State Ex Rel. Davey v. Frankel

*296UNIS, J.,

dissenting.

The issue in this case is whether a provision of Oregon’s “Rape Shield Law,”1 OEC 412(3)(b), which mandates that a hearing be held “in chambers” on the admissibility of evidence of the alleged victim’s past sexual behavior, requires exclusion of the public from such a hearing, and, if so, whether that statutory provision violates Article I, section 10, of the Oregon Constitution (“[n]o court shall be secret, but justice shall be administered[] openly”), Article I, section 11, of the Oregon Constitution (the “right to public trial”), or the First or Sixth Amendments to the United States Constitution (the right to free speech and the right to public trial, respectively). The majority concludes that exclusion of the public from the “in chambers” hearing is not required by OEC 412(3)(b) and, therefore, expresses no opinion concerning plaintiff-relator’s constitutional claims.

In my view, OEC 412(3)(b) requires exclusion of the public from a hearing “in chambers” on the admissibility of evidence of an alleged victim’s past sexual behavior. I believe, therefore, that this court should address relator’s constitutional contentions concerning exclusion of the public from such hearings.

In construing a statute, the task of this court is to discern the intent of the legislature. ORS 174.010; State ex rel Juv. Dept. v. Ashley, 312 Or 169, 174, 818 P2d 1270 (1991); id. at 185 (Unis, J., dissenting); Mattiza v. Foster, 311 Or 1, 4, 803 P2d 723 (1991). “The inquiry into legislative intent, therefore, begins with an examination of the language of the statute itself.” State ex rel Juv. Dept. v. Ashley, supra, 312 Or at 185. When the language of the statute provides sufficient insight into legislative intent, it is not appropriate to consult legislative history. Mattiza v. Foster, supra; State ex rel Juv. Dept. v. Ashley, supra, 312 Or at 185-86 (Unis, J., dissenting).

*297In the context of OEC 412, however, the language “in chambers” in OEC 412(3)(b) does not provide sufficient insight into legislative intent. “In chambers” is not defined in the Oregon Evidence Code. It is a phrase that does not have a precise legal meaning as to who is entitled to be present. See State v. Blake, 292 Or 486, 488-89, 640 P2d 605 (1982) (commenting on, but not interpreting, phrase “in chambers”). It is unclear from the terms and context of OEC 412(3)(b), or from any other provision in the Oregon Evidence Code, whether the public is entitled to be present at an “in chambers” OEC 412(3)(b) hearing. Because the statutory language does not provide sufficient insight into legislative intent, it is appropriate to turn to legislative history to help discern legislative intent. State ex rel Juv. Dept. v. Ashley, supra, 312 Or at 175; Mattiza v. Foster, supra, 311 Or at 4.

Legislative history indicates that OEC 412 is based on Federal Rule of Evidence (FRE) 412, which was enacted by Congress as the Privacy Protection for Rape Victims Act of 1978, PL 95-540 (92 Stat 2046). Kirkpatrick, Oregon Evidence 201 (2d ed 1989). OEC 412(3)(b), which requires that the rape-shield hearing be held “in chambers,” is derived from, and essentially identical to, FRE 412(c)(2). Because Oregon adopted the federal language, federal legislative history pertaining to the federal language is relevant in interpreting the purpose of the language. See Karsun v. Kelley, 258 Or 155, 161, 482 P2d 533 (1971) (legislative history of a federal act is of significant interest in construing a statute which adopted substantially the same terms as set forth in the federal act).

