dissenting.
New Jersey’s Rape Shield Law, N.J.S.A. 2A:84A-32.1 to -32.3, and N.J.S.A. 2C:14-7, was enacted “ ‘to protect rape victims from excessive cross-examination, thereby encouraging them to report the abuse----[and to] preserve the integrity of trials____[b]y ensuring that juries will not base their verdicts on prejudice against the victim----’ ” State v. Cuni, 159 N.J. 584, 597, 733 A.2d 414 (1999) (quoting State v. Budis, 125 N.J. 519, 529, 593 A.2d 784 (1991) (citations omitted)). The critical issue raised in this aggravated sexual assault ease is whether the Rape Shield Law permits a defendant to introduce evidence of alleged flirtatious conduct by an alleged rape victim towards the defendant, most of which occurred more than a year prior to the alleged rape, to prove that *183the victim consented to the sexual conduct charged in the indictment. The Court today holds that a defendant can present evidence that the victim flirted with him several weeks, months, or even years before the intimate sexual conduct charged in the indictment occurred. Because I believe the Court’s decision today is retrogressive and violative of the Rape Shield Law, I must dissent, not because I condone the victim’s alleged flirtations, but because I wish to implement the Legislature’s intent of preventing victims from being victimized twice: first by the defendant and second by the judicial system.
I.
A.
The Confrontation Clauses of the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee the right of an accused in a criminal case to be confronted with the witnesses against him or her, including the right to a meaningful cross-examination. Limits, however, may be placed on that right “to accommodate other legitimate interests in the criminal trial process.” Chambers v. Mississippi 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 308 (1973). Our Rape Shield Law is an illustration of such a compromise, the constitutionality of which has been decided already.
■ Our Rape Shield Law was first adopted in this State by L. 1976, c. 71, effective August 26, 1976, and codified at N.J.S.A. 2A:84A-32.1 to -32.3. Prior to enactment of that statute, the common law of this State permitted a defendant to introduce evidence of the rape victim’s general reputation for chastity to support a defense of consent to rape. State v. Rubertone, 89 N.J.L. 285, 287, 98 A. 253 (E. & A.1916); O’Blenis v. State, 47 N.J.L. 279, 279-80 (Sup.Ct.1885); State v. Holmes, 157 N.J.Super. 37, 39, 384 A.2d 528 (App.Div.1978); State v. Steele, 92 N.J.Super. 498, 504, 224 A.2d 132 (App.Div.1966). That medieval approach to the trial of a *184rape case permitted the jury to infer a character trait of immorality that made the sexual encounter more likely to have been by consent. State v. Budis, supra, 125 N.J. at 528-29, 593 A.2d 784. The purposes of the Rape Shield Law here in New Jersey and across the country have been “to protect rape victims from excessive cross-examination” and to “preserve the integrity of trials.” Id. at 529, 593 A.2d 784. Of the fifty state Rape Shield Laws,1 New Jersey and Wyoming have the strongest.
Our 1976 Rape Shield Law was essentially reenacted with the passage of the New Jersey Code of Criminal Justice in 1979 *185(Code) and codified at N.J.S.A. 2C:14-7. L. 1978, c. 95, § 2C:14-7. The Code provides that “[t]he provisions of the [C]ode not inconsistent with those of prior laws shall be construed as a continuation of such laws.” N.J.S.A. 2C:l-le. Both statutes provide that when a defendant charged with an aggravated sexual assault, or one of a number of other sexual offenses, wishes to introduce evidence during trial of the victim’s previous sexual conduct, prior court approval is necessary. A New Jersey Rules of Evidence 104 hearing is required to determine the admissibility of such evidence. N.J.S.A. 2A:84A-32.1; N.J.S.A. 2C:14-7a. After the trial court first determines whether the evidence is relevant and highly material, it must then engage in a balancing process to determine whether the “probative value of the evidence offered ... outweighs its collateral nature or the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim____” N.J.S.A. 2C:14-7a; see N.J.S.A. 2A:84A-32.1. When evidence of the victim’s prior sexual conduct that is sought to be introduced by a defendant occurred more than one year prior to the date of the sexual offense charged in the indictment, the defendant must establish by clear and convincing evidence that such evidence is relevant and probative, and that the balancing process will result in a finding that the probative value of that evidence clearly and convincingly exceeds the statutory negative factors listed in N.J.S.A 2C:14r-7a. See Biunno, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 101(b)(1) at 102 (2003). Otherwise, a statutorily created presumption of inadmissibility is to be deemed unrebutted. N.J.S.A. 2C:14-7b and N.J.S.A 2A:84A-32.2.
