Petition for Writ of Certiorari — Sandoval v. Illinois
Supreme Court brief1990
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No. ' | JOSEPH F. SPANIOL, JR.
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1990
SANTIAGO SANDOVAL,
Petitioner,
vs.
THE PEOPLE OF THE STATE OF ILLINOIS,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS
PETITION FOR WRIT OF CERTIORARI
ROBERT P. WILL, JR.
Counsel of Record
WILL & BRISCOE
Seven South County Street
Waukegan, Illinois 60085
(708) 336-4440
i
QUESTIONS PRESENTED FOR REVIEW
Whether the Illinois Rape Shield
Statute is unconstitutional per se, or in
the alternative, whether the Illinois
Rape Shield Statute was unconstitutional-
ly applied to the Petitioner in this case
in violation of the confrontation clause
of the Sixth Amendment of the United
States Constitution and in violation of
the due process clause of the Fourteenth
Amendment to the United States Constitu-
tion.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW....
TABLE OF AUTHORITIES... --+-e+eeeee
OPINIONS BELOW....-. ee eee errr rerres
JURISDICTION... ccc eeeererrerrerers
CONSTITUTIONAL PROVISIONS INVOLVED
STATEMENT OF THE CASE...--++++ee5:5
REASONS FOR GRANTING THE WRIT.....
CONCLUSION.....--> repre yy etc
APPENDIX (As Below)
Illinois Appellate Court Opinion..
Illinois Supreme Court Opinion....
Illinois Supreme Covrt Denial of
Petition for Rehearing....+-++++:
14
34
24
85
iii
TABLE OF AUTHORITIES
PAGES
, 391 U.S
123 20 L.Ed. 2d 476, 88 S.Ct.
ee. ck cesere 28
Davis vy Alaska, 415 U.S. 308, 39
39 L.Ed. 2d 347, 94 S.ct.,1105
DPM REEUADR SG GE bebe eseccceare 20,21,24,
29,33
, 401 U.S. 222,
28 L.Ed, 2d 1, 91 S.Ct. 163
a 26
, 488 U.S.277,
102 L.Ed.2d 513, 109 S.ct.480
EE 28,32
» 155 I11.App.3d
348, 507 N.E. 1342, I1ll.Dec. 1
(Ill.App.2 Dist. 1978)......... 18
» 80 Ill.App.3d 166,
399 N.E.2d 1346 35 Ill.Dec. 818
CET CS S655 ws whbh akc cccces 19,20
People vy Ellison, 123 111. App.3d
615, 463 N.E.2d 175, 79 I11.Dec.
37 (Ill.App.2 Dist. (1978)...... 19
, 380 U.S.400, 13
L.Ed 2d 923,85 S.Ct.1065 (1965). 29
, 985 S.W.2d 645
PRUE 6086600606605 005060565086% 24
State v LaClair, 433 A.2 d 1326
| ES ra eee eee eee 24,25
589 F. Supp. 206 (1984)......... 21,22,
Walder vy United States, 347 U.S.
62,98 L.Ed. 503, 74 S.Ct. 354
(19SE) onc crccnesecccvensansesesecs 25,26
CONSTITUTION
United States Constitution
a 14,18,20,
21,22,24,
27,28,29,
30, 32,33
United States Constitution
Amendment Fourteen.........06. 14,20,23,
27,28,29,
30, 32,33
STATUTES
Illinois Revised Statutes, Chap-
cer 38, Section 115-7... 14,16,17,
26,27,29
MISCELLANEOUS
Minnesota Law Review, Vol. 70
be aie ace « « 30
No. 4, Pages 763-916
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1990
SANTIAGO SANDOVAL,
Petitioner,
vs.
THE PEOPLE OF THE STATE OF ILLINOIS,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS
Santiago Sandoval, Petitioner herein
respectfully prays that a Writ of Cer-
tiorari issue to review the judgment of
the Supreme Court of Illinois entered in
the above-entitled case.