Federal legislative history reveals discussion on the House and Senate Floor of Congress prior to the passage of FRE 412 which makes clear that the “in chambers” hearing is to take place out of the presence of the press and public. For example, in the House of Representatives, Representative Mann spoke in support of FRE 412:

“The new rule * * * provides that before evidence is admitted * * *, there must be an in camera hearing that is, a proceeding that takes place in the judge’s chambers out of the presence of the jury and the general public. * * *
“The purpose of the in camera hearing is twofold. It gives the defendant an opportunity to demonstrate to the court why certain evidence is admissible and ought to be presented to the *298jury. At the same time, it protects the privacy of the rape victim in those instances when the court finds that the evidence is inadmissible. Of course, if the court finds the evidence to be admissible, the evidence will be presented to the jury in open court.
“The effect of this legislation, therefore, is to preclude the routine use of evidence of specific instances of a rape victim’s prior sexual behavior. Such evidence will be admitted only in clearly and narrowly defined circumstances and only after an in camera hearing. * * *
“[T]he principal purpose of this legislation is to protect rape victims from the degrading and embarrassing disclosure of intimate details about their private lives. * * * [The legislation] does, not * * * sacrific[e] any constitutional right possessed by the defendant. The bill before us fairly balances the interests involved — the rape victim’s interest in protecting her private life from unwarranted public exposure; the defendant’s interest in being able adequately to present a defense by offering relevant and probative evidence; and society’s interest in a fair trial, one where unduly prejudicial evidence is not permitted to becloud the issues before the jury.” (Emphasis added.)

124 Cong. Rec.'34,913 (1978).

Senator Biden, speaking in support of FRE 412 in the Senate, said:

“The bill * * * establishes] a special in camera procedure whereby the question of admissibility could be litigated without harm to the privacy rights of the [alleged] victim or the constitutional rights of the defendant.” (Emphasis added.)

124 Cong. Rec. 36,256 (1978).

As illustrated by the remarks of Representative Mann and Senator Biden, the phrase “in chambers,” which appeared in the text of the proposed new federal evidence rule (what is now FRE 412), was often referred to in congressional debates as an “in camera” hearing. According to Professors Wright and Graham, the references to “in camera” and “out of the presence of the jury and the general public” indicate that “Congress was obviously concerned, about the degree of privacy to be afforded rather than the physical location of the hearing.” (Emphasis added.) 23 Wright and Graham, Federal Practice and Procedure 621 n 18, § 5391 (1980).

*299The Advisory Committee on the Oregon Evidence Code (Advisory Committee) proposed what is now OEC 412(3)(b), which derived from, and is essentially identical to, FRE 412(2)(c). In its summary of OEC 412, the Advisory Committee iterated almost verbatim the substance of the first three paragraphs, quoted above, of what Representative Mann had stated with respect to FRE 412. Proposed OEC Report, Interim Joint Committee on the Judiciary 120-21 (December 1980) (Exhibit E, Joint Committee on Judiciary 49-50 (December 7,1979)).

In committee discussions about what is now OEC 412(3)(b), the terms “in chambers” and “in camera” were used interchangeably, as they were in congressional debates on FRE 412. The commentary2 to OEC 412 echoes essentially the same statements made by Representative Mann as to the twofold purpose of the in camera hearing and the principal purpose of the legislation, including the two key sentences:

“The principal purpose of OEC 412 is to protect victims of sexual crimes from the degrading and embarrassing disclosure of intimate details about their private lives. * * *
a* * * * *
“[The in camera hearing] protects the privacy of the victim in those instances when the court finds that evidence is inadmissible.” (Emphasis added.)

Legislative Commentary to Oregon Evidence Code 81-82 (1981). The Oregon legislature, in enacting OEC 412, thus *300created, in effect, a “privacy shield”3 for a complainant about her sexual past.

The apparent intent of the “in chambers” hearing provision in OEC 412(3) (b) is to protect as far as possible a victim’s right to privacy about her sexual past4 and to make the prosecution of sexual crimes more effective and equitable for complainants. Stated differently, in enacting OEC 412, the Oregon legislature sought to encourage victims of sexual misconduct to report and assist in the prosecution of the crime not only by preventing highly prejudicial evidence from reaching the jury and thus helping to protect jury impartiality, but also by preventing victims from having their past sexual history exposed to the public. “The prospect of having past sexual conduct divulged affects not only the victim’s decision to report [the sex crime], but also the victim’s willingness to see the prosecution through.” Note, The Constitutionality of Statutorily Restricting Public Access to Judicial Proceedings: The Case of the Rape Shield Mandatory Closure Provision, 66 Boston Univ.L Rev 271, 276 (1986).