Prior to 1994, neither of the two statutory provisions contained a standard for determining whether the victim’s prior sexual conduct was relevant or probative. Following the 1992-93 Glen Ridge sexual assault trial in Essex County in which the defense was allowed to introduce graphic evidence of the victim’s sexual history, State v. Scherzer, 301 N.J.Super. 363, 392, 413-14, 694 A.2d 196 (App.Div.), certif. denied, 151 N.J. 466, 700 A.2d 878 (1997), the Rape Shield Law was strengthened to protect victims’ *186privacy. Assembly Judiciary, Law and Public Safety Committee, Statement to Assembly Bill No. 677-L. 1994, c. 95, at 1 (Jan. 20, 1994) {Assembly Statement). The 1994 amendments were intended to “placet ] [additional] restrictions on a defendant’s ability to introduce evidence of the rape victim’s past sexual conduct.” Ibid. Those amendments to the Code’s Rape Shield Law, which became effective August 11, 1994, define when the victim’s prior sexual conduct is relevant and probative:
Evidence of the victim’s previous sexual conduct with the defendant shall be considered relevant if it is probative of whether a reasonable person, knowing what the defendant knew at the time of the alleged offense, would have believed that the alleged victim freely and affirmatively permitted the sexual behavior complained of. [N.J.S.A. 2C:14-7dJ
The 1994 amendments also modified N.J.S.A. 2C:14-7a, which now provides that evidence of a victim’s past sexual conduct is inadmissible unless it is “relevant and highly material and ... [its] probative value ... substantially outweighs its collateral nature or the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim.” N.J.S.A. 2C:14-7a (emphasis added). Finally, the Code’s version of the Rape Shield Law defines the victim’s “sexual conduct” to mean “any conduct or behavior relating to sexual activities of the victim, including but not limited to previous or subsequent experience of sexual penetration or sexual contact, use of contraceptives, sexual activities reflected in gynecological records, living arrangement and life style.” N.J.S.A. 2C:14-7e, subsequently renumbered as f. L. 1995, c. 237, § 1.
In amending the Code’s version of the Rape Shield Law, the Legislature clearly intended to protect victims of sexual assault to the maximum extent permissible under the state and federal constitutions. The legislative history in respect of the 1994 amendments provides:
It is vitally important to assure rape victims that they will not themselves be put on trial if they press charges against them attackers. This bill is intended to strike an appropriate balance between protecting a defendant’s constitutional rights, and protecting a rape victim from an assault upon the victim’s character. It is in the public interest to protect the privacy of the victim, as opposed to allowing the *187defendant to freely examine the victim’s past when the examination serves no material or relevant evidentiary or constitutional purpose.
[Assembly Statement, supra, at 1.]
The Legislature intended to assure victims of sexual assault that if they took the courageous step of reporting the crime and confronting their attacker at trial, the State would endeavor to protect them from further humiliation in court. The legislative history reflects the Legislature’s judgment that the sexual history of rape victims often “serves no material or relevant evidentiary or constitutional purpose,” and that judges should be especially vigilant when a defendant wishes to present such evidence. Ibid.
Defendant and many others similarly charged have frequently challenged the application of Rape Shield Laws by arguing that the laws deprive them of their constitutional rights of confrontation, compulsory process, and due process. See, e.g., State v. G.S., 278 N.J.Super. 151, 170, 650 A.2d 819 (App.Div.1994), rev’d on other grounds, 145 N.J. 460, 678 A.2d 1092 (1996); State v. Ryan, 157 N.J.Super. 121, 124, 384 A.2d 570 (App.Div.1978). In State v. Budis, supra, 125 N.J. at 530-32, 593 A.2d 784, we upheld the constitutionality of New Jersey’s Rape Shield Law as it existed prior to the 1994 amendments. We noted that the United States Supreme Court has endeavored to maintain a balance between upholding defendants’ “fundamental” rights, such as confrontation and cross-examination, and permitting trial courts to “ ‘retain wide latitude ... to impose reasonable limits on ... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’” Id. at 532, 593 A.2d 784 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683 (1986)).
