dissenting.
I respectfully dissent to Issue I and IV, Jury Instruction and Use of the Rape Shield Statute, and would affirm the conviction of Clark.
Mullins v. State, 486 N.E.2d at 626, made it clear that there is no error where a court’s instructions on child molesting fail to sort out and separately refer to the criminal intent element so long as that element is not eliminated or consideration of it prohibited by the tendered instructions. Here, as in Mullins, the trial court instructed the jury on the elements of child molesting by tracking the statute. We found in Mullins that the instructions did not preclude the defense from proving that any touching was innocent. Similarly, in Warren v. State, 701 N.E.2d at 906, we found that the instructions on sexual consideration of the intent element.
It is the same in the case before us. Clark was not prohibited from arguing that any touching of M.M. was not done with criminal intent.
I also disagree with the majority regarding the admission of letters M.M. had written to her friends about alleged sexual activity. The Rape Shield Law provides that the only way past sexual activity of a victim or witness can be admitted in evidence is: 1) past sexual conduct with the victim; 2) evidence that some person other than defendant committed the act; 3) if victim is pregnant at time of trial and under Evid. R. 412, if the past sexual activity is evidence of conviction for a crime to impeach under Rule 609. I fail to see how admitting the letters written by a 11 year old girl to her girlfriends fits within any of the statutory exceptions or exception to Rule 412.
Clark offers the evidence about the letters to bolster his defense that he was concerned about his daughter’s alleged sexual activity. This, however, does not fit within the exceptions. Rule 412 seeks to prevent undue embarrassment and public humiliation for a sex crime victim and to prevent the trial from becoming an inquiry about her past conduct. Williams v. State, 681 N.E.2d 195, 200 (Ind.1997). The Rule facilitates reports of sex crimes. Id.
The exclusion of this evidence did not deny Clark his right to confront M.M. During trial Clark was able to explain his reason for the touching and, in fact, M.M. testified that her parents had found some letters she had written to her friends. The State itself, through Detective McGraw’s report, acknowledged that they had found letters written by M.M. that stated she had been sexually active. I disagree with the majority opinion that concludes: “Thus, the jury might properly question the existence of the letters if they considered Clark’s defense.” There was *889-895no dispute that the letters were in existence and, therefore, his right to cross-examine M.M. was not impinged upon. The State’s evidence and Clark’s evidence were consistent and he was able to argue the intent element of the crime. The letters themselves were properly excluded because they did not fit within any exception.
Rape shield laws are rules of relevance. When the balance is between relevance and due process, the correct result would be to exclude irrelevant evidence, because defendants have no constitutional right to introduce irrelevant and inflammatory evidence. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).