*1 trial We also find no basis on which to disturb the court’s discretionary denying plaintiff’s application determination counsel fees. Appellate Division is affirmed. judgment of the and Justices For Justice WILENTZ affirmance —Chief O’HERN, POLLOCK,
CLIFFORD, HANDLER, GARIBALDI and STEIN—7.
For reversal —None. A.2d 784 PLAINTIFF-APPELLANT, JERSEY, NEW
STATE OF BUDIS, DEFENDANT-RESPONDENT. JAMES G. August Argued 1991. March 1991 Decided *5 Prosecutor, Miller, argued the cause Assistant Gilbert G. Bissell, Jr., County Prosecu- (Nicholas Somerset L. appellant tor, attorney). (Maho- respondent Mahoney argued the cause for M.
Dennis attorneys). Mahoney, ney & General, argued the Deputy Attorney Bonpietro, E. Robert Jersey curiae, New Attorney General of for amicus cause General, attorney). Attorney Tufo, Del J. {Robert by delivered of the Court was opinion The POLLOCK, J. Rape a conflict between the Shield appeal
This involves 2C:14-7, right Statute, constitutional and defendant’s N.J.S.A. defendant, juryA convicted accusing witnesses. to confront assault, Budis, aggravated sexual of two counts of James G. prison. in years him to fifteen the trial court sentenced between charges from two incidents The stemmed At nine-year-old daughter, T.D. his cousin’s defendant and T.D. and the trial, cross-examine both defendant sought of T.D. her investigating about the sexual abuse detective descriptions of virtually identical stepfather gave in 1987. T.D. purpose and of defendant’s acts. stepfather’s her conduct acquired that T.D. had to show of the cross-examination was than vaginal sex from a source other knowledge of oral and testimony, such argues He in the absence of defendant. have obtained her jury conclude that the infant must would The trial court knowledge her with him. from encounters stepfather against her evidence of T.D.’s accusation admitted investigation, excluded the details ensuing police but and of the Appellate Division reversed. stepfather’s abuse. The of the granted We N.J.Super. 580 A .2d — certification, N.J.-(1990), now petition for State’s affirm.
I 22, 1988, father, May staying T.D. was with her an On. superintendent, separated apartment house who was from her playing boxing game While a Nintendo her mother. with cousin, and T.D. commented that one boxer looked like brothers “sucking by other her guy he was off.” When confronted father, T.D. at of her first refused to describe source knowledge of her out oral sex. After her father washed mouth however, separate soap, with she incidents of sexual described in stepfather by in abuse committed her 1987 and defendant reported day 1988. The next her father the incidents to the Family Division of Youth and Services. 24, 1988, May
On Detective Norman of the Somerset Cetuk interviewed T.D. about the occur- County Prosecutor's Office The incidents her mother was rences. occurred while Clinic, T.D., old, eight years was confined at Carrier and then her stepfather. stepfather her T.D. living with related remove clothes would take her his bed. He would then her penis vagina, in her mouth would place his erect and but ejaculate. not involving The similar incidents defendant.
She described two July at her father's first occurred sometime before T.D., her to accom- apartment. According to defendant asked bathing into pany apartment changed to the he his him while police, In her to the she said defendant suit. statement clothes, had off her but at trial she testified that she had taken stepfather’s description abu- them. in her of her removed As conduct, in her and at trial that sive T.D. related both statement vagina, did put penis in her mouth and but defendant his erect incident lasted “about five minutes.” ejaculate. not T.D., approximate- incident occurred According the second her incident in description Her of that ly one week later. In testimony. from her trial police to the differed statement statement, taking that after T.D. her brothers her she said overnight her fa- slept park, defendant to an amusement apartment. During night ther’s defendant entered T.D.’s up” and threatened to her if she did bedroom “beat father going remove her clothes. At trial she said that before to the park, sleep amusement defendant had asked her to naked with him. She denied that defendant had threatened her or her trial, in father. Both her statement and at T.D. stated that defendant vaginal had committed the same acts of oral and sex as she had involving described the other incidents defendant stepfather. and her Cetuk, accompanied by
Detective Detective Bob Besser of the *7 Department, interrogated May Plainfield Police defendant on acknowledged 1988. Defendant two encounters with T.D. investigating His statement to the officers differed from his testimony According trial and from T.D.’s versions. to defen- dant, place the first slept overnight occurrence took when he on apartment. night, couch at the In the middle of the he stroking kissing awoke to find T.D. and penis. his In his statement he said that he “threw her off.” He also said that most,” “[m]aybe phrase the incident took five minutes at the a justified figure speech he at trial as a to mean that he immediately rejected T.D. The second incident occurred when apartment change he went to bathing to into his suit after returning park. from the knowledge, amusement Without his him, changing, T.D. followed and he while was started to stroke statement, penis. and kiss his In his he said that T.D.’s touching good,” him explained “felt but at trial that he meant investigating police that “it didn’t hurt.” Defendant told the half,” touching that T.D. had continued him for “a minute and a until her father entered room. At trial he testified that he pushed away had T.D. from him. In both his statement and his testimony, days defendant maintained that a few after the stop second incident he told T.D. that if she did not her behavior, tell he would her father. aggravated
Defendant was indicted for two counts of sexual stepfather pled guilty separate assault. T.D.’s counts of aggravated assault, sexual assault and and has since sentenced. been trial,
Before defense counsel asked the court to him allow elicit from Detective Cetuk the details of the sexual abuse by stepfather. committed T.D.’s Relying Rape on the Shield Statute, prohibited the court inquiry. The testimonial portion trial, of defendant’s testimony which of the consisted T.D., Cetuk, defendant, Detective lasted day. less than a permitted The trial court limited cross-examination of both T.D. allegations Detective Cetuk T.D.’s against about of abuse stepfather her resulting investigation. and the Defense coun- permitted explore sel was not either the circumstances of the abuse or the nature of Apparently by the acts. troubled evidence, conflicting jury approximately deliberated for a day returning and a half guilty During before verdict. time, it sent four requesting re-reading notes to the court portions testimony of the of both T.D. and defendant and additional instructions on the elements of sexual assault.
