dissenting.
Just over 20 year ago, Justice O’Connell opened his dissent in State v. Krogness, 238 Or 135, 152, 388 P2d 120 (1964), with the observation, “* * * again this court, finding a quite obviously guilty defendant, fashions the law of search and seizure to fit his conviction.”
Today the majority in this case has found another quite obviously guilty defendant and has fashioned the law of evidence to hasten his conviction. To reach its result the majority has distorted the meaning of OEC 803(18a) and has completely ignored the “official legislative comment” to that rule. A complete copy of that comment is attached to this dissent marked “Appendix A.”
The relevant portions of the rule in question are as follows:
“Rule 803. The following are not excluded by Rule 802, even though the declarant is available as a witness:
“(18a) A complaint of sexual misconduct made by the prosecuting witness after the commission of the alleged offense. Such evidence must be confined to the fact that the complaint was made.”
Before discussing what the official legislative comment includes, it is interesting to note what it does not include. The majority opinion in this case, by holding that the hearsay testimony of the mother is admissible under OEC 803(18a), opens up a question of whether the defendant has a right to confront the child as a witness under Article I, section 11 of the Oregon Constitution and the Sixth Amendment to the United States Constitution. Surely, if the legislature had intended to allow this type of testimony, the official comment would have discussed the confrontation problem. It did not.
The official legislative comment acknowledges two *654chief sources for OEC 803(18a): “This subsection recognizes the holdings in State v. Waites, 7 Or App 137, 470 P2d 188 (1971) and the trend all in other jurisdictions” quoting from McCormick on Evidence.
Because State v. Waites, supra, is one of the sources of the rule in question, it is important to examine it. It is not mentioned in the majority opinion.
In State v. Waites, supra, the defendant was convicted of raping his 14 year-old daughter. She testified in the trial that the rape took place on August 30,1969, and that the sexual assaults on her by the defendant had taken place regularly over the previous two-year period. Mrs. Bryan, a juvenile counselor, testified for the State. She testified that she had a conversation with the prosecuting witness approximately two weeks after the alleged rape and in that conversation the prosecuting witness told Mrs. Bryan: “(1) she had been sexually assaulted on August 30, 1969; (2) similar assaults had taken place frequently over a two-year period prior to that date; and (3) all such assaults took place in the victim’s home.”
The defendant appealed and assigned the admission of Mrs. Bryan’s testimony was error. The Court of Appeals, in an opinion by Chief Judge Schwab, reversed the conviction and said at page 140:
“3. There is another exception applicable to prosecutions for sexual offenses that was recognized early in Oregon jurisprudence. State v. Sargent, 32 Or 110, 59 P 889 (1879). It provides that a person to whom a complaint of sexual misconduct is made by the prosecuting witness can testify that a complaint was made, but cannot testify as to the details of the complaint. This rule has been consistently followed in Oregon, and apparently has also been adopted in a majority of other jurisdictions. See, CJS 512, Rape § 53. Thus, the exact question presented is whether Mrs. Bryan, in testifying as to the substance of the complaint that the prosecuting witness made to her, exceeded the scope of the limited hearsay exception that has been recognized in cases of this type.
“4. There is little guidance in the cases to determine exactly what constitutes permissible testimony that a complaint was made as distinguished from impermissible testimony as to the details of the complaint, other than the clearly established rule that the witness cannot state the identity of *655the alleged assailant. See e.g., State v. Whitman, 72 Or 415, 143 P 1121 (1914). However, after reviewing the prior Oregon cases on this subject, we recently stated:
“* * * Hearsay evidence is permissible for the limited purpose of establishing that a complaint was made but nothing more. [Citations omitted.] (Emphasis supplied.) State v. Emery, supra, 4 Or App at 530, n.l.
“Under the but-nothing-more standards stated in Emery, we conclude that Mrs. Bryan’s hearsay testimony as to the location of the assaults and as to the prior assaults over a two-year period was beyond the scope of the exception here discussed.” (Footnotes omitted.)
The other chief source OEC 803 (18a) is the following quote in the official commentary from McCormick on Evidence.1
“ ‘In rape cases, and increasingly in cases of sex offenses generally, evidence is admissible that the victim made a complaint. The only time requirement made is that the complaint have been made without a delay which is unexplained or is inconsistent with the occurrence of the offense, in general a much less demanding time aspect than with the typical excited utterance situation. In its origin, the theory of admissibility was to repel any inference that because the victim did not complain no outrage had in fact transpired. Accordingly, if the victim did not testify, evidence of complaint was not admissible. McCormick section 297 at 709.’ ” (Footnotes omitted.)
