# State v. Hudlow > Washington Supreme Court · February 24, 1983 · 99 Wash. 2d 1 URL: https://www.frixlaw.com/law-library/cases/9632576 ## Case - **Full name:** The State of Washington, Petitioner, v. Allen Dale Hudlow, Respondent; The State of Washington, Petitioner, v. Douglas B. Harper, Respondent - **Court:** Washington Supreme Court - **Decided:** February 24, 1983 - **Citations:** 99 Wash. 2d 1; 659 P.2d 514; 1983 Wash. LEXIS 1414 - **Precedential status:** Published - **Opinion:** Dissent by Utter - **Judges:** Utter, Williams - **Cited by:** 296 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9632576 ## How later opinions describe it (automated extraction) - finding no clear similarity between the victims’ past sexual conduct and the offense charged; while the former always involved sailors and never included hitchhiking, the rape victims met the defendants, two nonsailors, while hitchhiking - explaining that the admission of sexual history evidence could lead to "acquittals based on prejudice against the victims' past sex lives" - explaining that adoption of rape shield statutes nationwide is a “recent trend, reversing years of the opposite rule” (footnote omitted) - recognizing that a pattern of highly similar sexual behavior may be probative of consent and, thus, constitutionally admissible - holding evidence of general promiscuity inadmissible because there was no evidence of conduct comparable to defense theory ## Opinion text Utter, J. (dissenting) — I concur fully in the majority's interpretation and analysis of the rape shield statute, RCW 9A.44.020. 1 dissent, however, because I believe the majority misapplies the statute in this case, inasmuch as the prosecution "opened the door". The defendants were therefore entitled to cross-examine the complaining witnesses about their prior sexual conduct. As the majority recognizes, the statute requires a delicate balancing of society's interest in preventing a heinous crime and the defendants' constitutional right to a fair trial. The interest in rape prevention lies not only in its nature as a violent crime grossly invasive of privacy but also in its *24 identification with our previous relegation of women to second-class status. See Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum. L. Rev. 1 , 2-3, 10-12 (1977). The defendant's Sixth Amendment rights to confront his accusers and call witnesses in his behalf, on the other hand, are "basic in our system of jurisprudence". Chambers v. Mississippi, 410 U.S. 284, 294 , 35 L. Ed. 2d 297 , 93 S. Ct. 1038 (1973) (quoting In re Oliver, 333 U.S. 257, 273 , 92 L. Ed. 682 , 68 S. Ct. 499 (1948)). These rights are especially crucial in a rape case where, more often than in other cases, the testimony of the victim is critical in establishing guilt or innocence. In order to protect defendants' Sixth Amendment rights, RCW 9A.44.020(4) (formerly RCW 9.79.150(4)) provides that a defendant may present evidence of past sexual behavior whenever "the prosecution presents evidence in its case in chief tending to prove the nature of the victim's past sexual behavior". RCW 9A.44.020(4). This incorporates perhaps the most basic aspect of the aforementioned Sixth Amendment rights — the right to rebut evidence affirmatively presented by the State. On the other hand, this provision does little to prejudice the State's interest, since the prosecution can entirely avoid the issue by not presenting such evidence. It is RCW 9A.44.020(4) which the majority improperly applies in the present case. One of the complaining witnesses, Ms. Tammy Smith, testified as follows: Q What did you do when he [defendant Hudlow] asked you to give him a blow job? A I told him I didn't know how. (Italics mine.) Supplemental Verbatim Report of Proceedings, at 152-53. This testimony, as does most evidence, tends to prove several facts. First, it is evidence of what Hudlow was told, which is relevant to show that Ms. Smith sought to evade performing oral sex with him. It also is hearsay evidence, however, that Ms. Smith does not know how to perform oral sex. This tends to prove that she has *25 not done so in the past. 6 Thus this testimony "tend[ed] to prove the nature of the victim's past sexual behavior"; namely, that she has never before performed oral sex. Whether Ms. Smith intended such meaning is irrelevant — the question is whether the jury could have so interpreted her testimony. While the majority finds Ms. Smith's meaning "obvious" (majority, at 21), I do not, especially when reading the above quoted testimony in its broader context. Q What did he say to you? A He told me to play with myself. Q And did you, you know, know what he meant by that? A Yeah. Q What did you tell him? A I told him I didn't know how. Q And what did he say in regard to that response? A He told me, "It's about time you learned." Q Then what happened? A Then he told me that I had to give him a blow job. Q Did you know what he meant by that? A Yeah. Q What did you do when he asked you to give him a blow job? A I told him I didn't know how. Supplemental Verbatim Report of Proceedings, at 152-53. The jury might well have formed the construct, "I know what he meant, but not how to do it", from this testimony. The prosecution's evidence did, therefore, "tend to prove the nature of the victim's past sexual behavior" and thus "opened the door". 7 *26 Still, the scope of the rebuttal evidence to which the door was opened was narrow. In an instance such as this where the witness' testimony can be given several meanings, I believe RCW 9A.44.020(4) first requires that the defendant attempt to clarify its meaning. Only if, after clarification, the testimony still tends to prove past sexual conduct is further cross examination in that area permissible. In this case, therefore, defendants were required to first clarify whether Ms. Smith intended to claim that she had actually never before performed oral sex. In essence, this is what the defendants did, though somewhat inartfully. Q. Do you know what he meant from personal experience? A. No. Q. So it is just from conversations you have had with other people about that? A. Yeah. Supplemental Verbatim Report of Proceedings, at 208. Moreover, the court gave express prior approval of this line of questioning outside the presence of the jury. Supplemental Verbatim Report of Proceedings, at 205-06.* ** 8 Had Ms. Smith conceded in response to this questioning that she had had prior experience with oral sex, RCW 9A.44.020(4) would not have permitted further cross examination in the area for there would be no damaging evidence to rebut. Instead, however, her denial confirmed what her prior testimony implied. At that point, defendant should have been allowed complete cross examination in the area of Ms. Smith's prior experience with oral sex. The court's refusal to allow such cross examination was error. *27 The defendants were improperly denied their statutory rights of cross examination and their constitutional rights to confront their accusers. I dissent. Dolliver, J., concurs with Utter, J. While the fact that a person knows how to perform an act does not conclusively prove she has done so, the fact that she does not know how to perform an act does tend to prove she has not done so. Moreover, the hearsay nature of the evidence introduced by the prosecution does not "close the door". The door may be opened by inadmissible as well as admissible evidence. See, e.g., State v. Odell, 38 Wn.2d 4, 13-14 , 227 P.2d 710 (1951) (hearsay reference to prior conviction by defendant's psychiatrist opened door to further inquiry into conviction); State v. Wilson, 26 Wn.2d 468, 484-85 , 174 P.2d 553 (1946) (testimony regarding facts underlying prior conviction opened *26 door to cross examination on same matter); State v. Howard, 137 Wash. 172, 172 , 242 P. 21 (1926) (same, though "the testimony might not have been originally material"). A more appropriate approach would have been to ask: "When you testified that you told Mr. Hudlow you didn't know how to give a blow job, did you mean to imply that you actually didn't know or only that you told him that to avoid having to do it?" This was the gist of defendant's questioning, however, and, especially in light of the trial court's prior approval, I believe it sufficient. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9632576. Public record. Not legal advice.