Lead Opinion
Appellant was convicted by a jury on one count of sodomy, D.C.Code § 22-3502 (1989), and one count of tampering with physical evidence, id. § 22-723. On appeal, he challenges the trial court’s refusal to permit him to cross-examine the complaining witness about her previous allegations of sexual assaults by other men. Additionally, appellant claims that the trial court improperly excluded evidence about the condition of the genitalia of the complaining witness, who was allegedly suffering from a venereal disease at the time of the incident. He also contends that the trial court improperly instructed the jury as to the elements of the crime of sodomy. We affirm.
I
On May 12, 1985, appellant, a correctional officer, was on duty at the D.C. Jail. According to Karen Brock, another correctional officer at the Jail, appellant was quite forward that day about his fondness for cunnilingus. Brock testified that she overheard appellant telling a woman named Sheila over the telephone how much he had enjoyed “going down” on her, which Brock understood to mean performing oral sex on her,
After this rebuke by Brock, appellant’s attention apparently shifted to seventeen-year-old W.D., the complaining witness in this case. W.D. was the sole female prisoner in custody in that area of the D.C. Jail at the time.
W.D. testified that she had been asleep when appellant came to her cell in the female section of the jail, ostensibly to inquire whether she wanted to be released from her cell for some recreation time. After he unlocked and opened W.D.’s cell door, however, appellant grabbed W.D. and started kissing her face and neck. Despite W.D.’s efforts to push him away, appellant lifted her nightshirt, placed his lips around her vagina, and licked her genitalia with his tongue.
A few minutes later, W.D. reported the incident to other jail officials, and an investigation ensued. Three jail officials testified that they saw semen and tissues in a trash can near W.D.’s cell. One of the prison officials retrieved the liner from the trash can and placed it in a brown paper bag, which he then stapled shut and la-belled “evidence.” The official placed the bag on top of a file cabinet in an administrative office in the jail. Soon after, in that same office, appellant was interviewed by his supervisors; they confronted him with the evidence in the bag. At the conclusion of their interview, however, the jail officials left appellant alone in the office with another correctional officer, also appellant’s union representative, who did not know of the bag containing evidence. The union representative testified that he saw appellant stumble over a desk in the office and gather up, among other things, a brown bag which had been stapled shut and had writing on it. Another jail official later saw appellant walking by himself with a folded brown bag in his back pocket. Before long, officials discovered that the evidence bag had disappeared, and it was never found. However, during a strip search conducted in an effort to locate the missing evidence, investigating officials did discover semen stains on appellant’s underpants.
Appellant’s defense was a total denial. Though he admitted entering the female section of the jail and speaking with W.D., he denied having had any sexual contact with her. He also denied having propositioned Officer Brock or having had the phone conversation with Sheila described by Brock. Appellant admitted having a brown paper bag, but claimed he was carrying a chicken sandwich in it. He contradicted himself as to whether the bag had staples in it, and could not remember whether the bag bore any writing on it. His girl friend testified that she and Roundtree had made love during the lunch hour, and he claimed that this explained the presence of semen on his clothing. The prosecutor, who conducted a probing and highly professional cross-examination of Roundtree, exposed numerous contradictions in his account, severely damaging Roundtree’s credibility.
II
Appellant first alleges that the trial court’s refusal to permit him to inquire during cross-examination of W.D. about her past allegations of sexual assaults by other men violated his constitutional rights under the confrontation clause of the sixth amendement, or alternatively was an abuse of discretion.
A. The factual background
During discovery in a civil lawsuit in federal court by W.D. against appellant and the District of Columbia arising out of this incident, appellant learned of and obtained copies of W.D.’s juvenile records from her home state of Minnesota. Those records revealed that W.D. had claimed to have been raped or sexually abused by different men on at least eight occasions. Several allegations involved sexual abuse by family members or boyfriends of family members; others involved sexual assaults committed by pimps.
The most fully documented incident in the record involved a claim by W.D. that a male counselor at a facility for teen-aged mothers called Juvenile Horizons had placed his hand on her buttocks in an inappropriately sexual manner, a claim denied by the counselor. During the course of a Ramsey County Human Services Department investigation into the matter, two members of the Juvenile Horizons staff and two social workers familiar with W.D. indicated that they did not believe W.D.’s allegation.
After the parties had reviewed the contents of the Minnesota records, the government moved in limine to preclude any inquiry by the defense into W.D.’s prior allegations of sexual abuse. In response, appellant argued that the prior allegations were probative of W.D.’s credibility.
On voir dire, W.D. testified that she had been sexually abused by her brother Hank; she explained that she had later recanted that charge “because I didn’t want my mom to find out and I didn’t want the police involved.” She reaffirmed her earlier allegation, documented in the Minnesota records, that she had been sexually abused by a friend of her mother’s, but explained that she did not report the matter to the police because “my mom was going though a lot of problems and I didn’t feel that she would trust me or believe me.” W.D. also reasserted that several of the other sexual assaults mentioned in the Minnesota’s records, including the incident with the Juvenile Horizons counselor, had in fact occurred.
At the conclusion of the hearing, the trial judge decided to preclude cross-examination about the prior allegations. She made clear that she would have permitted such inquiry had the prior allegations been fabricated. On the basis of the documents and her assessment of W.D.’s testimony, however, the trial court found that “there is no substantial basis for concluding that these assaults are fabrication.” Following the trial judge’s oral ruling, appellant filed a motion seeking reconsideration. In a brief written order denying that motion, the trial judge emphasized that appellant had failed to “show convincingly” that W.D.’s allegations were false.
B. Admissibility of evidence of prior allegations of sexual assault
Appellant sought to impeach W.D.’s credibility through cross-examination about specific instances of prior conduct — specifically, her prior allegations of sexual assault by other men.
1. Constitutional concerns: The confrontation clause
Appellant argues that the trial court’s failure to permit him to cross-examine W.D. about her prior allegations violated his rights under the confrontation clause of the sixth amendment.
The sixth amendment “guarantees to a defendant in a criminal prosecution the right to be confronted with the witnesses against him.” Lawrence v. United States,
In this case, as the trial court correctly noted, W.D.’s past allegations would be probative of her credibility only if they were fabricated.
Where an accused seeks to impeach the credibility of a witness by offering evidence that the witness has made a false claim under similar circumstances, the confrontation clause mandates that the trial court give defendant leave to cross-examine about the prior claim only where it is “shown convincingly” that the prior claim is false. Id. at 739 (citation omitted).
In Sherer, the trial court refused to permit the defendant to cross-examine a witness concerning an alleged incident of perjury. Sherer, supra,
This court’s opinion in Lawrence v. United States, supra,
Our conclusion that Lawrence did not modify the “shown convincingly” standard articulated in Sherer is buttressed by the fact that the Lawrence court was aware of, and even cited, the Sherer opinion. Lawrence, supra,
In this case, after reviewing the Minnesota records and observing W.D.’s testimony first hand, the trial court concluded that appellant had not “convincingly” shown that W.D.’s prior allegations of sexual assault were false.
2. Trial court discretion
Having determined that the refusal to permit appellant to cross-examine W.D.
