dissenting.
The defense to this attempted rape charge was consent. Appellant testified that he and the victim were engaged in consensual sexual intercourse when the putative victim became angry at him and disengaged. According to the defense story, such anger was caused by something appellant said at the time, and the anger was so great that it caused the putative victim to bring a false charge of rape. Because the telling would constitute evidence of the vice-tim's past sexual conduct, the exclusionary rule of the rape shield statute was applied so as to bar appellant from telling the jury what it was that he had said to her. I.C. 85-837-4-4(a)(1).
This situation is parallel to that in which a trial court is called upon to bar the production of evidence that would put the defendant in a place other than the place of the offense at the critical time. 1.C. 85-86-4-1. A majority of this Court has held that where the defendant has failed to comply with the provisions of the alibi statute, the exclusionary rule of that statute may constitutionally be applied so as to prevent the defendant himself from testifying that he was at another place at the time of the crime. Lake v. State (1971), 257 Ind. 264, 274 N.E.2d 249. Two judges of this Court have held the position that the exclusionary rule may be applied so as to prevent the defendant from presenting witnesses and documentation for an alibi, but that it may not be applied so as to prevent the defendant himself from personally testifying and giving his exculpatory stories. Bowen v. State (1975), 263 Ind. 558, 567, 334 N.E.2d 691, 697 (concurring opinion of DeBruler, J., in which Prentice, J., concurred). The basis of this differing view is that the right of the accused to be heard in the tribunal is among the most sacrosanct and most essential to a fair determination of guilt. We were of the opinion that the right to be heard could not be forfeited in furtherance of a statute, the purpose of which was to protect the state from facing surprise defenses.
The situation here is quite similar. The purpose of the rape shield statute is a good and legitimate one. However, the defendant has the right to be heard in court and to give his version of the events upon which the state relies for conviction. Such right is, I believe, paramount in this situation, and the interest served by the rape shield statute must give way so as to permit the defendant to speak his piece under oath in front of the trier of fact with regard to the events transpiring at the time of the offense which serve the interests of the defense in any rational way. This proposed testimony of the defendant himself satisfies this test of rationality, even though it may be suspect and open the door to evasion of the statute as declared in the majority opinion.
I would hold that the trial court was in error when ruling that appellant could not testify and describe what he told the alleged victim at the time the offense was alleged to have been committed.
DICKSON, J., concurs.