"The best that appellant's presentation would show is that the child may also have been molested by other persons."
How later courts described this case
- "The best that appellant's presentation would show is that the child may also have been molested by other persons."
- evidence of prior sexual abuse irrelevant in subsequent sexual abuse trial
Written by the judges who cited it.
The opinion
POPOVICH, Judge,
concurring and dissenting:
Although I concur in the result reached by the majority, I respectfully dissent from the opinion of the majority because I am convinced that the Rape Shield Law, 18 Pa.C.S.A. § 3104, does not serve as a bar to evidence of prior sexual assaults against a victim.
The Rape Shield Law, 18 Pa.C.S.A. § 3104(a), specifically states: “Evidence of specific instances of the alleged victim’s past sexual conduct, ... shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant *178 where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.” (Emphasis added).
I, unlike the majority, do not believe that a prior sexual assault qualifies as “past sexual conduct.” Inherent in “conduct” is a volitional component which is obviously absent from an “assault.” Black’s Law Dictionary, 268 (5th ed., 1979), defines “conduct” as “Personal behavior; deportment; mode of action; any positive or negative act.” It further notes the Model Penal Code definition of “conduct”: “An action or omission and its accompanying state of mind or where relevant, a series of acts and omissions. Model Penal Code, § 1.13.”
“The Rape Shield Law was enacted primarily to prevent establishment of an unwarranted nexus between the victim’s reputation for chastity and her veracity.” Commonwealth v. Johnson, — Pa.Super. at -, 566 A.2d at 1199. The fact that a victim was sexually assaulted previously does not, in any manner, reflect upon her “chastity or veracity.” Accordingly, I do not believe that the rule applies when a defendant seeks to introduce evidence of a prior sexual assault upon the alleged victim. Compare Miller v. Nevada, — Nev. -, 779 P.2d 87 (1989) (prior false accusations of sexual abuse or sexual assault by complaining witnesses do not constitute “previous sexual conduct” for rape shield purposes). See also Clinebell v. Com., 235 Va. 319 , 368 S.E.2d 263, 264 (1988).
Rather than apply the Rape Shield Law, I am convinced that the question of whether evidence of a past sexual assault of an alleged victim is admissible is controlled by the rules of evidence. Simply put, the evidence proffered by the defendant must be relevant. Evidence is relevant if it logically tends to prove or disprove a material fact at issue, or if it tends to make such a fact more or less probable, or if it affords the basis for a reasonable inference or presumption as to the existence of a material fact in issue. Commonwealth v. Haight, 332 Pa.Super. 269 , 481 A.2d 357 (1984), affirmed 514 Pa. 438 , 525 A.2d 1199 (1987).
*179 Instantly, I believe that the evidence of a prior sexual assault inflicted upon the victim offered to explain the victim’s knowledge of sexual activity is not relevant. The fact that the victim possessed a rudimentary knowledge of sexual activity does not exculpate appellant, regardless of how the knowledge was acquired. Under the present facts, I am convinced that the proffered evidence was not relevant, and, therefore, I find that the trial court did not abuse its discretion in excluding the evidence of a prior sexual assault upon the victim.
Accordingly, I concur in the result.
JOHNSON, J., joins in the concurring and dissenting statement by POPOVICH, J.