*1 majority if I trolled Act stood as the new The reaches the result. Substances concur. law had never been enacted.
Thus, appellant is not the victim of a law changed punishment for a crime
which committed, the crime had been which
after law, post he the
would be an ex facto nor is greater inflicted a
victim law
punishment, an ex which also would be contrary,
post facto law. To but parte Crisp, what this held Ex ALLEN, Virgil Appellant, Dean supra, appellant’s conviction stands as though he had been convicted under the v. law, considerably decreased former Texas, Appellee. STATE provided by the punishment that was 271-84. No. he convicted. law under which was Texas, Appeals of Court of Criminal bar, this In virtue of the case En banc. supra, parte Crisp, in Ex
Court’s decision
range
punishment
appellant’s
for
Dec.
considerably
has
decreased
offense
been
the new law. See
from
it was under
what
Scott,
compare
parte
(Tex.Cr.App.1971). In this punishment that lant received minimum law, and provided the former under had the former law
there is no claim that appellant pled guilty in effect when
been punish- a different
he would have received parte This decision Ex
ment. Court’s the trial court’s admo-
Crisp, supra, caused to the maxi-
nition to be incorrect punishment that could have possible
mum State, 610 Taylor assessed.
been (Opin- (Tex.Cr.App.1981),
S.W.2d Rehearing), a
ion on State’s Motion in admon- this Court held that
majority of defendant, judge states
ishing a the trial punishment, possible minimum correct possi- incorrectly the maximum states
but pun- but the defendant’s punishment,
ble within the correct is assessed
ishment notwithstanding the punishment,
range compli-
error, has been substantial there 26.13, of Art. V.A. provisions
ance with cause, Thus, in this the admonish-
C.C.P. from the trial appellant received
ment compliance with in substantial
judge was formerly in effect. that was law did not trial court’s admonition
error plea to become invol- appellant’s
cause the subject any type ex nor is he
untary,
post facto law. *2 Gilbert, McKinney, Danny
Bob D. Burns (court Read, III, John H. appointed), Grand Prairie, appellant. for Atty. Roger H. Dist. V. Ownby, A. Dickey, Randall Blake and Amanda Green, Attys., McKinney, Dist. Asst. Rob- Huttash, Austin, Atty., ert State’s State. consent, PETITION the issue of
OPINION ON APPELLANT’S
the evidence on
we
FOR DISCRETIONARY REVIEW
granted appellant’s
petition to
said
deter-
Ap-
mine the correctness of the Court of
ONION,
Judge.
Presiding
inadmissibility
peals’ holding as to
aggravated
Appellant was convicted of
purpose
impeaching
evidence for the
rape.
punishment
assessed his
Thus,
credibility
prosecutrix.
we
*3
years’ imprisonment.
30
appellant’s
shall consider
first and third
appeal appellant
On
advanced five
grounds of review.
grounds
grounds of error. The first three
granted the
Prior
to trial
the court
of error read:
prohibit
ap-
in limine to
the
State’s motion
allowing
“The trial court erred in not
pellant
inquiring
prosecu-
from
into the
testimony
prosecutrix’s prior
of
sexu-
trix’s sexual conduct other than that
in-
misleading testi-
activity
al
to refute the
alleged
in
volved
offense without
mony
elicited
the State.
hearing
contemplated by
in-camera
V.T.
excluding
in
“The trial court erred
evi-
C.A.,
Code, 21.13, then in effect.
Penal
prosecutrix’s prior
dence
prosecutrix
first
The
was
State’s
wit-
activity which evidence was material
17-year-oldprosecutrix
testified
ness.
theory
the defensive
of consent.
p.m.
night
of
that about 9:40
on
Febru-
limiting appel-
erred in
“The trial court
1, 1982,
ary
place
employ-
left her
of
she
right
fully cross-examine the
lant’s
ment,
department
a
store
Collin
activity
prosecutrix
prior
on her
As
reached her
Creek Mall
Plano.
she
impression
after she left a false
lot, appellant
parking
drove
car
the mall
jury.”
know
up
pickup
in a
truck. She did not
Appeals
The Dallas
of
affirmed
Court
prosecu-
gunpoint he
him. At
abducted
State,
the conviction. Allen v.
666 S.W.2d
spot in rural
trix and drove to a
Collin
1984). The
(Tex.App.-Dallas
245
clothing
her
County, forcing her to remove
V.T.C.A.,
Appeals
under
Penal
held that
prosecutrix re-
along
way.
There the
Code, 21.13,
evidence of
sexual ac-
appellant raped2 her and threat-
lated the
tivity
prosecutrix’s
not evidence of the
was
anyone
if
told
what
ened to “find her”
she
relationship
appellant,
consent to the
to the
happened. He drove her back
had
State,
citing Young
547 S.W.2d
lot,
parking
her father was
mall
where
(Tex.Cr.App.1977);
Wilson v.
Appellant
waiting for her near her car.
Further,
(Tex.Cr.App.1977).
