dissenting: The events causing confusion and delay in this case, coupled with the indirect circumvention of the rape shield statute, K.S.A. 1983 Supp. 21-3525, indicate, in my opinion, that our court was too hasty in recognizing expert opinion testimony concerning “rape trauma syndrome” as relevant evidence in State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982). For the reasons hereafter stated Marks should be overruled.
The problems inherent in allowing an “expert” to testify that the victim is suffering from “rape trauma syndrome” in a prosecution for rape were thoroughly discussed by the Missouri and Minnesota Supreme Courts in the cases cited by the majority and the trial court in the instant case. At the outset it is important to note the majority opinion misconstrues the holdings in these cases when stating error was predicated upon the fact that “the expert was allowed to testify that the victim was telling the truth *176when she stated that she had been raped by the defendant.” In State v. Saldana, 324 N.W.2d 227 (Minn. 1982), the Minnesota court held the admission of any expert testimony concerning rape trauma syndrome was error because a discussion of the symptoms a rape victim typically exhibits and whether or not the prosecutrix exhibits those symptoms is of no assistance to the jury, and produces an extreme danger of unfair prejudice. The court stated:
“Permitting a person in the role of an expert to suggest that because the complainant exhibits some of the symptoms of rape trauma syndrome, the complainant was therefore raped, unfairly prejudices the appellant by creating an aura of special reliability and trustworthiness. Since jurors of ordinary abilities are competent to consider the evidence and determine whether the alleged crime occurred, the danger of unfair prejudice outweighs any probative value. To allow such testimony would inevitably lead to a battle of experts that would invade the jury’s province of fact-finding and add confusion rather than clarity.” 324 N.W.2d at 230.
After holding evidence of “rape trauma syndrome” to be inadmissible the court then went on to consider the “second segment” of the expert’s testimony — the admissibility of the expert’s opinion that the victim had been raped and that the victim had not fantasized the rape; in other words, that the victim was telling the truth when she stated she had been raped. 324 N.W.2d 230, 231. In State v. McGee, 324 N.W.2d 232 (Minn. 1982), the court reiterated its holding in Saldana, making it clear that the introduction of any expert evidence that the alleged victim exhibited symptoms consistent with rape trauma syndrome was fundamental error and sufficiently prejudicial to require a new trial. This holding was not qualified in any way so that it could be construed as applying only where the expert was allowed to express an opinion as to the truth of the victim’s statements.
In State v. Taylor, 663 S.W.2d 235 (Mo. 1984), the Missouri Supreme Court recognized that because post-traumatic stress syndrome could result from a number of stressful events, as the expert there testified, an expert who bases his diagnosis upon his belief of what the patient tells him is not qualified to testify that the victim is suffering from rape trauma syndrome as a consequence of a particular incident. Under these circumstances the expert was qualified only to state the prosecutrix’ symptoms “were consistent with a traumatic experience — even a stressful *177sexual experience.” However, the expert was not qualified to say the victim was raped by the defendant at a particular time and place. 663 S.W.2d at 241. The court held in that case the expert testimony that the victim was suffering from rape trauma syndrome was inadmissible where the defendant contended intercourse was consensual, stating:
“The only issue in this case was whether the intercourse was forcible or consensual. The state did not need to prove that the victim suffered from rape trauma syndrome in order to sustain its burden of proof on that issue. The jury could determine whether the intercourse was forcible based on its own evaluation of the physical evidence and testimony and credibility of the witnesses. There is a risk that the jury will regard the expert’s opinion that a victim suffers from rape trauma syndrome resulting from a forcible assault as dispositive on the issue of consent. The term itself connotes rape. And a hazard exists from ‘the misleading aura of certainty’ that surrounds scientific evidence. . . . There is also danger that the expert testimony will divert the jury’s attention from the real issue and cause confusion with numerous collateral issues.” 663 S.W.2d at 241-42. (Emphasis added.)
A recent California case has also held evidence of rape trauma syndrome is inadmissible to prove that the compláinant was raped. See People v. Bledsoe, 36 Cal. 3d 236, 251, 203 Cal. Rptr. 450, 681 P.2d 291 (1984).
These cases and the case at hand illustrate the numerous problems associated with the admissibility of evidence concerning rape trauma syndrome. The issue should be reexamined by this court. The symptoms of rape trauma syndrome, which is a type of post-traumatic stress syndrome, may be caused by any psychologically traumatic or stressful event. See State v. Saldana, 324 N.W.2d at 229; State v. Taylor, 663 S.W.2d at 240, 241. See also 2 Kaplan, Freedman & Sadock, Comprehensive Textbook of Psychiatry III, p. 1519 (3rd ed. 1980). Our court was confronted with “post-traumatic stress disorder” in Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 271, 662 P.2d 1214 (1983), in a different factual situation. As recognized by the court in Taylor, symptoms associated with rape trauma syndrome may actually be caused by a stressful sexual experience to which the patient fully consented, but perhaps later regretted or had difficulty reconciling with her conscience. The defendant’s expert witness in this case testified before the trial court that symptoms of rape trauma syndrome may be present in a woman who voluntarily has been sexually involved with someone against her moral or religious values, and becomes pregnant. The *178expert further testified a diagnosis of the patient’s symptoms is based upon what the patient has told him. In other words, the expert assumes the patient is telling the. truth. See also State v. Taylor, 663 S.W.2d at 240. Often, however, the patient may say or believe she has been raped, when in fact she has not, but because of her values or upbringing cannot accept or refuses to believe she voluntarily consented to such activity.
