specially concurring.
I join in the majority opinion. Because I believe the dissent misperceives the function of ORS 163.475(4), I add a few words.
Article I, section 10, of the Oregon Constitution addresses the public’s interest in the fair administration of justice in all cases, whether criminal or civil. As Chief Justice Denecke said in State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 613 P2d 23 (1980), it "does not provide that the accused or anyone else has the right to a public trial.” Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution provide the public trial guarantees for criminal defendants. The dissent would give a criminal defendant additional benefits of Article I, section 10. It would allow the defendant to wrap himself in the protective cloth of public interest and would extend that benefit unduly. Giving the defendant the public’s right would pervert, rather than enhance, the public’s interest in the fair administration of justice.
The privacy provided by ORS 163.475(4) facilitates the fair administration of justice in the prosecution of sex crimes under ORS 163.355 to 163.425. It promotes the goal of fair trials. Publicity would impede achievement of that goal. Without that privacy, prosecution of forcible rape and *921other sex crimes would be seriously hampered. Some victims, it may fairly be said, would decline to complain or to testify, knowing that, if they did, they could be compelled to relate in detail the prior sexual experiences of their lifetimes, both marital and extramarital. Though it may sound paradoxical, the right of the public in these cases to the open administration of justice requires closed hearings, as provided in ORS 163.475(4). Surely, the public’s interest is not a prurient one.
The hearing provided for in ORS 163.475(4) and defendant’s right to such a hearing is, I believe, most properly perceived as a discovery proceeding and not as part of the trial. As such, it is not violative of Article I, section 10, of the Oregon Constitution in providing a private hearing, as the dissent would have us hold. The evidence adduced in such a hearing, except such as is admissible in trial, should be no more open to public scrutiny than is evidence which is discoverable pursuant to ORS 135.815 to 135.845. Article I, section 10, applies to civil as well as criminal cases.
I concur.