S.W.2d
nearby.
stat-
prosecutrix
She
released the
Appeals
the evidence
the Court of
found
night
at the
she was examined
ed later
offered for
properly excluded when
was
report
police.
to the
hospital and made a
impeaching
prosecu-
purpose of
credibility.1
trix’s
on,
di-
prosecutrix testified on
Early
examination,
he
appellant told her
rect
grounds of review
appellant’s
Three of
love
home after she made
would take her
discretionary
corre-
petition for
review
his
and asked to be taken
to him. She refused
error. Con-
spond
grounds
to aforesaid
worry
parents
her
would
home because
Appeals reached
cluding that the Court of
suggested
He
p.m.
home
inadmissibility of
she wasn’t
correct result as to
felony
by showing prior
impeach credibility
Appeals
Court of
wrote:
1. The
Thus,
the statute does
conviction....’
“Appellant
the evidence
also contends that
pri-
contemplate
the admission of evidence
purpose
for the
should have been admitted
impeachment purposes
or sexual conduct for
credibility.
complainant’s
impeaching
Sub-
the evidence is in the form
unless
(a)
allows admission of
of Sec. 21.13
section
felony conviction."
complainant’s prior sexual activi-
evidence
that,
if,
ty ‘only
to the extent
penis
appellant’s
prosecutrix testified that
2. The
judge
evidence is material to
finds that the
vagina,
did not believe
penetrated her
but she
(d) of
fact at issue in the case.’ Subsection
"any
or reached
kind of an erection”
he had
does not
21.13 states that
section
*[t]his
state or the accused
Sec.
climax.
limit the
parents
she
gone
tell her
she had
for a
State
its case-in-chief also called
father,
prosecutrix’s
drink
with friends.
told him she
who testified as to
She
was
his
on
age
night
question.
under
actions
From
couldn’t drink. The record
testimony
strong
his
it is
he
then
clear
was
reflects:
disciplinarian. The State further offered
“Q
he
you any question
Did
ask
after
appellant
evidence that when
arrested
was
that,
you
after
suggested
he
tell
day
the next
a .22 caliber revolver was
parents
your
you
gone for
had
pickup
Appellant’s
found in his
truck.
ex-
drink?
trajudicial confession was introduced in
“A I don’t recall.
prose-
which he
he
related that
ordered the
“Q
say anything
you
“Did he
else
cutrix,
know,
get
he
whom did not
into
point?
gun,”
his
he
truck as
“had a
and that she
Yes,
“A
he did.
did what he asked of her
she
because
guns.
afraid of
He could not remember
“Q
say?
else
What
did he
.
*4
completed
whether “we
sexual intercourse
“A
if I
virgin.
He asked me
awas
or not.”
“Q
you
question?
Did
his
answer
Appellant offered evidence from one wit-
Yes, I
“A
did.
ness
he and
appellant
that
each had
“Q
you
What did
tell him?
13 beers
p.m.
between noon
on the
him,
“A I told
No.
day
question.
Appellant’s wife testified
when she
him 7:30 p.m.
saw
at
he was
“Q Why
you
did
him
tell
that?
go
intoxicated and she would not
ato
club
thought
him,
“A
I
Because
I told
in Dallas with him for that
Ac-
reason.
Yes, was,
I
he
certainly
that
would
cording
appellant’s testimony,
he had
want more.
purchased
had about 22 beers and
another
“Q
you frightened
point?
Were
at that
six-pack
alleged
sometime before the
of-
Yes,
“A
I was.
prosecutrix
fense. He testified the
volun-
“Q
doing
was
gun
What
he
with the
tarily entered his
after
truck
he offered her
you
driving
were
north on Parker?
prosecutrix
drink. He stated
the
when
got
gun
in the truck his
and holster were
“A
pointed
He had it
toward me.”
on the seat where it had been since the
Shortly after
com-
cross-examination
weekend,
previous
when he had
hunt-
been
menced the court conducted an in-camera
ing,
placed
that he showed it
her and
it
hearing
V.T.C.A.,
contemplated by
Penal
drunk,
under the
He
he
seat.
claimed was
Code,
21.13(b).
hearing
At such
the
and did not achieve an erection and the
prosecutrix
virgin
testified she was not a
completed
sexual act was not
but that the
alleged offense,
the
time of
that she
prosecutrix had consented to sexual ad-
him)
had
boyfriend (naming
an older
who
Appellant
vances.
drove her back to the
Baylor University
attended
with whom she
parking
mall
lot
he
where
saw a man stand-
relations,
had had
they
last had
ing by
car
prosecutrix’s
and she asked
approximately
intercourse
two
him suggest
give
some excuse to
her
alleged
weeks before the
offense.
being
(appellant).
father
out
him
prosecutrix
alleged
related after the
of-
Appellant
during
related
con-
their
examining
fense she told the
doctor she
night
prosecutrix
versations that
told
offense,
virgin
was not a
before the
but
him
boyfriend
Bay-
she had a
who
went
yet
father,
she had not
told her
was
who
University.
lor
He
did
relate whether
disciplinarian.
strong
At the conclusion of
any
there
whether
was
discussion about
hearing,
appellant
denied
court
prosecutrix
virgin.
was a
No issue was
opportunity
prosecutrix
elicit from the
made
fact.
of the
jury’s presence
foregoing
evidence.
springs
appellant
examining physi-
From this action of the court
called the
cian,
Rovner,
grounds of review.