(1) the examiner has a factual predicate for such question, and (2) the bad act “bears directly upon the veracity of the witness in respect to the issues involved [in] the trial.”
Sherer, supra,
In applying the rules pertaining to the impeachment of witnesses with specific instances of bad conduct, the trial court is vested with broad discretion. First, notwithstanding the fact that a party proposing cross-examination claims to have a “factual predicate” for inquiry into prior bad acts, the trial court may assess the questioner’s offer of proof to determine whether such a factual predicate exists. See Sherer, supra,
In exercising discretion whether to permit cross-examination into prior allegations of sexual assault, the precise probative value of such evidence, even where it clears the “factual predicate” component of the Sherer threshold, will depend upon the degree of certainty with which the trial court can conclude that the prior allegations were false.
Here, the trial judge acted within her discretion in precluding cross-examination about W.D.’s prior allegations of sexual assault.
We do not think that this position necessarily conflicts with the opinion in Mintz v. Premier Cab Ass’n,
Furthermore, the dictum in Mintz suggesting the principle’s application to sexual assault cases is of dubious validity today.
In sum, under all the circumstances of this case, we conclude that the trial judge committed no reversible error in precluding appellant from cross-examining W.D. about her prior allegations of sexual assault.
Ill
Appellant next contends that the trial court abused its discretion in refusing to permit a physician to testify about the results of a medical examination he conducted on W.D. Appellant intended to have the doctor testify that the examination revealed no “bruises, redness, swelling, [or] lacerations” on W.D.’s genitalia. Appellant also sought to show through the doctor’s testimony that W.D. was suffering from a venereal disease, and that a symptom of that disease was the presence of a “cheesy white extrudance” or a “heavy discharge” in her genital area. The trial court excluded as irrelevant medical testimony “concerning any disease.”
Later, at trial, prior to the presentation of the defense case, appellant again raised the question of W.D.’s medical condition. This time, defense counsel indicated he wished to have the doctor’s testimony include “the condition of her sexual organ.” Defense counsel’s proffer as to the relevance of evidence of the “cheesy white extrudance,” however, was still somewhat unclear: “[T]he Government would have the jury believe [Mr. Roundtree] came in there, committed the act without even — according to the doctor, my conversation with the doctor, the doctor agrees that there was a heavy discharge.” The trial court ruled that it “would exclude testimony concerning any disease and finds as represented that it would appear to be irrelevant in this case.”
Contrary to appellant’s initial assertion before the trial court, in light of his defense at trial, the presence in W.D. of a venereal disease would not have been relevant on the issue of appellant’s state of mind — i.e., whether he feared W.D. suffered from a venereal disease and thus would be unlikely to sexually assault her. Throughout trial, appellant consistently maintained that he never had any physical contact with the victim. Because he claimed that he was never in a situation where he could have observed symptoms manifesting the fact that W.D. had a venereal disease, the actual presence or absence of such a disease or its symptoms would have had no bearing on his state of mind.
Evidence of the physical appearance of W.D.’s genitalia, regardless of cause, might have been relevant, however, on the question of her credibility. This is true even in light of appellant’s defense at trial. If, as appellant suggests, the symptoms of W.D.’s disease would have made oral sex unpleasant and therefore unlikely to occur, this evidence could be somewhat probative of the credibility of her account of the sodomy. As such, it might have made a jury somewhat more likely to believe appellant’s version of events, i.e., that no oral sexual contact occurred.
An evidentiary ruling by a trial judge on the relevancy of a particular item is a “highly discretionary decision” that will be upset on appeal only upon a showing of “grave abuse.” Mitchell v. United States,
The marginal relevance of the evidence is further illustrated by appellant’s own difficulty in articulating any legitimate basis for its admission, as indicated above. Moreover, the record on appeal contains no significant elaboration of the proposed testimony beyond the sketchy description orally given to the trial court.
In sum, in light of all the circumstances, we do not think that the trial court’s ruling with respect to the proffered testimony warrants appellate reversal for a new trial.
IV
Appellant next asserts that cunnilingus,
Appellant’s argument relies heavily on D.C.Code § 22-3502(b), which provides: “Any penetration, however slight, is sufficient to complete the crime specified in this section. Proof of emission shall not be necessary.” However, that provision does not mandate the interpretation pressed by appellant. The reference to “emission” in section 3502(b) indicates that that provision refers to forms of sodomy involving a penis.
V
Appellant’s other contentions warrant little discussion. First, the trial court did not err in granting the government’s motion in limine to preclude appellant from impeaching the complainant’s credibility by inquiring into her activities as a prostitute. Because the complainant had no convictions or adjudications of delinquency for prostitution, she could not be impeached under D.C.Code § 14-305 (1989), which permits impeachment with evidence of misdemeanors involving dishonesty. Cf. Brown v. United States,
Second, the trial court did not abuse its discretion in refusing to grant a mistrial after the prosecutor, in his rebuttal argument, directed the jury’s attention to the absence of any evidence that the complaining witness had been convicted of a prostitution charge. The remark, though literally true, invited the jury to infer something that was false — i.e., that the complaining witness was not a prostitute. Nevertheless, even if the prosecutor’s remarks amounted to misconduct, the misconduct was not grave. Additionally, the trial court gave the jury a corrective instruction. We therefore conclude that appellant did not suffer “substantial prejudice” as a result of the prosecutor’s argument. Dyson v. United States,
Affirmed.
Notes
. We address appellant’s other contentions, which do not warrant extended discussion, in Part V, infra. Because the parties have not raised the issue of the legality of appellant’s sentence for tampering with physical evidence, we do not rule on the matter. Appellant remains free, however, to file a motion for correction of sentence under Super.Ct.Crim.R. 35(a) (1989).
. "go down on” — "Slang [Vulgar] to perform fellatio or cunnilingus on.” Random House Dictionary of the English Language, Unabridged (3d ed. 1987); accord R. Chapman, New Dictionary of American Slang (1986).
. Brock’s direct examination testimony included the following exchange:
Q: When you say he explained to you what he had done with Sheila that weekend—
A: Yeah, that he had gone down on her and that he had ate her, and this is the kind of sexual things that he likes to do, and this is how — what really turns him on, and he would like to do the same thing to me.
. W.D. was in custody on charges of solicitation of prostitution. After learning that W.D. was a juvenile, whom the United States had no authority to prosecute, the United States Attorney’s Office referred the solicitation charges to the District of Columbia Corporation Counsel. For reasons unrelated to this case, Corporation Counsel ultimately dismissed the charges against W.D.
. W.D.’s direct examination testimony included the following exchange:
Q: _ You said he went down on you.
What physically did he do?
A: He started eating me.
Q: What do you mean by that, physically, what did he do with his body?
A: He was licking on me.
Q: With his tongue?
A: Yes.
Q: What was he licking?
A: My vulva.
Q: Excuse me?
A: My vulva.
Q: What part of your body is that?
A: My vagina.
Q: Where were his lips when he started licking around your vagina?
A: Around the outside of my vagina.
. The Minnesota records indicate that W.D. began working as a prostitute at a young age.
. In denying that the abuse had occurred, W.D. told the social worker “that she did not want police involvement in [the] matter.”
