her. Jurors

could reasonably believe the forensic interview and physical examination of S.V.

were to investigate Montgomery alone. The nurse’s written report admitted into

evidence included her identification of Montgomery as her abuser yet was

redacted to delete S.V.’s identification of L.V. as another abuser. Most notably,

the State called L.V. as a witness, without providing Montgomery with an

opportunity to cross-examine him about L.V.’s own abuse of S.V. The rule of

completeness further supports admissibility here. See Westley, 254 A.3d at 136
 34

(applying “doctrine of verbal completeness” to determine if testimony opened the

door to prior abuse evidence); State v. Huser, 894 N.W.2d 472, 507 (Iowa 2017)

(noting that “the rule of completeness in Iowa Rule of Evidence 5.106 might be

characterized as posing an open-the-door concept” and “is broader than the

federal counterpart,” and concluding that “the Iowa rule allows admission of ‘any

other . . . conversation’ that meets the rule’s requirements” (quoting Iowa R.

Evid. 5.106(a))); Doré, § 5.106:1 (“[A]pplication of the rule prevents unfairness

by protecting against the misleading impression which might result when all or

part of written or oral evidence is read or heard out of context.”).

The foregoing authorities demonstrate that the constitutional rights

exception to the rape shield law under some circumstances allows evidence of

the complainant’s contemporaneous sexual relationship with a witness for the

State. We hold that the district court erred by excluding evidence of L.V.’s abuse

of the complainant. Montgomery should have been allowed to cross-examine S.V.

and L.V. about their relationship and to introduce Dr. Jones-Thurman’s expert

testimony that children may testify falsely to protect an abuser they favor.

Montgomery should have been able to argue that S.V. was reluctant to get her

teenage “brother” L.V. in trouble and that their relationship explained how S.V.

knew a penis is “textured” and “muscly.” We vacate the court of appeals decision

and reverse the district court’s ruling on the rape shield law.

We must decide whether the erroneous exclusion of this evidence was

harmless. Reversal is required for evidentiary error when “the error affects a

substantial right of the party.” Iowa R. Evid. 5.103(a). “We presume the
 35

defendant’s rights have been prejudiced unless the State can affirmatively

establish otherwise. The State overcomes the presumption of prejudice if it can

establish that there was overwhelming evidence of the defendant’s guilt.” State

v. Howard, 825 N.W.2d 32, 41–42 (Iowa 2012) (citation omitted). The jury

acquitted Montgomery of lascivious acts while convicting him of sexual abuse. A

possible conclusion is that the jury largely disbelieved S.V. and convicted

Montgomery based on his own admissions that he let her place his hand on her

groin area twice and “didn’t do anything that [S.V.] didn’t initiate first.” If the

jury didn’t believe S.V. anyway, Montgomery arguably was not harmed by the

exclusion of evidence that could have undermined her credibility.

Our role, however, is not to read the minds of the jurors or replace them

as fact finder. Montgomery claimed he immediately pulled his hand away both

times after she pulled his hand to her groin. There is no DNA or other physical

evidence that he abused S.V. He denies abusing her. No witness saw him abusing

her. We do not find the evidence of guilt to be overwhelming. We determine the

evidentiary errors were not harmless and require a new trial. See State v. Shaw,

90 A.3d 936, 955 (Conn. 2014) (holding exclusion of prior abuse evidence was

not harmless when “the state’s case was not particularly strong because there

was no direct evidence that [the victim] was sexually assaulted by the

defendant”); cf. Pulizzano, 456 N.W.2d at 335 (declining to apply harmless error

rule when rape shield ruling deprived defendant of evidence necessary to her

defense).
 36

IV. Conclusion.

For those reasons, we vacate the court of appeals decision on the rape

shield issue, affirm the court of appeals decision on the remaining issues, reverse

the district court’s judgment, and remand the case for a new trial consistent with

this opinion.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND CASE

REMANDED FOR A NEW TRIAL.

All justices concur except Appel, J., who concurs specially, and

McDermott, J., who separately concurs specially.
 37

#19–1613, State v. Montgomery

APPEL, Justice (concurring specially).

I agree with the result and most of the majority opinion. In my view,

however, stare decisis is not at work unless the court believes that the underlying

decision was incorrectly decided. State v. Sewell, 960 N.W.2d 640, 651 (Iowa

2021) (Appel, J., concurring in part and dissenting in part); Youngblut v.

Youngblut, 945 N.W.2d 25, 45 (Iowa 2020) (McDonald, J., dissenting). In my view,

the majority offers the best interpretation of the statute and affirms prior

authority. As a result, the doctrine of stare decisis, though cited, has no role in

the resolution of the statutory interpretation issue in this case.

