dissenting.
I respectfully dissent. Zawacki claims that the trial court has denied him his constitutional right to confrontation and effective cross-examination by excluding defense evidence concerning the bias, prejudice, and motives of the prosecuting witness. It should be made perfectly clear at the outset that the Rape Shield Statute is facially constitutional. The statute does not violate the defendant's Sixth Amendment right to confront witnesses absent a showing of actual impingement of cross-examination. Thomas v. State, 471 N.E.2d 677 (Ind.1984).
The offer of proof requested the court to admit testimony that S.H. had requested permission from Mr. and Mrs. Zawaeki to engage in a lesbian relationship with their daughter. The majority posits that this evidence "does not concern any actual pri- or sexual activity or conduct on S.H.'s part." (Emphasis added). I cannot understand how a request to engage in a lesbian relationship could be anything other than an attempt to introduce evidence that implies past sexual conduct. The Rape Shield Law provides that the only way past sexual activity of a vietim or witness can be admitted in evidence is: 1) past sexual conduct with the victim; 2) evidence that some person other than defendant committed the act; 3) if vietim is pregnant at time of trial and under Evid. R. 412, if the past sexual activity is evidence of conviction for a crime to impeach under Rule 609. I fail to see how admitting a letter requesting permission to enter into a lesbian relationship with the defendant's daughter fits within any of the statutory exceptions or exception to Rule 412.
The trial court in Rohm v. State, 558 N.E.2d 1100 (Ind.1990) properly excluded evidence that the complaining witness had stated shortly before the attempted rape that her "birthday wish was to find a lover." The court held that while it was somewhat relevant to the issue of defendant's state of mind on the issue of consent or mistake, the "birthday wish" was for sexual activity with a third party not with the defendant.
If, in fact, Zawacki believed that this evidence should have been admitted under Indiana Evidence Rule 412, he should have filed a written motion describing the evidence at least 10 days before trial. Evid.R. 412(b)(1). This he failed to do so that the evidence was properly excluded.
Rule 412 seeks to prevent undue embarrassment and public humiliation for a sex crime victim and to prevent the trial from becoming an inquiry about her sexual reputation or past conduct. Williams v. State, 681 N.E.2d 195, 200 (Ind.1997). It is a rule to protect the victim against unnecessary invasions of privacy in order to remove obstacles to reporting sex crimes. Id.