specially concurring.
I fully agree with the result reached in this case. However, I respectfully disagree with the statement, contained in section III.A of the court’s opinion, that “the victim’s statements to defendant regarding a rape fantasy do not constitute evidence of sexual conduct for purposes of the [Rape Shield Statute].”
I believe statements about sexual fantasies are included within the scope of sexual conduct, as that term is used in the Rape Shield Statute. I base this belief on (1) the Rape Shield Statute’s language, when interpreted in light of the legislative policies behind it, (2) precedent from other states, (3) an analysis of the federal counterpart to the Rape Shield Statute, Fed.R.Evid. 412, and (4) an analysis of two recent decisions by divisions of this court upon which the majority opinion relies.
I. The Rape Shield Statute’s Language
When construing the Rape Shield Statute, section 18-3-407, C.R.S.2007, our primary obligation is to give effect to the legislature’s intent. We first look to the meaning of the words in the statute to discern that intent. If the language is not ambiguous, we rely on the plain meaning of those words. People in Interest of K.N., 977 P.2d 868, 872 (Colo.1999).
Section 18-3-407(1), C.R.S.2007, states that, subject to enumerated exceptions, the following evidence is presumed to be irrelevant: “Evidence of specific instances of the victim’s or a witness’s prior or subsequent sexual conduct, opinion evidence of the victim’s or a witness’s sexual conduct, and reputation evidence of the victim’s or a witness’s sexual conduct.”
The reason for this presumption of irrelevancy was described in People v. Murphy, 919 P.2d 191, 194-95 (Colo.1996) (citations omitted):
The basic purpose of the Rape Shield Statute is to provide rape and sexual assault victims greater protection from humiliating “fishing expeditions” into their past sexual conduct, unless a showing is made that the evidence would be relevant to some issue in the case. Prior to the enactment of the Rape Shield Statute, it was thought that the fact a woman had consented to sexual relations with others on other occasions would justify a logical conclusion that it was more probable that she had consented to the sexual act giving rise to the prosecution. As critical thought and analysis were brought to bear on these issues, it became apparent that a rape victim’s past sexual conduct may have no bearing at all on either her credibility or the issue of consent.
Victims of sexual assault should not be “subjected to psychological or emotional abuse as the price of their cooperation in prosecuting sex offenders.” People v. Kyle, 111 P.3d 491, 496 (Colo.App.2004).
One definition of the noun “conduct” is “behavior in a particular situation or relation or on a specified occasion.” Webster’s Third New International Dictionary 474 (2002). “Conduct” is “[p]ersonal behavior, whether by action or inaction; the manner in which a person behaves.” Black’s Law Dictionary 315 (8th ed.2004). Had our General Assembly intended to limit the term “conduct” to direct evidence of physical acts, it could have used precise terms to express that desire, such as “sexual contact,” “sexual intrusion,” and “sexual penetration.” § 18-3-401(4)-(6), C.R.S.2007.
II. Precedent from Other States
Some courts interpret the term “sexual conduct” in their rape shield laws to exclude statements about prior sexual activity from the scope of the law’s coverage. People v. Jovanovic, 263 A.D.2d 182, 193-95, 700 N.Y.S.2d 156, 165-67 (1999)(statements describing sexual conduct); State v. Smith, 45 N.C.App. 501, 503, 263 S.E.2d 371, 372 (1980)(language or conversation); In re Johnson, 61 Ohio App.3d 544, 550-51, 573 *260N.E.2d 184, 188 (1989) (victim’s statement of desire for defendant); Cairns v. Commonwealth, 40 Va.App. 271, 283-84, 579 S.E.2d 340, 346 (2003) (written diary entries describing sex acts with others); State v. Vonesh, 135 Wis.2d 477, 488-91, 401 N.W.2d 170, 176-77 (Wis.Ct.App.1986)(written notes about sexual desires or activities); see also State v. Garron, 177 N.J. 147, 177-78, 827 A.2d 243, 261 (2003) (court did not “find it necessary ... to distinguish flirtatious speech and conduct from sexual conduct”; listing cases holding flirtatious and sexually provocative statements were not sexual conduct).