B.
I would not adopt the amorphous “continuing course of conduct” standard used by the Court today to determine when our Rape Shield Law should preclude a defendant from introducing evidence with respect to a victim’s prior sexual conduct. Based on the *188legislative history and the 1994 amendments to our Rape Shield Law, and because our original Rape Shield Law is contained within the Rules of Evidence enacted by the Legislature, N.J.S.A. 2A:84A-17 to -49,1 would instead expand and adopt the balancing process established in N.J.R.E. 403, as explicated in State v. Cofield, 127 N.J. 328, 338, 605 A.2d 230 (1992), for determining when the victim’s prior sexual conduct is admissible. That Rule and N.J.S.A. 2C:14-7a focus on excluding otherwise relevant evidence based on prejudice, confusion and waste of judicial time. The Rape Shield Law also focuses on unwarranted invasion of privacy of the victim. I would, however, slightly modify the Cofield four-part test to reflect the language and intent of our Rape Shield Law. I would adopt the following multi-part test:
1. The proffered evidence must constitute prior sexual conduct of the victim;
2. It must be relevant to, and probative of, one of the issues enumerated in N.J.S.A. 2C:14-7c or d;
3. It must be reasonably close in time to the offense charged in the indictment;
4. The highly probative value of that evidence must substantially outweigh its collateral nature, the probability of undue prejudice to the victim in the eyes of the jury, confusion of the issues, or an unwarranted invasion of the victim’s privacy;
5. When the proffered evidence predates the date of the charged offense by one year or more, the proffered evidence is presumed to be inadmissible;
6. To overcome that presumption, the defendant must produce clear and convincing proof that such evidence is admissible by tipping the balancing process in his or her favor.
Adoption of the foregoing Rule 403 analysis would provide a well established and meaningful approach as compared to the amorphous “continuing course of conduct” standard adopted by the majority. Furthermore, the N.J.R.E. 403 analysis has been used consistently to conduct Rape Shield Law balancing. State v. Scherzer, supra, 301 N.J.Super. at 413, 694 A.2d 196; State v. G.S., supra, 278 N.J.Super. at 161, 168-69, 650 A.2d 819. The exclusion of evidence after a proper Rule 403 analysis “is reversible error only if it is critical to the defense, as where there was no other available evidence to” support defenses raised. State v. Scherzer, supra, 301 N.J.Super. at 414, 694 A.2d 196. The evidence excluded by the trial court in this case was not critical to *189the defense. In addition to introducing evidence in respect of the three instances of prior sexual conduct of J.S., defendant presented other evidence through his testimony to support the defense of consent.
II.
A.
As noted previously, the defense to the charge of aggravated sexual assault was consent to “sexual penetration,” thereby admitting that defendant had sexual relations "with the victim. The question becomes whose state of mind or conduct must be examined to determine whether the sexual penetration was indeed by consent. The aggravated sexual assault charge filed against defendant, N.J.S.A. 2C:14-2a(4), is part of the Code’s “provisions covering rape [that] were formulated by a coalition of feminist groups assisted by the National Organization [for] Women (NOW) National Task Force on Rape.” In re M.T.S., 129 N.J. 422, 440, 609 A.2d 1266 (1992). The stated purpose of the Code’s rape provisions was “to remove all features [in the Model Penal Code’s approach to rape] found to be contrary to the interests of the rape victims.” Ibid. Because the Code’s definitions in respect of sexual assaults “make[] no reference to the victim’s state of mind or attitude, or conduct in response to the assault[,]” id. at 441, 609 A.2d 1266, “do[ ] not refer to force in relation to ‘overcoming the will’ of the victim, or to the ‘physical overpowering’ of the victim,” [and because the] “constituent elements ... focus exclusively on the forceful or assaultive conduct of the defendant[,]” id. at 442, 609 A.2d 1266, “the victim ... is [not] required to resist and therefore need not have said or done anything in order for the sexual penetration to be unlawful.” Id. at 443, 609 A.2d 1266. Therefore, “[w]hen a defendant claims that he penetrated with permission, he puts his own state of mind in issue....” State v. Oliver, 133 N.J. 141, 155, 627 A.2d 144 (1993). The focus is not on the victim’s state of mind; it is instead on defendant’s actions “and on the reasonableness of the defendant’s alleged belief that the *190victim has given [affirmative] permission,” id. at 156, 627 A.2d 144, “to the specific act of sexual penetration.” M.T.S., supra, 129 N.J. at 447-18, 609 A.2d 1266. That affirmative consent standard protects women from acquaintance rape while at the same time “promoting] equal responsibility by men and women in all sexual encounters.” Kathleen F. Cairney, Note, Addressing Acquaintance Rape: The New Direction of the Rape Law Reform Movement, 69 St. John’s L.Rev. 291, 317 (1995).