Writing
Division,
Appellate
Judge Long
for the
stated that
the trial
permitting
court had erred
defense counsel to
inquire
stepfather’s prior
into the details of the
sexual assault.
The court noted that the State conceded the occurrence of the
charges against
acts and their close resemblance to the
defendant.
It then concluded that defendant’s constitutional
*8
right
Jersey
to confrontation under the federal and New
consti-
required
tutions
of
admission
the details of the
acts
* * *
dispel
devastating implication
“to
child of
[a]
years
tender
could not have
of such intimate sexual acts
known
they
N.J.Super.
unless
occurred at defendant’s initiation.” 243
Ruling
jury
One statutes cross-examination, thereby rape victims from excessive encour report them the Id. at also aging abuse. 805. statutes against improper guard the use of evidence of the victim’s Graham, experience. Wright 23 C. and sexual K. Federal Procedure, (1980); Evidence 5382 at 514-15 see Practice § (describing supra, juror Berger, 77 Colum.L.Rev. 30-31 accuser). “unworthy” Thus, rights in reluctance vindicate of assault, protecting rape-shield sexual victims of addition Galvin, supra, 70 preserve integrity the of trials. statutes juries By ensuring that will not base their Minn.L.Rev. at 806. victim, against statutes enhance prejudice on the the verdicts reliability system. justice the criminal the excep- limits policies, these Consistent with N.J.S.A. 20:14-7 previous of a victim’s sexual tions to the admission evidence prosecutions for assault criminal sexual conduct seeks to offer such evidence contact. When a defendant statute, must, weigh the any purpose, court under the the trial against prejudicial effect. the evidence its probative value of the admission provides following procedure for The statute evidence: sexual conduct evidence he must to admit such for any purpose, When defendant seeks * * hearing *. the trial or for an of the court before order preliminary apply hearing in camera to court shall conduct a made, After application finds that If the court determine the of the evidence. admissibility regarding victim is relevant the sexual conduct of the offered defendant by outweighed its evidence offered is by and that value probative its will create undue admission collateral nature or probability *10 530 prejudice, of the or unwarranted invasion of the of the issues, confusion privacy setting shall an order with what
victim, the court enter forth specificity the the shall be evidence be introduced and nature of which questions may ** 2C:14-7(a).] *. [N.J.S.A. permitted addition, prescribes under In the statute the circumstances may court to relevant. which the trial consider the evidence be prior may The court find evidence of sexual conduct relevant negating if or only “it is material to the element of force semen, proving pregnancy coercion or to that the source of 2C:14-7(c). person disease is a other than defendant.” N.J.S.A. purposes, prior For all the statute declares evidence of other extent, To this the sexual conduct irrelevant. statute differs which, 412, Rule in addition to from Evidence Federal permitting past evidence of sexual behavior to show the source injury, permits “constitutionally such if of semen or evidence 412(b)(1),(2). required.” Fed.R.Evid.
Here, dispute defendant does not that the statute bars admis- of T.D.’s sexual victimization. He ar- sion evidence however, restricting gues, by purposes for which admitted, deprives the statute him of a de- fense. Defendant contends that the evidence T.D.’s to rebut the inference that she would abuse relevant knowledge to sufficient of sexual acts behave as he have addition, In T.D. is a described. defendant asserts that because consent, incapable legally minor and therefore the admission prejudice of the evidence will not her or contravene the statu- tory purposes. Consequently, application defendant claims that right of the this case violates his constitutional statute Hence, analysis right. confrontation. we turn an of that
Ill Jersey guaran Both the federal and New constitutions right tee criminal defendants the “to be confronted with VI; against witnesses them.” U.S. Const. amend N.J.Const. 1, protected para. primary interests Among art. 10. right opportunity for defendants of confrontation are 531 face their accusers and to cross-examine state’s witnesses. Ritchie, v. Pennsylvania 39, 51, 989, 998, 480 U.S. S.Ct. 107 94 40, Alaska, (1987); 315, Davis v. 308, L.Ed.2d 53 415 U.S. 1105, 1110, S.Ct. (1974); 39 L.Ed.2d California Green, 149, 157-58, 1930, 1935, 399 U.S. 90 S.Ct. 26 L.Ed.2d right protects against improper 496-97 restric- questions tions on counsel may during defense ask cross-exami- Ritchie, supra, U.S. at S.Ct. at nation.
