Per Curiam.
The issues presented in this appeal are: (1) whether the testimony proffered by appellee is admissible at trial despite R.C. 2907.02(D), the rape shield law; and (2) whether admitting such evidence violates Evid. R. 608(B). We find the evidence to be admissible, and thus we affirm the judgment of the court of appeals.
The rape shield law in Ohio, R.C. 2907.02(D),1 essentially prohibits the introduction of any extrinsic evidence pertaining to the victim’s sexual activity. The exceptions to this prohibition are evidence of the origin of semen, pregnancy, or disease, or of the victim’s past sexual activity with the offender. In State v. Gardner (1979), 59 Ohio St. 2d 14 [13 O.O.3d 8], this court set forth the major reasons behind the enactment of the rape shield law:
“* * * First, by guarding the complainant’s sexual privacy and protecting her from undue harassment, the law discourages the tendency in rape cases to try the victim rather than the defendant. In line with this, the law may encourage the reporting of rape, thus aiding crime prevention. Finally, by excluding evidence that is unduly inflammatory and prejudicial, while being only marginally probative, the statute is intended to aid in the truth-finding process.”
The evidence at issue in' this case is undeniably inadmissible under the rape shield law. Appellee claims, however, that the application of the rape shield law in this case violates his Sixth Amendment2 right to confront witnesses against him.
[35]*35In Gardner, supra, a similar claim was advanced by a rape defendant who attempted to call a witness to testify that the alleged victim had solicited the witness for sex at a previous time. The victim had testified earlier on cross-examination that she had never engaged in prostitution. In ruling on the admissibility of the defense witness’ testimony, this court established a balancing test pursuant to Davis v. Alaska (1974), 415 U.S. 308, stating at 17:
“In determining whether R.C. 2907.02(D) was unconstitutionally applied in this instance, we must thus balance the state interest which the statute is designed to protect against the probative value of the excluded evidence.”
The court concluded that, in this instance, the interest of the state outweighed the probative value of the testimony, and stated at 18:
“Assuming that the instances might exist where prior sexual activity by the complainant with third parties is relevant, we are not presented with such a situation in the present application of R.C. 2907.02(D).” (Emphasis added.)
Thus, the court acknowledged that in some circumstances evidence which the rape shield law would render inadmissible would nevertheless be admitted in furtherance of the defendant’s constitutional rights. In Gardner, the excluded evidence was designed merely to impeach the victim’s credibility, and thus had no probative value as to the alleged rape itself.
In the Davis case, supra, the Supreme Court held that a state shield law protecting the confidentiality of juvenile records was unconstitutional as applied therein. The court ruled that a key prosecution witness could be cross-examined as to his juvenile record to show possible bias in favor of the government. The court stated at 319:
“* * * In this setting we conclude that the right of confrontation is paramount to the state’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green [the witness] or his family by disclosure of his juvenile record * * * is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.” (Bracketed material added.)
In State v. Ferguson (1983), 5 Ohio St. 3d 160, this court again dealt with the rape shield law in the context of testimonial evidence relating to specific instances of the victim’s sexual history. In Ferguson, the alleged victim testified that she had not had sexual intercourse within ten days prior to her confrontation with the defendant. The court held that the defendant’s evidence in rebuttal was inadmissible, stating in paragraph two of the syllabus:
“R.C. 2907.02(D) will render inadmissible evidence of the rape [36]*36victim’s sexual activity with one other than the accused where the evidence: does not involve the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender; is offered simply to impeach the credibility of the victim; and is not material to a fact at issue in the case.”
The evidence excluded in Ferguson was determined by the court to meet all three prongs of the above test.
The key factor in both Gardner and Ferguson is that the contested evidence was submitted merely to impeach the victim’s credibility. The testimonial evidence was considered not probative of the determinative issue of fact: whether the victim was raped by the defendant on the date alleged.
The instant case presents circumstances distinguishable from those in Gardner and Ferguson. The contested issue in this case is consent, which directly relates to an element of the crime of rape. The victim testified on direct examination that she never consents to sex with men. The testimony proffered by appellee directly refutes this contention. As in Davis, this evidence is submitted for more than mere impeachment of a witness’ credibility. The victim’s credibility is indeed being impeached; however, the proffered evidence has a more important purpose, which is to negate the implied establishment of an element of the crime charged. For this reason, the probative value of the testimony outweighs any interest the state has in exclusion.