The legislative comment after recognizing the holding in State v. Waites, supra, and the trend in other jurisdictions with the above quote from McCormick on Evidence, states:
“The Oregon rule provides that a person to whom a complaint of sexual misconduct is made by the prosecuting witness can testify that a complaint was made, but cannot testify to the details of the complaint.” (Emphasis added.)
The underlined language in the above quote is taken from State v. Waites, supra, word for word. 7 Or App at 140.
There is no question but that the legislature zeroed in *656on State v. Waites, supra, as expressing the law of the State of Oregon. The legislature was not concerned with whether the case was by Oregon’s highest court. It was looking for a clear and workable expression of the rule. It found it in State u. Waites, supra, and the majority has ignored the case. The lawmakers considered the case in the same fashion as they treated Dallas County Commercial Union Assurance Co. Ltd., 286 F 2d 388 (5th Cir 1961) (under rule 803(24)) when they rejected one of our Supreme Court cases, Timber Access Industries Co. v. U.S. Plywood-Champion Paper, Inc., 263 Or 509, 503 P2d 482 (1972). This time around the legislature looked to the Oregon Court of Appeals instead of the 5th Circuit.
Immediately after announcing the Oregon rule the legislative comment cites the following ten cases to support it:
"* * * State v. Waites, supra, 7 Or App at 140; State of Oregon v. Tom, 8 Or 177 (1879); State v. Sargent, 32.Or 110, 49 P 889 (1897); State v. Ogden, 39 Or 195, 65 P 449 (1901); State v. Whitman, 72 Or 415, 143 P 1121 (1914); State v. Matson, 120 Or 666, 253 P 427 (1927); State v. Haworth, 143 Or 495, 21 P2d [1091 (1933); State v. Yielding, 238 Or 419, 395 P2d] 172 (1964); State v. Emery, 4 Or App 527 at 530 n 1. 480 P2d 445 (1971); State v. Wilson, 20 Or App 553, 532 P2d 825 (1975).”
In addition to the above cases, the lead case of State v. Waites, supra, cites State v. Birchard, 35 Or 484, 59 P 468 (1899), to support the rule.
An examination will show that all eleven cases have many things in common. In each case the victim testified in the trial court. The ages of the victims ran from the 5 year-old girl in State v. Tom, supra, to the adult woman in State v. Matson, supra. The cases give two reasons for what the legislative comment now calls the “Oregon Rule”: (1) to bolster or corroborate the credibility of the prosecuting witnesses of all ages that the event did happen, and (2) to negate the inference of consent in the cases of adult prosecuting witnesses.
Basic to the entire concept underlying the Oregon rule is the requirement that the victim of the sexual misconduct testify at the trial. It makes no difference what label is put on the person who makes the personal sexual complaint as long as that person testifies. This is demonstrated by the *657above quote from McCormick on Evidence which refers to that person as a “victim” who testifies and State v. Waites, supra, which uses the term “prosecuting witnesses.” If the person who has suffered the sexual misconduct does not testify, then the reason for the rule has evaporated. In that event, there is no testimony which needs to be corroborated as to the fact that the event occurred or negated as to the inferred consent of adult victims.
It seems evident that a female person who suffers from an act of sexual misconduct, who instigates the prosecution and testifies at the trial is a victim, a prosecutrix, and a prosecuting witness. A person who does not testify can be both a victim and a prosecutrix. However, a person who neither testifies nor instigates the prosecution is only a victim. It would seem that for the above reasons the legislature adopted the term “prosecuting witness” along with the balance of the rule from State v. Waites, supra. A prosecuting witness is a person who testifies at a trial.
There is no Oregon case which defines “prosecuting witness,”2 but Black’s Law Dictionary, Fourth Edition (1951) at page 1385 defines the term:
“The private person upon whose complaint or information a criminal accusation is founded and whose testimony is mainly relied on to secure a conviction at the trial; in a more particular sense, the person who was chiefly injured, in person or property, by the act constituting the alleged crime, (as in cases of robbery, assault, criminal negligence, bastardy, and the like), and who instigates the prosecution and gives evidence.”
In this case, none of the mother’s testimony as to what the daughter told her is admissible as an exception to the hearsay rule under OEC 803(18a) because the daughter did not testify at the trial. The daughter was not a prosecuting witness. The rule does not apply.
*658Not even the State contends that OEC 803(18a) applies to this case. In a brief in this court the State said:
“When a child does not testify, the sexual complaint in exception is inapplicable and the statement must be excluded unless some other basis of admission is identified.” (Respondent’s Memorandum of Law at page 10, filed March 5, 1985.)