L.Ed. 2d 54. encompasses right It further to elicit *11 testimony favorable on cross-examination the state’s witness- Davis, supra, 1111, See U.S. at S.Ct. at 318, es. 415 94 39 354-55; Weston, see also Com- L.Ed.2d at and Confrontation pulsory Theory Process: A Evidence Criminal Unified for Cases, 567, 91 Harv.LRev. (1978) 604-06 con- (distinguishing frontation, permits witnesses, which examination of adverse compulsory process, guarantees and right which defendant’s to defense). call and examine Coupled witnesses with the rights compulsory process process, to and right to due the guarantees meaningful confrontation criminal “a defendants present defense.” Crane Ken- opportunity complete to v. a 683, 2146, 636, tucky, 476 U.S. S.Ct. 690, 2142, 106 90 L.Ed.2d 645 right accusing to confront and wit cross-examine trial,” “among
nesses is the minimum essentials of a fair v. 284, 294-95, 1038, Mississippi, Chambers U.S. 410 93 S.Ct. Oliver, 1045, 297, (1973); In re 333 U.S. (citing 35 L.Ed.2d 308 257, (1948)), 68 S.Ct. L.Ed. 273, 499, 507, 682, 92 applies and 694 v. amendment, Pointer through to the fourteenth states Texas, 400, 1065, (1965). This 380 U.S. 13 L.Ed.2d 923 S.Ct. 85 however, absolute, right, appropriate is not and inmay, circum Chambers, supra, stances, competing interests. 410 bow 295, 1046, v. 309; U.S. S.Ct. at Mattox at 93 35 at L.Ed.2d States, 237, 337, L.Ed. 242, 340, United U.S. 15 S.Ct. 156 39 409, (confrontation (1895) yield 411 clause must to considera case). public policy tions of and necessities of States helpful the defense if exclusion exclude evidence serves 532 reliability. Crane, supra, 476 U.S. at
interests of fairness and 644; 690, 106 2146, at at 90 L.Ed.2d Delaware v. Fenster S.Ct. 292, 294, 15, (1985) 15, 20, 19 er, 106 88 L.Ed.2d S.Ct. U.S. guarantees “opportunity for effec (confrontation clause cross-examination, that not cross-examination is effective tive extent, way, might whatever the defense and to whatever * ** impose wish”). Thus, trial courts “retain wide latitude * * * on cross-examination based on concerns reasonable limits harassment, about, things, prejudice, confusion of among other issues, safety, interrogation repeti witness’ Arsdall, only marginally relevant.” Delaware Van tive or 674, 679, 1431, 1435, S.Ct. 89 L.Ed.2d 475 U.S. Bocchino, (1986); Rape Tanford & Victim Shield Laws see also Amendment, (1980) 128 U.Pa.L.Rev. Sixth (neither law indicates defendant’s sixth-amend logic nor case prejudicial right compels admission of evidence the effect ment value). outweighs confrontation is probative Because of which trial, however, significant its “denial or fundamental to fair integrity question into the ultimate fact- diminution calls competing interests finding process requires Chambers, supra, 410 at 93 S. closely examined.” U.S. Ct. L.Ed.2d at 309. *12 Statute, Relying the trial court restricted Rape on the Shield of both T.D. and significantly defendant’s cross-examination restrictions, confront reviewing those we Detective Cetuk. In ascertain, First, apart Rape from the questions. we must two Statute, the the was relevant to de whether Shield relevant, If we then must decide wheth fense. the evidence is outweighs prejudicial its effect. probative its value See er 689-90, 2146, Crane, 106 at 90 L.Ed.2d 476 at supra, U.S. S.Ct. 1111, 644-45; Davis, at 415 at 94 S.Ct. 39 supra, at U.S. constitutionally so, If at 355. the evidence L.Ed.2d excluded. prior the seeks to elicit evidence of a defendant
When child, Rape the Statute directs trial of a Shield sexual abuse
533 courts pre-trial to conduct a hearing. in camera N.J.S.A. probative 2C:14-7. The prior value of the depends acts on clear occurred, proof they that the acts are relevant to a case, material issue in they the and that necessary are to the Pulizzano, defense. 633, 655-56, State v. 2dWis. N. W.2d When evidence is offered to show a acts, knowledge child’s of sexual its depends relevance also on prior whether the closely abuse question. resembles the acts in Padilla, 414, 428-29, See State v. Wis.2d 329 N. W.2d 271 (Wis.Ct.App.1982). The requiring reason for similarity prior between the acts is that likely acts are more to affect the ability child’s to describe the in question they closely acts if previous resemble the ones. assessing
When
prejudicial
the
effect of such evi
dence, the court should
likely
consider the
trauma to the child
degree
and the
to which admission of the evidence will invade
privacy.
the
prejudice
child’s
Such
may be
if
diminished
evidence can be adduced from sources other than the
In
child.
case,
present
Appellate
suggested,
as the
Division
witness,
evidence could have been elicited from another
involving
official documents
arising
the convictions
out of abuse,
by stipulation.