This Court’s decision in M.T.S. substantially influenced the 1994 amendments to our Rape Shield Law. Assembly Statement, supra, at 2. Both the Code’s provisions with respect to rape and the Rape Shield Law were intended to protect rape victims while defining the permissible restrictions on a defendant’s attempts to demonstrate the reasonableness of the defendant’s alleged belief that the victim has given affirmative permission to the specific act of sexual penetration charged in the indictment.
B.
Here, the trial court conducted a hearing pursuant to N.J.S.A. 2C:14-7a to determine what if any of J.S.’s “previous sexual conduct” would be admissible. The court appears to have decided the admissibility of prior sexual conduct evidence using a blend of the current standard and the less restrictive, pre-1994 Budis test, stating, “[w]hen applying the Rape Shield Statute a court must ‘review [...] whether the evidence [is] relevant and highly material to the defense and whether its probative value outweighs its prejudicial effect.’ State v. Cloumey, 299 N.J.Super. 1, 15, 690 A.2d 612 [ (App.Div.), certif. denied, 151 N.J. 77, 697 A.2d 549 (1997) ], citing State v. Budis, 125 N.J. 519, 532, 593 A.2d 784 (1991).” After evaluating defendant’s proffered evidence for its probative value, the court found that most of it was not probative within the meaning of N.J.S.A. 2C:14-7d, thus making the use of any balancing test largely unnecessary.
The trial court categorized all of defendant’s evidence of his and J.S.’s prior relationship as follows:
*1911) That J.S. has on unspecified occasions asked the defendant to drive her to work when she was employed by the Cumberland County Prosecutor’s Office; 2) That J.S., on unspecified occasions while working at the [Prosecutor’s Office], flirted with the defendant by touching him, hugging him and brushing up against him; 3) That while J.S. worked at the [Prosecutor’s Office] she made statements to the defendant that she was “gonna get that man” and that she “needed a man like that” and that the defendant was “too good” for his wife; 4) That while J.S. worked at the [Prosecutor’s Office] she grabbed the defendant’s buttocks; 5) That on the last day that J.S. worked for the [Prosecutor’s Office] in March of 1997, she forced herself on the defendant and kissed him in a provocative manner; 6) That after J.S. had stopped working for the [Prosecutor’s Office], she approached the defendant while he was on the front porch of the Prosecutor’s Office and stated that she was ready to have an affair with the defendant now that she no longer had to see the defendant’s wife every day; 7) That on an occasion in 1998 when J.S. met with the defendant at the Bridgeton Police Department to take care of a motor vehicle warrant, J.S. forced herself on the defendant and kissed him in a provocative manner; 8) That during the sexual assault at issue in this case, the victim forced herself on the defendant and kissed him in a provocative manner.
I agree with the trial court that most of the proffered evidence is “not probative of whether a reasonable person would have believed that J.S. freely and affirmatively consented to the sexual conduct on September 28,1998.”