Me
OPINIONS EELOW
The opinion of the Appellate Court of
Illinois, Second Judicial District was
filed on January 13, 1989 and is reported
at 178 Ill.App.3d 669, 533 N.E.2d,980,
127 I11.Dec. 898 (1989). It is repro-
duced in the Appendix (App.1-23, infra).
The opinion of the Supreme Court of
Illinois was filed on January 17, 1990,
and is reported at 142 I11.Dec. 135, 552
N.E.2d 726 (1990). It is reproduced in
the Appendix (App.24-84, infra).
JUAISDICTION
The judgment of the Appellate Court
of Illinois, Second Judicial District,
which reversed the judgment of the
Circuit Court on two issues, and remanded
the case to the Circuit Court for a new
trial, was entered on January 13, 1989.
Thereafter, the People of the State of
Illinois, were granted leave to appeal to
the Honorable Supreme Court of Illinois.
On January 17, 1990, the Illinois Supreme
Court reversed the Honorable Appellate
Court. A timely Petition for Rehearing
was denied on April 9, 1990. This
Petition is being filed within 90 days of
-3-
the Illinois Supreme Court's denial of
the Petition for Rehearing. It is
reproduced in the Appendix (App.85) The
jurisdiction of this Court is invoked
under 28 U.S.C.§ 1257 (3).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Sixth Amendment to the Consti-
tution of the United States provides:
"In all criminal prosecutions, the
accused shall enjoy the right...to be
confronted with the witnesses against
him; to have compulsory process for
obtaining witnesses in his favor...".
Those rights are incorporated in the
Fourteenth Amendment to the Constitution
of the United States which provides:
"No State shall make or enforce any
law which shall abridge the privileges-
...Of citizens of the United States; nor
shall any State deprive any person of
life, liberty, or property, without due
process of law...”".
Illinois Revised Statutes, (1987),
Chapter 38, §115-7:
-~ In prosecutions for aggravated
criminal sexual assault, criminal
-4-
sexual assault, aggravated criminal
sexual abuse or criminal sexual
abuse, the prior sexual activity or
the reputation of the alleged victim
is inadmissible except as evidence
concerning the past sexual conduct of
the alleged victim with the accused.
b. No evidence admissible under this
Section shall be introduced unless
ruled admissible by the trial judge
after an offer of proof has been made
at a hearing to be held in camera in
order to determine whether the
defense has evidence to impeach the
witness in the event that prior
sexual activity with the defendant is
denied. Such offer of proof shall
include reasonably specific informa-
tion as to the date, time and place
of the past sexual conduct between
the alleged victim and the defendant.
Unless the court finds that reasonab-
ly specific information as to date,
time or place, or some combination
thereof, has been offered as to prior
sexual activity with the defendant,
counsel for the defendant shall be
ordered to refrain from inquiring
into prior sexual activity between
the alleged victim and the defen-
Gant.
STATEMENT OF THE CASE
Petitioner, Santiago Sandoval, was
charged by indictment on January 7, 1987,
with the offenses of two counts of
Aggravated Criminal Sexual Assault, two
counts of Criminal Sexual Assault,
one count of Unlawful Restraint.
(R C13-19) A jury trial commenced on
-5-
March 2, 1987, and concluded on March 5,
1987. Petitioner was convicted of
two counts of Criminal Sexual Assault and
Battery, as a lesser included offense,
and found not guilty of Aggravated
Criminal Sexual Assault and Unlawful
Restraint. (R €C126-131) Post-Trial
Motions were denied and Defendant was
sentenced to a term of fifteen years in
the Department of Corrections for the
offense of Criminal Sexual Assault. (R
835)
Of the three witnesses comprising the
State's case-in-chief, the complaining
witness, Pamela Schmid, testified that
she was a 20-year old, divorced mother of
a 2-year old child. She met the
Petitioner in the summer of 1986; they
dated for two months prior to living
together for three months. Because of
violent episodes that occurred when she
refused sexual intercourse, she moved
out, but she soon began seeing him again.