. However, any characterization that all the individuals interviewed in the course of the Department of Human Services investigation disbelieved W.D.’s allegation of sexual assault would overstate the case. Undoubtedly, the psychiatrists and psychologists who interviewed W.D. portrayed her as a deeply troubled person. In their reports, various doctors characterized W.D. as "very angry,” “hostile,” and prone to "aggressivity and blaming." One doctor indicated that W.D.’s "objective and reality testing is very tenuous and at least moderately impaired,” and another stated that W.D. had "lied to the [Juvenile Horizons] staff several times in the past.” None of these doctors, however, indicated whether he or she believed or disbelieved W.D.’s claim that a Juvenile Horizons staff counselor had touched her in an inappropriately sexual manner. Nor did Mr. Sabre, a county child protection worker familiar with W.D. and the Juvenile Horizons incident, express disbelief about her claim.
. As we read it, appellant's credibility argument consists of two components. First, he argued that W.D.’s prior allegations were probative of her character for veracity in making claims of sexual assault. Appellant also argued that the prior allegations were probative of W.D.’s bias against male "authority figures” such as appellant, a prison guard. As we understand it, appellant's bias argument is that W.D.’s prior allegations evidence a desire on her part to wrongly accuse male authority figures of sexual assault, which in turn evidences a bias against such authority figures.
In our view, appellant's bias argument is subsumed within the argument that cross-examination about W.D.'s prior allegations of sexual assault would be probative of her character for veracity in matters of the sort involved in this trial. As is the case with the character for veracity issue, prior allegations of sexual assault would be probative of bias against authority figures only if those allegations were fabricated. See Jones v. United States,
. Even if appellant had made the showing which would have entitled him, as a constitutional matter, to use W.D.’s prior allegations to impeach her credibility, he could not have used the prior allegations as substantive evidence that W.D. had falsely accused him in this case. The law generally "disfavors the admission of evidence of a person’s character in order to prove conduct in conformity with that character” in the matter at issue. McLean v. United States,
. The confrontation clause of the sjxth amendment provides: "In all criminal prosecutions, the accused shall enjoy the right .to be confronted with the witnessed against him...." U.S. Const. amend. VI. /
. Additionally, even where a proposed line of inquiry .is relevant, the trial court ”retain[s] wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on ... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall,
. Indeed, if the allegations were true, and W.D. had been sexually assaulted in the past, inquiry into those episodes would violate the rule that a defendant may not cross-examine a witness about prior sexual acts with others in an attempt to impeach the complainant’s general credibility. See McLean, supra note 10,
. See also People v. Neely,
. The court simply quoted the discretion-guiding standard for permitting cross-examination into a witness’s prior bad acts, discussed below. Lawrence, supra,
. Our review of the briefs filed with this court in the Lawrence case confirms that the government took the position that the trial court exclusion of cross-examination about the witness’s prior accusations of sexual misconduct would have been proper even if those accusations were in fact false. The government’s understanding of the issue in Lawrence, as indicated in its brief, was whether “the trial court’s refusal to permit cross-examination ... relating to prior false accusations of sexual misconduct by [a witness] denied [appellant] his Sixth Amendment right to confront the witnesses against him.” Brief for Appellee at 11-12, Lawrence, supra (No. 82-1404) (emphasis added). Without suggesting that the accusations were in fact true, the government rejoined by arguing that "the trial court properly exercised its discretion in excluding such collateral evidence because it had little or no probative value.” Id. at 12 (emphasis added). In its elaboration of this contention, the government argued that “even if the jury could have concluded that the prior charge was false, ‘the relevance of that conclusion to the case is slight,' ” id. at 14 (citation omitted), and suggested that ”[e]ven if [the witness] had made the allegedly false accusations ... the prejudicial effect of the proposed cross-examination would have clearly outweighed its probative value.” Id. at 15. Given the manner in which the parties presented the issues, and the fact that the trial court made no determination about the truth or falsity of the witness’s accusations, we believe that the Lawrence court perceived itself as deciding whether a trial court’s decision to preclude as collateral cross-examination about concededly false prior allegations of sexual misconduct constituted reversible error.
. Indeed, the trial court found that defendant’s proffer failed to establish even a "substantial basis” for concluding that W.D. had fabricated her prior claims of sexual assault.
. See also State v. Anderson,
. "These impeachment rules should not be confused with the analytically distinct doctrine that restricts the introduction, as substantive evidence, of an accused’s prior crimes or bad acts.” Sherer, supra,
. Of course, if the degree of certainty is such that the defendant has shown convincingly that the prior allegations are false, the confrontation clause mandates that the defendant be allowed to inquire about those allegations.
. McLean, which presumptively proscribes examination of the complaining witness about her sexual history and reputation, does not deal with the issue of other allegations of sexual assault and therefore, as the trial court recognized, does not in itself preclude questioning in that area. Cf. Commonwealth v. Bohannon,
. We would not agree with a suggestion that the trial judge was insufficiently cognizant of her discretion when she precluded cross-examination about W.D.’s prior allegations. A trial judge abuses discretion where he or she fails "to exercise choice in a situation calling for choice.” Johnson v. United States,
.We need not decide whether appellant’s proffer in this case established a "factual predicate” to satisfy the Sherer threshold. Nor need we decide whether the trial court, in deciding whether a factual predicate exists, is to make its own factual determination, see D.C.Code § 17-305(a) (1989) (trial court finding binding unless plainly wrong or without evidence to support it), or is simply to determine what a reasonable jury might find, cf. Huddleston v. United States,
. During pretrial proceedings, defense counsel made clear that his proposed digression from events in the D.C. Jail would go well beyond merely cross-examining W.D. about her prior allegations of sexual assault. For example, he sought leave from the trial court to call the Juvenile Horizons counselor as a witness so the counselor could deny W.D.’s allegation that he touched her in an inappropriately sexual manner. The trial court expressly noted its concern about going "afield to another event and another time” on such collateral issues. Because we hold that the trial court acted within its discretion in precluding cross-examination about W.D.’s prior allegations, we need not resolve whether such extrinsic evidence could have been presented. Lawrence, supra,
. It is true that courts in several jurisdictions apparently require inquiry into prior allegations whenever the defendant demonstrates only a good faith factual basis for concluding that the allegations are false, see, e.g., Bohannon, supra note 21,
. As we stated in United States v. Mosby,
. In dicta illustrating the scope of permissible inquiry under the “claim-minded plaintiff’ principle, the Mintz court suggested that "the prosecuting witness in a rape case may be asked whether she has made similar charges against other men.” Mintz, supra,
. See supra p. 324.
. The Mintz court, without any empirical justification, included sexual assault among a category of "[f]ortuitous events [which] are less likely to happen repeatedly than once.” Mintz, supra,
. Our conclusion might be different if appellant had contended that he approached the complainant, discovered the symptoms of her illness, and was then dissuaded from performing sodomy, or otherwise had an opportunity to observe the appearance of W.D.’s genitalia.
