dissenting:
I respectfully dissent. During the direct examination of the complaining -witness by the assistant State’s Attorney, the complainant testified, in response to the prosecutor’s question, that she had never had anal sex with anyone else prior to her relationship with defendant. The plain language of the rape shield statute clearly prohibits the admission of any evidence regarding a victim’s prior sexual activity other than with defendant. (Ill. Rev. Stat. 1985, ch. 38, par. 115— 7(a).) This language has been interpreted to bar admission of a victim’s lack of sexual activity with anyone other than the defendant when offered by the State. (People v. Sales (1987), 151 Ill. App. 3d 226, 231, 502 N.E.2d 1221.) Such an interpretation is consistent with the purpose of the statute, which is to prevent evidence of a victim’s prior sexual activity, other than with defendant, from being introduced into a case. Thus, such evidence was incompetent and it was improper in this case for the State to introduce complainant’s testimony that she had not had anal intercourse with anyone other than the defendant.
Nevertheless, defendant failed to object and, instead, attempted to attack this testimony by cross-examination of the complaining witness and by the introduction of a witness who would testify that he had anal sex with the complainant. While defendant was barred by the trial judge from offering such evidence on the basis of the rape shield law, the court later did instruct the jury to disregard complainant’s testimony that she had not had anal intercourse with anyone other than defendant and to give it no weight. The court further stated that the testimony was improper and was stricken. Under these circumstances, I would find that the specific instructions to the jury by the court to disregard this evidence was within its discretion and avoided prejudicial harm.
It has been stated by our supreme court in People v. Newman (1913), 261 Ill. 11, 103 N.E. 589, that “[t]he proper defense against incompetent evidence is an objection, and its introduction without objection does not make evidence competent to contradict it. Parties can not, by mere silence or consent, create a right to try an immaterial issue when they might have had the adverse evidence kept out or stricken out.” (261 Ill. at 15, 103 N.E. at 591.) The appellate court in more recent decisions, however, has adopted the rule of “curative admissibility” whereby an opponent may reply with similar evidence if, in the discretion of the trial judge, it is needed to eradicate an unfair prejudice which might ensue from the original evidence. People v. Higgins (1979), 71 Ill. App. 3d 912, 930-31, 390 N.E.2d 340.
McCormick on Evidence §57, at 133 (Cleary 2d ed. 1972) explains this rule:
“If again the first incompetent evidence is relevant, or though irrelevant is prejudice-arousing, but the adversary has failed to object or to move to strike out, where such an objection might apparently have avoided the harm, then the allowance of answering evidence should rest in the judge’s discretion. He should weigh the probable influence of the first evidence, the time and distraction incident to answering it, and the possibility and effectiveness of an instruction to the jury to disregard it. However, here various courts have indicated that introduction of the answering evidence is a matter of right.”
Under the “curative admissibility” principle, defendant’s evidence to rebut the State’s incompetent evidence was properly barred by the trial court. The trial court instructed the jury to disregard the complainant’s testimony on this point. I do not agree with the majority that the jurors would be unlikely to heed the court’s specific instructions. Furthermore, the single question the prosecutor asked the complainant on this subject was not repeated nor is the answer, later stricken, sufficiently prejudicial to allow the defendant to rebut this incompetent evidence. The trial court did not abuse its discretion in proceeding in the manner it did.
I also disagree with the majority’s decision that, following testimony elicited from the complainant on cross-examination as to the effect on her life of the incident with defendant, the trial court erred in not allowing defendant to impeach complainant as to this matter. A cross-examiner may not impeach a witness on a collateral matter and must accept the witness’ answer. (People v. Collins (1985), 106 Ill. 2d 237, 269, 478 N.E.2d 267.) The majority reasons that because complainant’s credibility is at issue any impeachment of complainant as to the impact of the incident on her life would affect her credibility and, therefore, such inquiry is a noncollateral matter. Such an analysis would be true, however, whenever a party attempts to impeach a witness and would render all such inquiries noncollateral. The test to be applied in determining if a matter is collateral is whether the matter could be introduced for any purpose other than to contradict. (Collins, 106 Ill. 2d at 269, 478 N.E.2d at 281.) Because the issue here is whether complainant was forced to have anal and oral sex with defendant against her will, the question to the complainant on cross-examination by defendant as to the incident’s effect on her life is an inquiry which has no purpose in this case other than to contradict. As the application of the “collateral” test is best left largely in the control of the trial judge, subject to his abuse of discretion (Collins, 106 Ill. 2d at 269-70, 478 N.E.2d at 281), I would find that the trial court’s ruling refusing to allow impeachment on this collateral matter was not an abuse of discretion.
For the foregoing reasons, I dissent and would affirm the defendant’s conviction.