(R 156-172)
They went out for New Year's Eve,
1986, but when an argument ensued wherein
the Petitioner accused her of sleeping
with another man, they drove to his
apartment to discuss their relationship.
She said she tried to leave twice, but
-6-
Petitioner stopped her. She said he was
crying and irate and told her, "...that
he was going to fuck me one last
time." He pushed her to the floor, then
dragged her to the bedroom by her hair.
(R 176-201)
When he told her to roll over onto
her stomach, she got on her knees,
begging him not to have anal sex because
it hurt very bad and she did not like it.
She said she had had anal sex with him on
two prior occasions. (R 205-206). When
the Assistant State's Attorney asked her,
"Had you ever had anal sex in the past?",
she answered "With others?" The prosecu-
tor said "Yes, with others?", and the
witness answered "No." (R 207)
Ms.Schmid stated that while. she
cried, pleaded, and tried to stop hin,
Petitioner pulled her panties down below
her knees. While lying on her stomach,
he grabbed her "butt cheeks" and she
Slapped him. He then began to hit her,
causing a bruising on her ear and a lump
on the back of her head.(R 208-213)
Petitioner told her he would make it
hurt, and then inserted his penis into
her anus. (R 215-216) She then sucked
his penis because she believed he had
reached in his closet for a gun. Because
oFo
she thought he still had something in his
hand, the anal and oral acts were
repeated. (R 217-224)
When she noticed he did not have
anything in his hand, she escaped wearing
only her bra, underwear and skirt, and
pounded on the first apartment door she
reached. She told the man who answered
that she had been raped downstairs and
they called the police. (R 225-228)
On Cross-Examination, the witness
stated that she was receiving rape
counselling and had not dated since the
incident. When asked if she had been out
with a man at "Annie's Bar" a week prior
to testimony, she answered "I don't
recall any Annie's Bar" and specifically
denied being out on a date. (R 263-265).
She denied telling police that she had
met the Petitioner on New Year's Eve and
that there had been a scene at that
nightclub. (R 267-269)
She stated to Defense Counsel that
she had previously had anal sex with
Petitioner twice and that it was painful.
She said she had not had anal sex with
any other person. When Defense Counsel
asked, "Okay. Now you know what we're
talking about when we say ‘anal sex', the
-8-
act that was described here this mor-
ning?", she answered "Yes". Defense
Counsel then asked, "Okay. Now, you know
a fellow named ---". A side-bar followed
a State objection, based upon the Il-
linois Rape Shield Law [I1ll.Rev.Stat.
(1977), Ch. 38, §115-7.]. (R 281) The
Defense stated he had an impeaching
witness who would testify that he had
anal sexual relations with Pamela Schmid.
The Court indicated that that person need
not be specifically named because of her
denial of anal sex with anybody else
",..since they have opened the door."
The Court further stated, "Well, she has-
-she has indicated that she had done it
twice only. You can bring another person
in to impeach her about the anal sex, if
that's the case." Counsel named the
person and indicated he was in his office
at that moment. (R 289-290) The State
rested after calling the neighbor who
testified as to opening the door to a
distraught woman in a bra and long half-
Slip and calling the police, and the
responaing police officer who testified
to small bruises behind Ms. Schmid's
right ear, her hand and left knee and to
the execution of a search warrant whereby
-9-
he recovered various items belonging to
Ms. Schmid. (R 305-334)
After the denial of a Motion for a
Directed Verdict, argument ensued regard-
ing the rebuttal witness and the Illinois
Rape Shield Law. As an offer of proof,
the Defense informed the Court that the
rebuttal witness would impeach Ms.
