concurring in part and dissenting in part. Although I am in accord with the majority’s treatment of the instant action as reflected in the first and third paragraphs of the syllabus of its opinion, I must respectfully dissent from the balance thereof.
I share Justice Holmes’ incredulity with the majority’s ruling that the subject rape convictions must fail for insufficiency of evidence. To hold, given the clear import of the victim’s testimony, that her failure to utter the magic words “penetration” or “sexual intercourse” dooms the state’s case is to capitulate completely to semantic formalities. Although, as will be explicated presently, facts do exist upon which the conclusion may be reached that no rape occurred, the majority chooses not to rely on those in overturning appellee’s convictions.
I would also be remiss were I not to address a few remarks to the majority’s application of R.C. 2907.02(D), the Rape Victim Shield Law. Clearly, no single statute has done more both to encourage the reporting of incidents of sexual assault and to focus attention during rape prosecutions on the behavior of the alleged perpetrators, rather than on the “mores” of the unfortunate victims. Indeed, until the enactment of R.C. 2907.02(D), law enforcement officials were severely hampered in their efforts to prevent and punish the commission of this most deplorable crime.
Despite its primary concern with facilitating the prosecution of sexual assaults and insulating the rape victim from harassment at trial, the General Assembly recognized that some accommodation had to be made to ensure that defendant’s constitutional right to confront his accusers was protected. Towards this end the authors of R.C. 2907.02 carved out certain exceptions to the otherwise absolute ban on the admissibility of evidence of the victim’s sexual history. Moreover, this court has held that, in applying the subject statute, the state interest in protecting the witness had to be balanced “against the probative value of the excluded evidence.” State v. Gardner (1979), 59 Ohio St. 2d 14, 17 [13 O.O.3d 8].
In the case at bar, appellee sought to have admitted into evidence a medical report, made soon after the alleged rape, which contradicts the victim’s testimony rendered in a voir dire proceeding that she had not had sexual intercourse for ten days before the incident. The report evidenced the presence inside the victim of sperm approximately two days old, thus, contradicting her earlier testimony. Clearly, the majority errs in lending its support to the trial court’s application of R.C. 2907.02(D) to preclude admission of the report.
The evidence appellee wishes to present meets the criteria for admissibility set forth in the statute. First, it involves the origin of semen. The fact *170that the sperm, because of its age, could not have been appellee’s is quite significant. Its presence and the notable absence of fresh semen inside the victim tends to show, if anything, either that appellee had not had the alleged criminal sexual relations with the victim or that he had not ejaculated inside her. A trier of fact could reasonably infer from the latter possibility that no penetration and, thus, no rape had been committed.
Secondly, the medical report is material to several facts at issue — not only the primary consideration of whether any illicit sexual conduct occurred but also that of whether the victim’s testimony is to be believed. In a trial whose resolution is almost completely dependent upon the jury’s appraisal of the victim’s credibility, the failure to permit the admission of the medical report into evidence is a clear violation of appellee’s right to confront those appearing against him and to present his defense. In this instance, the rights of the alleged victim must give way to the superior constitutional entitlements of the accused.
Finally, the probative value of the medical report outweighs any potential prejudicial impact its admission might cause. Appellee does not seek to place the report into evidence in order to depict the victim as promiscuous; he merely wishes to challenge the trustworthiness of the victim’s testimony. Indeed, it cannot be seriously argued that any reasonable fact-finder, presented with evidence showing, amongst other things, that the victim has engaged in sexual intercourse on at least one prior occasion, would deem her so unchaste as to have necessarily consented to the alleged assault. The admission of the medical report clearly does not represent the unbridled exploration of a victim’s sexual history that R.C. 2907.02 was designed to prevent. None of the policy objectives of the Rape Victim Shield Law would be compromised by granting the admission which appellee requests.
For the foregoing reasons, I dissent from the majority’s holdings, as they are presently expressed in the second paragraph of the syllabus of its opinion and in the discussion relative to the fourth issue.