. Such evidence may be relevant for this purpose even though appellant contends he never
In this hypothetical, Witness's evidence affects Plaintiffs credibility because it suggests Defendant would have been incapable of committing the acts alleged. The medical evidence proffered in this case, in contrast, affects W.D.'s credibility because it suggests appellant would have been disinclined to commit the acts alleged. While evidence of a defendant’s disinclination to commit an offense is certainly less probative of a plaintiff’s credibility than is evidence of a defendant’s inability to commit an offense, it nevertheless may be sufficiently probative to be deemed relevant. See E. Cleary, McCormick on Evidence § 185, at 542 (3d ed. 1984) (evidence is relevant if it "could reasonably show that a fact is slightly more probable than it would appear without that evidence”); see also Fed.R.Evid. 401 (relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence").
. Cf. Miller v. Avirom,
. However, the court left the ruling subject to revision and stated that defense counsel could renew his motion to introduce the evidence at a later time.
Defense counsel, without expanding on the proffer, twice renewed the motion. The second time, the motion immediately followed this exchange between appellant and his lawyer:
Q: Do you commit oral sex on prostitutes?
A: No, I don’t.
Q: Any particular reason why not?
A: I don't commit oral sex, period. I mean,
I do have some godliness about myself, you know.
The trial court ruled: "It appears, particularly in light of the last answer, that the doctor’s testimony will not be relevant." Even then, defense counsel did not amplify the rationale for his proffer.
. Although acknowledging that the question is one of "abuse of discretion,” appellant asserts a "fundamental right to call witnesses in his own behalf,” citing Chambers v. Mississippi,
. The relevant portions of the proffer were as follows: "There was a cheesy white extrudance (sic) on the — I cannot read that word.” Trial counsel was apparently reading from a medical report, not included in the appellate record. Subsequently trial counsel referred to "that cheesy extrusion on the vulva” and stated that "according to the doctor, my conversation with the doctor, the doctor agrees that there was a heavy discharge.”
. In United States v. Cozart,
. D.C.Code § 22-3502 (1989) provides, in pertinent part:
(a) Every person who shall be convicted of taking into his or her mouth or anus the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth or anus of any other person or animal, or who shall be convicted of having carnal copulation in an opening of the body except sexual parts with another person, all be fined not more than $1,000 or be imprisoned for a period not exceeding 10 years.... [I]n any indictment for the commission of any of the acts, hereby declared to be offenses, it shall not be necessary to set forth the particular unnatural or perverted sexual practice with the commission of which the defendant may be charged, nor to set forth the particular manner inwhich said unnatural or perverted sexual practice was committed....
(b) Any penetration, however slight, is sufficient to complete the crime specified in this section. Proof of emission shall not be necessary.
. Prior to 1948, sodomy was not statutorily defined in the District of Columbia, and prosecutions for the offense proceeded under the common-law definition. S.Rep. No. 1377, 80th Cong., 2d Sess., reprinted in 1948 U.S.Code Cong. Serv. 1714, 1717 (incorporating House Report) ["Senate Report"]. At common law, the offense of sodomy among human beings was limited to anal copulation. See 3 C. Torcia, Wharton’s Criminal Law § 295, at 77 (14th ed. 1980); Rose v. Locke,
. In this case, the trial court’s instruction to the jury on the offense of sodomy provided:
In the law, sodomy is the commission of an unnatural sexual act with another person or with an animal. Specifically, the allegations in this case are that the defendant performed the act of cunnilingus on the complainant [W.D.]. Cunnilingus is the act of placing the mouth on the female sexual organ and the touching of the sexual organs with the lips and/or the tongue.
You must determine in this case whether the Government has proved beyond a reasonable doubt that the defendant placed his mouth or tongue on or in the sexual organ of the complainant or that he put the sexual organ of the complainant on or in his own mouth, and second, that he intended to do that act.
. Even if penetration were a requirement, the evidence presented here might very well have supported an inference of penetration. See supra note 5.
. Under the common law, penetration of the anus by the penis was required to prove sodomy among human beings. See Canter v. State,
. Courts in some other jurisdictions have held that oral contact with any part of a woman’s genitalia without penetration by the tongue constitutes a violation of prohibitions against cunnilingus. See Parris v. State,
. Appellant’s related argument that the sodomy statute fails to give notice that it encompasses cunnilingus does not merit relief. Cf. Rose v. Locke, supra note 38,
Dissenting Opinion
concurring in part and dissenting in part:
With due respect for Judge Steadman’s erudite opinion for the court, I am unable to join my colleagues’ disposition of this appeal. In my opinion, Roundtree did not receive a fair trial on the sodomy charge. I so conclude for two reasons. First, in spite of persuasive evidence that the complaining witness, W.D., fabricated claims of sexual abuse in the past, the trial judge precluded cross-examination of her with regard to these prior accusations. Second, the judge excluded, as “irrelevant,” proposed medical evidence about the existence of a “cheesy white extrudance” in the area of W.D.’s genitals which allegedly resulted
The potential impact on a reasonable jury of the excluded cross-examination and evidence was substantial. Moreover, Round-tree’s first trial ended in a mistrial because the jurors were unable to agree on a verdict. I am therefore satisfied that Round-tree suffered substantial prejudice, and that the errors were not harmless. Accordingly, I respectfully dissent from the af-firmance of Roundtree’s sodomy conviction.
I
W.D.’s PRIOR ALLEGATIONS
A. The evidence of fabrication — the Minnesota records and the professional and other evaluations of W.D. ’s veracity.
W.D. instituted a suit for damages against Roundtree and the District of Columbia in connection with the incident which precipitated this prosecution. During discovery in the civil action, the defendants obtained records from juvenile authorities in Minnesota, as well as testimony from W.D., which reflected the young woman’s troubled life. My colleagues have summarized the contents of these records, maj. op. at 318-319, but the same facts come across a little differently to me. In my view, the information from Minnesota, together with W.D.’s admitted prevarications after she arrived in Washington, provide, at least, a bona fide and reasonable basis to believe that some of her prior charges of sexual abuse were fabricated.
When W.D. was thirteen, the director of an institution for girls in that state described her as “one of the most severe victims of chronic emotional and physical neglect that I have ever encountered.” She was apparently a victim of incest at 12, pregnant at 13, a mother at 14, and a prostitute at 15 or 16. With an I.Q. of 68 and second to fourth grade skills, W.D. had been exposed to marijuana, cocaine, pimps and a sordid lifestyle by her middle teens. Such an existence takes its toll. We would surely be blind to reality if we were to pretend that one who has endured so much can escape without potential erosion not only of her trust in authority but also of her credibility.
The records from Minnesota show that W.D. had claimed to have been the victim of rape or incest or sexual abuse by a substantial number of different men, including, at least,
1. W.D:’s half-brother Hank, who allegedly had sex with her on a weekly basis from the time that she was twelve;
2. her brother Joe (no elaboration provided);
3. a nephew, aged 23 or 24, whom W.D. refused to identify;
4. a boyfriend of her mother;
5. a boyfriend of her sister;
6. a counsellor at Juvenile Horizons, an institution in Minnesota for mothers in their teens;
7. a pimp named Casper;
8. Vernon, also a pimp, who was a boyfriend or former boyfriend of her sister;4 and
Although some of W.D.’s claimed experiences, especially those with pimps, may well go with the lifestyle, the records on their face provide substantia] reason to question the veracity of some of her allegations.
