(dissenting) — I do not believe that testimony concerning Jones's prior sexual activities is competent corroborative evidence or that it corroborates the act in question. Therefore I dissent.
Competency of Other Wrongs Evidence
Although in the course of human experience other wrongs demonstrating the accused's character may be logically relevant as to whether he acted in conformity with such character in a particular instance, such evidence is not legally relevant. State v. Devlin, 145 Wash. 44, 258 P. 826 (1927); State v. Holmes, 43 Wn. App. 397, 717 P.2d 766, *714review denied, 106 Wn.2d 1003 (1986); 1A J. Wigmore, Evidence § 58.2 (1983).
Relevance is the keystone of admissibility of evidence. Irrelevant evidence is not competent evidence for any purpose. While ER 104(a) and 1101(c)(3) state that the rules of evidence do not apply to preliminary rulings on admissibility of evidence, I do not believe the rule countenanced the consideration of evidence that the law considers irrelevant.
To state that a man is disposed to commit murder, or disposed to commit larceny, therefore he most likely has committed murder or larceny on this occasion is tantamount to a rejection of all common sense rules of relevancy.
Slough & Knightly, Other Vices, Other Crimes, 41 Iowa L. Rev. 333 (1956).
Corroboration of the Act
RCW 9A.44.120(2)(b) requires that there be "corroborative evidence of the act" before reliable out-of-court statements of an unavailable child witness will be admissible. The purpose of this requirement is to provide additional protection against fabrication in situations where cross examination is not possible. State v. Hunt, 48 Wn. App. 840, 847-48, 741 P.2d 566 (1987). The requirement of the statute focuses on the actual act which occurred, not on the perpetrator. In State v. Hunt, supra, Division One of this court recognized that the corroboration of the act in RCW 9A.44.120 is analogous to the requirement of independent corroborative proof of the corpus delicti prior to the admission of a confession. Hunt, 48 Wn. App. at 849.
Corpus delicti consists of two elements: (1) an injury or loss, and (2) someone's criminal act as the cause thereof. Bremerton v. Corbett, 106 Wn.2d 569, 573-74, 723 P.2d 1135 (1986). Both the corpus delicti rule and RCW 9A.44-.120 require corroboration of the act or injury complained of, not the identity of the perpetrator. Corbett, 106 Wn.2d at 578; Hunt, 48 Wn. App. at 849. The independent proof required for corpus delicti need only establish a prima facie *715case that a crime occurred. State v. Ryan, 103 Wn.2d 165, 178, 691 P.2d 197 (1984). Similarly, appropriate corroborating evidence under RCW 9A.44.120 should make out a prima facie case that the particular act was performed on the particular victim. This viewpoint has been adopted by an Indiana Court of Appeals under a similar statute. In Miller v. State, 498 N.E.2d 1008, 1013 (Ind. Ct. App. 1986), rev'd on other grounds, 517 N.E.2d 64 (Ind. 1987), the court stated:
Subsection (d) permits the statement to be admitted into evidence "only if there is corroborative evidence of the act that was allegedly committed against the child." (Emphasis added.) We view corroboration here to serve the same purpose as the requirement that independent corroborative proof of the corpus delicti be introduced before a confession is admitted. The phrase simply requires corroboration that the "act" was committed by someone. This result is compelled by the emphasis on the act, rather than any mention of the defendant.
As the Indiana court recognized, the focus of the corroborating evidence must be on the victim, not on the alleged perpetrator. The fact that the defendant had engaged in similar abnormal sexual behavior with other persons does not establish that the act occurred in the instant case.
Corroboration may be found in physical or medical evidence of abuse. Because actual physical evidence is often difficult to obtain, the statute encompasses direct and indirect evidence. State v. John Doe, 105 Wn.2d 889, 897, 719 P.2d 554 (1986) (Utter, J., concurring). Such evidence includes eyewitness testimony, confessions, and psychiatric testimony that the child evidences behavioral symptoms consistent with having been sexually abused. See The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv. L. Rev. 806, 821 (1985) (cited by Utter, J., in State v. John Doe, supra). The evidence in every Washington case requiring corroboration under RCW 9A.44.120 focuses on the victim, not on the defendant. For example, in State v. Justiniano, 48 Wn. App. 572, 580-88, 740 P.2d 872 (1987), the victim's 10-*716year-old brother testified that he saw the defendant with his hand down the victim's pants. In State v. Gitchel, 41 Wn. App. 820, 828, 706 P.2d 1091, review denied, 105 Wn.2d 1003 (1985), corroborating evidence included a doctor's finding of penetration and inappropriate behavior during the examination as well as complaints to a cousin and aunt by the victim and testimony that she suffered from nightmares. In State v. Robinson, 44 Wn. App. 611, 621, 722 P.2d 1379, review denied, 107 Wn.2d 1009 (1986), the child's statements were corroborated by a semen stain found on her blanket. Finally, in State v. Hunt, supra, the corroboration requirement was met through testimony as to the victim's unusual behavior at a day-care center. Hunt, 48 Wn. App. at 849-50.
In each of the above cases, the corroborating evidence directly bolstered the fact that the alleged act was performed upon the particular victim. Evidence of how the defendant may have acted in the past does not corroborate the allegation that the instant act of abuse occurred with the victim in this case. Such evidence does nothing to affirm the reliability of the child's hearsay statement or to "[preclude] the possibility that [the] defendant might be convicted solely on the basis of an out-of-court statement of a child who is incapable of accurately perceiving or describing events." Comment, Sexual Abuse of Children— Washington's New Hearsay Exception, 58 Wash. L. Rev. 813, 828 n.97 (1983).
The testimony of the defendant's prior conduct was not competent evidence and did not serve to corroborate the actual act of abuse committed in this case. The trial judge acted properly when he refused to consider the proffered testimony and I would affirm.
Review granted by Supreme Court May 31,1988.