State v. Williams

Celebrezze, C.J.,

dissenting. This extrinsic evidence is clearly not admissible under Article VI of the Rules of Evidence to attack the credibility of the witness. However, I agree with the majority’s conclusion that Evid. R. 608, standing alone, neither precludes nor permits introduction of the proffered testimony, in the event the evidence is relevant concerning the issue of consent.

In this regard, Evid. R. 105 recognizes that evidence may be inadmissible for one purpose yet admissible for another. In such instances, an Article IV examination must be conducted by the court to determine the limited admissibility, if any, of the evidence.

The majority essentially holds that extrinsic evidence concerning Tracy Washington’s past sexual conduct is essential to the threshold issue of consent in this case and cannot therefore be excluded without violating appellee’s Sixth Amendment right to confrontation. It is with this analysis that I part company with the majority. For the reasons that follow, I do not believe the evidence was admissible under Article IV nor do I find that Ohio’s rape shield law was applied by the trial court in an unconstitutional manner.

Evid. R. 404(A)(2) provides that in rape cases evidence concerning the character of the victim is admissible only within the narrow exceptions provided by the controlling statute enacted by the General Assembly. In this regard, R.C. 2907.02(D) provides in pertinent part:

“Evidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.”

*39The multiple purposes of Ohio’s rape shield law are to: guard the complainant’s sexual privacy and protect her from undue harassment; discourage the tendency in rape cases to try the victim rather than the defendant; encourage the reporting of rape, thus aiding crime prevention; exclude evidence that is unduly inflammatory and prejudicial, while being only marginally probative; and aid in the truth-finding process. State v. Gardner (1979), 59 Ohio St. 2d 14, 17-18 [13 O.O.3d 8].

Concerning proffered testimony that a victim is a prostitute, this court held in Gardner, supra, at 18:

“* * * Evidence that complainant had a reputation as a prostitute is not sufficiently probative of consent to outweigh the state’s legitimate interest in excluding the testimony, at least where there is no suggestion in the record that financial arrangements were entered into for sexual activities in this instance.”

In a more recent decision the court confirmed that it is not necessarily unconstitutional to exclude evidence of prior sexual activity with persons other than the accused. State v. Ferguson (1983), 5 Ohio St. 3d 160. In an instructive passage, the court held at 165:

“* * * Further, the key fact at issue at trial was whether the victim consented to sexual activity with appellee, not whether she had sexual intercourse two or ten days earlier. Hence, we hold that R.C. 2907.02(D) will render inadmissible evidence of the rape victim’s sexual activity with one other than the accused where the evidence: does not involve the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender; is offered simply to impeach the credibility of the victim; and is not material to a fact at issue in the case.” (Emphasis added.)

I do not believe Washington, who at that time was a teenager in the ninth grade, opened the door for an attack on her credibility merely by testifying she did not consent to have sexual intercourse with appellee and that her sexual preference is for women,3 In this regard, it must be

*40recognized that the trial judge did permit appellee to testify that the victim was a prostitute, that he was her pimp, and that she consented to have sex with him never suggesting that financial arrangements were entered into. However, the trial judge correctly drew the line on such evidence by excluding testimony from other witnesses concerning the victim’s past sexual activity and reputation.4 The trial judge simply recognized that appellee had no Sixth Amendment right to confront the rape victim with irrelevant extrinsic evidence.

The evidence excluded admittedly had slight relevancy value, as would nearly all evidence concerning a rape victim’s past sexual conduct offered by an accused. However, the probative value of this evidence is substantially outweighed by its inflammatory and prejudicial nature. Admission of such evidence would clearly impeach the victim’s credibility and character, and more importantly puts her on trial, the exact mischief our General Assembly sought to avoid with the rape shield statute.

The contention that the victim is gay, and appellee’s attempt to dispute the assertion, has inappreciable bearing on the issue of consent to have sex with the accused on this occasion. There was no claim that appellee purchased her services and I find that extrinsic evidence of her alleged reputation as a prostitute falls squarely within the purpose of the exclusion contained in the rape shield law as interpreted by the court’s past holdings in Ferguson and Gardner, supra.

“* * * It is within the sound discretion of a trial court to determine the relevancy of evidence and to apply R.C. 2907.02(D) to best meet the purpose behind the statute.” State v. Leslie (1984), 14 Ohio App. 3d 343, 346.1 conclude that appellee’s constitutional rights were not denied and that the *41trial court did not abuse its discretion in excluding the evidence. Accordingly, I would reverse the judgment of the court of appeals and affirm the convictions.

I also disagree with Justice Wright’s concurrence. Tracy Washington’s candid admission of being homosexual did not permit the introduction of extrinsic evidence regarding her private sex life any more than if she had admitted being heterosexual, bisexual, or celibate.

Further, I take exception with Justice Wright’s statement that Washington testified on direct examination that she did not consent to sexual intercourse with appellee “because she was a lesbian” (emphasis added). The record simply does not support such a finding.

During his opening statement to the jury, defense counsel argued that Washington was a prostitute and that appellee was her pimp. Washington initially testified on direct examination that she never consented to having brutal vaginal and anal intercourse with appellee and had not previously had sexual intercourse with him. During the latter portion of her direct testimony, she then refuted defense counsel’s contentions as follows:

“Q. Have you ever gone out and solicited for sex or turned a trick?
“A. No, sir, I haven’t.
“Q. Can you tell us why?
“A. I’m gay.
“Q. And by ‘gay,’ you mean you do not have sex with men; is that correct?
*40“A. That’s right.”

It was during the following testimony on cross-examination that defense counsel first linked up Washington’s sexual preference with the issue of consent:

“Q. All right, and you consider yourself as a person who likes females, rather than males, in your sexual orientation, which is towards other females; is that correct?
“A. That’s correct.
“Q. All right. You offer this as a basis for the proposition that you would therefore not voluntarily have sex or intercourse with a male person; is that the reason you offer it?
“A. That is right.”

Appellee can not complain of evidentiary errors resulting from his own inquiry at trial in this fashion. Further, if defense counsel chooses to embark on such a perilous line of questioning during the cross-examination of a rape victim, he should be held to the response. Cf. State v. Leuin (1984), 11 Ohio St. 3d 172, 175.

A passage from Judge Palmer’s dissent to the decision of the appellate court below is most interesting in this regard:

“* * * I can see no difference between this situation and one in which a witness testifies that she did not consent to sexual conduct because it violated her religious and moral principles. Surely we would not permit argument that such testimony would open the door to rebuttal witnesses who would testify that the witness, on the contrary, was an amoral atheist who slept with a succession of strangers.”