Schmid's testimony in two respects: he
would state he had had anal intercourse
with her, and that she initiated it and
enjoyed it; and that he had seen her at 4
A.M. the previous Thursday at Annie's Bar
hanging all over a man. (R 343-346 &
784) The Court ruled that the rebuttal
witness could not be called for either
impeachment purpose.
Counsel for the Defense called six
witnesses, the first of which was the
Petitioner, Santiago Sandoval. He
testified that he was a 27-year old
divorced father of a 2-year old son. He
testified as to how he and Ms. Schmid
met, and their sharing of an apartment
with her son. (R 365-374)
While they talked of marriage, they
had arguments, most of which were little,
but some were big and, she became aggres-
sive towards him. He said that they had
anal sex "a dozen times", beginning three
-10-
weeks after they met; She never ex-
pressed displeasure with it, sometimes
initiating it herself. (R 375-396).
Because she was seeing another man,
she moved out but called five days later,
wanting to resume their relationship.
They spoke of counselling to solve their
arguments but he later changed his mind
because he knew they both had tempers and
after a big argument, "...we solved our
problems in the bedroom." (R 398-400)
On New Year's Eve, the disc jockey at
the nightclub told him she had been there
with a man, and not the friends she had
mentioned to him. When she admitted she
lied, he told her he was leaving. She
followed him and they drove to Waukegan
without speaking. (R 401-419)
She followed him into his apartment,
and sat beside him on the couch. She
kept apologizing and moving closer to
him, while he told her he wanted nothing
more to do with her. She started to
leave, apologized again, came back close
to him to hold him, and he slapped her
with the back of his hand and told her to
get away. Finally, she was crying and
apologizing and, he hugged her. They
Started kissing and went to the bedroom
where they started to make love. She
-ll-
began to give him oral sex and then
guided his penis to her anus. After what
had happened however he really wasn't in
the mood for love-making, he rolled away
and she got on top of him. These acts
were not giving him any satisfaction.
She turned around and began giving him
oral sex again. He testified that she
had performed oral sex after anal sex on
two or three previous occasions. He told
her their relationship wasn't working and
he'd never be able to trust her. She
kept denying having sex with another man,
apologizing, and promising that it would
not happen again. Finally, he _ said,
"Just put your clothes on and get out of
my house." After being told this two or
three times, she got up, put on her slip
and bra, still apologizing, saying, "It
will never happen again." Now crying and
upset, she said something like, "I'm
going to -- I'm going to screw you",
reached for something on the floor, and
stormed out. (R 417-443)
Petitioner denied threatening her and
denied ever owning or having a gun in the
apartment. (R 444)
Petitioner said he got up, opened the
door, saw her going upstairs, and sarcas-
tically said, "Goodbye". Back inside, he
-12-
picked up her underwear and hose from the
hallway and threw them in the closet. He
dressed and went outside to look for her.
Not finding her in the laundry rooms, he
went into his apartment, then out to the
parking lot and then back inside. (R 449-
451) He then went out to his car to look
for her. When he saw a squad car, he got
out of his car and walked to the buil-
ding's front where Ms. Schmid stood with
two officers. When she told the officers
that he was the man, they told him he was
under arrest. When he asked why, they
told him "Sexual Assault". (R 252-254)
Two witnesses were called to testify
to Petitioner being a peaceful and law
abiding citizen, and another who tes-
tified they were having a good time prior
to their going to the nightclub. (R 482-
505)
A Defense Motion for a Mistrial based
upon the complaining witness' testimony
that she never had anal intercourse with
anyone but the Petitioner was denied. (R
511)
Two officers, called by the Defense,
testified that some of Ms. Schmid's trial
testimony was both contrary to, and not
mentioned in her prior statements. Both
-13-
said that when they recovered her pan-
ties, there was no hole in them, as there
was when entered into evidence. (R 523-
562)
In rebuttal, two officers testified
that Petitioner did not tell him that Ms.
Schmid had told him, "I'll screw you".
