dissenting. The State of Arkansas appeals a pre-trial ruling from the Trial Court. The ruling followed a hearing pursuant to Ark. Code Ann. § 16-42-101 (Supp. 1993), the “rape shield” statute, and would allow Deon Sheard and the other defendants to present evidence concerning the prosecuting witness’s prior sexual activity at each of their rape trials.
The defendants moved for a hearing, pursuant to § 16-42-101, to determine the admissibility of testimony concerning the alleged victim’s prior sexual activity. The defendants contend the alleged victim’s prior conduct is relevant to each of their defenses and should be admissible. .
According to the representation of a deputy prosecutor made at the hearing, the State plans to prove that Deon Sheard told other members of a gang, the “43rd Storm,” that the alleged victim wanted to be a member. A female who wishes to become a member must engage in sexual intercourse with the male members. The proof, according to the deputy prosecutor, will show that the alleged victim objected to intercourse and the gang members, including those charged with Mr. Sheard, forced themselves upon her.
Two defendants, Mr. Sheard and Tim Bryant (Mr. Sheard’s brother), and a witness, Shawn Robinson, testified. Mr. Sheard testified at length about his relationship with the alleged victim. This relationship, initiated by the alleged victim, started in the summer of 1991, and included substantial sexual activity. It occurred often when she would come to his house in the morning before school. She frequently called and invited him to her house as well. Mr. Sheard testified that he never initiated sexual relations with the alleged victim.
Mr. Sheard also testified about two incidents referred to as the “Huntington” incident and the “Woodland Ridge” incident. The Huntington incident took place at the alleged victim’s apartment. Mr. Sheard and Shawn Robinson arrived at the apartment, and Mr. Sheard and the victim engaged in intercourse while Mr. Robinson was in another room.
The Woodland Ridge incident occurred in the summer of 1992. Shawn Robinson, and defendants Larry Turner, Tim Bryant, Deon Sheard and “a few other people,” drove to the alleged victim’s apartment. Mr. Sheard and the alleged victim engaged in intercourse, and shortly afterwards Larry Turner engaged in intercourse with her. According to Mr. Sheard, the alleged victim consented to each act.
Shawn Robinson testified that he watched Mr. Sheard and the alleged victim in the act of intercourse twice. Both times were in her apartment, the second time was the Huntington incident. The first time, Mr. Robinson testified he watched by looking under the bedroom door. He agreed that neither Mr. Sheard nor the alleged victim was aware of his presence.
Mr. Robinson testified that during the Huntington incident he and Larry Turner and Tim Bryant “busted in” the bedroom while Mr. Sheard and the victim were engaged in sexual intercourse. He stated the alleged victim saw them in the room and, when asked what the alleged victim did when she saw them, “She didn’t do nothing.” Mr. Robinson again “busted in” the bedroom when Mr. Turner and the alleged victim appeared to be engaged in sexual intercourse. He testified the alleged victim did not appear to be struggling. He was asked, “Did she say anything?” and his response was “No.” He was asked, “But she didn’t say, no, Larry, or anything like that?” and he answered, “No, ma’am.”
Tim Bryant’s testimony was substantially the same and corroborated the testimony of Mr. Robinson and Mr. Sheard.
The Trial Court ruled that it would allow, at each of the defendants’ trials, testimony concerning the Woodland Ridge incident, and testimony concerning the victim’s prior relationship with Deon Sheard, but not the Huntington incident.
It is from this order that the State appeals.
1. The statute
The Trial Court based its ruling on § 16-42-101 (Supp. 1993). The statute provides, in pertinent part, that any “opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person is not admissible ... to attack the credibility of the victim, to prove consent... or for any other purpose.” § 16-42-101(b).
The statute further provides that a defendant may request a pre-trial hearing to determine the admissibility of such evidence, and “evidence directly pertaining . . . [to] the victim’s prior sexual conduct with the defendant or any other person may be admitted .. . if the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature ....”§ 16-42-101(c).