W.D.’s allegations that a 22-year old counsellor at Juvenile Horizons had inappropriately stroked her “butt” was particularly suspect. It was investigated by the police and by the Juvenile Horizons authorities, and a comprehensive report was prepared by the latter. The counsellor had come to Juvenile Horizons with excellent references, and had worked with young women before. The writer of the report interviewed two psychiatrists, a psychologist, the program director, the staff supervisor, and three separate social workers, including the one primarily assigned to work with W.D.
Without exception, these individuals doubted W.D.’s veracity, largely because, as those who had worked with her unanimously agreed, she had a history of making false allegations in the past. Dr. Mada-mala, a staff psychiatrist at a Child Guidance Clinic, reported that “W.D. is a very angry child who has lied to the J.H. staff several times in the past.” Ms. Pruden, the program director, related that W.D. “had lied to the staff in the past and was probably lying in the report about child abuse.” Ms. Arenson, W.D.’s primary social worker, stated that “in the past [W.D.] had lied and exaggerated stories in order to get attention.” Ms. Dawkins, another social worker, related that W.D. “has a history of making up stories,” and that “it is her style to make up accusations as a power play.” Mr. Lord, the staff supervisor, stated that he took W.D.’s accusations with “a grain of salt because of past questionable allegations” by her, and that he believed the accused counsellor’s denials. Dr. Reed, who conducted a psychological evaluation of W.D., found that she was able “to scare and intimidate people with her hostile physical and verbal aggression,” and concluded that W.D.’s “objective and reality testing is very tenuous and at least moderately impaired.” Dr. Arnold, who also examined W.D., reported on her “exaggeration of symptoms, lack of cooperation, rebelliousness and anti-authority feelings.” Dr. Gen-dron of the Fairview Hospital Adolescent Treatment Program stated that W.D. had a history of “aggressivity and blaming.” One psychiatrist reported that W.D. had an “impaired” sense of reality.
Unsurprisingly, in light of the foregoing assessments of W.D., the complaint was closed as “unable to substantiate,” or “unsubstantiated.” The treatment team found reason to “suspect” that the incident “may have” occurred, but deemed the evidence insufficient in the absence of corroboration.
The most recent of W.D.’s complaints in Minnesota was made in March of 1985; she reported that a pimp had forced her to have sex and to “work the streets” as a prostitute.
B. Judge Bacon’s Ruling.
The government moved in limine prior to Roundtree’s first trial for an order precluding any inquiry by the defense into W.D.’s prior allegations of sexual abuse. After having inspected the materials,
unless there is additional evidence about any of these matters ... they would not constitute evidence of bias.
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My view is that at this time there is no basis for inquiry into prior accusations. Conscientiously protecting his record, the prosecutor suggested that a proposed voir dire of W.D., which was to be conducted in order to determine her competency, be expanded to include her prior allegations of sexual abuse, “although I can proffer to the court based on my prior discussions that the court is on the money.” The judge followed the prosecutor’s suggestion and reserved ruling.
The ensuing voir dire was conducted exclusively by the judge outside the presence of the jury. During the course of her testimony, W.D. tearfully repeated her allegation that she had been sexually abused by her brother Hank. She explained that she had later denied the truth of the charge because she did not want the police to be involved with her mother. She related that she did not report to the police abuse by her mother’s friend because “my mom was going through a lot of problems and I didn’t feel that she would trust me or believe me.” She confirmed that she had made complaints about the counsellor at Juvenile Horizons and about assaults by pimps.
At the conclusion of the hearing, the judge granted the motion in limine because
there is no substantial basis for concluding that these assaults are fabrication ... To permit inquiry into these prior incidents, I believe, would be matters that are precluded by McLean[13 ] and Sherer [14 ] and that the voir dire does not provide a basis for exceptions to McLean or Sherer.
The judge followed up her oral decision with a brief written order in which she emphasized that W.D.’s various complaints had not been “convincingly” shown to be false and that W.D.’s failure to prosecute incidents of sexual abuse did not establish their falsity. She cited Sherer, supra,
C. The Restriction On Cross-Examination.
(1) Historical perspective — a legacy of injustice.
The question whether the trial court properly precluded Roundtree from inquir
Until quite recently, the complaining witness in a sexual assault case was presumed to be so lacking in credibility that special rules of corroboration, unheard of in relation to other crimes, were deemed to be necessary and appropriate. See Arnold v. United States,
But the end does not justify the means. Our commitment to eradicating past and present
(2) Impeachment of W.D. with her prior accusations.
With some necessary accommodation of the rights of complainants in sexual offense cases, the issue here under discussion falls within the general rubric of the claim-minded plaintiff, typified by the shepherd boy who cried “Wolf!” once too often. As Professor McCormick has correctly noted, the courts of the District of Columbia are notably liberal in receiving evidence of claim-mindedness and allowing the jury to assess its weight. E. Cleary, McCormick on Evidence § 196, at 580 n. 10 (3d ed. 1984) (hereinafter McCormick).
The leading case in this jurisdiction is Mintz v. Premier Cab Association, Inc.,
Fortuitous events of a given sort are less likely to happen repeatedly than once. The fact that a witness has told several stories involving similar fortuitous events tends, therefore, to create a conflict between his testimony and normal experience. So it has been held that one who furnishes an alibi for a criminal defendant may be asked whether he has furnished other alibis for the same defendant; one who accuses a man of robbing him while he was drunk may be asked whether he has made the same charge against other men; the prosecuting witness in a rape case may be asked whether she has made similar charges against other men .... This type of evidence, like many other types, may create prejudice but is believed to be worth more than it costs.
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That all three of appellant’s stories may have been true affects the weight of the evidence, not its admissibility. It was for the jury to decide from all the evidence, and from its observation of appellant on the stand, whether she was merely unlucky or was “claim-minded.”
Id. at 389-90,
Under the Mintz analysis, the party seeking to cross-examine the complaining witness about other complaints need not first prove their falsity. The principle that lightning does not usually strike the same person twice (or four times or nine times) is deemed sufficiently persuasive to warrant leaving it to the jury to assess the significance of past complaints. The courts of this jurisdiction avoid what Judge Posner has called “crabbed notions of relevance or excessive mistrust of juries,” Riordan v. Kempiners,
Although plainly obiter dictum, the allusion in the Mintz opinion to a rape complainant is broad enough, for all practical purposes, to reach the present case.
Lawrence was charged with taking indecent liberties with a six-year-old girl. One of the witnesses against him was Darlene Mayo, the child’s aunt. Lawrence sought to cross-examine Ms. Mayo about what he claimed were prior false allegations by her of other incidents of sexual abuse in the family. The trial judge, without conducting a voir dire examination as to the truth or falsity of Ms. Mayo’s other charges, refused to permit the inquiry. Lawrence was found guilty, but this court reversed his conviction. Emphasizing that the confrontation clause was implicated and that the defendant’s right to challenge the credibility of prosecution witnesses was protected by that clause, the court said:
An examination of the record reflects a curtailment of an appropriate line of cross-examination which prevented the jury from receiving information essential to an assessment of Darlene Mayo’s credibility as a government witness. Appellant sought to confront Darlene Mayo with the fact that she had accused Michael Mayo in April 1981 of having intercourse with her five-year-old daughter and with the fact that she had accused Jacqueline in July 1981 of having intercourse with their elderly uncle. The trial court refused to allow this line of inquiry. Regardless of her response, the jury could have assessed Mayo’s truthfulness and veracity by defense counsel’s probe of this sensitive area and have viewed her testimony with greater skepticism. The trial court’s action may have kept from the jury relevant and important facts bearing on the trustworthiness of crucial testimony [of] a key witness [whose] testimony establishes a required element of the charged offense [and] has little independent corroboration.