(R 565-584) Petitioner's ex-wife tes-
tified that his reputation for peaceful-
ness was not very good. (R 597)
Just prior to closing arguments, the
Judge stated to the jury, "I wish to
advise and admonish you about the fol-
lowing: Testimony of Pamela Schmid that
she had not had anal intercourse with
anyone prior to having it with Santiago
Sandoval was improper and is hereby
stricken. You the jury is (sic)
instructed to disregard that testimony
and give it no weight whatsoever in your
deliberations." (R 631/C 125)
In his Briefs to both the Appellate and
Supreme Courts of Illinois, Petitioner
raised the issues of his constitutional
rights of confrontation and due process.
(See App. 8 and 31)
-14-
REASONS FOR GRANTING THE WRIT
THE ILLINOIS RAPE SHIELD STATUTE
IS UNCONSTITUTIONAL PERSE, OR
IN THE ALTERNATIVE, THE ILLINOIS
RAPE SHIELD STATUTE WAS UN-
CONSTITUTIONALLY APPLIED TO THE
PETITIONER IN THIS CASE IN VIOLA-
TION OF THE CONFRONTATION CLAUSE
OF THE SIXTH AMENDMENT OF THE
UNITED STATES CONSTITUTION AND
IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION.
A) THE SCOPE OF CROSS-EXAMINATION OF THE
ALLEGED VICTIM REGARDING PRIOR SEXUAL
ACTIVITY WAS IMPROPERLY LIMITED IN
VIOLATION OF THE CONFRONTATION CLAUSE
OF THE SIXTH AMENDMENT OF THE UNITED
STATES CONSTITUTION AND IN VIOLATION
OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
The alleged acts of forced sex in this
case were alternating acts of oral and
-15-
anal intercourse. The complaining witness
testified that she pleaded strongly with
the Petitioner not to have anal inter-
course because she had had anal sex with
him on two occasions in the past and it
hurt very much.(R.206) Then the State's
Attorney went on to question her as
follows:
QUESTION: "Had you ever had anal sex in
the past?"
ANSWER: "With others?"
QUESTION: "Yes, with other people?"
ANSWER: "No." (R.207)
Thereafter, on cross-examination, the
following took place:
"DEFENSE; Q. Okay. Now, I guess it's in
the nature of a situation like this to be
a little indelicate, and for that I
apologize, but you mentioned in your
testimony that when you had anal sex that
it was painful, and -- but more to the
point, that this was the third time? I
remember you said that this had happened
on two prior occasions?
WITNESS: A. Yes.
DEFENSE: Q. And that you told Ray you
didn't like it because it was painful?
WITNESS: A. Yes.
DEFENSE: Q. Okay. And that prior to
a
-16-
this incident with Ray, you had not had
anal sex before ever?
WITNESS: A. Yes.
DEFENSE: Q. Okay. Now, you know what
we're talking about when we say "anal
sex", the act that was described here in
“court this morning?
WITNESS: A. Yes.
DEFENSE: Q. Okay. Now, you know a
fellow named ---"
A State objection was followed by a
side-bar.
The State's Attorney stated that the
objection was based upon the Rape Shield
Law. (R.281) Defense Counsel stated
that he had a witness sitting in the
hallway who would impeach the complaining
witness to the effect that he had anal
sexual relations with her. (R.282) The
Court indicated at this point that the
Public Defender need not specifically
name that person in a question put to the
complaining witness because she had
denied having anal sex with anybody else
"...Since they have opened the door."
(R.285) The Court further stated, "Well,
she has - - she has indicated that she
has done it twice only. You can bring
another person in to impeach her about
the anal sex, if that's the case."(R.290)
-l?-
Defense Counsel then indicated to the
Court, on the record, that the other
person's name was Roosevelt Abron, 1614
Hartree, Evanston, Illinois. Counsel
advised the Court that said person was in
the Public Defender's Office at that very
moment. (R.290)
Our Illinois "Rape Shield Law" in Sub-
Section (a) reads as follows:
"In prosecutions for aggravated
criminal sexual assault, criminal
sexual assault, aggravated criminal
sexual abuse or criminal sexual
abuse, the prior sexual activity or
the reputation of the alleged victim
is inadmissable except as evidence
concerning the past sexual conduct of
the alleged victim with the accused."