N.J.Super.
at
580 A.2d
questioned
abuse,
283.
If the
victim is
about
guard against
court should
excessive
Fur
cross-examination.
thermore,
any
the court should limit
such examination to the
information relevant
to the
By controlling
defense.
cross-
victim,
examination of the
prevent
the trial court can
“pointless
foraging”
and cruel
feared
the dissent.
Post
544-45,
depends example, on the facts of each case. For both consider vary age ations can recognize with the of a child. We alike, everyone, young and old is inundated with information on television, movies, sexuality. tabloids, Sources include *13 magazines. mature, they likely As children will learn about many Thus,
sexuality prior sources. evidence of sexual from probative involving children. experience is less cases older possibility prejudice the increases as a child Conversely, may A constant concern is that the evidence divert matures. jury’s from the the defendant to that attention behavior of jury to example, the victim. For the evidence mislead a sexually experienced a conclude that one who assaults more if the initiated encoun- culpable, especially child is not child ter. case, prior by evidence of T.D.’s abuse her
In this stepfather consequent knowledge her of sexual acts is First, it ways. in two rebuts the relevant to the defense knowledge to sexual acquired T.D. describe inference that experience See, e.g., matters from her with defendant. Com Ruffen, 399 Mass. 507 N.E.2d monwealth v. (evidence (1987) why sexual relevant to show abuse enough sexual matters to such child would know about them). Second, relevant show that describe the evidence is knowledge initiate acts T.D. had the the sexual as described by defendant. argues ability that evidence of an infant’s
The State only acts is in those cases in which describe sexual relevant Here, any that contact occurred. defendant denies deny does T.D. could contends that defendant not State acts her with have learned to describe sexual from encounters vaginal disagree. him. that he ever had We Defendant denies penis T.D. that his ever came in contact intercourse with contrast, vaginal By area. T.D. claims that defendant with her vagina. in her To extent that their stories placed penis his contact, ability differ the nature of the T.D.’s to describe about to the defense. the sexual acts relates Moreover, only the occurrence State concedes stepfather, closely it of the abuse T.D.’s but Indeed, Ap charges against defendant. as the resembled the observed, nearly language T.D. used identical pellate Division
535
512,
to describe each of
N.J.Super.
the incidents. 243
at
580
circumstances,
A.2d 283. Under these
T.D. had
vaginal
learned about
intercourse from a source other than
supports
defendant
his contention that he did not have inter
majority
course with her.
of
agree
The
courts
out-of-state
prior
youthful
sexual abuse
aof
victim is relevant to rebut
complainant
the inference that the
could not
describe
details
sexual
of
intercourse if the defendant had not committed the
in question. See, e.g.,
Oliver,
22, 28,
acts
State v.
158 Ariz.
760
1071,
(1988) (evidence
2d
prior
P.
1077
of
sexual abuse relevant
fabricate);
ability
706,
to show
Jacques,
State v.
558 A .2d
(Me.1989)(prior
708
sexual abuse of victim admissible to rebut
inability
inference
accurately
of
child’s
describe
acts of
Mass,
intercourse);
815,
Ruffen, supra,
sexual
at
399
507
(prior
at 687
ten-year-old
N.E.2d
sexual abuse of
relevant to
personal knowledge
show child’s
of sexual acts and terminolo
159, 163-64,
gy);
State,
1374,
101
Summit v.
Nev.
697 P.2d
(1985) (evidence
prior
1377
of
sexual abuse relevant to rebut
inference
by six-year-old complain
that sexual abuse described
it);
must
she
ant
have occurred or
could not have described
Baker,
801, 805,
1059,
(1986)
v.
127
508 .2d
1062
State
N.H.
A
(due process requires
experience
prior
admission of
sexual
acts);
youthful
knowledge
People
victim to show
of sexual
Ruiz,
570,
(1979)
402,
71
(prior
A.D.2d
403
N.Y.S.2d
experience
ability
sexual
admissible to
victim
show
de
Pulizzano,
intercourse);
supra,
scribe acts of sexual
651-53,
(prior
.2dat
tional Exclusions of
ability
(prior
to show child’s
to describe sexual
abuse relevant
defendant).
from source other than
acts emanated
of T.D.’s
the evidence
The dissent finds that
2d
only
593 A. at 795.
marginally
relevant. Post
abuse
finding,
disagrees
our conclusion that
the dissent
with
In so
*15
relevant,
by
Appel
the
highly
is
a conclusion shared
evidence
246, 251-53,
Division,
Ross,
N.J.Super.
249
592
late
State
—
—
291,
denied,
(1991); 243
293-94, cert.