Lawrence is distinguishable from the present case in two respects. First, the trial judge made no attempt, outside the presence of the jury, to assess the truth or falsity of Ms. Mayo’s other charges. Second, the case did not involve other complaints by the alleged victim of the crime, so that the protection of complaining witnesses from intrusion into private facts is not directly implicated.
Courts in other jurisdictions have approached the issue here presented in a variety of ways. See generally Annot., Impeachment or Cross-Examination of Prosecuting Witness in Sexual Offense Trial by Showing That Similar Charges Were Made Against Other Persons,
In my opinion, the most persuasive approach is the intermediate one taken by those courts which require the defendant to demonstrate that there is a reasonable bona fide basis for the proposed line of interrogation. See, e.g., Woods v. State,
the defendant made an offer of proof which indicated that he had a factual basis from independent third party records for concluding that prior allegations of rape had, in fact, been made and were, in fact, untrue.
(3) The trial judge’s ruling: McLean and Sherer examined.
There is no indication that the trial judge considered Mintz, Lawrence, or any cases from other jurisdictions
McLean, which presumptively proscribes examination of the complaining witness about her sexual history and reputation, does not deal at all with allegations by a complainant that she has previously been the victim of one or more sexual assaults. As the court noted in Bohannon,
the proposed questions dealt with prior allegations of rape; they in no way sought to elicit a response concerning the complainant’s prior sexual activity or reputation for chastity. We, therefore do not reach any issues related to the recently enacted “rape-shield” statute.
Sherer was not a sexual assault case at all. The defendant was charged with first
First, any conclusions drawn from this fact that would bear on this case would depend upon whether it could be shown convincingly that the other charge was false. This is very doubtful. The offer of proof indicates that cross-examination would have revealed that [the complainant] contended the prior charge was true, that the man involved denied attempting to rape her, and that the district attorney did not prosecute the charge. The fact that the district attorney chose not to prosecute, in itself, could mean no more than that he decided he did not have sufficient evidence to obtain a conviction.
I find the distinctions between this case on the one hand and Sherer and Hughes on the other compelling. In Sherer, as in Hughes, the prosecution witness had made one prior allegedly false charge. In each case, the witness apparently continued to stand behind his or her previous accusation. Neither allegation had been withdrawn. There was no independent evidence suggesting that the complaining witness was unreliable or had made false charges of this kind.
In the present case, on the other hand, W.D. had made allegations against approximately nine men. She had given three inconsistent versions of what occurred between her and her half-brother Hank. In connection with the charges against the counsellor at Juvenile Horizons, eight different professional people had indicated (with varying degrees of emphasis) that W.D. probably ought not to be believed. Several of them alluded to her having “made up” stories in the past. W.D. admitted lying to the police about her name and age upon her arrest in Washington. As in Bohannon, the information suggesting her unreliability came from records relating to the complaining witness which were furnished by an agency which had no connection whatever with the defendant.
It is true that the formulation in Hughes, quoted in Sherer, makes the present issue turn on “whether it could be shown convincingly that the other charge was false.” I do not believe, however, that the result in this case can or should be controlled by that one italicized word. “It is well to remember that significance is given to broad and general statements of law only by comparing the facts from which they arise with those facts to which they supposedly apply.” Kraft v. Kraft,
The court in Sherer was addressing a specific factual situation. I do not think that it was attempting to analyze the standards applicable to cases with facts such as these here presented. The numerous precedents, some of which are cited in this opinion, were neither cited nor discussed. Indeed, in Lawrence, decided a year after Sherer in an opinion in which Sherer was repeatedly cited, the court reached a result which could not be sustained if, in every case, the defendant must “convincingly” show the witness’ prior allegations to be false before being permitted to cross-examine with respect to them. Accordingly, reading Mintz, Sherer and Lawrence together, I believe it to be in the interest of justice, and consistent with District of Columbia authority, to adopt the reasoning of Bohannon, LeClair and similar cases discussed at page 339, supra. Applying that standard here, I am satisfied that Round-tree had a bona fide reasonable basis for
In summary, I would hold that the defendant must be allowed to cross-examine the complaining witness about prior claims of sexual assault as long as he has a bona fide reasonable basis for believing that any such claims may be untrue, unless the court specifically finds that the probative value of such an inquiry is substantially outweighed by its prejudicial effect. In assessing whether counsel has such a bona fide reasonable basis, the court should consider the number and nature of the claims, as well as any information counsel may have tending to cast doubt on the complainant’s veracity. In considering prejudicial effect, the court should consider the need to avoid diversion of the trial to collateral inquiries as well as the danger, in particular cases, of inflaming the jury. See generally State v. LeClair, supra,
(4) Abuse of discretion or error of law.
The government contends, and the majority holds, that the proper question for our review is whether the trial judge abused her discretion. It is not apparent to me that the judge was initially exercising discretion, or that she viewed herself as doing so. See Johnson v. United States,
A trial court abuses its discretion when it rests its conclusions on incorrect legal standards. Jett v. Sunderman,
II
THE EXCLUSION OF THE MEDICAL EVIDENCE
A. Relevancy — Roundtree’s motive or lack thereof.
The defense proffered the testimony of a physician who had examined W.D. The
The prosecutor opposed admission of the evidence. He argued that, “in the light of the defense,”
I think the proffer was plainly relevant to the issue of motive (or the lack thereof) and disincentive. The jury could reasonably find it less likely that Roundtree, whose “lustful” motivation
“Motive is evidence of the commission of any crime.” United States v. Bradshaw,
But evidence about motive is a two-way street. “[T]he absence of motive tends to support the presumption of innocence; it is a fact to be reckoned [with] on the side of innocence.” People v. Weatherford,
[t]he absence of a motive for committing the crime charged is in the nature of an exculpatory circumstance which a defendant on trial is entitled to establish ... To exclude such proof would place an arbitrary limitation on the accused that would be unjust, in view of the freedom allowed the prosecution in adducing facts and circumstances pointing to his guilt.
Accord, People v. Kepford,
Concededly, we cannot know for sure whether Roundtree would have wished to have oral sex with W.D. even if she suffered from the affliction which the physician was said to be prepared to describe. As Justice Cardozo aptly observed for the court in Lewis v. Ocean Accident & Guarantee Corp.,
It is enough if the item could reasonably show that a fact is slightly more probable than it would appear without that evidence. Even after the probative force of the evidence is spent, the proposition for which it is offered still can seem quite improbable. Thus, the common objection that the inference’for which the fact is offered “does not necessarily follow” is untenable. It poses a standard of conclusiveness that very few single items of circumstantial evidence ever could meet. A brick is not a wall.