The remedial effect of OEC 412, apparently intended by the legislature, would be completely frustrated or circumscribed if the general public were permitted to be present at an OEC 412 hearing. Only the exclusion of the public can give the phrase “in chambers” actual exclusionary effect, ensuring, as far as possible, the privacy of the victim and respect for her integrity. Mandatory public exclusion from OEC 412 hearings is consistent with the purpose and legislative history of OEC 412.

In sum, in view of the terms of OEC 412(3)(b), the intent of the Oregon legislature as manifested by OEC 412 as a whole, the legislative history of OEC 412, the legislative history of FRE 412, after which OEC 412 is modeled, and the legislative history of FRE 412(2)(c), the federal counterpart to OEC 412(3)(b), I conclude that the term “in chambers” in OEC *301412(3)(b) has reference to both the physical location of the hearing (i. e., the judge’s chambers or office) and the exclusion of the public and jury from the hearing.5 That statutory provision’s use of the term “shall” is a mandate to the trial court to hold all OEC 412 hearings in chambers, just as the trial judge interpreted the law to require in this case. I believe, therefore, that this court should decide whether closure of such a hearing to the public is constitutionally impermissible, as relator contends.

I respectfully dissent.

Van Hoomissen, J., joins in this dissenting opinion.

OEC 412, commonly referred to as Oregon’s “Rape Shield Law,” is set out in footnote 1 of the majority’s opinion, 312 Or at 288 n 1.

“The term ‘rape shield’ has been universally applied to laws restricting the examination of a complaining witness about her sexual past. As such they create a ‘privacy shield’ for such witnesses. They certainly do not provide a protection from rape and therefore seemed to have been misnamed.” Tuerkheimer, A Reassessment and Redefinition of Rape Shield Laws, 50 Ohio State L J 1245,1247 n 16 (1989).

Although the commentary is not an official part of the Oregon Evidence Code and was not approved by the entire legislature, it provides highly useful background regarding each rule and guidance to courts and attorneys in interpreting those rules. State v. McClure, 298 Or 336, 344, 692 P2d 579 (1984). In several cases, this court has found the commentary useful in determining the effect and scope of a particular rule in the Oregon Evidence Code. See, e.g., State v. Carlson, 311 Or 201, 211, 808 P2d 1002 (1991); John Deere v. Epstein, 307 Or 348, 355, 769 P2d 766 (1989); Powers v. Officer Cheeley, 307 Or 585, 592, 771 P2d 622 (1989). Cf. State v. Campbell, 299 Or 633, 653, 705 P2d 694 (1986) (Campbell, J., dissenting) (in interpreting OEC 803(18a), the hearsay exception for complaint of sexual misconduct, the court ignored the commentary to that rule); State ex rel Juv. Dept. v. Ashley, 312 Or 169, 191, 818 P2d 1270 (1991) (Unis, J., dissenting) (“commentary [to OEC 504] does not accurately reflect the intent of the legislature as to the meaning of the statutory phrase ‘mental or emotional condition’ ” in OEC 504(l)(c) and OEC 504(2)). In this instance, the commentary does accurately reflect legislative intent and that OEC 412, like FRE 412, is strongly grounded in privacy and respect for the integrity of an alleged victim of a sex crime.

See supra note 1.

The Oregon legislature sought to limit the admissibility of past sexual history of a victim of a crime of sexual misconduct to instances of past sexual behavior which (1) “[r]elate[] to the motive or bias of the alleged victim[,]” OEC412(2)(b)(A); (2) are “necessary to rebut or explain scientific or medical evidence offered by the state[,]” OEC 412(2)(b)(B); and (3) admission “[i]s otherwise constitutionally required[,]” OEC 412(2)(b)(C).

It is interesting to note that the state (in defending the constitutionality of the statute) and the relator (in attacking it) agree that “in chambers” means “outside the presence of the public and the jury.”