(dissenting). Because I do not agree that the prosecutor’s closing argument requires reversal of the defendant’s conviction, I respectfully dissent.
Defense counsel outlined her theory of defense to the trial judge in argument on a motion in limine by which she sought permission to cross-examine the victim about a prior rape. When the victim was eight years old, she was raped by a sixteen year old boy who was convicted and incarcerated for that crime. 1 Proceeding on the premise that the defendant never had sexual intercourse with the victim, defense counsel explained that it was her intention to show that when the victim learned that she was pregnant, she realized that her mother would discover that she had been sexually active. That realization provided the victim with a motive to lie and accuse the defendant, an available target because of family ill-will toward him due to his broken engagement with the victim’s sister. Based upon her past experience, the victim believed that the defendant, like her prior rapist, would then be incarcerated and “just go away.”
*89This theory of defense, that the victim was a sexually active child who was accusing the defendant to keep her mother from learning of her activities, was put to the jury for the first time in defense counsel’s closing argument. Defense counsel’s opening statement was a brief request that the jurors listen to the evidence closely and refrain from any determination of the facts until all the evidence had been presented. The defendant rested immediately after the close of the Commonwealth’s case.
Turning to the prosecutor’s closing argument, I agree that some of his points were poorly expressed. However, I do not think that those statements require reversal of the defendant’s conviction. To put the disputed statements in context, additional evidence must be recited.
There was evidence to show that when the victim’s mother learned that the victim was late in her monthly cycle, she asked the victim whether she, the mother, had something to worry about. The mother testified on direct examination that she was very upset about her daughter’s late period because: “In my family we have a terrible problem. I have it and my oldest daughter has it. . . . [Bjecause of bleeding problems that can occur when periods are late in my family. It’s really serious.” On cross-examination, the mother again explained that she put the question, “Do I have something to worry about,” to her daughter “[bjecause of the bleeding problem that my family has definitely inherited. The females havé a terrible time if they skip. They hemorrhage.”2 The mother also stated that the victim knew of the problem and knew that whenever she was late in her cycle, the mother “always anticipated problems.” Relying upon the medical evidence as to the possible dates of the victim’s impregnation and offering reasons why various statements made by the victim should be deemed incredible, defense counsel pressed in her closing argument the theory that the victim was sexually active, that she did not become pregnant on New Year’s Eve, and that she was blaming the defendant to keep her activity from her mother.
“[S]he realizes that she may well be pregnant. And she realizes that at some point in time she’s going to have to tell her mother and she can’t just say I’m pregnant. She’s got to *90point a finger at somebody, at somebody as the father. Is she going to admit to her mother that she’s sexually active? No.”
“[A]s she thought more and more and more about being pregnant, she had to make up some type of a story to cover herself. That’s when the story of the rape was devised. She didn’t want to give her mother just another headache. Well, why? Because she was sexually active?”
“[Wjhen [the victim] first heard from her mother, ‘Do I have something to worry about,’ she again didn’t say anything happened. She ran back upstairs. How did [the victim] take that? That her mother was questioning her, I’d suggest, about her sexual, activity to a twelve-year-old: ‘Do I have something to worry about?’ Possibly she did. This is a child the mother allows to go out at 10:30 at night on New Year’s Eve and then doesn’t expect her back till almost midnight.”
The majority has set out those statements of the prosecutor which they conclude were sufficiently egregious to warrant a new trial. That conclusion rests upon their application of the factors set out in Commonwealth v. Kozec, 399 Mass. 514, 517-518 (1987). Applying the same factors, I reach a different conclusion.
To be sure, the prosecutor’s statements “went to the heart of the defendant’s case.” Nonetheless, the prosecutor was entitled to refute the defendant’s theory. However, he could make no counter-argument about the evidence of the victim’s sexual activity because there was no such evidence, and that was exactly the point of his statements.
Additionally, I do not think that the prosecutor expressed any personal belief in the victim. Based upon a reading of the closing argument in its entirety, I think that the prosecutor was doing no more than marshaling those reasons why the jury should find the victim credible.
Defense counsel’s protest was lodged at the conclusion of the prosecutor’s argument. Although the trial judge agreed that the *91prosecutor had expressed a personal belief in the victim’s credibility, she denied the defendant’s motion for a mistrial and stated that she would take the matter up in her instructions. At the conclusion of the side bar conference, the trial judge immediately began her charge. The majority view the trial judge’s curative measure as no more than “boilerplate instructions on the function of closing argument.” I think the instruction was timely in that it was given at the first reasonable opportunity, which was at the outset of the instructions. Further, I think it was specific and strong:
“[L]et me begin by explaining what is not evidence in the case and then we’ll move on to talk about evidence and your job with respect to that evidence.
“You cannot base your verdict on any of the following. The opening statements and closing arguments made by the attorneys in this case are not evidence. Those are opportunities which the lawyers are given to talk to you directly in the beginning to give you an overview of the case and at the end to summarize it for you. But it is improper for any attorney to express a personal belief in the credibility of any witness, and that includes that of the complaining witness, as well as every other witness from whom you have heard. So, if you heard such, then you are to disregard it, because you are the only ones who decide whether to believe someone and what to make of it.”