Application of the N.J.R.E. 403 balancing test leads me to conclude that the trial court properly balanced the appropriate factors and concluded that the excluded evidence has little appreciable probative value that is far outweighed by its potential to mislead and prejudice the jury. Two of defendant’s proposed witnesses, Wendy Frost and Terri Seay, were not permitted to testify at all. The trial court and the Appellate Division majority properly concluded that their testimony had nothing to do with whether J.S. consented to the sexual encounter with defendant on September 28,1998.
Frost testified that whenever J.S. encountered defendant visiting his wife at the Prosecutor’s Office, she would run to him, stand close to him and touch his arm or shoulder. Frost also described J.S.’s remarks to defendant, that were made in front of Stephanie Garrón: “if your wife’s never around let me know[;]” “I can take care of you[;]” “[I] would have no problems going to see [defendant] while Stephanie was away.” Seay’s testimony was similar: that she saw J.S. brush “her breast area” against defendant, that *192J.S. frequently hugged him, touched his arm and started flirtatious conversations with him, and that J.S. expressed “how lucky” Stephanie was and that she could flirt with defendant after she ceased working with his wife. Viewed in the abstract, those alleged remarks may make it seem plausible that J.S. wanted to engage in sexual activity with defendant. However, neither Frost nor Seay could provide approximate dates for when any of that behavior occurred (save the remarks made on J.S.’s last day of work in March 1997). In any event, none of their testimony involved events occurring later than March 1997, and they could date back as far as 1992, when J.S. began working at the Prosecutor’s Office. Absent a more specific date, the testimony of Wendy Frost and Terri Seay is not probative of whether J.S. consented to engage in sexual activity with defendant on September 28, 1998. Their testimony refers to events that took place sometime between eighteen months and six years before the night in question. The Legislature recognized the scant value of such stale evidence when it provided in the Rape Shield- Law that “[i]n the absence of clear and convincing proof to the contrary, evidence of the victim’s sexual conduct occurring more than one year before the date of the offense charged is presumed to be inadmissible____” N.J.S.A 2C:14-7b. That presumption was not rebutted.
Much of the additional excluded evidence suffers from the same defect: it is far too attenuated in time to have any significant probative value. Stephanie Garrón testified at the Rape Shield hearing that J.S. openly touched and hugged her husband and held his hand when J.S. saw him at the Prosecutor’s office, and that “the more people that were around the more of a production it became to grab him and hug him.” She described “outrageous” remarks made by J.S. (“what do you want with that scrawny white girl[;]” “is that your gun or are you happy to see me[;]” “I’ll take that man away from you if he spends just one night with me”), but Stephanie also stated that these remarks were made “for impact ----to get to me.” Stephanie was permitted to testify at trial that she had confronted J.S. after hearing that J.S. touched her husband’s buttocks, and also described the circumstances sur*193rounding J.S. and defendant’s “goodbye kiss” on J.S.’s last day of work. All of those incidents took place in or before March 1997. Stephanie was barred from describing only one incident relating to her husband that occurred later, “probably in [19]98,” when another Prosecutor’s Office employee told Stephanie that “[J.S.] says that she’s going to have an affair with your husband now that she doesn’t have to look at you every day.” That last alleged incident was inadmissible hearsay, N.J.R.E. 801(c); State v. Long, 173 N.J. 138, 152, 801 A.2d 221 (2002). Nor was it evidence of the “victim’s previous sexual conduct” within the meaning of the Rape Shield statute. The majority includes in its list of excluded evidence additional remarks J.S. made to Stephanie in September 1998. However, it defies reason to claim that those innocuous statements, made to a friend (“she needed to find a way not to work anymore” and “to find me a man”), show intent to perform fellatio on the friend’s husband in the near future.