Dr. Ivan
who testified he
that,
finds that
judge
extent
penetration.
to the
evidence of actual
found no
trauma, bruising
material to a fact at issue
He found no evidence
the evidence is
Further, appellant elicit-
inflammatory
lacerations.
or of
and that its
case
find
medical witness he did not
ed from the
outweigh its
prejudicial nature does not
any type of sexual
any physical evidence of
probative value.
cross-
past.
the recent
On
conduct within
“(b)
proposes
If
to ask
the defendant
Rovner testified
examination Dr.
concerning specific instanc-
any question
pen-
possible for there to have been
was
evidence,
es,
reputation
evi-
vagina by the male sexual
etration
conduct, ei-
of the victim’s sexual
dence
being
any physical evidence
organ without
or cross-exam-
by direct examination
ther
left.
witness,
the defendant
ination of
pros-
of the
Appellant called a co-worker
hearing
inform the court out
must
recently at-
testified she had
ecutrix who
asking any such
jury prior
given
a hotel
graduation party at
tended a
notice,
court
After this
question.
girl,
another
prosecutrix
hearing,
in camera
re-
shall conduct an
boy-
her
there with
prosecutrix
reporter,
to deter-
by the court
corded
name)
prosecu-
and the
(giving
friend
his
proposed evidence is
mine whether the
drinking.
trix was
(a) of this
under
admissible
Subsection
under
court’s action
From the
shall determine what
The court
section.
hearing
ap-
arises
following the in-camera
shall accord-
is admissible and
evidence
prosecutrix left
complaint that the
pellant’s
questioning. The defend-
ingly limit the
*5
jury
he
and was
impression
false
nor
go
these limits
shall not
outside
ant
misleading
testi-
unable to refute
thus
ruled inadmissible
refer to
evidence
Appellant ar-
by the State.
mony elicited
prior approval of the
in camera without
virgin,
prosecutrix was not
gues that the
jury.
presence of
without the
court
boy-
her
intercourse with
had had sexual
“(c)
the record of
The court shall seal
friend,
unaware of
her father was still
that
hearing required in Sub-
camera
fact,
demonstrates
and that
this
delivery to
(b)
this section for
of
section
testimony. Appellant
her trial
motive for
an
in the event of
appellate court
is entitled to
that a defendant
argues
also
appeal.
and cross-examina-
the full confrontation
limit the
“(d)
does not
him,
This section
Sixth
tion of the witnesses
im-
Constitution,
accused to
the state or the
Amendment,
right of
United States
Constitution,
felony
by showing prior
I,
10,
credibility
and
peach
Texas
and Article
§
con-
prevents such
of the accused
any statute which
nor the
convictions
fall.
must
sexu-
promiscuous
and cross-examination
of
produce
frontation
evidence
to
308,
Alaska,
94 S.Ct.
415 U.S.
or older
years
Davis v.
14
old
of a child
al conduct
(1974).
1105,
child,
929 1975, Before no statute If Texas had con- a defendant claims a victim’s past relevant, sexual conduct cerning up of a is it is to the admissibility rape victim’s showing defendant to a preliminary make prior sexual concerning conduct. The law that the issue is material to an issue in the admissibility evidence such was de- case. merely This is not raised assert 21.13, veloped enacting the courts. In § ing showing that it is so. There must be a joined Congress many Texas and other believing of a reasonable basis that the in enacting rape states shield laws. See past pertinent. sexual conduct If there Trial, generally Berger, Man’s Woman’s questions concerning is no showing, such Courtroom, Rape In the Tribulation: Cases past sexual are to If conduct be excluded. (1977); Weddington, 1 Colum.L.Rev. made, a showing relevancy such Rape Law In Texas: 284 and H.B. balancing applied test of 21.13 is to be Reform, (1975). Road Am.J.Crim.L. admissibility. determining Harrison, 656, In Bell v. F.2d Review, Baylor p. Law Vol. (6th Cir.1982),the Court wrote: Rape—Admissibility Victim’s Prior Sex- “The rationale behind these statutes is Texas?, ual Conduct: What is the Law in evidence prior victim’s was written: activity probative sexual is of dubious “Before the enactment of section 21.- highly value and relevance embar- evidence of sexual conduct rassing prejudicial. Often such evi- impeach credibility admissible to prose- dence has been harass used to complainant in three instances: cuting victim. Sponsors of these stat- complainant’s testimony, rebut a es- they encourage utes assert that victims indicating tablish a course conduct report of sexual assault the crimes prostitution, to show felonies and having past without fear of their involving turpitude. misdemeanors moral history exposed public.” to the 21.13, Under section evidence of conduct should be admissible can There be little doubt that testimony complainant, rebut how- represents explicit legislative decision to ever, testimony must first meet the practices may eliminate trial have *6 materiality superior and proba- burden of effectually society’s frustrated vital inter- imposed value section tive 21.13.” prosecution the est in sexual crimes. balancing test Where the has been admissibility standard of of evi met, where the balance inclines toward parts. First, under dence 21.13 has two § accused, Texas trial courts are free and must evidence be material to an issue admit should not hesitate to evidence of the case, secondly, in and even if the court prior victim’s sexual conduct to attack her finds evidence is material to an issue in her, A credibility, impeach if it does. case, inflammatory prejudicial its reading of 21.13 demonstrates it was § outweigh probative nature must not its val designed prohibit to forever all evidence Herrera, ue. See cf. State 92 N.M. v. instances of victim’s sexual 7, (Ct. 1978) (cert. P.2d 384 Appeals reputation 582 conduct or evidence 1978). den. of such conduct.4 If the of the evidence prior prosecutrix are some 4. There cases in sexual afforded to a RSA 632-A6 may probative (Supp.1979) [rape yield to conduct become relevant and its must statute] shield outweigh impact right value of its detrimental the defendant’s confront the evidence Johns, 1260, prose- See introduction. State v. 615 P.2d him. The sexual activities of a (Utah 1980); Joyce, rape immediately prior alleged v. 1263-64 Commonwealth to an cutrix 181, 222, (1981); 185 may 382 Mass. 415 N.E.2d State be a for cross-examination. relevant area LaClair, 743, (1981). Kasto, 268, (8th v. 121 N.H. A.2d 1326 433 United States 584 F.2d 272 v. Cir.1978); Pope Superior ex rel. v. see State LaClair, supra, State v. the Court In wrote: 22, 29, Court, 946, P.2d 113 Ariz. 545 953 above, "As State we have stated v. Howard (1976) (in banc). especially This is true 53, (1981) N.H. 426 A.2d established ] 457 [121 where, here, prior evidence of protection undue harassment from 930 contemplated by appellant’s
victim’s sexual conduct as
must next consider
We
attack
in upon
being
the statute becomes material to an issue
21.13 as
violative of the Sixth
§
test,
I, 10,
balancing
the case and meets the
it is Amendment and Article
Texas Con-
§
if
in the
admissible even
it is
form
stitution.
