State v. Blake

640 P.2d 605, 292 Or. 486, 8 Media L. Rep. (BNA) 1172, 1982 Ore. LEXIS 714

• Court: Oregon Supreme Court
• Decided: February 10, 1982
• Docket: 79-7-322, CA 17577, SC 28134
• Status: Published

Opinions

DENECKE, C. J.

We granted defendant’s petition for review to determine whether a portion of Oregon’s Rape Shield Law (ORS 163.475) violated Section 10, Art I, of the Oregon Constitution, which provides: “No court shall be secret, but justice shall be administered, openly * * *,” and Section 11 which provides that the accused has the right to a public trial. ORS 163.475, as it existed at the time of the trial of this case, provided that in a rape prosecution, if the defendant desired to introduce evidence of the alleged victim’s previous sexual conduct, the defendant must request a pretrial hearing at which the court would decide what, if any, of such evidence would be admitted at the trial. The statute provided that such hearing would be held “out of the presence of the jury and the public.” A majority of the Court of Appeals held the statute valid. 53 Or App 906, 633 P2d 831 (1981).

The defendant, who was charged with rape, requested a pretrial hearing to determine what evidence of the alleged victim’s previous sexual conduct would be admissible at trial. Pursuant to the statute, and over the objection of the defendant, the trial court excluded everyone from the hearing except court officers, witnesses, including the alleged victim, the attorneys and the defendant. The defendant was subsequently convicted; he appealed and assigned as error the exclusion of the public from the pretrial hearing.

Subsequent to the trial of this case, the Oregon Legislature, in enacting a code of evidence, changed the Rape Shield Law. We were not aware of this amendment when the petition for review was granted or oral argument was heard. Rule 412 of the Oregon Evidence Code now provides that the pretrial hearing at which the trial court determines what, if any, evidence of the alleged victim’s previous sexual conduct will be admissible at the trial, shall be held “in chambers”; no mention is made of excluding the public.

“In chambers” is not a phrase that has a precise legal meaning as regards what persons are entitled to be present. We know from experience, however, a hearing “in chambers” is not always in practice one at which everyone except the judge, court officers, the parties, the attorneys, and perhaps the witness is necessarily excluded. When we are required to apply the phrase “in chambers” it will be necessary to judicially construe the phrase.

When faced with a constitutional challenge to a statute, we “choose between alternative constructions of an uncertain text the one that avoids serious constitutional difficulty.” Tharalson v. State Dept. of Revenue, 281 Or 9, 13, 573 P2d 298 (1978). We cannot now say that the phrase “in chambers” is not open to a construction that avoids the “serious constitutional difficulty” which was the subject of State ex rel Oregonian Publishing Co. v. Deiz, 289 Or 277, 613 P2d 23 (1980), in which we outlined the access necessary in judicial proceedings in order to comply with Art I, § 10 of the Oregon Constitution.

Construction of “in chambers” is not the issue in this case, and the challenge to an application of Rule 412 would not necessarily be the identical attack that is made on the statute applicable in this case. Under these circumstances, usually we do not grant a petition for review or we dismiss the proceeding after review was granted when we become aware of the new statute. We did so recently in Housing Council v. City of Lake Oswego, 291 Or 878, 635 P2d 647 (1981). For an example of the procedure of the United States Supreme Court in a somewhat similar situation, see Hall v. Beal, 396 US 45, 90 S Ct 200, 24 L Ed2d 214 (1969).

Despite the change in the statute, if it appeared likely that the defendant had been prejudiced by the application of a statute which was arguably unconstitutional, we might, nevertheless, grant review or retain the case although the statute had been changed. Defendant does not contend any additional or different evidence would have been introduced if the hearing had been public or that the trial court at trial erred in excluding any evidence concerning the victim’s previous sexual conduct.

For these reasons the proceeding is dismissed.