I also give little weight to the doctrine of legislative acquiescence in this

case. As a general proposition, though frequently cited, legislative acquiescence

is a relatively weak doctrine. There are all kinds of reasons why a legislature may

decline to act after a judicial decision interpreting a statute. Few legislators

would want to explain a vote cast to narrow the scope of a judicial interpretation

of a sexual abuse statute. Cf. William J. Stuntz, The Pathological Politics of

Criminal Law, 100 Mich. L. Rev. 505, 547–49 (2001) (noting that the politics of

criminal law leads to a “one-way ratchet” of ever increasing criminal penalties).

Further, an unanticipated broad ruling of the scope of a sexual abuse statute by

a court is likely to be viewed by legislators as more a windfall than as a problem.

As a result, in my view, the doctrine of legislative acquiescence does not

materially impact the result in this case. That is not to say that the doctrine of

legislative acquiescence has no place in the interpretive toolkit available to the
 38

court to assist in the resolution of disputes about statutory meaning. But it has

little bearing here.

Finally, I have no problem considering federal authority as an aid in

interpreting Iowa rules of evidence that are parallel to similar federal rules to the

extent the reasoning in the federal cases is persuasive. There is, of course, no

presumption that the federal courts got it right. They are not our superiors in

the interpretation of state law, and our authority to decide such issues cannot

be delegated, in whole or in part, to the federal courts. I also note that state

courts are likely to have more experience with rape shield law issues than federal

courts, and as a result, the reasoning of decisions of other state courts may be

more persuasive than federal caselaw. In any event, in each and every case, it is

our obligation to independently decide the state law evidentiary questions raised

by the parties through application of the reasoning and rationale—from whatever

the source—that the court finds is most compelling or persuasive. Based on my

review of the federal and state authorities and the wording of our rape shield law,

I agree that the best approach to the interpretation of Iowa Rule of Evidence

5.412 is embraced by the majority opinion.
 39

#19–1613, State v. Montgomery

McDERMOTT, Justice (concurring specially).

I join in the court’s opinion except for those parts that rely on legislative

acquiescence and stare decisis. I believe the court’s careful textual analysis of

Iowa Code section 702.17 demonstrates that a sex act need not be made to

arouse or satisfy the sexual desires of the perpetrator or the victim so long as

the act is “sexual in nature.” Having provided a full basis for its holding, the

court’s recitation of legislative acquiescence as another basis supporting the

holding is in my view unnecessary and, more importantly, runs counter to proper

textual analysis.

If we erroneously interpreted section 702.17 in State v. Pearson, 514

N.W.2d 452 (Iowa 1994), as the defendant urges (and, for the textual reasons the

majority provides, we did not), then we shouldn’t let the lack of any statutory

changes to the law constrain us to inaction in fixing it. “The court is always free

to correct its own mistakes, and legislative inaction is not a bar to doing so.”

State ex rel. Iowa Dep’t of Health v. Van Wyk, 320 N.W.2d 599, 607 (Iowa 1982)

(McCormick, J., dissenting).

Justice Scalia maintained that reliance on legislative acquiescence

“haunts” judicial opinions and urged it “should be put to rest.” Johnson v.

Transp. Agency, 480 U.S. 616, 671 (1987) (Scalia, J., dissenting). He believed it

was “based, to begin with, on the patently false premise that the correctness of

statutory construction is to be measured by what the current Congress desires,

rather than by what the law as enacted meant.” Id. “To make matters worse, it
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assays the current Congress’ desires with respect to the particular provision in

isolation,” thus ignoring the legislative process’s give-and-take required to create

the “total legislative package” in which the isolated provision happens to reside.

Id. The Constitution “creates an inertia” through its “complicated check on

legislation” that, according to Scalia, “makes it impossible to assert with any

degree of assurance” that inaction represents approval of the status quo. Id. at

672 (quoting The Federalist No. 62, at 378 (James Madison) (Clinton Rossiter ed.,

1961)). “[O]ne must ignore rudimentary principles of political science to draw

any conclusions regarding [a current legislature’s] intent from the failure to enact

legislation.” Id. at 671–72; see also Frank H. Easterbrook, Stability and Reliability

in Judicial Decisions, 73 Cornell L. Rev. 422, 426–27 (1988) (“Today’s Congress

may leave in place an interpretation of a law simply because today’s coalitions

are different. The failure of a different body to act hardly shows that the

interpretation of what an earlier one did is ‘right.’ ”).

The mere fact that a legislature could take action “is no excuse for failing

to overrule a statutory precedent of ours that is clearly wrong, for the realities of

the legislative process often preclude readopting the original meaning of a statute

that we have upset.” Clark v. Martinez, 543 U.S. 371, 402 (2005) (Thomas, J.,

dissenting). Our interpretation should be based on what the text says and fairly

implies—as the court otherwise did in the opinion—not on our suppositions

about what a legislature’s inaction might mean.

I otherwise fully join the court’s opinion on all the issues presented.