N.J.
N.J.Su
A.2d
513,
283;
by
majority of out-of-state
per.
A. 2d
and
at
534-35,
Although
Supra
By adults have likely to Consequently, jury would less children. be than to sexual acts rape adult victim learned describe assume an Hence, the dissent’s with her assailant. from incident 544, 546, misplaced. is Post at analogy rape to adult victims 796, 797, at 798. 593 A.2d is not that T.D. fabricated the The crux of the defense them, incidents, defendant initiated and that but that she defense, aspect this stop tried to her. To promptly knowledge T.D.’s of an alternative source of evidence jury naturally would Judge Long noted that crucial. nine-year-old child would know that a disinclined believe alleged encounters. enough about sexual acts to initiate the 2d concrete evi 580 A. 283. Without N.J.Super. acts, explanation defendant’s that T.D. knew of such dence subject the incidents is to disbelief. consent is not a contends that because
The dissent abuse, charge evidence that T.D. to a of child sexual defense That with defendant is irrelevant. initiated the sexual conduct Although claims that T.D. is incorrect. defendant contention contact, his defense is not that she consent initiated the sexual Instead, approached he claims that T.D. sexual acts. ed immediately her. Defendant’s ver him and that he rebuffed Thus, sion, jury, constitute a defense. if would believed support his claim that T.D. knew how that tends to *16 the “exquisitely important” to defense. initiate these acts is 510, Although jury may the 2d 283. N.J.Super. 243 at 580 A. acts, initiated the contention that the victim reject defendant’s implica The jury’s for the consideration. the issue remains one dissent, however, an be convict is that accused tion of the him and he approached if the child sexual abuse even ed of child immediately rebuffed her. case, highlighted prosecutor’s the summation
In this argued that prosecutor The relevance of the evidence. the unbelievable because of the incidents was defendant’s version T.D.’s knowl placed in issue age. Because the State of T.D.’s acts, to adduce permitted should be edge defendant of sexual Ross, knowledge. her source of of an alternative evidence 249-50, at 292-93. N.J.Super. 592 A.2d supra, 249 at jurisdic- from other primarily on three cases The relies State properly court that the trial support argument its tions to 538 Clarke, 158, v. N. the evidence. State 343
excluded See W.2d 1984) (evidence prior experience (Iowa of sexual 162-63 sex); ability People show to fantasize act of oral admissible to Arenda, 1, 12, 814, (1983) (when 818 v. Mich. 330 N.W.2d abuse, prior prove prejudice makes no offer to sexual defendant evidence); outweighs value probative to victim of Common 176-77, Appenzeller, Pa.Super. .2d 565 A wealth (1989) (evidence prior of in 171-72 sexual abuse irrelevant trial), appeal denied, subsequent sexual abuse .2d 507 A disagree cases, represent these minor We with which Mich, Moreover, Arenda, ity supra, in view. at permitted the trial court defense counsel to N.W.2d question eight-year-old concerning an the victim child’s sexual others, repeatedly conduct with which child denied. Supreme Michigan ruling Court affirmed the trial court’s that in face of the denial and the absence of an offer of child’s occurred, proof counsel that such conduct had defense could not Clarke, inquiry. that avenue Ibid. In unlike in the continue case, present sought to question the defendant victim about Furthermore, prior voluntary. conduct sexual that was proof prior did not make an offer of the victim’s defendant any experience showing that the “excluded” make Here, at 159. evidence existed. 343 State concedes N.W.2d closely they acts resemble occurred sum, allegedly those committed defendant. In we find the unpersuasive. by the cases cited State to be issue, prejudicial second whether the We now turn probative outweighs Rape its value. The effect of the evidence whether evidence Shield Statute directs trial courts consider prejudice, “create confusion sexual conduct will undue issues, privacy of the of the of the or unwarranted invasion Similarly, the clause victim.” 2C:14-7. confrontation N.J.S.A. compel prejudice that will does not admission *17 victim, jeopardize safety, jury. her or confuse the Van Arsdall, 475 at 106 at 89 L.Ed.2d supra, S.Ct. US. the prejudice must consider both to Consequently, at 683. we
539 possibility process the victim and the of subversion of the trial by confusing jury permitting improper or a verdict on based grounds. Appellate Division concluded that the admission of prejudice
evidence of
sexual abuse cannot
the victim or
Rape
purposes
contravene the
Shield Statute.
243
512-13,
County
283.
N.J.Super. at
580 A.2d
Both the Somerset
prosecutor
Attorney
vigorously challenge
General
and the
They contend that even when the
is not
conclusion.
degrade
impugn
offered to
the victim or to
the victim’s charac
ter,
may
reporting
its admission
chill
of other offenses. We
abiding
find their contention has merit. Our
concern is that to
subjecting
already-stigmatized
their
children to the fur
avoid
litigation, parents may
report
ther trauma of
instances of
Libai,
child abuse.