Diagnosis of rape trauma syndrome is merely a therapeutic tool useful in counseling, but is not a factfinding tool, as it is based solely upon the “facts” related by the victim, and should be limited to use as such. See State v. Saldana, 324 S.W.2d at 230. As emphasized by both Missouri and Minnesota courts, evidence of reactions of other people to stressful situations, or evidence that the prosecutrix may have experienced some stressful sexual experience which may or may not have involved the defendant or the particular incident in question, does not assist the jury in its factfinding function and serves only to bolster the credibility of the prosecutrix’ testimony by unrelated “scientific” evidence. State v. Saldana, 324 N.W.2d at 230; State v. Taylor, 663 S.W.2d at 241. Our court has frequently held expert testimony is not admissible as it relates to credibility of witnesses. See State v. Hobson, 234 Kan. 133, 160, 671 P.2d 1365 (1983); State v. Moore, 230 Kan. 495, 497, 639 P.2d 458 (1982).
It was also emphasized by the Minnesota and Missouri courts that there are inherent prejudicial implications from the use of the term “rape trauma syndrome” for it suggests the symptoms experienced by the patient may only be caused by “rape.” State v. Taylor, 663 S.W.2d at 240. The term itself presupposes the existence of a rape. The prejudicial effect of an expert’s testimony that a victim is suffering from psychological symptoms associated with rape tends to corroborate the truthfulness of the victim’s testimony that she was raped, and clearly outweighs any probative value of such evidence. 663 S.W.2d at 241. Such evidence unfairly prejudices the defendant “by creating an aura of special reliability and trustworthiness,” State v. Saldana, 324 N.W.2d at 230, and encroaches too far upon the exclusive province of the jury to weigh the credibility of the witnesses and determine the truthfulness of their testimony. Both courts held that because the jury could determine whether intercourse was forcible based on its own evaluation of the evidence, the risk that *179the jury would place undue emphasis on the expert’s testimony outweighed any probative value of evidence concerning rape trauma syndrome. State v. Taylor, 663 S.W.2d at 241; State v. Saldana, 324 N.W.2d at 230. In a case such as this one where the determination of guilt or innocence is based solely upon whether the jury believes the defendant’s or victim’s version of the facts, the jury is capable of weighing the evidence and reaching a determination without the necessity of expert testimony concerning rape trauma syndrome. The admissibility of this type of evidence in a case of this nature serves only to allow an expert witness to bolster the victim’s credibility by venturing an opinion which is based solely upon the expert’s belief of the truthfulness of the victim’s statements. Experts are not allowed under other circumstances to testify concerning the truthfulness of another witness’s statements. This rule should apply to evidence of this nature also.
The admissibility of evidence concerning rape trauma syndrome must also be considered in light of our so-called “rape shield statute.” K.S.A. 1983 Supp. 21-3525. The defendant’s expert testified before the trial court that it is important to have information concerning the victim’s past sexual involvements in order to determine whether she is suffering from rape trauma syndrome. See also 2 Kaplan, Freedman & Sadock, Comprehensive Textbook of Psychiatry III, p. 1519. It is well established in this state that an expert witness may be examined concerning the facts upon which his opinion is based. State v. Garcia, 233 Kan. 589, 599, 664 P.2d 1343 (1983). It follows that where expert opinion testimony concerning rape trauma syndrome is admitted into evidence the intimate details of the victim’s sexual past may be paraded before the court and the jury because that history forms a substantial basis of the expert’s opinion. This would directly contravene the purpose of the rape shield statute as stated in State v. Williams, 224 Kan. 468, 470, 580 P.2d 1341 (1978):
“K.S.A. 60-447a [(Weeks) now K.S.A. 1983 Supp. 21-3525] is aimed at eliminating a common defense strategy of trying the complaining witness rather than the defendant. The result of this strategy was harassment and further humiliation of the victim as well as discouraging victims of rape from reporting the crimes to law enforcement authorities.”