Further,
impeachment evidence.
subsec-
upon
attacks
There have been numerous
(d) expressly provides
tion
21.13 does not
§
rape
the so-called
statutes as viola-
shield
right
impeach credibility by
limit the
tive of the Sixth Amendment and these
showing
felony convictions nor the
prior
generally
rejected.
have
1 A.L.R. 4th
been
right
produce
evidence of
of defendant
(1979);
Harrison, supra;
283
San-
Bell v.
14
promiscuous sexual conduct of a child
Bocchino, Rape
ford and
Shield Laws and
rape
years old or older as a defense
Amendment, 128 V.Pa.L.Rev. 544
Sixth
child,
indecency
of a child or
abuse
(1980);
Trial,
Berger,
Woman’s
Man’s
Trib-
Appeals mis-
with a child. The Court of
Courtroom,
77
Rape
ulation:
Cases
particularly
reads the statute and
subsec-
(1977).
Colum.L.Rev. 1
(d)
arriving
at the conclusion that
tion
Fortney,
v.
301 N.C.
North Carolina
contemplate
does not
the admission
§
31,
(N.C.1980),
Supreme
point,
appellant inquired,
other
right
questions that are
to ask a witness
things,
virgin.
if
answered
she was a
She
McKenna,
People v.
irrelevant.
explained
in her
negative
him the
(1978); People v.
Colo.
931
proceedings
Texas,
language
Pointer v.
380
ed at
As
trial.
we construe its
400,
1065,
U.S.
85 S.Ct.
“This § respects language Fortney sexual behavior dence victim’s present- can be to an issue here instructive. never relevant 932 “Of rape course shield statutes We conclude that 21.13 is con §
should not be
highly
used
exclude
rele
stitutional
its face
applied
on
and as
to the
vant evidence and
appellant
violate the
reject
defendant’s
in the instant case. We
his
right of confrontation or other constitution
claim that
is violative of the Sixth
rights.”
Harrison,
I,
10,
al
supra,
Bell v.
Amendment and Article
670
Texas Con
§
p.
responsibili
reject
F.2d at
stitution. We also
Courts have a
his claim that the
ty
protect
Fifth and
questions
the victim from
Fourteenth Amendments were
violated in the
proper
process
within the
instant case. Due
bounds
cross-examina
was
appellant
tion and
accorded the
designed only
which are
for the reasons
to har-
rass,
I, 19,
stated. See also Article
annoy
See,
Texas Con
e.g.,
humiliate.
Alford
stitution.
States,
694,
687,
v. United
282 U.S.
51
218, 220,
(1931);
S.Ct.
al
judicial gloss requiring
unless
hearing
jury’s presence
out of the
so that
TEAGUE, Judge, concurring.
defendant,
motion,
upon
may
given
opportunity
demonstrate
due
oh,My, my,
Judge
how
Miller does fulmi-
process requires the admission of such evi
Presiding Judge
nate over
use in
Onion’s
probative
dence because
in the con
value
majority opinion
age-old legal
his
particular
outweighs
text of that
case
“prosecutrix”.
yet,
word
And
the Dallas
prejudicial
prosecutrix.
effect on the
State
Appeals escapes Judge
Court of
Miller’s
Howard,
censure,
v.
though
openly
N.H.