The Protection
the Child Victim
See
System, Wayne
a
in the
Justice
15
Sexual
Criminal
Offense
977, 983-86,
(1969) (chronicles
“legal
L.Rev.
effects
trauma”).
may
of evidence that
embar
process
The admission
children,
interrogation,
subject
intensive
rass
them more
parental
reluctance to
privacy may
further invade their
add
Also,
testify.
admission of such evi
permit their children to
anxiety children suffer from
may intensify
dence
whatever
D.R.,
537 A.2d
testifying
supra,
in court.
109 N.J.
See
intimidating
(courtroom
for chil
experience
stressful
411, 420, 484
dren);
N.J.Super.
A.2d
Sheppard,
State
Libai,
(Law Div.1984);
Wayne
L.Rev. at 1015.
supra,
victim,
age
possibility
Finally, depending on the
of the
Because trusted
jury may misuse the evidence.
exists that the
abuse, a child
exploit
position to commit sexual
may
adults
their
case, “willing” participant.
In such a
may appear a on the child’s
jury’s
attention
sexual abuse
focus
with a sexual-
instead of the defendant’s. Confronted
behavior
victim,
to excuse a
jury may be inclined
ly sophisticated
Thus,
the acts.
the victim initiated
defendant who claims that
*18
apparent
jury
that a child’s
court should instruct
the trial
exculpate
not
a defendant.
“willingness”
does
“consent”
case,
Appellate Divi
present
agree
In the
with the
we
prior
may
victimization
be
the evidence of T.D.’s
sion
First,
may
counsel
prejudice.
undue
defense
admitted without
through
to elicit the evidence
cross-examination
be able
subjecting T.D. to cross-examination.
Detective Cetuk without
T.D. on her
cross-examination of
If the trial court should allow
abuse,
the examination to her recollec
prior
it should confine
may
try
not
to show
occurrence. Defense counsel
tion
en
prior
T.D. that her
victimization
cross-examination of
on
that she initiated the encounters with
hanced the likelihood
commented,
prior
Appellate
As the
Division
defendant.
jury’s eyes.
in the
unlikely
prejudice
abuse “was
[T.D.]
Indeed,
contrary
Sympathy
plight
for her
was the
is true.
N.J.Super, at
Contrary to the dissent’s
pervaded
jurisprudence
mythology that once
do with “the
likely
is more
to consent to a
rape” that an “unchaste” woman
544,
The to the Law Division. matter is remanded O’HERN, J., dissenting. nor the Consti- of the United States
Neither the Constitution
this
Jersey requires that we reverse
of New
tution of the State
child
conviction.
sexual-abuse
meaningful
guarantees
criminal defendants
“a
opportunity
Constitution
[T]he
Trombetta, 467
v.
U.S. [479,]
defense.”
a complete
California
present
* * *
(1984)
would
That opportunity
justification, a defendant evidence deprives exclusion of this kind exculpatory and “survive the right case encounter to have the of the basic prosecutor’s Kentucky, 476 U.S. testing.” [Crane meaningful 683, adversarial crucible of (1986) (quoting United 90 L.Ed.2d 2146-47, 636, 2142, 106 S.Ct. 690-91, Cronic, 80 L.Ed.2d States v. U.S. 2045, 657, 104 S.Ct. 2039, (1984)).] proposition Supreme That stated the United States Court pertaining credibility the context of to the of confes- generally applicable is sion here.
The
question
critical
that we must decide then is
whether
proffered evidence is “central to the defendant’s claim of inno-
cence.” Id. at
case' that its exclusion should not cause a reversal his apparent argument conviction. The thesis of defendant’s that he liability should be excused from for this criminal of youthful fense on the only basis that the victim not consented to the sexual encounters initiated them. but The law affords Jersey’s proscribes no such defense. New Criminal Code case, alleged kind of sexual contact in this whether or not the *20 consented, victim had the victim is less than when thirteen- years 2C:14-2a(1). may old. That a child N.J.S.A. have initi ated such contact makes no difference under our law. J. See Cannel, N.J. Code Criminal Justice 2C:14-2 Comment of (1991) (“There under-age girl] was no desire to allow [an Thus, girl make this decision at all. the volition of the was not irrelevant.”). being protected apart and was Even from our cases, statutory guidelines relevancy, own on most the “[i]n relevancy, any, jury if A of such evidence will be minimal. unlikely ability to consider a witness’s sexual con describe independent supporting duct as an factor a conviction. This disease, ability, pregnancy, unlike semen or need not be ac quired solely through Arenda, People sexual conduct.” v. 1, 12, (1982). Mich. 330 N. 2d This evidence of W. being abuse is far from “central” to defendant’s “claim of innocence.” that,
Beyond
imposes greater
I believe that the Court now
required
in the trial of child sexual-abuse cases than is
barriers
model
good
analysis may
Constitution. A
be found
exceptions
in
to the Federal Rule
Evidence
excep-
rape-shield
types
federal
law. That law codifies the
perhaps
constitutionally required.
tions that
be
For
would
example, the Rule allows a defendant to submit evidence of the
past
explain
might
victim’s
sexual behavior to
how another
412(b)(2)(A).
injury
the source of the
or semen. Fed.R.Evid.