However, other courts have concluded that the term “sexual conduct” should be construed to include oral or written statements about previous sexual activity. Rieger v. Arnold, 104 Cal.App.4th 451, 461-62, 128 Cal.Rptr.2d 295, 302-03 (2002)(sexual harassment ease; “testimony about the plaintiffs racy banter, sexual horseplay, and statements concerning prior, proposed, or planned sexual exploits”); Logan v. State, 212 Ga.App. 734, 735-36, 442 S.E.2d 883, 885-86 (1994)(victim’s statements to defendant about past sexual conduct with others); Shand v. State, 341 Md. 661, 674-80, 672 A.2d 630, 636-39 (1996) (victim’s alleged offer to trade sex for drugs); State v. DeNoyer, 541 N.W.2d 725, 730-31 (S.D.1995)(statements of willingness to perform sex acts on another man); State v. Quinn, 200 W.Va. 432, 437, 490 S.E.2d 34, 40 (1997) (statements victim made about others molesting victim); see also People v. Santos, 211 Ill.2d 395, 402-03, 286 Ill.Dec. 102, 813 N.E.2d 159, 162-63 (2004)(victim’s statements about sexual activity with another man concerned “prior sexual activity,” the language used in the Illinois rape shield law); People v. Ivers, 459 Mich. 320, 327-29, 587 N.W.2d 10, 13-14 (1998) (“The important distinction ... is not so much ‘statements’ versus ‘conduct’ as whether the statements do or do not amount to or reference specific conduct.”).
III. Analysis of Fed.R.Evid. 412
In 1994, Fed.R.Evid. 412, the federal equivalent of the Rape Shield Statute, was amended. The Rule, which contains exceptions, bars the admission of “[e]videnee offered to prove that any alleged victim engaged in other sexual behavior” in any “civil or criminal proceeding involving alleged sexual misconduct.” Fed.R.Evid. 412(a). The Advisory Committee Notes to this subsection read: “Past sexual behavior connotes all activities that involve actual physical conduct, i.e. sexual intercourse or sexual contact. In addition, the word ‘behavior’ should be construed to include activities of the mind, such as fantasies or dreams.” (Citations omitted.)
Courts construing Fed.R.Evid. 412, or state rule counterparts with similar language, have concluded that sexual thoughts or fantasies are to be treated as sexual behavior under the rule. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1103-06 (9th Cir.2002) (sexual harassment case; Fed.R.Evid. 412 bars evidence of a plaintiffs “sexual sophistication or private sexual behavior”); Wolak v. Spucci, 217 F.3d 157, 159-161 (2d Cir.2000)(sexual harassment case; Fed. R.Evid. 412’s reference to behavior encompasses mental activities, including fantasies); Commonwealth v. Young, 182 S.W.3d 221, 224 (Ky.Ct.App.2005)(vietim’s sexual fantasy was sexual behavior under Ky. R. Evid. 412 because sexual thoughts are treated as behavior). There is at least one dissenting view, decided before the 1994 amendments to Fed.R.Evid. 412. State v. Kelekolio, 74 Haw. 479, 520-21, 849 P.2d 58, 77 (1993) (testimony about victim’s sexual fantasies not barred by Haw. R. Evid. 412, which is designed to protect victims from impeachment with past sexual conduct, not past sexual cognition).
IV. Decisions of Colorado Courts
A. People v. Golden and People v. MacLeod
In People v. Golden, 140 P.3d 1, 4-6 (Colo.App.2005), a division of this court concluded that the victim’s statements about being in a “committed romantic relationship” were not evidence of sexual conduct, and were therefore admissible to assist the defendant in proving the victim had lied about the sexual assault. Golden recognized that the existence of the relationship was important evidence, but that the court could redact references to specific sexual components of the relationship.
*261In People v. MacLeod, 155 P.3d 494, 496-98 (Colo.App.2006)(cert. granted Mar. 26, 2007), a division of this court held that the Rape Shield Statute did not bar evidence of a mother’s statements about her own molestation to her daughter, designed to encourage the daughter to report sexual abuse. The division determined these statements were not sexual conduct, the admission of which would be barred by the Rape Shield Statute.
B. Evidence of Previous False Accusations
There is a body of cases indicating that evidence of prior false accusations of unrelated sexual assaults is not excluded by rape shield statutes, relying on the reasoning that these statements are not evidence of sexual conduct. E.g., State v. West, 95 Hawai'i 452, 457-58, 24 P.3d 648, 653-54 (2001)(citing cases); State v. Bray, 356 N.J.Super. 485, 494-95, 813 A.2d 571, 577-78 (2003)(citing cases).
Section 18-3-407(2), C.R.S.2007, contemplates that defendants who satisfy certain conditions can present “evidence that the victim ... has a history of false reporting of sexual assaults” at trial. See People v. Weiss, 133 P.3d 1180, 1185-89 (Colo.2006) (discussing conditions to be satisfied before evidence of false reporting can be admitted).
V. Discussion
As recently as 1970, Wigmore on Evidence suggested that every woman who claimed she had been raped should be subjected to a psychological evaluation. The reason for this claim was, “The unchaste (let us call it) mentality finds incidental but direct expression in the narration of imaginary sex incidents of which the narrator is the heroine or victim.” 3A John Henry Wigmore, Evidence in Trials at Common Law, § 924a, at 736 (James H. Chadbourn ed., rev. vol.1970). This language suggests the attitude that some women accuse men of rape because they have conflated sexual fantasy with criminal violence.