Defendant also testified at the Rape Shield hearing with respect to J.S.’s prior flirtations toward him both inside and outside her workplace. He testified that whenever he saw J.S. at the Prosecutor’s Office, she would “make a big production” of hugging him, and brushing “her chest area and ... her butt area” against him. Defendant described flirtatious remarks J.S. made to him, such as “she would like to have a white man like me____I spoiled my wife ... I was too good to my wife ... I needed somebody like her ... my wife didn’t treat me right.” Defendant also testified that in or around July 1998, he happened to see J.S. visiting the Prosecutor’s Office and asked her if she was ready to have an affair, and she responded “now that I don’t have to look at your wife anymore, you’re damn right.” Defendant invited J.S. to call him. However, she did not accept his offer to call and there was no further contact between them until the early morning of September 28, 1998. The only time J.S. ever initiated contact with defendant away from the Prosecutor’s Office was when she called him to help her dispose of the warrant in July 1998, but that occurred only after he visited her home more than once to offer his assistance. A reasonable person would not infer that because J.S. touched and *194spoke to defendant in a flirtatious manner when she happened to see him, she was agreeing to have defendant to come to her home at 3:30 a.m., a year or more later, to engage in fellatio. Only one of the excluded incidents of flirtatious conduct described by defendant at the Rape Shield hearing took place within a year of the alleged assault: their meeting on the porch in or about July 1998, when J.S. purportedly expressed her interest in having an affair with defendant. Even if such a remark could be probative of affirmative consent to sex two months in the future, and I submit that it is not, its exclusion was harmless error. As the Appellate Division majority noted, the jury was aware of three prior incidents when J.S. allegedly kissed or touched defendant in a sexual way. The omission of this one statement, which was not followed by any affair-like behavior between J.S. and defendant before September 28, 1998, was not “clearly capable of producing an unjust result.” R. 2:10-2.
Defendant was permitted to testify at trial in respect of those three acts of “prior sexual conduct” between himself and J.S. Although they satisfy the “prior sexual conduct” requirement, they were of miniscule or no probative value. J.S.’s grabbing of defendant’s buttocks, and their “passionate” kisses occurring in March 1997 and July 1998 do not indicate to a reasonable person that J.S. consented to perform fellatio on defendant on September 28, 1998. Nonetheless, those episodes and other evidence were placed before the jury allegedly to support the consent defense. Because of the substantial quantity of evidence heard by the jury with respect to the defense of consensual penetration, there was no violation of defendant’s right of confrontation, cross-examination or compulsory process. Hence, the excluded evidence was merely cumulative and not critical to the defense. State v. Scherzer, supra, 301 N.J.Super. at 414-16, 694 A.2d 196.
III.
Defendant has seized on the trial court’s remark that the three incidents of prior sexual conduct that were admitted “show[] a *195continuing course of conduct on the part of J.S. to engage in sexual conduct with the defendant,” and uses that remark to justify his assertion that all of the excluded evidence of J.S.’s alleged flirtation with defendant should have been admitted to fully demonstrate a “continuing course of conduct.” However, Rape Shield cases must be analyzed on a case-by-case basis; and in this case the amount of time that passed between the vast majority of J.S.’s alleged flirtation with defendant and the incident complained of lead me to conclude that the prejudicial effect of the excluded evidence far outweighs its miniscule (if any) probative value. In my view, the majority has ordered the admission of excluded evidence based on the erroneous assumption “that cross-examination [of the prosecutrix on that irrelevant evidence] has some mysterious virtue of its own which imparts merit to facts otherwise worthless.” 3A Wigmore on Evidence, § 878, at 648 (Chadboum rev.1970).
“Prejudice,” in the context of the Rape Shield Law, includes concerns both for victims of sexual assault and for the integrity of jury trials. State v. Cuni, supra, 159 N.J. at 597, 733 A.2d 414. The Legislature was concerned that placing the sexual history of rape victims before a jury would needlessly humiliate them at trial, thereby subjecting them to further abuse while simultaneously discouraging other victims of sexual abuse fl’om reporting the sexual assault. Under common law, women deemed “unchaste” could have their pasts used against them as evidence that they were likelier to consent to sex no matter what the circumstances, and the modem Rape Shield Law eliminates that false presumption. “General bad character for chastity of the person alleged to have been injured may be given by the defendant, as a fact throwing doubt on her statement that the connection was against her will.” O’Blenis v. State, supra, 47 N.J.L. at 280. In this case, the excluded evidence does not include intimate details of J.S.’s private life and does not tend to portray her as “unchaste.” Ante at 175, 827 A.2d at 259-60. Indeed, the relatively innocuous nature of the excluded evidence indicates its low probative value. However, at defendant’s new trial J.S. will nonetheless *196be cross-examined regarding every aspect of the behavior that even defendant’s wife viewed mostly “in a lighthearted way” as it occurred. J.S.’s feeling of being placed under the microscope will not be lessened by the fact that the subject of the questioning did not involve explicit conduct. Moreover, future victims of acquaintance rape might well be less likely to come forward now that they will be under suspicion themselves if they have ever engaged in a flirtation with their subsequent attacker, no matter how innocent it was, no matter how long ago.