The statute is designed to prevent the defendant’s trial from becoming an unnecessarily humiliating exhibition of an alleged victim’s private life. Its purpose is to encourage rape victims to prosecute their attackers by “shielding” them from humiliation. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980); Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978). This purpose is achieved by requiring a pre-trial hearing, which allows the Trial Court to weigh the proffered testimony of a defendant before it is presented to a jury. In making its determination, the Trial Court is given wide latitude, and will not be reversed absent an abuse of discretion. Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989); Lackey v. State, 288 Ark. 225, 703 S.W.2d 858 (1986); Kemp v. State, 270 Ark. 835, 606 S.W.2d 573 (1980).
2. Abuse of discretion
In Bobo v. State, 267 Ark. 1, 289 S.W.2d 5 (1979), there were allegations of rape against Mr. Bobo and Mr. Forrest. The Trial Court held a hearing to consider whether prior sexual relations between the two defendants and the alleged victim could be admitted as well as evidence of sexual relations between the alleged victim and other persons including a Mr. Duckworth. The Trial Court ruled that the evidence of the relations between the alleged victim and the defendants would be admissible on the issue of consent. He also ruled that evidence that Mr. Duckworth had engaged in sexual intercourse with the alleged victim just prior to the alleged act of rape by the defendants was admissible. The two defendants appealed, contending that the Trial Court should also have ruled admissible prior incidents involving the alleged victim and Mr. Duckworth as well as others and a nude photograph of the alleged victim which had appeared in a magazine.
We affirmed the Trial Court’s ruling in the Bobo case. In an obiter dictum we remarked that the Trial Court had properly ruled that the alleged victim could be examined about her prior sexual relations with the two defendants, citing Brown v. State, 264 Ark. 944, 581 S.W.2d 549 (1979). In the Brown case we reversed a trial court’s refusal to permit testimony about prior sexual relations between the alleged victim and the accused on the issue of consent.
In the case now before us, the Trial Court reviewed the evidence and, comparing the ruling we approved in the Bobo case, came to the conclusion that evidence of Mr. Sheard’s prior sexual relationship with the alleged victim, which the State apparently agreed would not be objectionable evidence, should be admitted as well as evidence of the Woodland Ridge incident. He excluded evidence of the Huntington incident.
The Trial Court remarked on the difficulty of the decision, given the obvious potential of the evidence to embarrass and humiliate the alleged victim juxtaposed to the seriousness of the offenses charged against the defendants and the relevancy of the alleged victim’s prior sexual conduct to the charges.
It seems clear to me that the evidence that this alleged vietim had engaged in sexual intercourse with Mr. Sheard and others of the defendants in circumstances which could be described as less than discrete and private is relevant to the question whether she consented to the acts charged against these defendants. The Trial Court decided that the prejudicial nature of the evidence, which he so clearly recognized, was outweighed by its probative value. There is no clear right or wrong in such a decision, yet the majority opinion holds the Trial Court’s decision was “clearly erroneous.” That is the standard of review to which we adverted most recently in Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1992), where we said, “The trial court is vested with a great deal of discretion in ruling whether prior sexual conduct of a prosecuting witness is relevant, and we do not overturn its decision unless it was clearly erroneous.”
The acts the State has alleged are indeed abhorrent to every member of this Court, but it must be remembered that at this point they are only allegations. The premise of the majority opinion is that evidence of the alleged victim’s prior indiscretions could not be relevant in a trial where the State will attempt to show that brutal force was used. Again, it must be remembered we are dealing with allegations only, and some of the defendants are alleging that the sexual intercourse which occurred on the day of the alleged rape was consensual.
The purpose of the rape shield law is salutary, but the General Assembly recognized that a balance must be achieved between protecting an alleged victim of rape from unnecessary exposition of humiliating evidence and depriving a jury of information which is relevant to whether the alleged victim consented to the sexual conduct alleged. The balance must be struck by the judge who hears the evidence and sees the witnesses at the hearing designed for that purpose. Whether the standard of review is that we will not reverse unless the decision is clearly erroneous or constitutes an abuse of discretion, the threshold is high. I do not see how this Court can come to the conclusion that the decision is an abuse of discretion, and it is even harder for me to understand how the Trial Court’s decision can be characterized as clearly erroneous.
I respectfully dissent.