It is also significant that the state first elicited the testimony which inferred lack of consent. Had appellee initiated this inquiry, he would be bound by the victim’s answer. Gardner, supra.
Accordingly, we find that the rape shield law as applied in this case violates appellee’s Sixth Amendment right of confrontation.
We must next examine whether Evid. R. 608(B) precludes admissibility of the proffered evidence. The rule reads in pertinent part:
“(B) Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, * * * may not be proved by extrinsic evidence. * * *” (Emphasis added.)
The intent of this rule is to prohibit the introduction of non-probative evidence. Since the proffered evidence in this case is probative of the factual issue of consent, and is offered for more than mere impeachment of credibility, Evid. R. 608(B) does not bar its admissibility.
Appellant claims that this court’s recent decisions in State v. Leuin (1984), 11 Ohio St. 3d 172, and State v. Kamel (1984), 12 Ohio St. 3d 306, mandate reversal in this case. Both Leuin and Kamel involved, as here, the exclusion of testimonial evidence pursuant to Evid. R. 608(B).
In Leuin,
Free access — add to your briefcase to read the full text and ask questions with AI
Per Curiam.
The issues presented in this appeal are: (1) whether the testimony proffered by appellee is admissible at trial despite R.C. 2907.02(D), the rape shield law; and (2) whether admitting such evidence violates Evid. R. 608(B). We find the evidence to be admissible, and thus we affirm the judgment of the court of appeals.
The rape shield law in Ohio, R.C. 2907.02(D),1 essentially prohibits the introduction of any extrinsic evidence pertaining to the victim’s sexual activity. The exceptions to this prohibition are evidence of the origin of semen, pregnancy, or disease, or of the victim’s past sexual activity with the offender. In State v. Gardner (1979), 59 Ohio St. 2d 14 [13 O.O.3d 8], this court set forth the major reasons behind the enactment of the rape shield law:
“* * * First, by guarding the complainant’s sexual privacy and protecting her from undue harassment, the law discourages the tendency in rape cases to try the victim rather than the defendant. In line with this, the law may encourage the reporting of rape, thus aiding crime prevention. Finally, by excluding evidence that is unduly inflammatory and prejudicial, while being only marginally probative, the statute is intended to aid in the truth-finding process.”
The evidence at issue in' this case is undeniably inadmissible under the rape shield law. Appellee claims, however, that the application of the rape shield law in this case violates his Sixth Amendment2 right to confront witnesses against him.
[35]*35In Gardner, supra, a similar claim was advanced by a rape defendant who attempted to call a witness to testify that the alleged victim had solicited the witness for sex at a previous time. The victim had testified earlier on cross-examination that she had never engaged in prostitution. In ruling on the admissibility of the defense witness’ testimony, this court established a balancing test pursuant to Davis v. Alaska (1974), 415 U.S. 308, stating at 17:
“In determining whether R.C. 2907.02(D) was unconstitutionally applied in this instance, we must thus balance the state interest which the statute is designed to protect against the probative value of the excluded evidence.”
The court concluded that, in this instance, the interest of the state outweighed the probative value of the testimony, and stated at 18:
“Assuming that the instances might exist where prior sexual activity by the complainant with third parties is relevant, we are not presented with such a situation in the present application of R.C. 2907.02(D).” (Emphasis added.)
Thus, the court acknowledged that in some circumstances evidence which the rape shield law would render inadmissible would nevertheless be admitted in furtherance of the defendant’s constitutional rights. In Gardner, the excluded evidence was designed merely to impeach the victim’s credibility, and thus had no probative value as to the alleged rape itself.
In the Davis case, supra, the Supreme Court held that a state shield law protecting the confidentiality of juvenile records was unconstitutional as applied therein. The court ruled that a key prosecution witness could be cross-examined as to his juvenile record to show possible bias in favor of the government. The court stated at 319:
“* * * In this setting we conclude that the right of confrontation is paramount to the state’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green [the witness] or his family by disclosure of his juvenile record * * * is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.” (Bracketed material added.)
