dissenting.
The worthy purpose of the Indiana Rape Shield Statute, Ind.Code §§ 35-37-4-4, as I understand it, is to protect rape victims from having their sexual history paraded in front of' the jury and to keep the focus of rape trials on the particular crime in question. This habeas appeal calls upon the court to weigh the scales of justice and strike a balance between the criminal defendant’s Fourteenth Amendment right to due process with the State of Indiana’s interest in protecting rape victims from embarrassment during trial. It is unquestioned that a criminal defendant has a right to testify on his or her own behalf. United States v. Dunnigan, — U.S. -, -, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993); Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 2709, 97 L.Ed.2d 37 (1987). This right is derived from the Due Process Clause of the Fourteenth Amendment, Rock, 483 U.S. at 51, 107 S.Ct. at 2708 (“[t]he right to testify on one’s own behalf at a criminal trial ... is one of the rights that ‘are essential to due process of law in' a fair adversary process’ ”) (quoting Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975)), as well as the Sixth Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right ;.. to have compulsory process in obtaining witnesses in his favor.”
As the other opinions make clear, the issue is whether application of the Indiana rape shield statute barred Stephens from exercising his constitutional right to testify. The other opinions deal with this question as an all or nothing proposition. I am of the opinion that in order to respect both the criminal defendant’s constitutional right to present his defense and the State’s interest in preventing the disclosure of rape victim’s sexual history, a middle road is the course we must pursue. See Cunningham v. Peters, 941 F.2d 535, 538 (7th Cir.1991) (“[t]his case presents a conflict between the rights of criminal defendants under the sixth and fourteenth amendments to present evidence in their own defense and the state’s ‘sovereign prerogative’ to regulate the presentation of evidence in its courts”) (quoting Johnson v. Chrans, 844 F.2d 482, 484 (7th Cir.), cert. denied, 488 U.S. 835, 109 S.Ct. 95, 102 L.Ed.2d 71 (1988)), cert. denied, — U.S. -, 112 S.Ct. 1484, 117 L.Ed.2d 626 (1992). The majority dismisses the defendant’s appeal to the doctrine of res gestae, because allowing a res gestae exception to rape shield legislation “would effectively gut rape shield statutes,” majority at 1003, and because “no court has ever held that res gestae is a concept with any constitutional significance.” Id. at 1003. I believe we must give the defendant his day in court and thoroughly analyze his defense before dismissing his argument. Although the term res gestae may be obsolete, the principle inherent in the term maintains its vitality. The defendant in this action is merely asking this court that he be granted the opportunity to present his version of the incident in his own words within the limitations of the statute and the Constitution. Essential to his version of the event is the very statement he made contemporaneous with the said act of sexual intercourse that, according to him, prompted the victim to instantly terminate the alleged consensual relationship. A mere paraphrase of his proffered testimony (that *1018he said “something” that caused her to “[tell him] to stop”) falls far short of conveying the true impact of the actual repulsive language he allegedly uttered. Regardless of res ges-tae, denying Stephens the opportunity for his day in court would offend due process. Rock, 483 U.S. at 51, 107 S.Ct. at 2708; Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). Moreover, I disagree with the majority’s observation that allowing a narrow exception to the rape shield statute for the defendant to present testimony central and vital to his defense would undermine rape shield legislation. It would do nothing of the sort. Indeed, fundamental fairness mandates that the defendant be entitled to present evidence that is central to the defense and inextricably intertwined with the alleged criminal behavior. Id. Since the testimony falls short of recounting the victim’s past sexual conduct or reputation, I have some doubt that it even contravenes the very intent of the rape shield statute. Thus, while rape shield legislation has been adjudged constitutional, Michigan v. Lucas, 500 U.S. 145, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991), in this instance, a minor exception to the State’s interests in protecting rape victims must be made to accommodate the defendant’s constitutional right to present the heart of his defense. Such a narrow exception would be comparable to the exceptions admitting otherwise inadmissible evidence under the Federal Rules of Evidence.