I believe that if no else one least Leunen, private Mary-Claire prosecutor” Van this defined “a one of the most prefers delightful “one expositors (generic) who an accusation and incisive suspects scholarly writing, Judge party guilty.” will whom he to be enjoy Mil- Van Leunen once Also see Williams v. concurring opinion. 321 S.W.2d ler’s (Tex.Cr.App.1958). wrote: *10 “victim”, noun, “complain- agent is but then neither is “Prosecutrix” is an which action, ant”. denoting performer a noun the of an etymological *11 not, however, appellant’s sexist in the trial. intrinsically sense that it a in treat- difference “make[s] I Having my piece, concur said
ment favor on a than or basis other individ- judgment of the Court. Dictionary ual English merit.” The Oxford reports also “dis- these various senses of MILLER, concurring. Judge, criminate”. disposes appellant’s majority of con- however, “prosecutor”, The word at least I acceptable manner. take tentions wise, surface neither discriminates between majority’s improper use issue the sexes nor does it discriminate “prosecutrix” of the term instead generic either be one. It can either or a “victim,” referring term proper when term, upon depending masculine the con- person sexually appellant assaulted text in which it is used. its etymolo- While “raped”). (formerly denominated as gy preclude would seem to reference to a prosecutor, female as the word Black’s Dictionary (5th Law ed. “prosecutor” may pros- be used refer to 1979) “prosecutrix” defines as “a female general, including ecutors both men and prosecutor.” Both the third and fourth women without distinction. editions of dictionary that restrict the term to criminal law. “Prosecutor” is defined as
Judge posits Miller “If are that there prosecutes who one another for a murders, robberies, crime of kidnappings, victims government. the name of the assaults, Id. at and burglaries, why can there not English Dictionary, Oxford Oxford of victims sexual assault?” The short Press, University page also de- query answer to his lies in fact that prosecutor.” fines term as “a female be, there can under either the former Penal The term appear does not in Webster’s present Code am Penal Code. I Collegiate New Dictionary, G. Mer- & C. Judge unable understand how Miller can Co., cursory riam 1981. A review of the an aggressive state that “Use of word such using Texas cases the term no defi- reveals ‘prosecutrix’ gives rise to an inference nition, “prosecutrix” but indicates that has really that victims sexual assault are not been used to refer to the victim of a may unfairly ‘victims’ and such use dimin- at since least 1911. See Ross degree ish harm actually suffered.” (Tex.Cr.App.1911). S.W. it Even then I go should like to on that I record cannot was an use according incorrect of the term anywhere readily find makes (2d 1910) to Black’s Dictionary Law ed. immediately apparent in etymology gave the definition as: “In criminal “prosecutrix” “prosecutor” the words prosecutor.” A law. female might suggest any pejorative con- be, was, notation should ever attached majority opinion, In the the term is also marking these words. The reason for specific definition, used without a but clear- place, perhaps distinction the first soon ly refers to the victim of the sexual as- occurred, speech after the dawn of human sault.1 The use this term in this manner unclear, certainly but it nev- almost improper least three reasons. Therefore, slight er intended to either sex. Presiding Judge First, Onion will no doubt be use of the term in this manner is surprised to learn that of the word his use inconsistent with its definitions found in “prosecutrix” majority opin- in this Court’s preceding source materials. None of ion harm “prosecutrix” diminishes the suffered the definitions of make refer- person female had who found been ence the victim of a sexual assault. “prosecutrix” raped appellant or the interest Since does not mean “victim” "complainant,” referring appeals opinion 1. The court of uses the term when to the victim. in this sense it should not be used Procedure were when Code Criminal referring to a sexual assault victim.2 classify rape amended to and sexual abuse Second, blatantly sex- use of the term is offenses, they are acts as assaultive since why Initially, is no reason we ist. there Also, crimes. of- of violence and not sex gender of the specify would need to gender neutral fenses were defined Thus, refer- attorney in case. State’s could terms so that both men and women prosecutrix prosecu- instead of ence to a charges. Study Group, file House Dai- See unnecessary tor would be and would thus 11, 1983, ly Report, May Floor C.S.H.B. demeaning. More- appear patronizing and 2008, page Appendix 29-30. [attached *12 over, to refer to those if the term is used purposes only] Although A for conference actions, has initiate criminal its use who adopt legislative required are not we cases, sexual- assault been restricted to policy changes language opin- of our overwhelming number of victims where the ions, adopt this would do well to gender distinction have been women. Such changes appropriate. spirit of those when Also, is used to unnecessary. if the term Legislature by has moved ahead ad- The sexually imply who was woman dressing problems generated by unnec- case, actually prosecuting assaulted essary gender descriptions; we should fol- implies that in sexual assault then its use improper low its lead and discontinue our cases, prose- pursue not the State does language. use of such rather, cution; of the the woman-victim sum, “prosecutrix” In the term should be are All other crime victims assault does. trunk, relegated along to the attic attorney. See represented by the State’s pantaloons, and the term “vic- corsets and 2.01, there- Art. “Prosecutrix” V.A.C.C.P. placed in its tim” stead. rights of the women implies that the fore majority’s posture, I concur this cases are not in sexual assault involved holding.3 must by the and the women defended State fend for themselves. Third, “prosecutrix” term of the use A APPENDIX to the prejudicial than “victim”
rather
analysis
bill
HOUSE STUDY GROUP
no vic-
there is
implies that
it
since
victim
If there are
case.
assault
in a sexual
tim
5/11/83
robberies,
murders, kidnappings,
of
victims
why
there
assaults,
burglaries,
can
and
HB 2008
Use of
assault?
of sexual
victims
be
“prosecutrix”
such
aggressive word
C. Evans
of
that victims
inference
rise to an
gives
“victims”, and
really
are not
assault
sexual
(CSHB
Danburg)
degree
unfairly diminish
may
use
such
of criminal sexual
Redefinition
SUBJECT:
actually suffered.
harm
of
offenses
the term for
improper
use
Jurisprudence:
Criminal
COMMITTEE:
sufficiently
three reasons should
preceding
recommended
committee substitute
rather than
using the term “victim”
justify
Smith, Waldrop,
ayes Peveto, T.