Il1l.Rev.Stat. 1985, Ch.38, Par. 115-
7a
Later on, during the course of the
trial, the Court ruled that Defense
Counsel would not be permitted to cross-
examine the complaining witness regarding
prior anal sex with a person other than
Defendant, and Defense Counsel would not
be permitted to put the other person on
the stand to testify as to prior acts of
anal sex with the complaining witness.
The Court indicated that his ruling was
based on the aforesaid language contained
in the Illinois "Rape Shield Law".
Later, during the trial, Defense Counsel
-18-
made a motion for a mistrial based upon
the complaining witness' testimony that
she never had anal intercourse with
anyone other than Defendant. This motion
was denied. (R.511)
For purposes of this argument, the
pertinent provisions of the Sixth
Amendment to the United States Constitu-
tion are as follows: "In all criminal
prosecutions, the accused shall enjoy the
right ... to be confronted with witnesses
against him; to have compulsory process
for obtaining witnesses in *is favor, and
to have the Assistance of Counsel for his
defense." (U.S. Const., Amend. VI.) A
Similar provision appears in Article I,
Section 8 of the Illinois Constitution.
In People vy Campos, 155 I111.App.3d 348,
507 N.E.2d 1342, 108 I11.Dec. 1 (I11.App.
2 dist. 1987), the court said at page 7:
"The sixth amendment confrontation
clause ensures the defendant the
right to cross-examine all adverse
witnesses, a necessary right for a
fair trial (citing cases). The
essential aim of this confrontation
provision is to ensure the integrity
of the fact-finding process. The
defendant correctly points out that
he is entitled to present relevant
evidence (citing cases) and to fully
cross-examine to show bias, interest,
Or motive. (citing cases)..."
~19~
In People vy Ellison, 123 I11.App.3d
615, 463 N.E.2d 175, 79 I11.Dec.37
(Ill.App. 2 Dist. 1984), the Court said
at page 45:
"The State policy underlying the rape
shield statute, at least ostensibly
as expressed in People v Cornes, is
to prevent the defendant from haras-
sing and humilating the prosecutrix
at trial with evidence of either her
reputation for chastity or specific
acts of sexual conduct with persons
other than the defendant, since such
evidence has no bearing on whether
she consented to sexual relations
with the defendant. Further, ex-
clusion of such evidence keeps the
jury's attention focused only on
issues relevant to the controversy at
hand. Last, but not necessarily
least, the exclusion promotes effec-
tive law enforcement because victims
can report crimes of rape and deviate
sexual assault without fear of having
the intimate details of their past
sexual activity brought before the
public.”
In People vy Cornes, 80 I11.App.3d 166,
399 N.E.2d 1346,35 I11.Dec. 818 (1980),
the Court said at page 825:
"The exclusion of this evidence does
not prevent defendant from challen-
ging or attacking complainant's
credibility or veracity or otherwise
utilizing cross-examination as an
effective tool of impeachment. It
merely denied defendant the oppor-
tunity to harass and humiliate the
complainant at trial and divert the
-20-
attention of the jury to issues not
relevant to the controversy. At the
same time, it provides an effective
law enforcement tool by encouraging
victims of rapes and other sexual
assaults to report these crimes to
the proper authorities without fear
of having the intimate details of
their past sexual activity brought
before the public."
However, there are times when the
State's policy in protecting a certain
Class of individuals must give way to a
Superior Constitutional consideration.