The Rape Shield Statute represents an express rejection of such attitudes. We now recognize the scarring effects of sexual assault, and the burden placed on victims by testifying about such a deeply personal invasion. We now also understand that evidence of past sexual acts with others has little probative value of whether a victim consented to have sex with a defendant in the present. People v. McKenna, 196 Colo. 367, 371, 585 P.2d 275, 278 (1978).
In my view, this lack of probative force extends to evidence about a victim’s sexual fantasies. Requiring a victim to testify about sexual fantasies can be as intrusive as testifying about prior sexual acts. As one commentator observed:
From a policy perspective, it is difficult to imagine a greater intrusion on the privacy of the victim than an inquiry into her sexual fantasies. Even if one does not regard thought as “behavior,” surely proof of attitudes toward sex can only be viewed as an attempt to prove or insinuate sexual conduct by circumstantial means.
Charles Alan Wright & Kenneth W. Graham, Jr., 23 Federal Practice and Procedure: Evidence § 5384, at 548 (1980)(footnotes omitted).
To effectuate the important policies motivating the Rape Shield Statute, I would interpret the phrase “sexual conduct” to include behavior. I believe the common meaning of the word “conduct,” as indicated by the dictionary definitions cited above, leads to this conclusion. Because I would include behavior within the scope of conduct under the Rape Shield Statute, I would, consistently with Fed.R.Evid. 412, include sexual fantasies within the scope of behavior.
This analysis is consistent with cases from other jurisdictions that interpret sexual conduct to refer to activity beyond sex acts, such as statements and sexual fantasies, especially Shand v. State, 341 Md. at 674-80, 672 A.2d at 636-39, which follows an analytical course similar to the one I employ here. I would hew to these cases because I believe these decisions are better reasoned: they are more faithful to the policies that motivate the Rape Shield Statute.
I submit that Golden and MacLeod are distinguishable. Neither case discussed the concept of sexual fantasy. Golden was careful to indicate that the nature of the statement the division concluded should be admitted was not inherently sexual. Thus, the *262division in Golden avoided the broad conclusion that statements about sexual acts are not sexual conduct for purposes of the Rape Shield Statute. Here, in contrast, testimony about sexual fantasies is inherently sexual.
Although MacLeod may have reached the broad conclusion that was not reached in Golden, I respectfully submit MacLeod may have been wrongly decided. Although the opinion cited several of the cases from other jurisdictions listed above concluding that statements were not sexual conduct for purposes of their rape shield laws, the opinion did not refer to any of the cases that concluded otherwise, nor did it analyze Fed.R.Evid. 412. Thus, MacLeod did not recognize the split of authority on this issue, and it was not informed by an evaluation of a substantial body of contrary precedent that may have led to a different conclusion.
However, even assuming the reasoning in Golden and MacLeod would support the conclusion that statements about sexual conduct are not sexual conduct for purposes of the Rape Shield Statute, we are not bound by those decisions, and I would not choose, for the reasons articulated in this concurring opinion, to follow them. See In re Estate of Becker, 32 P.3d 557, 563 (Colo.App.2000), aff'd sub nom. In re Estate of DeWitt, 54 P.3d 849 (Colo.2002).
The express exception to the Rape Shield Statute for evidence of previous false accusations does not address the issue here. Evidence of a victim’s sexual fantasies does not implicate the concerns behind the need for allowing evidence of prior false accusations, and, in any case, trial courts must find that the prior accusations were demonstrably false before allowing such evidence to be introduced. People v. Weiss, 133 P.3d at 1185-89; State v. West, 95 Hawai'i at 459, 24 P.3d at 655. Prior false accusations carry significant evidentiary weight; evidence of sexual fantasies with others carries no more weight than evidence of prior consensual sexual contact with others.
When the issue in a sexual assault case involving force is whether the victim consented to sexual contact, “the understanding or state of mind of the accused regarding the complainant’s sexual history is neither material nor relevant.” People in Interest of K.N., 977 P.2d at 873. I would give force to this language, and to the policies behind the Rape Shield Statute, by including a victim’s sexual fantasies within the term “sexual conduct.”
VI. Conclusion
Although, in my view, sexual fantasies are sexual conduct under the Rape Shield Statute, I agree entirely with the majority that the specific evidence concerning the victim’s “favorite fantasy” was admissible under the exception contained in section 18-3-407(l)(a), C.R.S.2007. Here, defendant claimed the victim consented to sexual activity because, in part, she allegedly told him she wished to act out her “favorite fantasy” with him. This offer of proof was evidence of the victim’s “prior or subsequent sexual conduct with the actor” under section 18-3 — 407(l)(a). Therefore, the evidence of her statements about the fantasy at the time of the alleged assault, and her previous statements to defendant describing the fantasy, should have been admitted at defendant’s trial.