It is also well established that so-called “expert” testimony may not be based upon hearsay statements of the victim, such as *180statements regarding her past sexual history, which are not in evidence. The court in State v. Marks, 231 Kan. at 655, quoted the following language from Klein v. Wells, 194 Kan. 528, 539, 400 P.2d 1002 (1965), which is clearly applicable here:
“ ‘It has long been settled that an expert witness may base his opinion upon matters within his personal knowledge or observation, or upon competent evidence in the case, or upon both. Likewise, it has been held that a physician may not testify as to what a patient said in respect to past history of the case, or the cause or duration of the injury. Neither can he give an opinion based partially upon his personal examination and partially upon what the patient told him in reference to the past history of the case, and also upon statements of third persons in reference thereto. [Citations omitted.] The history of the case is within the hearsay rule and therefore is not a proper foundation for an opinion based on competent evidence. If, however, the so-called “history” is made up of facts which in themselves are competent evidence, and which are in evidence, then any objection to the use of such history must fall.’ ”
In Klein v. Wells, it was held that although the history relied upon by the doctor in forming his opinion was within the hearsay rule, the doctor’s testimony was competent because the facts comprising the history had actually been put in evidence. 194 Kan. at 539-40. In Marks the court stated:
“This case is well within the exception noted in Klein v. Wells. The ‘history’ of this case is made up of facts which were received into evidence through the testimony of the victim and her roommate. Further, Dr. Modlin’s testimony was based on symptoms he noted during his psychiatric evaluation of the victim. In this sense his conclusions were based on data personally perceived by him.” 231 Kan. at 655.
As a matter of fact, the “history” referred to in Marks was the history of the events surrounding the alleged rape, which was testified to by the victim and her roommate. The past sexual history of the victim was not in evidence. However, as in the present case, the victim’s past sexual history was used by the expert to draw his conclusions, thereby giving full credence to the truth of the victim’s statements. Where such past sexual history is not in evidence it falls within the hearsay rule and is not a proper foundation for expert opinion testimony. Under the rule discussed in Klein v. Wells, expert opinion testimony based in part upon the victim’s past sexual history which is not in evidence is inadmissible. This rule should have been applied in Marks to reject the testimony of the State’s expert on rape trauma syndrome. The decision in Marks was ill-conceived and devoid *181of any of the complications presented by the facts in this case, and should be overruled.
I also disagree with the majority opinion which holds a defendant may not present expert evidence that a rape victim does not display signs of rape trauma syndrome, because “[w]here consent is the defense in a prosecution for rape, expert testimony of the absence of the rape trauma syndrome is not relevant or admissible.” This holding of the court is fundamentally unfair and unduly prejudicial to a defendant in a rape prosecution. Rape is a difficult charge to defend; therefore, a defendant in a rape case should not be sandbagged by a rule of evidence. If the State can present an expert to testify that the victim suffers psychological symptoms associated with rape, in the absence of evidence from an expert on the subject by the defendant, the reverse should also be the rule by permitting the defendant to present expert evidence that the prosecutrix does not suffer from such symptoms.
As a final point, on the facts presented by the record herein, it is my opinion the defendant was not brought to trial within 180 days as required by K.S.A. 22-3402(2) and is entitled to be discharged.
A mere reading of the court’s opinion in this case focuses upon the intolerable burden placed upon the prosecution where evidence of rape trauma syndrome is to be admitted at the trial of a defendant through expert testimony. The court has fashioned new law to hold the delay encountered by the victim’s refusal to cooperate with the defendant’s psychiatrist is not chargeable to the State. The victim is the complaining party, definitely associated with the State’s case. Here a continuance was granted from March 28, 1983, to June 27, 1983, upon the State’s request, in order for the defendant’s psychiatrist to complete his evaluation of the victim. Charging the majority of this delay, which was directly caused by the victim’s refusal to cooperate with the defendant’s psychiatrist, to the defendant is clearly erroneous.
The court describes this delay as having been caused by a “personality conflict” with the victim and the defendant’s psychiatrist. The facts are that the victim in the first three sessions with the defendant’s psychiatrist refused to cooperate when an effort was made to inquire into the victim’s sexual history. The fourth session was broken up for the same reason. She refused to go for a further session until after the passage of much time when *182she was persuaded to cooperate. If the defendant was entitled to have his expert examine the victim for possible rape trauma syndrome, the defendant cannot be charged with the delay caused by the uncooperative victim. To say the State is not chargeable with this delay is ludicrous. Under K.S.A. 22-3402 all time is charged against the State “unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).” None of the reasons set forth in subsection (3) for extending the time of trial beyond the limitations of the statute apply in this case. The State here was not seeking material evidence for the State under K.S.A. 22-3402(3)(c).
The court’s position can be readily tested by a hypothetical case. Assume the victim in a rape case absolutely refuses to cooperate with the defendant’s psychiatrist, as here, for a period of ten years or more, where the defendant is incarcerated pending trial for his failure to post bond. Is the victim permitted to circumvent the speedy trial requirements and thwart the orderly procedure designed for speedy trial?
It is respectfully submitted the judgment of the learned trial judge discharging the defendant should be affirmed, and State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982), should be overruled.
Prager, J., joins in the foregoing dissenting opinion.