McCormick, supra, § 185, at 542-43 (footnotes omitted).
At trial, W.D.’s credibility was a critical issue. The doctor’s evidence would have provided a reason — indeed, a jury exercising its common sense and experience might very well have found it a persuasive reason — to question whether Roundtree was likely to have been motivated to sodomize W.D. as she alleged. The existence of the disease might have appeared to the jury sufficiently likely to inhibit Roundtree from committing oral sodomy to create a reasonable doubt as to the truthfulness and plausibility of W.D.’s account. I cannot agree with the trial judge’s conclusion that the evidence was irrelevant.
B. Probative value, prejudice, and the trial court’s responsibility.
In rhetoric which I do not find to be understated, the government contends that the proffered testimony
would have been the rankest imaginable form of prejudicial character assassination with absolutely no countervailing probative value.
Accordingly, says the government, there was no abuse of discretion in excluding it.
As the foregoing recitation of the manner in which the issue was decided demonstrates, however, I can “find nothing in the record to show that the trial [judge] was exercising [her] discretion in excluding the testimony, and [I] therefore cannot [vote to] uphold the exclusion on those grounds.” State v. Dutremble,
HARMLESS ERROR ANALYSIS
My colleagues discern no error in the trial judge’s restriction of cross-examination and apparently hold that the exclusion of evidence regarding the appearance of W.D.’s diseased genitals, if incorrect, was harmless. In my opinion, both rulings were not only erroneous but manifestly prejudicial.
To warrant a holding that trial court error is harmless, the court must be satisfied “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Giles v. United States,
[i]f, as appellant suggests, the symptoms of W.D.’s disease would have made oral sex unpleasant and therefore unlikely to occur, this evidence could be somewhat probative of the credibility of her account of the sodomy. As such, it might have made a jury somewhat more likely to believe appellant’s version of events, i.e., that no oral sexual contact occurred.
Maj. op. at 327. If this passage is stripped of the editorial use, twice, of the word “somewhat”, it correctly states the problem confronting my colleagues’ position. Had the condition and appearance of ■W.D.’s genital area been disclosed to the jurors, it would have been “more likely,” to use the majority’s expression, that they would have believed Roundtree and disbelieved W.D. with respect to whether or not oral sodomy occurred. Under these circumstances, I do not understand how the majority can state “with fair assurance,” Giles, supra,
My colleagues apparently affirm the judgment in spite of the trial judge’s erroneous ruling because, in their view, the government’s case would have supported a guilty verdict even if the proffered defense evidence had been admitted. But “[e]ven if an appellate court is without doubt that a defendant is guilty, there must be a reversal if the error is sufficiently serious.” United States v. Tussa,
If the evidence of the cheesy extrudance had been admitted, the context of this case would have been materially altered. There would have been an evidentiary predicate for defense counsel to attack W.D.’s credibility with a potentially persuasive argument to the jury grounded on common sense. The jurors might have thought that Roundtree would not have been likely to do what W.D. said he did. The record having been improperly constricted, and the relevant evidence having been excluded, defense counsel was in no position to make such an argument. When this court determines from its lofty appellate perch that the exclusion of this evidence did not affect the verdict,
We must remember that if only a single juror holds out for acquittal, there can be no verdict of guilty. Roundtree’s first trial ended with a hung jury, even though the proffered medical testimony was apparently not admitted.
[t]he infusion of “harmlessness” into error must be the exception, and the doctrine must be sparingly employed. A minuscule error must coalesce with gargantuan guilt, even where the accused displays an imagination of Pantagrueli-anf38 l dimension.
Even if this formulation reads the concept of harmless error a bit too narrowly — and Chapman’s conviction was affirmed notwithstanding the judge’s rhetorical flourish — I think we have something to learn from it. Before we sustain a denial of liberty to a citizen who was not permitted to present relevant evidence to the jury, we should be a good deal more satisfied than this record allows us to be that he would have been convicted anyway.
I emphasize that this is not a ease like Lemon v. United States,
Since my colleagues are of the opinion that the judge correctly prohibited cross-examination of W.D. with respect to her prior allegations of sexual abuse, I have confined my discussion of harmless error to the issue of the condition and appearance of W.D.’s pubic area, with respect to which the majority assumes and more or less concedes that error occurred. I add only that if I am correct in my conclusion that the cross-examination of W.D. was imper-missibly restricted, then the cumulative impact of the two erroneous rulings was surely so substantial that I do not think that my colleagues would seriously maintain that it was harmless.
IV
THE SODOMY STATUTE
Although the notion that cunnilingus is a sodomitic act is not obvious from the text of the statute, see D.C.Code § 22-3502
Since sodomy is a crime to which consent is no defense, there are a great many people in the District of Columbia who commit it. See G. Nass & M.P. Fisher, Sexuality Today 135 (1988) (95% of males and females sometimes practice oral sex). See also A. Kinsey, Sexual Behavior in the Human Male, 576-77 (1948). On its face, the statute makes no exception for married couples. If every violator were sentenced to serve three to nine years, as Roundtree was, a great many more adults would be in jail than out of it. Obviously, such a statute is likely to be enforced only in cases in which there was either a sexual assault or some other aggravating circumstance, real or perceived. When the assailant goes to trial, however, the government can argue— as the prosecutor in this case did — that consent is no defense. The judge so instructs the jury. This effectively enables the government to prosecute a case of sexual assault without proving the assault.
In the present case, the government originally charged Roundtree with assault, but later dismissed that charge. Nevertheless, the sentence imposed — three to nine years — reflects the judge’s view that Roundtree committed a serious crime. He was convicted, however, of an act which, if performed by consenting adults, is an everyday occurrence.
Aside from any issue of the constitutionality of a prohibition of consensual sodomy, see generally Bowers v. Hardwick,
V
THE CONVICTION OF TAMPERING WITH PHYSICAL EVIDENCE
Roundtree’s notice of appeal specifies that he is appealing from both of his convictions. No argument was made in his brief with respect to the conviction of tampering with physical evidence, nor was the point argued orally.
In the present case, despite the mishandling by investigators of the paper bag which allegedly contained Roundtree’s semen, the evidence of tampering against Roundtree was compelling. His defense was effectively reduced to absurdity — he did not know if his chicken sandwich bag was stapled shut or had the word “Evidence” written on it. The testimony against him in regard to that offense was provided exclusively by witnesses other than W.D.; she did not testify about it at all. Any impeachment of W.D.’s credibility would thus be irrelevant to the tampering conviction.
Moreover, Roundtree had ample reason to tamper with .the evidence even if he was not guilty of sodomy. If, for example, W.D.’s account was only partially true — if she was compelled to participate in his masturbation, but if there was no cunnilingus — then Roundtree would not be guilty
In Gethers v. United States,
VI
CONCLUSION
This is a difficult case. Reasonable people can, and do, hold differing views with respect to the legal issues presented. In my opinion, however, evidence was withheld from the jurors which could have substantially affected the credibility of the complaining witness and the plausibility of her account. Moreover, the failure of our statute to distinguish between forced and consensual sodomy is irrational and unjust.