VOTE:
independent rea-
“prosecutrix.” Another
—
Granoff,
Burnett, Danburg,
Hernan-
the 1983
may
in the acts of
son
be found
dez, Hudson
S.
year, the Penal Code
Legislature. That
Judge Teague’s
portion
concur-
join
And
Query,
"prosecutrix"
refer to the
3.
is used to
assault,
agreement with
ring opinion
"I am in
would not the
that states
of a sexual
female victim
advocates;".
appropriate
Judge
"prosecutor”
stylistic changes
for a male
be
Miller
term
language has
Such
of a sexual assault?
victim
never been used.
will
for
prosecution
allow
homo-
0 nays
assaults,
cover
but would also
Hury
cases in which women attack men or
absent —
in male
on
assist
attacks women. This
None
WITNESSES:
types
bill clarifies the
ac-
assaultive
replaces “he”
“his”
DIGEST: This bill
and
past
tions that have in the
been the
gender-neutral terms in sections
for
of-
basis for convictions
dealing
Penal Code
with assault
And
clear
a mar-
fenses.
it makes
gender-
New
aggravated
assault.
riage license is not a
commit
license to
are also created for
neutral offenses
spouses
sexual assault in cases where
“aggravated
sex-
“sexual assault”
divorced,
excluding
are separated
existing of-
place
ual
assault”
of spouse
from the definition
married
rape,
rape, aggravated
for
sexu-
fenses
persons
living apart
who are
or who
abuse,
abuse, aggravated sexual
al
pending
have court action
divorce
child,
indecency with a
separate
maintenance.
child.
OPPONENTS SAY: This bill
provision
should
“sexual assault”
covers
*13
permit prosecution
to
currently
amended
of all
rape,
acts defined
abuse,
child,
rape
sexually
spous-
those
assault
indecency
of a
and
who
their
Language
changed
spouse
child.
es. A
not
prosecuted
a
is
to
would
specify precisely
spouse
conduct
con-
offensive
unless
other
doesn’t
in
second-degree felony
involved
this
sent to
act. This would more ade-
Existing
define
consent.
de-
quately
problem
address the serious
preserved
fenses are
rape
marriage.
and a new de-
within
regarding
fense is added
the offense of OTHER OPPONENTS SAY: The existing
on a
assault
child for conduct that is a
offenses for rape and sexual abuse
part of medical care.
stay
should
the same.
Juries will
“aggravated
assault”.provision in-
usually assess a much stiffer penalty
corporates the illegal
currently
acts
de-
rape
for
they
than
will for
type
some
aggravated
fined
aggrava-
Rape
assault.
already
perceived
ted sexual
penal-
abuse. The criminal
by
people
most
as the ultimate assault.
ty,
first-degree
felony, and the de-
essentially
NOTES: CSHB 2008
fenses and
pros-
affirmative defense to
1730, Danburg,
same as CSHB
ex-
ecution are carried over from current
cept that
CSHB 1730 eliminates
law. The defense for medical care to a
exception for nonconsensual conduct
child is also added.
spouses. CSHB
between
1730 has
throughout
Other revisions are made
reported favorably by
been
the Crimi-
the Penal Code and Code of Criminal
Jurisprudence
nal
A com-
Committee.
Procedure to conform to the substan-
966, by
mittee substitute for SB
Whit-
changes
tive
made
this bill.
mire, companion
HBto
has been
SUPPORTERS SAY: This bill
sev-
makes
reported
Jurisprudence
the Senate
improvements in existing
eral
law.
Committee.
major change
reclassify rape
is to
CLINTON, Judge, dissenting.
assault,
and sexual abuse as
an act of
majority opinion
violence rather than a sex
This
In
crime.
note 1
sets out
help
stigma
Appeals
would
eliminate the
rationale of the Dallas Court of
Code,
rapes
go
finding
one out of ten
unre-
causes
that V.T.C.A. Penal
ported
police. Secondly,
contemplate
this bill
“does
of evi-
the admission
impeach-
gender
removes references to
dence of
conduct
purposes
law both men and women can file ment
evidence is
so
unless the
charges.
particular,
change
prior felony
form of
conviction.” Allen
this
(Tex.App.—
666 S.W.2d
impeach
of the defendant to
the victim’s
1984).
credibility
Dallas
This
grant
by showing any prior felony
Court did indeed
con-
involving
victions
finding
review to determine whether that
sexual conduct on her
Weddington, Rape
interpretation
statute,
record.”