The official legislative comment ends with the following: “The Legislative Assembly intends to retain in full the present Oregon law relating to this exception.” How could the legislature have said it plainer? It is obvious that they adopted the “Oregon Rule” as set out in State v. Waites, supra.
What is this case about? It is about what the law is, not what the law should be. We are called upon to interpret a simple and unambiguous statute. It was enacted in 1981 and is accompanied by a clear official legislative comment. We are not called upon to tinker with some judge-made ancient rule that has no legislative history.
Two parts of the majority opinion are inaccurate:
(1) It states: “The preamble to OEC 803 and the test of 803 (18a) appear to be in conflict. The preamble says the availability of the declarant is immaterial, yet the rule refers to a prosecuting witness.” (299 Or at 641)
The preamble is not a part of the law of the State of Oregon. The Oregon Evidence Code was passed by the 1981 legislature as chapter 892. Section 100 of that chapter provides:
“The article and section headings or captions included in this Act are used only for captions included in this Act are used only for convenience in locating or explaining provisions of this Act and are not intended to be a part of the statutory law of the State of Oregon.”
Without the preamble, OEC 803 reads: “The following are not excluded by Rule 802, even though the declarant is available as a witness:” This is not necessarily inconsistent with (18a). It appears to be a neutral type of statement that neither adds or detracts from (18a). If they should be found to be inconsistent then (18a) controls. ORS 174.020 provides:
“In the construction of a statute the intention of the legislature is to be pursued if possible; and when a general and *659particular provision are inconsistent, the later is paramount to the former. So a particular intent shall control a general one that is inconsistent with it.”
(2) The majority opinion at page 644, states that in State v. Haworth, 143 Or at 496: “* *.* the court allowed in evidence the complaint of ‘an act of intercourse [which] occurred at the defendant’s home on a night in May, 1931.’ ”
There are some interesting things about State v. Haworth which at page 496 states:
“The first assignment of error is based upon the admission of testimony of the mother of the prosecuting witness. [A 10-year-old girl who testified at the trial]. This witness was called by the State. She testified without objection that she was the mother of Eleanor, the prosecuting witness; that Eleanor complained to her of an act of intercourse with defendant and that it occurred at the defendant’s home on a night in May, 1931.” (Emphasis supplied.)
The testimony that the majority quotes was admitted without objection, but later the mother was allowed to testify over objection that Eleanor told her the act occurred “two or three weeks before school was out.”
The Haworth case is confusing.3 It goes on to say: “No motion was made to strike the answer. It will be observed that the witness did not mention the name of the defendant *660nor any particulars of the act.” 143 Or at 497. The conviction was affirmed.
My chief complaint about the majority opinion is the expansion of the definition of the term “prosecuting witness” to include the victim of sexual conduct who does not testify.
At page 641 of the majority opinion the majority states that producing the “child in court for the trial judge to conduct a competency hearing” will satisfy the “prosecuting witness” requirement of OEC 803(18a) whether the child eventually testifies or not. The majority continues on page 641 with the proposition that the “language ‘prosecuting witness’ is an outgrowth of early rape and sexual assault cases which referred to the victim of the sexual assault as the ‘prosecutrix.’ ” On page 644, the majority states: “We conclude from the cases above that early court decision referred to the victims of sexual assault as either the ‘prosecuting witness’ or the ‘prosecutrix’ irrespective of age.
The above statements by the majority are not red herrings, they are purple sardines. They contain nothing that supports the result reached by the majority. There is no basis in law or fact to expand the well recognized definition of prosecuting witness to include a victim of sexual conduct who does not appear and testify as a witness. The Oregon rule is based word for word on the case of State v. Waites, supra, in which the 14 year-old girl victim testified and was referred to as a witness. If the Oregon Legislature had wanted to expand the definition of “prosecuting witness” it would have said so in the official legislative comment.
If the legislature determines that our present evidence code is inadequate to deal with problems presented by sexual assaults committed against victims who are too young to testify at trial, it may wish to consider a new hearsay exception to deal with the problem consistent with the defendant’s right of confrontation. This should be done by the legislature rather than torture and twist a present exception to serve a result for which it was not intended. Skoler, New Hearsay Exceptions for Child’s Statement of Sexual Abuse. 18 J. Mar. L. Rev. 1 (1984); Comment 3 Colum. L. Rev 1745 (1983). Maybe the states of Kansas and Washington are on the right track. State v. Myatt, 237 Kan 17, 697 P2d 836 (1985); State v. Ryan, 103 Wn2d 165, 691 P2d 197 (1984). The *661legislature might investigate and see if ORS 13.425(1) which requires the confession of a defendant to be corroborated is still necessary as a part of the Oregon law. In State v. Lerch, 296 Or 377, 397, 677 P2d 678 (1984), we commented that apparently not all states require the corroboration of a confession.
