Dissenting:
The majority holds that improperly dissuading Appellant from testifying in his own criminal defense — effecting a deprivation of his constitutional right — is harmless because, in the majority’s opinion, Appellant would not have testified anyway. After careful review of the tape of the hearing, I find that an appellate court can only speculate about the harmlessness of the misadvice. Before Appellant was asked on the record if he planned to take the stand, he was told that he would be subject to a perjury charge, and it was at least implied that the charge would be forthcoming if he testified any differently than what he allegedly told his attorney that day. The record does not make clear exactly what he was supposed to have said, but contextually, we can assume it was an admission of force to his counsel. However, Appellant professed no memory of saying any such thing to his attorney, and given the vagueness of the attorney’s comments, it is impossible to know what the attorney heard, versus what he thought he heard.
Also, it is apparently true that up to that point in the judge's chambers, the Appellant was asserting his right to testify. At least that is what the attorney told the judge, when he explained why he asked for the ex parte hearing. So Appellant did state his desire to take the stand, and only denied any desire to do so after he had been told that he would likely be prosecut*425ed for perjury if he testified. It is beyond serious question that the misadvice influenced him to forgo his right to testify in his own defense.
But the relevant question is whether this undue influence caused him any prejudice. There is no doubt the trial court was well intentioned, and it is easy to see the mistake when the advice would be true regarding any other witness. Nonetheless, I am convinced that this error was prejudicial here, almost in a de facto way.
In finding that a reasonable person in Appellant’s shoes would not testify, it resorts to speculation that no jury would believe Appellant because he admitted to engaging in certain types of purportedly “immoral” sexual behavior, despite the fact that such behavior is perfectly legal in this Commonwealth. The only burden of proof on this matter rests with the Commonwealth, and that burden was impermissibly lightened when the Appellant was dissuaded from testifying in his own behalf.
The majority correctly recognizes that a deprivation of one’s right to testify is a constitutional error, but not a structural one, which is reviewable under the harmless error rule. This approach is consistent with this Court’s treatment of the deprivation of one’s right to testify in Quarels v. Commonwealth, 142 S.W.Bd 73 (Ky.2004). “[D]enial of a defendant’s right to testify on his or her own behalf is a constitutional ‘trial-type’ error that is amenable to the harmless error analysis espoused in Chapman.” Id. at 82. Thus, the error in this case is subject to review for harmlessness, but only under the heightened standard applicable to constitutional errors laid out in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Under the heightened standard, constitutional error can be deemed harmless only where it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at 24, 87 S.Ct. 824. The majority finds such harmlessness by-concluding beyond a reasonable doubt, that Appellant would not have testified even without any misinformation from the bench. The facts don’t support such a conclusion.
To prove beyond a reasonable doubt that a defendant was not going to testify in the first place is quite a steep burden indeed.
The majority’s direct evidence that Appellant would not have testified anyway is, primarily, that he never said he was going to. It is true that he does not say so on the record, but apparently he had been planning to testify: his attorney said he did and used that as the basis for obtaining the ex parte hearing with the judge. It is immaterial that his opening statement did not hint that he would testify or that his attorney questioned the jurors about whether they could be fair if he did not testify. This occurs in practically every criminal trial. Regardless, Appellant does not have to prove he was going to testify; the Commonwealth has to prove he was not. A defendant is not required to affirmatively assert his right to testify, as one is encouraged to do under the Speedy Trial Clause, for example. Thus, nothing can be inferred from any silence by Appellant on his plan to testify or not.
The majority points out that Appellant was not in fact entirely silent as to his plans to testify. The majority states, “Appellant expressed a preference not to testify unless he had to.” This declaration by Appellant might carry some weight, if it had not come immediately after the improper perjury threat underlying this entire issue. Due to this sequencing, Appellant’s comment does nothing to support the Commonwealth and the majority’s claim that he wasn’t going to *426testify prior to the misinformation about perjury. On the contrary, given that Appellant’s announcement appears to have come as a surprise to his counsel who joined him in chambers, it indicates that the court’s immediately prior warning of perjury is exactly what changed his mind into not testifying. If anything, this episode demonstrates that the error was harmful, not harmless.
The majority concedes that there is much to indicate that Appellant would actually have been a credible witness:
[Biased upon our viewing of the proceedings, Appellant presents himself as distinguished and well-spoken. And as a long-time pastor, presumably he is a polished and capable public speaker, with a corresponding ability to communicate well. For these reasons, as a general matter, it appears he may have made a good impression from the witness stand.