The testimony the defendant seeks to introduce does not go toward discrediting the victim, rather, it goes to the heart of his defense (according to Stephens) — he and the complainant were engaged in consensual sex until his degrading comments triggered her abrupt attitudinal or motivational change causing her not only to terminate the alleged consensual sexual encounter but prompted her to subsequently allege rape. Thus, I would hold that the defendant’s constitutional right to testify entitled him to relate to the jury that while allegedly engaged in consensual sex in an animal-type manner, he stated to the complainant something to the effect that he thought she liked to do it “doggie fashion.” Admission of this testimony, without mentioning the victim’s prior partners, accommodates the defendant’s constitutional right to testify and neither flies in the face of nor contravenes the very intent of the rape shield statute which bars evidence of the victim’s past sexual conduct. I understand that admission of this small portion of his testimony could very well be argued to create an exception to the rape shield statute. So be it, for the exception, comparable to exceptions under the rules of evidence, is mandated by the Sixth and Fourteenth Amendments which create and protect the constitutional right to testify. Furthermore, to insure this protection, the trial court might give a limiting instruction to the jury directing that the testimony be considered only as to the question of whether Stephens’ statement to the victim may have triggered her abrupt attitudinal change and not for assessing her credibility based on her prior sexual conduct. After admission of the testimony, the jury would then be called upon to weigh the question of Stephens’ credibility and determine whether in fact he even uttered the statement and whether in the eyes of the trier of fact it was regarded by the victim to be so degrading that it motivated her to abruptly change her attitude toward Stephens. It is the finder of fact, with all the evidence before it, who “has the best ‘opportunity to observe the verbal and nonverbal behavior of the witnesses focusing on the subjects’ reactions and responses to the interrogatories, their facial expressions, attitudes, tone of voice, eye contact, posture and body movements,’ ” and not an appellate court which has nothing before it but the cold pages of the court transcript. United States v. Tolson, 988 F.2d 1494 (7th Cir.1993) (quoting Churchill v. Waters, 977 F.2d 1114, 1124 (7th Cir.1992)).
Stephens’ remaining statements present a less compelling constitutional claim and were properly excluded by the trial court because
“the right to present relevant testimony is not without limitation. The right ‘may, in appropriate eases, bow to accommodate other legitimate interests in the criminal trial process.’ [Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973).] But restrictions of a defendant’s right to testify may not be *1019arbitrary or disproportionate to the purposes they are designed to serve. In applying its evidentiary rules, a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s constitutional right to testify.”
Rock, 483 U.S. at 55-56, 107 S.Ct. at 2711 (footnote omitted). Stephens’ offer of proof also included the statement that “Tim Hall said you [liked it this way]” and the statement that the victim had swapped partners. Since these statements fly directly in the face of the rape shield statute in that they are explicit references to the victim’s reputation and prior sexual conduct, the State’s interest in excluding the evidence is greater because the potential embarrassment to the victim is greater. Although exclusion , of the testimony will impinge somewhat on the defendant’s right to testify, “the right to present relevant testimony is not without limitation,” id., and in this instance, the exclusion of the testimony is neither “arbitrary” nor “disproportionate to the purposes [the exclusion is] designed to serve.” Id. Accordingly, the testimony naming prior partners and partner swapping was properly deemed inadmissible.
The question remains whether exclusion of the “doggie fashion” comment was harmless error. For appellate judges to speculate what a jury would have done had it heard certain testimony is like stepping into quicksand. See Sullivan v. Louisiana, — U.S. -, — - -, 113 S.Ct. 2078, 2081-82, 124 L.Ed.2d 182 (1993) (“[T]o hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the finding to support that verdict might be — would violate the jury-trial guarantee.... The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action.;..”). In the case before us, the jury was not allowed to hear the statement that allegedly caused the victim to claim rape, rather the defendant was only permitted to tell the jury that he said “something” that angered the victim. Such a watered down version of his story certainly lacked the impact of the gutter-type words that might conceivably have triggered the victim’s alleged explosive attitudinal change. In a case where the testimony of the two individuals was so diametrically opposed, limiting the defendant to a bland paraphrase effectively undermines his constitutional right to testify. In this instance, the Constitution mandates a minor exception to the rape shield statute to allow the defendant to have his day in court to present the very key words to his defense. Rock, 483 U.S. at 51, 107 S.Ct. at 2708. Exclusion of his testimony was not harmless, thus, a remand for a new trial is necessary. I respectfully
Dissent.