It is my understanding that OEC 803(24) limits the authority of trial courts to admitting hearsay to very rare and exceptional cases like Dallas County v. Commercial Union Assurance Co., supra, where the particular circumstances of the declarant and the out-of-court statement are demonstrably trustworthy. This case does not fit within the exception. It should also be noted that the legislature in its comment to OEC 803(24) specifically stated that it did not want the courts by themselves to create new “classes” of exceptions.
I would reverse the defendant’s conviction.
Justice Lent and Justice Linde join in this dissent.
APPENDIX A
“Subsection (18a) Although the Federal Rules of Evidence do not mention this exception, the Legislative Assembly exempted a complaint of sexual misconduct from the hearsay rule. This subsection recognizes the holding in State v. Waites, 7 Or App 137, 470 P2d 188 (1971), and the trend in all other jurisdictions:
“ ‘In rape cases, and increasingly in cases of sex offenses generally, evidence is admissible that the victim made complaint. The only time requirement is that the complaint have been made without a delay which is unexplained or inconsistent with the occurrence of the offense — in general, a much less demanding time aspect • than with the typical excited utterance situation. In its origin, the theory of admissibility was to repel any inference that because the victim did not complain, no outrage in fact transpired. Accordingly, if the victim did not testify, evidence of complaint was not admissible * * *’ McCormick section 297 at 709.”
“The Oregon rule provides that a person to whom a complaint of sexual misconduct is made by the prosecuting witness can testify that a complaint was made, but cannot testify as to the details of the complaint. State v. Waites, supra, 7 Or App at 140; State of Oregon v. Tom, 8 Or 177 (1879); State v. Sargent, 32 Or 110, 49 P 889 (1897); State v. *662Ogden, 39 Or 195, 65 P 449 (1901); State v. Whitman, 72 Or 415, 143 P 1121 (1914); State v. Matson, 120 Or 666, 253 P 527 (1927); State v. Haworth, 143 Or 495, 21 P2d [1091 (1933); State v. Yielding, 238 Or 419, 395 P2d] 172 (1964); State v. Emery, 4 Or App 527 at 530 n 1, 480 P2d 445 (1971; State v. Wilson, 20 Or App 553, 532 P2d 825 (1975). Accordingly it has been held that testimony as to prior assaults and as to the location of the assault in question, State v. Waites, supra, and testimony as to the identity of the assailant, State v. Wilson, supra, is beyond the scope of the exception and inadmissible.’
“The Legislative Assembly intends to retain in full the present Oregon law relating to this exception.
Although the legislative comment does not say so, the quote is from the Second Edition (1972). The Third Edition of McCormick on Evidence (1984) contains the same quoted language word for word.
It is not surprising that the same law dictionary defines a “prosecutrix” as “A female prosecutor.”
“Prosecutor” as used in the context of this case is defined:
“One who instigates the prosecution upon which an accused is arrested or who prefers an accusation against the party whom he suspects to be guilty.” Black’s Law Dictionary, Fourth Edition (1952) page 1385.
The majority refers to State v. Haworth, 143 Or 495 21 P2d 1091 (1933), as the “last word from the Oregon Supreme Court on the ‘complaint of sexual misconduct’ exception to the hearsay rule * * Even so, it is very obvious that the Oregon legislature focused its attention on a 1971 case from the Court of Appeals, State v. Waites, 7 Or App 137, 470 P2d 188 (1971), instead of a 1933 case from the Oregon Supreme Court.
Although I would not reach the problem in this case, there is a potential conflict between State v. Haworth and State v. Waites which is demonstrated by the majority opinion. State v. Haworth, 143 Or at 497 states:
“In applying this rule it has been held that while the witness should not be permitted to tell the particulars of the complaint, still enough may be given in evidence to show the nature of the complaint, even though it involves to some extent the particulars thereof, * * 22 R.C.L. 1214.
On the other hand, State v. Waites, 7 Or App at 141, quotes with approval from State v. Emery, 4 Or App 527, 530 n 1, 480 P2d 445 (1971): “* * * Hearsay evidence is permissible for the limited purpose of establishing that a complaint was made but nothing more.” This dissent suggests that the above quoted portion of State v. Haworth, supra, is dicta and that the legislative comment to OEC 803(18a) in effect approved the statement from State v. Emery, supra.