concurring in part, dissenting in part. While I agree with the outcome in the present case, I write separately to emphasize my belief that this court’s decision in State v. Townsend, 366 Ark. 152, 233 S.W.3d 680 (2006), should be overruled. Originally, I joined in the majority opinion in Townsend, but upon further reflection, I have come to the conclusion that our decision in that case mns contrary to the overall intent of the rape-shield statute, codified at Ark. Code Ann. § 16-42-101(c) (Repl. 1999).
It has long been recognized that the purpose of the rape-shield statute is to shield victims of rape or sexual abuse from the humiliation of having their sexual conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. Graydon v. State, 329 Ark. 596, 953 S.W.2d 45 (1997). Moreover, as the majority correctly points out, this court has held that evidence intended to impeach a victim’s credibility is improper under the rape-shield statute, especially in cases in which the defendant is accused of raping someone under the age of fourteen, because “[w]hen consent is not an issue, whether the victim had sexual relations with another person is ‘entirely collateral.’ ” M.M. v. State, 350 Ark. 328, 333, 88 S.W.3d 406, 409 (2002) (citing Evans v. State, 317 Ark. 532, 878 S.W.2d 750 (1994)). Despite this clearly stated precedent, our court in Townsend, 366 Ark. 152, 233 S.W.3d 680, carved out an exception that now allows a defendant to delve into a victim’s prior sexual contact thereby subjecting victims to even more humiliation and degradation.
A review of our decision in Townsend reveals that it is a significant departure from this court’s previous conclusions that evidence of a minor victim’s prior sexual activity is not relevant or admissible in a subsequent court proceeding. See, e.g., Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004) (holding that evidence that minor victim had made prior sexual-abuse allegations against her former stepfather was inadmissible under the rape-shield statute); M.M., 350 Ark. 328, 88 S.W.3d 406 (holding that evidence of prior sexual history of a nine-year-old child was not admissible in defendant’s trial for rape because it was irrelevant); and Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002) (holding that evidence of the victim’s prior sexual encounters was irrelevant and thus inadmissible where the defendant had sexual intercourse with someone less than fourteen years of age). Despite this court’s clearly established precedent that prior sexual history is particularly irrelevant in cases involving a victim less than fourteen years of age, the court in Townsend, 366 Ark. 152, 233 S.W.3d 680, chose to look to other jurisdictions to determine whether evidence that the victim had been previously raped when she was four years of age was somehow admissible. Ultimately, this court decided to adopt the test set out by the Wisconsin Supreme Court in State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), to answer the issue raised in Townsend. I now realize the error in this approach. In adopting the Pulizzano factors, this court stated:
We think that this analytical approach has merit when ruling on the admissibility of a child’s previous sexual experiences. We also believe that a comparison of the child’s descriptions of the respective sexual encounters is relevant in cases such as these, because if a description is given after the first incident but before the second, it provides a basis for an assessment and comparison of the child’s degree of sexual knowledge at the time of each incident. Also, the use of common or similar terms or phrases by the child in the various descriptions may indicate a congruent similarity of the acts in different incidents, and is therefore relevant.
366 Ark. at 158, 233 S.W.3d at 685. It is interesting to me that while this court announced that a child’s prior sexual knowledge is now relevant, the opinion made no effort to explain how it is relevant.
Simply put, this court should overrule Townsend and the test it adopted because evidence of prior sexual conduct of a victim less than fourteen years of age is simply not relevant or admissible. Moreover, the Pulizzano test was originally adopted by the Wisconsin court in the limited context of a finding that the defendant’s rights to confrontation and compulsory process were denied where she was prohibited from presenting evidence of a minor victim’s prior sexual assault that the court deemed to be relevant. See State v. Dunlap, 250 Wis. 2d 466, 640 N.W.2d 112 (2002) (explaining that the court adopted the five-factor test in order to balance the interests of the defendant and the complainant and to determine when a defendant’s right to present a defense should supersede the state’s interest in protecting the complainant). In adopting the test in Townsend, 366 Ark. 152, 233 S.W.3d 680, this court took the test out of context, and it can now be used by defendants to impeach the credibility of minor victims by delving into their sexual histories. Because I believe that Townsend is a significant departure from this court’s well-established precedent, I believe it should be overruled.
Concurring in part; dissenting in part.