Furthermore, the impact the excluded evidence will have on a jury cannot be ignored.2 The jury will be bombarded with testimony that J.S. rubbed her body against defendant, showered him with attention, and made provocative remarks, mostly between six years and eighteen months prior to the alleged assault. It will be difficult if not impossible for the State to overcome the inference that this testimony will create in the minds of jurors, that J.S. was “asking for it.” Under the Court’s holding today, it will be virtually impossible for a woman to prove that she was raped by a man whom she had previously expressed interest in, flirted with, or dated, even if she never engaged in sex with him prior to the assault occurred. Today’s decision essentially restricts our Rape Shield Law to sexual assaults between victim and violent stranger, which translates into about fifteen percent of rapes. Cairney, supra, 69 St. John’s L.Rev. at 296. That is a result never intended by the Legislature nor constitutionally mandated.
I agree with the Supreme Court of Montana that although evidence of recent sexual intimacy between a victim and a defendant would be admissible, evidence that a victim pulled a defendant onto her lap two days before an alleged assault was not, because
*197flirtatious behavior is not, contrary to [the defendant’s] opinion, an invitation to engage in sexual relations. An examination into the nuances of the victim’s interactions with the defendant days before an alleged rape would effectively put the victim on trial. Not only is this evidence irrelevant to the issue of consent, it is precisely the harm that the rape shield statute is designed to prevent.
[State v. Detonancour, [306 Mont 389,] 34 P.3d 487, 491 (2001).]
I also agree with the Montana Supreme Court that such flirtatious conduct does not even constitute sexual conduct under the Rape Shield Law and is not probative of whether a victim consented forty-eight hours later. Ibid. In contrast, this Court today allows the defense to scrutinize the victim’s flirtatious behavior, not merely days before the incident, but weeks, months, or even years before. Such an archaic approach to rape flies in the face of the Legislature’s purposes in enacting the Rape Shield Law.
IV.
I also disagree with the Court’s implied holding that a new trial is required because the court failed to instruct the jury on the lesser-ineluded offenses of sexual assault and criminal sexual contact. Although the majority declines expressly to rule on whether it was reversible error for the trial court to refrain from charging the lesser-ineluded offenses at defendant’s request, its endorsement of Chief Justice Wilentz’s dictum in State v. Powell, 84 N.J. 305, 318-19, 419 A.2d 406 (1980), leads me to believe that the Court would have reversed had this been the sole issue in the case. I agree that, in the future, lesser-ineluded offenses must be charged despite a defendant’s request to the contrary as long as “the facts ‘clearly indicate’ the appropriateness of that charge” and unless such a charge would result in surprise or severely prejudice the defense. State v. Choice, 98 N.J. 295, 299, 300, 486 A.2d 833 (1985); State v. Perry, 124 N.J. 128, 162-63, 590 A.2d 624 (1991). What I cannot endorse is the notion that a defendant who invites error by making a strategic choice to request an all-or-nothing jury charge can obtain a new trial when his or her gamble backfires. This Court has traditionally given great deference to defendants’ trial strategies. State v. Perry, supra, 124 N.J. at 162, 590 A.2d 624 (“Trial courts must carefully refrain from *198preempting defense counsel’s strategic and tactical decisions and possibly prejudicing defendant’s chance of acquittal.”) However, deference to defense counsel does not require an appellate court to find plain error based on that strategic choice. State v. Harper, 128 N.J.Super. 270, 277, 319 A.2d 771 (App.Div.) (“ ‘The defendant cannot beseech and request the trial court to take a course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial’ ”) (citations omitted), certif. denied, 65 N.J. 574, 325 A.2d 708 (1974). The trial court’s omission of the lesser-included offense charge did not “cut mortally into the substantive rights of [defendant]” because it “did not demonstrably impair [his] ability to maintain a defense on the merits.” Ibid. Rather, it was a tactical decision, made by the defense counsel in light of the defense of affirmative consent to sexual penetration. A charge of sexual assault or criminal sexual contact would have been inconsistent with the consent defense. I would not reverse based on defense counsel’s strategic choice.