At the conclusion of the instructions, defense counsel approached the bench and stated that she found the instruction too general to correct the problem. When the trial judge asked defense counsel what she would propose, defense counsel stated that she wanted a specific reference to the prosecutor’s characterization of the witness being credible or telling the truth. The trial judge reminded defense counsel that she had made specific reference to the victim and added that she would give “one final instruction with respect to their deciding this case solely on the evidence, not on the basis of any emotional plea.” Defense counsel responded, “Yes. Something that’s an emotional, that type of situation.” The trial judge then instructed:
“[Y]ou must base your verdict solely on the evidence. Anything having to do with emotion or sympathy for one *92side or the other must be set aside and disregarded, and any plea for you to make or to decide this case on emotion must be disregarded by you.”
Defense counsel made no objection to this additional instruction.
It is apparent from the jury’s verdict that notwithstanding the prosecutor’s statements, and consistent with the trial judge’s, instructions, they did not accept completely the victim’s testimony and apparently disbelieved her account of force by the defendant. I attribute the fact that they did not accept the defendant’s theory of defense, that she was with someone other than the defendant on the night in question, to the total absence of evidence that she was sexually active rather than to the prosecutor’s closing argument.
Although I think the prosecutor had the right to make the points he did, I readily accept that he could have couched his argument in different terms. However, based upon the evidence, the instructions, and the verdict, I conclude that the prosecutor’s statements do not require reversal of the defendant’s conviction.
My conclusion requires me to consider the defendant’s claim that the trial judge erroneously precluded him from cross-examination of the victim about her prior sexual activity. The majority, while reversing the conviction on the basis of the prosecutor’s closing argument, concludes that the restriction placed on cross-examination was erroneous and that “upon retrial the defendant should be permitted to inquire, subject to judicial control . . . about the complainant’s sexual activity at the time of the alleged rape.” Ante at 87-88.
At trial, the defendant offered the following theory in support of the right to cross-examine the victim about her sexual activities. When the victim discovered that she was pregnant, she realized her mother would know that she was sexually active. Based upon her past rape where the offender was convicted and incarcerated, she could claim that the defendant had raped her. Because he too would be convicted and “just go away,” her mother would not learn of her activity. The trial judge’s refusal to allow such questioning of the victim was based upon the facts that the prior accusation of rape was not false and that there was a total absence of evidence to show that the victim had been sexually active.
*93In each of the cases relied upon by the majority as support for some inquiry into whether the victim had been sexually active (see Commonwealth v. Joyce, 382 Mass. 222 [1981]; Commonwealth v. Elliot, 393 Mass. 824 [1985]; Commonwealth v. Stockhammer, 409 Mass. 867 [1991]; Commonwealth v. Fitzgerald, 412 Mass. 516 [1992]; Commonwealth v. Cardoza, 29 Mass. App. Ct. 645 [1990]; Commonwealth v. Thevenin, 33 Mass. App. Ct. 588 [1992]), the defendant was able to make a specific offer of proof as to evidence directly relevant to the theories of defense, e.g., evidence of prior arrests for prostitution and planned civil litigation relevant to a motive to lie, scientific evidence relevant to show that the complained-of intercourse had been with someone other than the defendant, evidence of the victim’s condition would make the defendant’s denial of intercourse credible.
Because pregnancy proves intercourse, the question in this case is whether the victim’s pregnancy, taken with the presumption of innocence accorded the defendant, who denied any intercourse with the victim, entitle him to inquire about whether the victim had intercourse with someone other than him during the relevant time frame. Although I agree with the majority on this point, that such circumstances entitle the defendant to a limited voir dire, I do not think he is entitled, as of yet, to a new trial.
A voir dire hearing may fail to produce any evidence of sexual conduct by the victim during the relevant time frame. If that were to happen, the matter would end. Because disbelief of testimony does not constitute evidence of the contrary proposition, see Commonwealth v. Michaud, 389 Mass. 491, 498 (1983); Commonwealth v. Camerano, 42 Mass. App. Ct. 363,367 (1997), there would be nothing for a jury to consider and, therefore, no need for a new trial.3 Based upon my conclusion that the *94prosecutor’s closing argument does not necessitate a reversal of the defendant’s conviction but that the defendant was entitled to make inquiry on voir dire about the victim’s sexual conduct, I would affirm the defendant’s conviction and remand the matter to the Superior Court for a limited evidentiary hearing on the issue of the victim’s sexual conduct relevant to the time period in question and consideration of whether, as a result of that hearing, a new trial is warranted. Cf. Commonwealth v. Figueroa, 413 Mass. 193, 203-204 (1992), S.C., 422 Mass. 72 (1996).
During argument on the motion, defense counsel also sought to present evidence that the victim had been molested at age five by her mother’s boyfriend. On appeal, however, and as noted by the majority in note 4 of their opinion, ante at 85, the defendant does not press that claim.
Although the jury was free to disbelieve the mother’s explanation of her question to the victim, there was nothing in the evidence which contradicted her testimony on this point.
The majority, at note 5 of their opinion, ante at 88, state that the victim’s testimony, “I never had sex before,” was itself sufficient basis for allowing the defendant to inquire about her sexual conduct for purposes of impeaching her credibility. The trial judge understood the victim’s testimony to be that as the victim struggled with the defendant, she told him that she was scared, that she never had sex before. On that basis, the trial judge advised defense counsel that although she could not inquire about the victim’s sexual conduct, she was free to cross-examine the victim about what she said to the defendant. If there was doubt in defense counsel’s mind as to whether the victim’s testimony went only *94to her conversation with the defendant, or was a present assertion of fact, defense counsel chose not to pursue the issue.
Even assuming that the defendant had the right to impeach the victim’s credibility on account of that statement, that right would not be so broad as to allow an unlimited inquiry into the victim’s sexual history where there is a total absence of evidence to show that the victim had engaged, voluntarily, in intercourse in the past.