Appellant was charged with rape in violation of Ark. Stat. Ann. § 41-1803 (Repl. 1977). Prior to the trial, appellant filed a motion for an in camera hearing to determine the admissibility at trial of the victim’s prior sexual conduct. Ark. Stat. Ann.§ 41-1810.2 (a) (Repl. 1977). After a hearing the court denied the admissibility of some of this evidence. Appellant brings this interlocutory appeal pursuant to Ark. Stat. Ann. § 41-1810.2 (c).
Appellant first asserts that exclusion of the victim’s prior sexual conduct at trial impairs his ability to establish his defense to the rape charges. His argument is two fold: (1) application of §§ 41-1810.1 and 41-1810.2 violates his Sixth Amendment due process right at a criminal proceeding to confront his accuser, and (2) at the in camera pretrial hearing, he is forced to reveal certain aspects, the weakness or strength, of his defense in violation of his Fifth Amendment right against self-incrimination.
The application and interpretation of this exclusionary policy in rape cases will not doubt continue to be the source of much litigation. This statute provides that evidence of the victim’s prior sexual conduct is inadmissible at trial except where the court, at an in camera hearing, makes a written determination that it is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature. Ark. Stat. Ann. § 41-1810.2 (b) (Repl. 1977), and Bobo and Forrest v. State,
We are satisfied that the exception to the general exclusionary policy and the in camera hearing provide the appellant with a full and fair opportunity to confront his accuser. See Pointer v. Texas,
This statute clearly allows evidence of the alleged victim’ s prior sexual conduct, as well as evidence directly pertaining to the acts upon which the present prosecution is based, to be introduced or inquired about at the in camera hearing. The purpose of such hearing is to review the evidence to determine whether it is relevant for trial purposes. (Italics supplied.)
After giving due deference to the right of the accused to present his defense, the statute seeks to protect the victim from unnecessary humiliation at trial based on irrelevant and prejudicial, though probative, evidence. See Duncan v. State,
If the statute absolutely barred evidence of the victim’s prior sexual conduct, its constitutionality would be suspect in light of Davis v. Alaska,
We are also satisfied that application of the statute does not result in a violation of the accused’s Fifth Amendment right against self-incrimination. Appellant’s argument is that the in camera hearing aids the prosecution by allowing potential discovery of the strength and weakness of his defense. However, pursuant to the Rules of Crim. Proc., Rule 18.3 (Vol. 4A Repl. 1977), the appellant must reveal, upon the state’s request, the nature of any defense which he intends to establish at trial, and the names and addresses of the witnesses who will testify in support of these defenses. Therefore, at the in camera hearing, it appears that the appellant is not forced to reveal any more of his defense strategy than he is required to do under existing procedural rules. Further, similar “rape shield” statutes in other jurisdictions, attacked as here, have been declared constitutional. State v. Blue,
Appellant’s defense to the rape charge was that no sexual intercourse occurred between them on the alleged occasion. He proffered evidence that the charge against him was made by the prosecutrix because of a fight they had as a result of his contracting a venereal disease from her. At the time of the fight, she threatened “she would get even with him”. Consequently, the present charge resulted. We cannot agree with the court’s exclusion of this proffered evidence. Certainly, upon sufficient proffer as here, the victim’s bias, prejudice or ulterior motive for filing the charge is relevant or germane to the question of whether the alleged act of sexual intercourse actually occurred and the probative value outweighs its inflammatory or prejudicial nature. See Milenkovic v. State, Wis. App.,
The offer of proof need not be stated with complete precision or in unnecessary detail but it should state an evidentiary hypothesis underpinned by a sufficient statement of facts to warrant the conclusion or inference that the trier of fact is urged to adopt[,] .... [and] it ought to enable a reviewing court to act with reasonable confidence that the evidentiary hypothesis can be sustained and is not merely an enthusiastic advocate’s overstated assumption.
Here appellant’s counsel was denied effective cróss-examination of a constitutional magnitude when he, after stating an evidentiary hypothesis underpinned by a sufficient statement of facts, was refused the right to reveal “possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case'at hand [, a sexual offense].” See State v. DeLawder,
Affirmed as modified.