V.
I would affirm the judgment of the Appellate Division.
For reversal and remandment—Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI and ALBIN—5.
For affirmance—Justice COLEMAN—1.
For a list of current Rape Shield Statutes and case law, see Tracey A. Berry, Comment, Prior Untruthful Allegations Under Wisconsin’s Rape Shield Law: Will Those Words Come Back to Haunt You?, 2002 Wis. L.Rev. 1237, 1247 nn. 57-58 (2002):
Ala. R. Evid. 412; Alaska Stat. § 12.45.045 (Michie 2000); Ark.Code Ann. § 16-42-101 (Michie 1999); Cal. Evid.Code §§ 782, 1103 (West Supp.2002); Colo.Rev.Stat. Ann. § 18-3-407 (1999); Conn. Gen.Stat. § 54-86f (2001), Conn.Code Evid. § 4[-]ll (2001); Del.Code Ann. tit. 11, §§ 3508-09 (1995 & Supp.2000); Fla. Stat. ch. 794.022 (2002); Ga.Code Ann. § 24-2-3 (1995); Haw. R. Evid. 412; Idaho Code § 18-6105 (Michie 1997); 725 Ill. Comp. Stat. 5/115-7 (Supp.2002); Ind.Code § 35-37-4-4 (1998); Iowa R. Evid. 5.412; Kan. Stat. Ann. § 21-3525 (1995); Ky. R. Evid. 412; La.Code Evid. Ann. art. 412 (West 1995); Me. R. Evid. 412; Md.CodeAnn. art. 27, § 461A (2001); Mass. Gen. Laws ch. 233, § 21B (2000); Mich. Comp. Laws § 750.520j (1991); Minn. R. Evid. 412; Miss. R. Evid. 412; Mo.Rev.Stat. § 491.015 (2001); Mont.Code Ann. § 45-5-511 (2001); Neb.Rev.Stat. § 28-321 (1995); Nev.Rev.Stat. 48.069, 50.090 (2002); N.H. R. Evid. 412; NJ. Stat. Ann. § 2C:14-7 (West Supp.2002); N.M. Stat. Ann. § 30-9-16 (Michie 1994); N.Y.Crim. Pro. Law § 60.42, (McKinney 1992); N.C. Gen.Stat. § 8C-1, R. 412 (2001); N.D. R. Evid. 412; Ohio Rev.Code Ann. §§ 2907.02, 2907.05 (Anderson 2002); Okla. Stat. tit. 12, § 2412 (Supp.2002); Or.Rev. Stat. § 40.210 (2001), Or. Evid.Code R. 412; 18 Pa. Cons.Stat. § 3104 (2000); R.I. Gen. Laws § 11-37-13 (2000); S.C.Code Ann. § 16-3-659.1 (Law. Co-op 1985 & Supp.2001); S.D. Codified Laws § 23A-22-15 (Michie 1998); Tenn. R. Evid. 412; Tex.R. Evid. 412; Utah R. Evid. 412; Vt. Stat. Ann. tit. 13, § 3255 (1998); Va.Code Ann. § 18.2-67.7 (Michie 1996); Wash. Rev.Code § 9A.44.020 (2000); W. Va.Code Ann. § 61-8B-11 (Michie 2000); Wis. Stat. § 972.11; Wyo. Stat. Ann. § 6-2-312 (Michie 2001).
The Maryland statute was changed recently. Md.Code Ann., Crim. § 3-319, amended by 2003 Md. Laws ch. 89 (S.B.453). Arizona has also adopted a Rape Shield statute, Ariz.Rev.Stat. § 13-1421 (West 2003).
See Clifford S. Fishman, Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant’s Past Sexual Behavior, 44 Cath. U.L.Rev. 709, 725 (1995) (noting that usual "prejudice” analysis applies only to the parties, not to crime victims).