Law in
correct
Texas:
Reform,
H.B. 284 And the Road to
majority
Am.J.
says
appeals
now
the court of
(1975)(Weddington). By
Crim. Law at 6
through
reached its conclusion
“a misread-
explanation
pur-
the clear tenor of her
ing
particularly
of the entire statute and
pose, development and evaluation of the
(d).”
subsection
legislation, Weddington strongly implies
majority
Nowhere
its
does the
testimony
that other
sexual activi-
reading
delineate its own
of the statute to
ty is not
admissible
launch an attack
demonstrate that "evidence of the victim’s
general
credibility
testify-
prior sexual conduct” is admissible “to at-
ing victim.
her,
credibility,
impeach
tack her
if it
The law review editor also examined
global challenge
does.” That smacks of a
Weddington and from that account and
general credibility by showing specific
major
other sources concluded that a
Yet,
acts of sexual conduct.
the Court has
change
along
way
made
“evinces
“consistently rejected
evidence of
legislative intent
to exclude evidence of
unchastity
acts of
offered to attack
when
prior sexual conduct in most circumstanc-
witness,”
credibility
Ray,
of a female
es,” Comment, at 320. With that in mind
(Third Edition)
Texas Law of Evidence
he further observes:
655, 1 Texas Practice 581.1 The law re-
past chastity
equated
“In the
was
view
majority
comment from which the
veracity
unchastity
while
associated
quotes
support
position;
does not
*14
dishonesty.
As societal values
merely says
comments editor
that such evi-
activity
changed,
about sexual
have
dence “should be admissible to rebut testi-
legal community
recognized
prop-
‘a
has
mony
complainant
My
con-
...”2
skepticism
er
for the view that sexual
cern
in rejecting
is that
rationale of the
activity
equated
can be
with moral char-
Appeals
majority opin-
Dallas Court of
acter and thus
testimonial reliabili-
laying
proposition
ion is
down
admit-
pri-
ty.’ Under section 21.13 evidence of
ting testimony
activity
of
sexual
even
unchastity
probably
or
would
not be ma-
any
broader than
extant before enactment
‘Insight into
terial to a fact at issue.
21.18.
of §
rarely
mores of a
witness
metamorp-
A coauthor of the
bill
determining
if the
help to a
wit-
in-
ultimately
certainly
hosed
into
disposed
ness is
towards untruthful-
”
preserve
tended to take care “to
ness.’
Texas,
Reflecting existing practice
statutory clarity,
"As a
of a lack of
1.
Rule
result
608(b)
inquiry
scarcity
appellate interpretation
of Texas Rules of Evidence bars
and the
of
proof by
sources,
and
evi-
on crossexamination
extrinsic
explanatory
other
absence of
dence of
instances of conduct for the
largely
remain
ramifications of section 21.13
purpose
attacking
supporting credibility
of
or
of
attempt
unknown.
In an
to stimulate mean-
witness,
showing
other than
conviction of
ingful guidelines,
suggestions concerning
some
608(b)
provided by
crime
Rule
Rule
of
aspects
conduct—
of evidence of sexual
proposed by
Evidence
Criminal Rules of
consent, credibility,
physical
and
evidence—
Judiciary
Senate-House Select Committee on the
are offered."
prohibition.
is an identical
See Vol.
No. 8
Comment,
(1979)
Baylor
at
L.Rev.
1985)
(September
Bar Journal
at 938
Texas
(Comment).
(All
throughout
emphasis is mine
Journal).
(hereafter Bar
indicated.)
unless otherwise
II,
appears
2. The text
in Part
entitled “Future
explains
At the threshold the writer
Effects."
endeavor,
his
viz:
Id., at 325-326.3
sexual conduct
unless
is “material
to the
inflammatory
prejudicial
and “its
case”
State,
(Tex.
In Young v.
Comment New precludes past upon finding a that it is shield statute evidence of evidence described omitted, meaningful guide- Emphasis original. that it "establishes more *16 upon cused and offered the accused 1106, (S.Ct.1984); Gillette, State v. alleged issue of whether the victim consented 626, 695, (Ct.App.1985); State P.2d N.M. Romero, is the to the sexual behavior which basis of 94 N.M. 606 P.2d charged; the offense (Ct.App.1980). (C) that relates to the motive or bias is, course, 8. The current definition the same victim; alleged Proposed Federal Rule 401. Rule (D) [Impeach- admissible under rule 609 Evidence is identical. Texas Rules of Criminal Crime]; ment Evidence of Conviction of (E) constitutionally required that is to be written, promulgated presently If Rule 412 admitted; and proposed Rules of Criminal Evidence re- outweighs danger probative value places repeals 22.065. The rule excludes prejudice. unfair past "reputation evidence of the sex- Journal, at Bar 933-934. alleged [pre- ual behavior of an victim of such the notes as confirmed Judge Miller’s rhetorical In answer to appear both New Inter- Webster’s opinion, his the question, see footnote Dictionary English Lan- national would, course, ap- be “prosecutor” term English Dictionary. guage and Oxford of a sexual propriate for a male victim through “prosecutrix” is derived word assault, long appeared he as chief so as English, ending from a feminine Middle Especially is this so witness for the State. nouns, agent the current Latin for where Chapter changes the recent made in since “- “-or”; generic ending or is masculine say that 22 of the Penal Code. To ending usually asso- tress” is feminine way language has been used in this never ending generic with the masculine or ciated so, false, recklessly since only is not but “-er”, Eng- taken in this instance from Old judi- usage supported by centuries of lish, evidently it from Greek which received history. To note but cial vernacular through late Latin. authority upon single example from the Judge himself no less than Miller which Thus, observed, easily the word but as English Dic- heavily, most the Oxford relies nicely meaning “prosecutrix” fits into the tionary reports that in 1769 the immortal noun, “prose- agent just as the word of an that, himself commented Blackstone “[o]n Further, does. because word cutor” larceny particular, a conviction of by appending a “prosecutrix” is formed his have restitution of prosecutor shall “prose- to the verb gender-specific suffix n did Surely, great Blackstone goods.” cute,” is neces- resulting construction suggest by mean to this statement not Likewise, “prosecutor” is sarily feminine. to receive King’s lawyer was entitled so, masculine, necessarily although not job property booty for a well the stolen function; generic since it also serves done. in which sense the context will determine understood. word is to be Thus, reason for con- Judge Miller’s first usage “prosecu- of the word demning the times, recent Until terms “prosecu- utterly. trix” fails universally un- “prosecutrix” tor” and were synonymous roughly to be derstood reasons, remaining one is at As for his “complainant”, “complaining witness” or wayward suspect some alerted to once participle from a words are derived politics, or so it would feminist form of the addi- “complaint”, not from of the verb of the term his characterization seem from it, and do agent noun suffix to so tion of an “blatantly The word “sexist” sexist.” and femi- separate exist in masculine not English Dictio- reported by the Oxford usage may Although such nine forms. the word “sex- now has nary. Webster’s citizens who slightly odd to those sound in its addenda comfortably ism” nestled I find that Web- County, in Dallas reside and “sex “sexidecimal” between section yet report that the word “preju- ster’s does not kitten”, given to mean where it is regional, sex; “prosecutrix” esp: is either archaic based on dice or discrimination women”, It is therefore let alone rare or obsolete. and “be- discrimination conditions, maintain that the word foster patently havior, false to or attitudes that on sex.” does not have above roles based “prosecutrix” stereotypes of social may also adjective, others as well. meaning, even if it has is its “Sexist” I believe that one who is. used to describe Therefore, Judge Miller’s assertion sense. Judge it in this latter Miller intended used “prosecutrix” should not be word inherently sex- “prosecutrix” it does The word referring to a victim because when between as it discriminates especially uncon- ist insofar is an not mean “victim” women, That is to boys girls. sure, men and sequitur. To be how- vincing non distin- perceive[s] the say, ever, synonymous is not “prosecutrix” “mark[s] during guishing peculiar gender. defending rights of” It State in her feature
Notes
3. added in Notes 741, Comment, People Dawsey, Mich.App. at but see lines." 322-323. 236, 238, (1977). N.W.2d at 5.New Mexico Evidence Rule 403 is the func- equivalent part perceives "as of Texas Rules of Evi- 4. The law review writer Wilson tional dence, 403, germane” general simply requiring and of our own rule to the evidence be Rule —an probative interpretation “provides guid- value of tendered evi- he believes little the effect that outweigh prejudicial determining See ance in if sexual conduct is dence must its effect. cit., 1481, 167-168; preference Ray, op admissible." His is "the three-fold Texas Practice § 403, proposed provided by Rules of test era," the New Mexico court in Herr- see also Rule Texas Evidence, Journal, majority opinion Bar at cited in the in this Criminal cause. proffered “material to a in the pertinent at issue case” evidence must be to a fact applying prescribed balancing disputed and then material issue the case. Cor- rectly opinion read the Though “material,” Herrera does not test. it uses the term statutory provi- convert the New Mexico statutory language taken as a whole that test;8 part sions into a three rather it is an “relevancy” formulates a matter more of generally construing aid in own statute. “materiality.”6 than Herrera dealt offer of sex- Ray Professor has articulated a state- ual conduct on a defensive issue of con- relevant, ment of the former: to be evi- sent, appellate and the court found the trial dence must “tend to the truth establish correctly proffer court excluded the proposition material to the issues.” Ray, purpose. sup- that The decision does not cit., op 2 Texas Practice 167. The port finding majority of the here that Supreme experimented Court for while such evidence is admissible attack Relevancy” respective- with “Test of that general credibility testifying victim. ly “materiality” “relevancy,” defined jurisdic- Nor does other in this up admissibility. and made a test for See acknowledges tion legal com- former rule Texas Rules of Evidence. munity “proper skepticism that for the Recently Supreme Court abandoned activity equated that sexual can view dual all definitions favor of one encom- with moral character and thus with testi- definition, passing viz: reliability.” ante, p. monial See “ ‘Relevant evidence’ means evidence majority Because the would have this having any tendency to make the exist- lay pierces down a rule which our ence of a fact consequence that is of law, I respectfully own victim shield the determination of the action more dissent to that as well. probable probable or less than it would be without the evidence.”7 Any currently acceptable definition of “relevancy” includes the notion of “materi- ality.” require Therefore isit consistent to preliminary showing relevancy “a conduct;” is, the victim’s sexual crime,” 6. A shorthand rendition often used is that to be but allows "evidence of alleged scribed] past admissible evidence must be relevant to a mate- instances of an victim's sexual be- rial issue in the case. in accordance with control havior" if admitted 21.13(b) provisions and it is similar to evi- subsequent opinions 7. At least three confirm dence: showing requires preliminary that Herrera (A) necessary explain to rebut or and, relevant, relevancy immediately then scientific or medical evidence offered subjecting balancing evidence to a test state; weighing probative prejudicial value (B) past with the ac- sexual behavior Fish, effect: State v. 101 N.M. 681 P.2d