I do not believe that Roundtree, who was found guilty and began a long term of imprisonment in August 1986, more than four years ago, received a fair trial. I respect my colleagues’ contrary view, but regret that their conscientious consideration of the case has not led them to the same conclusion.
. I also find it to be patently unfair that Round-tree was sentenced to imprisonment for three to nine years because the judge obviously believed that he had committed forcible sodomy, when the jury had been instructed that the prosecution was required to prove only the elements of consensual oral sex — an activity in which the overwhelming majority of adults at least sometimes engage. See page 346, infra.
. For reasons described at pages 346-347, infra, I join the majority in affirming Roundtree’s conviction for tampering with evidence.
. A few of the documents from Minnesota were so poorly reproduced that it is hard to read them. For obvious reasons, I enumerate only those incidents as to which the documentation is sufficiently legible.
. This was apparently a different man from the one in item 5; one incident allegedly occurred in 1983 and the other two years later.
. W.D. testified that she had not reported the gang rape to the police but could not remember why.
. According to my colleagues, maj. op. at 6, the presence of semen in W.D.’s pubic area provided partial corroboration of some of her allegations. Since W.D. concededly worked as a prostitute, and since there was no evidence of bruises or other injuries, the semen was hardly compelling corroboration.
. I am constrained to wonder whether the jurors in the present case would have convicted Roundtree if they had known all the things about W.D. which were brought to the attention of the Juvenile Horizons authorities.
. In response to a question by the police, W.D. reported that she had previously worked as a prostitute three times because she had been forced to do so by gangsters.
. The transcript of the deposition is not in the record. W.D.’s deposition testimony was described both by the prosecutor and the defense attorney outside the presence of the jury in the
. W.D. testified that she gave a false name because she did not want charges against her filed under her real name.
. W.D. testified that she lied about her age because she had been told that she could get out of jail more easily as an adult.
. The judge summarized the materials as follows:
[It] appeared to me that there were miscellaneous references to two family members, a brother and a friend of the mother’s. There is a reference to a sister’s friend and a reference to attacks by some pimps and a reference to abduction, in addition to the more fully documented Juvenile Horizons event.
As noted at pages 332-333, supra, the Minnesota materials contained a good deal more, especially in regard to W.D.'s credibility as perceived by professional people who had worked with her.
. McLean v. United States,
. Sherer v. United States,
. 4 S. Freud, Collected Papers 217 (Riviere trans. 1925), quoted in S. Estrich, Rape, 95 Yale L.J. 1087, 1141 n. 170 (1986) (hereinafter Estrich).
. See, e.g., the concurring opinion of Justice Bradley in Bradwell v. Illinois, 83 U.S. (16 Wall) 130, 141,
The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life ... The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.
. See, e.g., Packineau v. United States,
. "Although a woman may desire sexual intercourse, it is customary for her to say "no, no, no” (although meaning "yes, yes, yes”) and to expect the male to be the aggressor.” Slovenko, A Panoramic Overview: Sexual Behavior and the Law in Sexual Behavior And The Law 5 (Slo-
. See also Gold & Wyatt, supra, 27 Cath U.L. Rev. at 706-714, vividly describing the treatment dispensed to rape victims at the hospital, at the police station, and in the prosecutor’s office.
. In the most recent edition of his treatise, Professor Wigmore remarks that
the unchaste ... mentality finds incidental but direct expression in the narration of imaginary sex incidents of which the narrator is the heroine or the victim. On the surface the narration is straightforward and convincing.
3A J. Wigmore, Evidence § 924(a) (Chadbournrev. ed. 1970). Accordingly, he proposes that no sexual assault case go to the jury unless a psychiatric examination has been performed and the examining physician has testified with respect to the complainant's mental health. Id.
.Moreover, W.D. had instituted civil litigation prior to the trial of this case, and the information from Minnesota was already in the hands
. I agree with the majority that Judge Edger-ton's italicized language regarding rape victims was not necessary for the decision in the case, and I acknowledge that the legal climate has changed in the past forty-eight years in regard to sexual assault cases. I therefore would not follow the Mintz dictum if there were no evidence at all that the prior accusation was false. As I point out at pages 339-340, however, changes such as the enactment of rape-shield
. The proposed cross-examination would, however, have made public embarrassing allegations about members of the family and their sexual practices.
. See, e.g., State v. Chambers,
. See, e.g., Covington v. State,
. Except Hughes.
. I note, in this regard, that defense counsel did not cite other precedents to her, and a trial judge often has little time to embark in mid-motion on ambitious research projects of this kind. It is for reasons like this that the term "abuse of discretion" sounds much worse than it really is and does not imply any reflection on the trial judge. See King v. United States,
. Roundtree’s counsel sought only to question W.D. about the prior incidents and proffered no extrinsic evidence about them. Accordingly, there was no appreciable danger that a series of mini-trials would result.
. I am constrained to agree with my colleagues, maj. op. at 327, that defense counsel might have presented this issue more precisely and more cogently. He did, however, raise it, and since the majority views the point, albeit somewhat gingerly, as having been adequately preserved, I will not further encumber this opinion with authorities on that subject.
. The government's contention appears to be that, since Roundtree denied engaging in any sexual conduct with W.D., he would be unaware of any infection, and “the proffered evidence of disease was not therefor probative of any substantive issue."
. See Speagle v. State,
. Evidence of Roundtree’s alleged propositioning of Officer Brock and of his telephone discussion with his weekend sexual partner was admitted to depict Roundtree’s frame of mind.
. The judge's mistaken belief that the evidence was irrelevant would have doomed her exercise of discretion even if she had attempted one, which she did not.
. With due respect to my colleagues, I do not believe that the relevance of the evidence was "marginal." Maj. op. at 329. I suggest that a jury could reasonably find it much less likely, and not just marginally less likely, that a man would wish to have oral contact with a woman’s pubic area if that area were diseased.
. Or, here, absent the error in excluding probative evidence.
. I agree with the majority that Roundtree’s credibility had been significantly impaired by the prosecutor’s effective cross-examination. That Roundtree probably lied does not necessarily mean, however, that he had oral sex with W.D.
. I assume that if the first trial judge had ruled that evidence admissible, Roundtree’s counsel would have brought this to the second judge's attention. The record does not disclose whether a similar proffer was made at the first trial.
. Pantagruel, the hero of Francois Rabelais’ 1526 novel bearing his name, is described as the coarsely humorous and gigantic son of Gargantua. Webster’s Third New International Dictionary 1631 (1966).
. I have previously expressed my view that the trial judge’s rulings on both issues were tainted by error of law, and that no remand is necessary to enable the judge to weigh probative value against prejudicial effect under the correct legal standards. Even under my colleagues’ analysis of the issue relating to the exclusion of evidence regarding the appearance of W.D.'s genital area, however, it appears to me that a remand is required so that the judge can do the discretionary balancing without being misled by the palpably incorrect notion that the evidence is irrelevant.
. Roundtree’s counsel did not raise these problems and I content myself with noting their existence.
. This offense is a felony for which an indeterminate sentence was required. See D.C.Code § 24-203(a) (1989). The determinate one-year sentence imposed by the judge was thus illegal. Accordingly, we should remand for resentenc-ing on this count.