In State v. Ferguson (1983), 5 Ohio St. 3d 160, this court again dealt with the rape shield law in the context of testimonial evidence relating to specific instances of the victim’s sexual history. In Ferguson, the alleged victim testified that she had not had sexual intercourse within ten days prior to her confrontation with the defendant. The court held that the defendant’s evidence in rebuttal was inadmissible, stating in paragraph two of the syllabus:
“R.C. 2907.02(D) will render inadmissible evidence of the rape [36]*36victim’s sexual activity with one other than the accused where the evidence: does not involve the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender; is offered simply to impeach the credibility of the victim; and is not material to a fact at issue in the case.”
The evidence excluded in Ferguson was determined by the court to meet all three prongs of the above test.
The key factor in both Gardner and Ferguson is that the contested evidence was submitted merely to impeach the victim’s credibility. The testimonial evidence was considered not probative of the determinative issue of fact: whether the victim was raped by the defendant on the date alleged.
The instant case presents circumstances distinguishable from those in Gardner and Ferguson. The contested issue in this case is consent, which directly relates to an element of the crime of rape. The victim testified on direct examination that she never consents to sex with men. The testimony proffered by appellee directly refutes this contention. As in Davis, this evidence is submitted for more than mere impeachment of a witness’ credibility. The victim’s credibility is indeed being impeached; however, the proffered evidence has a more important purpose, which is to negate the implied establishment of an element of the crime charged. For this reason, the probative value of the testimony outweighs any interest the state has in exclusion.
It is also significant that the state first elicited the testimony which inferred lack of consent. Had appellee initiated this inquiry, he would be bound by the victim’s answer. Gardner, supra.
Accordingly, we find that the rape shield law as applied in this case violates appellee’s Sixth Amendment right of confrontation.
We must next examine whether Evid. R. 608(B) precludes admissibility of the proffered evidence. The rule reads in pertinent part:
“(B) Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, * * * may not be proved by extrinsic evidence. * * *” (Emphasis added.)
The intent of this rule is to prohibit the introduction of non-probative evidence. Since the proffered evidence in this case is probative of the factual issue of consent, and is offered for more than mere impeachment of credibility, Evid. R. 608(B) does not bar its admissibility.
Appellant claims that this court’s recent decisions in State v. Leuin (1984), 11 Ohio St. 3d 172, and State v. Kamel (1984), 12 Ohio St. 3d 306, mandate reversal in this case. Both Leuin and Kamel involved, as here, the exclusion of testimonial evidence pursuant to Evid. R. 608(B).
In Leuin, charges of gross sexual imposition were brought against a dentist by two of his former patients. At trial, a dental assistant of defendant testified on direct examination by the defense that she and the defendant had never engaged in sex at the office.
[37]*37The state offered the rebuttal testimony of a former employee of the dentist who testified that she inadvertently observed the aforementioned assistant engaged in sexual activity with the defendant at his office. We held that this testimony was inadmissible pursuant to Evid. R. 608(B) as it was extrinsic evidence offered to impeach a witness’ credibility on a purely collateral matter. The court stated at 175:
“* * * This case does not present the situation where the evidence sought to be excluded by Evid. R. 608(B) was on a non-collateral matter or, in other words, was relevant to a material issue in this case.”
Had the excluded testimony in Leuin been relevant to or probative of a material issue in the case, Evid. R. 608(B) would not have blocked its introduction.
Kamel is a similar example of how the rule operates to bar extrinsic impeachment evidence. In Kamel, a doctor and his wife were charged with endangering children and involuntary manslaughter in connection with the death of their two-year-old son. At trial, the doctor testified on cross-examination that he had never punished his son by grabbing the child’s ear and slapping his face. He further testified in response to specific questioning of the state that he could not recall any punishment of this nature taking place at a Sears, Roebuck & Co. store.
The state offered in rebuttal the testimony of a witness who claimed to have observed such punishment being administered to another son of the defendants at a Sears store. This court held such testimony to be inadmissible pursuant to the clear dictates of Evid. R. 608(B).
The case at bar is distinguishable from both Leuin and Kamel in that the evidence herein is offered so as to negate the state’s inference of an element of the crime. As discussed earlier in reference to the rape shield statute, the proffered testimony is not offered solely to impeach the credibility of the victim’s testimony. Rather, the proffered testimony is directly probative of the issue of force, an element of the crime of rape. For this reason, Evid. R. 608(B) does not bar the introduction of the defense witness’ testimony.
Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
Sweeney, Locher, Holmes, C. Brown, Douglas and Wright, JJ., concur.
Celebrezze, C.J., dissents.