Notwithstanding the majority’s favorable impression of Appellant’s general demeanor and background, it views one fact as the ultimate trump to his credibility: that he admits to sexual relations, albeit consensual, at the age of 51 with a then sixteen-year-old A.C. In the majority’s opinion, Appellant’s admission of such a consensual act with a sixteen-year-old “would be so damaging to his character, and so inflammatory, so as to overshadow his denial of force and penetration.”
I do agree with the majority there are some acts that are so repulsive to society at large that they may inherently reflect negatively on a person’s character, so as to undermine his credibility on the stand. However, it is not the place of this Court to overstep the bounds of the legislature— that body elected to make laws governing behavior in this Commonwealth — to announce our own flavor of morality. “Our Legislature has a broad discretion to determine for itself what is harmful to ... morals” and we should “try to refrain from usurping its prerogative.” Walters v. Bindner, 435 S.W.2d 464, 467 (Ky.1968). Laws “represent!] the collective expression of moral aspirations.” Zablocki v. Redhail, 434 U.S. 374, 399, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). Thus, they provide the only legitimate insight into what behavior the public, including members of a jury, would likely consider immoral and consequently, detract from a witness’s credibility through our penal code.
The fact that the conduct at issue is not illegal if consensual highlights how important it is for a defendant to have the ability to state his version of events. If the Appellant is not entitled to this, then in the next he-said-she-said trial, why not just give the case to the jury after the Commonwealth closes? That is essentially what happened here. I cannot differentiate between this defendant and the next criminal case with a similar situation.
The question is not whether a reasonable juror could have disbelieved Appellant — due to his admitted conduct or any other reason. Instead, the question is whether this Court can be sure beyond a reasonable doubt that a juror would have disbelieved Appellant. See Chapman, 386 U.S. at 24, 87 S.Ct. 824. Especially given that the character flaw alleged by the majority encompasses completely legal behavior, a reasonable juror could recognize such behavior as reprehensible, but not illegal, and accept Appellant’s story.
In fact, Kentucky law has always recognized, in an integrally linked context, that only those past behaviors that are criminal should undermine a witness’s credibility. That context is evidence law, which permits impeachment of a witness’s character only through evidence of prior criminal acts and, even then, only where those crimes are felonies. See KRE 609. A *427witness may also be cross-examined on non-criminal acts, but only those acts directly “concerning the witness’ character for truthfulness or untruthfulness.” KRE 608(b).
A consensual sexual act with a sixteen-year-old does not qualify under either category. It is not criminal, as discussed above. Nor does it directly pertain to character for truthfulness or untruthfulness. Even “sexual misconduct involving minors is not probative of untruthfulness because it does not necessarily involve dishonesty or false statements.” United States v. Quites, Crim. A. No. 07-891-01, 2009 WL 466283, 2009 U.S. Dist. LEXIS 18995 (E.D.Pa. Feb. 24, 2009), aff'd, 618 F.3d 383 (3d Cir.2010) (emphasis added); Knox v. City of Monroe, CIV. A. 07-606, 2009 WL 936965, 2009 U.S. Dist. LEXIS 29454 (W.D.La. Apr. 6, 2009) (same).
These rules of evidence serve to prevent a jury from using past sexual conduct — or misconduct — to evaluate a witness’s credibility. This bar reflects a determination in the law that such conduct has no legally cognizable bearing on a witness’s truthfulness. Not only would it be reasonable for the jury to disregard consensual relations between Appellant and A.C. in evaluating his truthfulness, it would be mandatory for the jury to ignore them.
I do not doubt the majority’s intention to adhere to sound legal principles in assessing Appellant’s credibility in looking at the question of harmlessness. This should have been a prototypical he-said-she-said case, with the jury free to choose either side or, alternatively, to believe neither beyond a reasonable doubt and hence acquit. Instead, there was no “he said,” because the defendant was improperly pressured into not testifying. Thus, the jury was left only with what “she said” and, to no surprise, believed such uncon-tradicted testimony. I cannot deem this harmless.
SCOTT, J., joins.
ORDER
The Opinion of the Court rendered April 21, 2011, is corrected on its face by substitution of the attached page 1 in lieu of page 1 of the original opinion. Said correction does not affect the holding of the original Opinion of the Court.