Also,
may
in
conduct
show a
some circumstances
Jalo,
Or.App.
possible
falsely.
motive to accuse
State
(1976).
In the attitude of Court), 534-35, 791-92, at with Supreme see ante A.2d appears repetition respect to child cases to be sexual-abuse pervaded rape. mythology jurisprudence once that Steinmetz, Past; v. with a The See Oliver: Children State Experience in Admissibility the Victim’s Prior Sexual 677, Cases, 31 Ariz.L.Rev. 680-81 Child Molestation “ put it, underlying thought here is that it is As court ‘The one * * * probable an unchaste woman would assent more 611, 605, Collins, [People virtuous 25 Ill.2d than a woman.’ * * * 30, (1962).] premise this rationale 186 N.E.2d [T]he chastity presumption on the was based ‘[t]ruthfulness only thought virtues that were found were women together. expected was to be truth No “unchaste” woman ” 135, Sandoval, 168, 142 Ill.Dec. People v. 135 Ill.2d ful.’ 139-40, (quoting Murphy, Rape 729-30 Shield 552 N.E.2d Court, 69 Upheld by Appellate Illinois Ill.B.J Statute — — -, denied, (1980)), 111 S.Ct. cert. U.S. (1990). was that defense counsel were 2d 307 result L.Ed. “pointless permitted the victims of sexual crimes subject history, subjecting the foraging into sexual thus and cruel psychological or emotional abuse.” complainant to needless an Note, “Injury” Constitutes v. Shaw: What United States
545 Statute?, Rape-Shield L.Rev. the Federal 43 U.Miami under 947, (1989). 951 have need child victims
We
heretofore stressed the
to shield
unnecessary
into their
sexual abuse from
intrusion
lives.
of
system recognizes
justice
fully
criminal
a defendant’s
“Our
discovery.
right
prepare
complete
to
a
have
How
defense and
ever,
forage
without a
allowing a defendant to
for evidence
ingredient
process
not an
of
due
or
reasonable basis is
either
in
the criminal
fundamental
fairness
the administration of
28,
R.W.,
(1986)
1287
laws.”
104 N.J.
514 A.2d
State
(denying
of child-victim witnesses
psychological examination
need).
except
showing
on
of
We noted that
substantial
against
ages
charged
victims of all
defendants
with sexual offenses
female
against
on unsound
have
based attacks
witness
stereotyp
reliability
historically
924(a)
e.g., Wigmore,
3 J.
Evidence
See,
ical notions of the nature of women.
§
e.g.,
(3rd
1940).
thinking.
State v.
See,
ed.
We
such
Kelly,
totally repudiate
(1984).
springs
understanding
from
N.J.
very
A.2d
Contemporary
gender.
See N.J.S.A.
knowledge
and
and
different
temperament
perceptions
statute).
(Rape-Shield
at 30 n.
A.2d 1287.]
[Id.
2C:14-7
commitment.
depart
to
from that
This is not the case which
with,
essentially
is character evidence
begin
the use what
To
is
unheard of in the law. With
impeach a witness
almost
concerning
in the
of traits
exceptions, as
case of evidence
rare
past
simply
is
honesty
veracity,
or
the evidence of
character
testimony
Fed.
of a witness. See
impeach
admissible
608;
techniques
22.
are five traditional
Evid.R.
There
R.Evid.
first,
credibility
“the
of a
impeachment:
witness
modes of
or
by proving
the witness made
state-
may
attacked
be
testimony”;
her or his trial
that are inconsistent with
ments
second,
may
by proof that the wit-
“credibility
be undermined
third,
interested”;
of a
“evidence
witness’s
is
or
ness
biased
unworthy
prove
the witness
may be offered to
character
fourth,
proof belief”;
“testimony may
impeached
be
remember,
relate”;
observe,
capacity
in a
defects
witness’s
may
used to contradict
finally,
be
“extrinsic
Myers,
Techniques
testimony.”
The Child Witness:
witness’s
Cross-Examination,
Examination,
Impeach-
Direct
However,
ment,
18 Pac.L.J.
910-11
those circum
stances in which evidence of a witness's character
*23
prove
unworthy
to
that the witness is
of belief are
offered
by
Jersey
Only
limited
the
sharply
New
Rules
Evidence.
veracity
“honesty
opposites”
of the traits of
or their
evidence
purpose.
specific
22.
can be used
that
Evid.R.
Proof of
activity
persons
acts of sexual
with
other than the defendant
* * *
ordinarily insufficiently probative
gen
“is
[a victim’s]
* * *
credibility
outweigh
highly preju
eral
as a witness
to
its
268,
Kasto,
dicial effect.”
v.
584 F.2d
271-72
United States
(8th Cir.1978),
denied,
930,
1267,
440
99
59
cert.
U.S.
S.Ct.
(1979);
Wilson,
People
L.Ed.2d 486
see also
v.
Moreover, the “insult and intimidation” that women endure laws, ‘rape “during rape prompted trials states to enact shield’ designed prohibit relating to control or the use of evidence general Supreme the victim’s sexual behavior.” The Court— Leading Harassment —Hostile Environ- Cases—Sexual Work (1986). ment, 100 Harv.L.Rev: 284 n. Courts had questions previously permitted defense counsel to ask victims control, bars, illegitimate their use of birth attendance at about children, experiences. Berger; sexual and number of Trial, Rape Tribulation: in the Man’s Woman’s Cases Court- room, It be the cruelest 77 Colum.L.Rev. would rape-shield protect if paradox the laws enacted to women from indignities myths and to counteract that women consent those interpreted require sex would now be the admis- forcible when, just conduct due to sion of such evidence of sexual victim, age consent is not even an issue. majority involving adult In the vast of cases victims which defense, may critical to the consent be considered to be totally inadmis- sought to be introduced here would be Evidently, assumption that children are because of an sible. innocent, we counter majority naive or believes that must permitting indignities assumption by very to be act that that not inflict on an inflicted on this child victim we would myths require The Constitution does not be adult victim. a dispelled There a in which way. in that situation victim present seeks to case on the basis that the prosecutor any terms from source could not have learned the sexual used See, Ross, e.g., 249 N.J.Su other than defendant. State attempt some (App.Div.1991). Absent per. 592 A.2d that, only jury instruct the State to do the court need language any from the used it should not draw inferences any it should not in sense attribute by the child and that knowledge The court could to the defendant. child’s infor explain many sources of such jury to the that there are sexually defendant society, in our and that whether mation Eatman, for it to determine. See assaulted the victim remains *24 (1985) Assault, N.H.B.J. Sexual Minor Victims of is familiar with sexual (court jury that child could instruct presume it is not to that terminology concepts and that and naive). is child most, proposition supports here the factual
At
the evidence
event, something
is
that
irrelevant
initiated the
that the victim
child. The law of child
relations with a
in the case of sexual
simply
is
no
initiation
very
is
strict. Victim
sexual abuse
having had a sexual encoun-
admits
when a defendant
defense
thirteen-years old. This
is less than
with a child who
ter
victim;
competent
a
helpless
he
not
was
defendant was
a
the kind
conduct
knowing
engage
An
cannot
in
of
adult.
adult
alleged in this case.
has
that
been
he had
emphasizes
denies that
that defendant
majority
534,
Only argument one other be made for admissibility can of prior the evidence: that description incident with the paralleled victim’s stepfather closely description so of this suggests possible incident that it We might fabrication. con prior cede relevance if experience some to the there were something described, unusual about the event rather than the dreary regrettably every to almost sameness such act with a type was any “signature” child. This far from crime. See Sandoval, People supra, 135 Ill.2d 142 Ill.Dec. (suggesting quality N.E.2d 726 that in a offense relevance). might if establish Even some relevance were ac circumstances, in corded to the evidence those court must still probative decide if the of the worth evidence to defendant sufficiently bears on issue prejudicial what is at its overcome Legislature, law, enacting rape-shield effect. The in has admitting said that in the victim’s activity, prejudice per there is se. Even if child were the defendant, initiator of the encounter with sufficient ly probative my dispel liability. mind to criminal The whole rape-shield purpose get prejudicial of the law is to rid inferences such as “she for it.” the majority’s asked To test logic must ask: in if we an adult case a woman were to have *25 given graphic description rape prior a brutal of on a occasion issue, way in the same she described incident at would rape-shield that ever be considered to a reason circumvent I law? should think not. The evidence not be should admissi ble in child’s this case.
Moreover, permit the trial its to court exercised discretion jury complaint to know that a criminal had been filed against stepfather, closing arguments counsel in for A those matters. reason- free to comment on was defendant having in interest of defendant's able accommodation jury was made in the circumstances before the information this case. Tribe, scholar, H. ex- Laurence respected
The constitutional the federal Congress passage support his pressed rape-shield act: no But difficulties; No costs and is [this act] reform without its exception.
nothing Evidence would to the Federal Rules of in the amendment proposed right in circumstances the defendant’s due process extraordinary override marginally loss of innocence; the occasional adduce crucial evidence of only and that seems amendment, attributed to relevant evidence can plausibly the trial for an humanization of reasonable important an eminently price pay Hearing charge is Victims: Rape [Privacy in cases where the rape. process House Justice The Subcomm. on Criminal on H.R. 14666 Before (1976) (letter Comm, Cong., from Prof. on the Judiciary, 94th 2d Sess. 54-55 School).] H. Harvard Law Tribe, Laurence of a child victim. well in the case Those concerns resound as protected from an adult “A no less than be] child [should public and from history paraded her having therefrom.” Commonwealth having unfair inferences drawn 565 A.2d Pa.Super. Appenzeller, 388 reinstated. should be of conviction judgment opinion. joins in this HANDLER Justice Justice remandment —Chief For affirmance POLLOCK, CLIFFORD, WILENTZ, GARIBALDI and Justices and STEIN—5. O’HERN, dissenting HANDLER and
Justices —2.