For instance, in the State of Alaska
there is a statutory provision to protect
anonymity of juvenile offenders. In
Davis v Alaska, 415 U.S 308, 39 L.Ed 2d
347, 94 S.Ct. 1105 (1974), the
prosecution, pursuant to this statute
moved for a protective order to prevent
any reference, in the course of cross-
examination, to the juvenile record of a
crucial prosecution witness. The defense
indicated that it would seek to show that
Since the witness was on probation by
order of a juvenile court, he may be
subject to undue pressure from the
police. The trial court granted the
prosecution's motion. On certiorari,
this Honorable Court reversed and reman-
ieee
Chief Justice Burger wrote:
=2}<
"We do not and need not challenge the
State's interest as a matter of its
own policy in the administration of
criminal justice to seek to preserve
the anonymity of a juvenile offen-
der.(Citing cases) Here, however,
petitioner sought to introduce
evidence of Green's probation for the
purpose of suggesting that Green was
biased and, therefore, that his
testimony was either not to be
believed in his identification of
petitioner or at least very carefully
considered in that light. Serious
damage to the strength of the State's
case would have been a real pos-
siblity had petitioner been allowed
to pursue this line of inquiry. In
this setting we conclude that the
right of confrontation is paramount
to the State's policy of protecting a
juvenile offender. Whatever tem-
porary embarrassment might result to
Green or his family by disclosure of
his juvenile record--if the prosecu-
tion insisted on using him to make
ate case--is outweighed by
petitioner's right to probe into the
influence of possible bias in the
testimony of a crucial identification
witness." "
In 2S. ex rel, Fuller vy Attorney
General of Illinois, 589 F.Supp. 206
(1984), the Court, in commenting on a
state court's refusal to allow an Il-
linois defendant, who put in evidence the
prior sexual conduct or reputation of a
complainant, stated as follows:
"The reviewing court must decide,
looking to the record as a whole and
-22-
to the alternative means open to the
defendant to impeach the witness,
whether defendant's inability to make
the inquiry created a substantial
danger of prejudice by depriving him
of the ability to test the truth of
the witness's direct testimony.'
(Citing cases.) In making its deter-
mination, we must decide whether the
probative value of the excluded
evidence ‘was such that the defen-
dant's right to effective cross-
examination was substantially
diminished.'" (Citing cases.) pp. 209-
210
The Court in Fuller, said that several
federal courts, using the aforesaid
standards, have upheld the application of
rape shield statutes in the state courts
and the one found in Federal Rule of
Evidence 412. The Court went on to say:
"These courts nevertheless recognize
that in some circumstances prior
sexual conduct may be probative and
therefore relevant and should be
admitted, for instance (1) where the
evidence explains a physicial fact in
evidence at trial, such as presence
of semen, pregnancy, or the victim's
physicial condition indicating inter-
course; (2) where the evidence tends
to establish bias, prejudice or
ulterior motive surrounding the rape
charge; or (3) where the victim has
engaged in a prior pattern of be-
havior clearly similar to the conduct
involved in the present case.,,"
(emphasis added. )
Because the defendant in that case did
-23-
not offer the excluded evidence for any
of the aforesaid purposes, his writ of
habeus corpus was denied.
In Shockley vy State, 585 S.W.2d 645
(1978), the Court of Criminal Appeals of
Tennessee held that the trial court judge
erred in not permitting the defendant to
cross-examine complaining witness or call
witnesses in his behalf for the purpose
of proving her consentual sexual activity
during the period in which conception
might have occurred. Defendant had been
denied the opportunity to ask the com-
plaining witness whether the acts for
which he was being charged, the inter-
course causing her pregnancy, could have
been committed by another person. In
addition, he was prevented from calling
witnesss who would have testified that
they could have been responsible for the
act of intercourse which caused her
pregnancy. The court made clear that it
was not declaring the Tennessee "Rape
Shield" statute unconstitutional. At
page 651, the court said:
"Rather we are recognizing that the
statute is not controlling in this
particular case and that its applica-
tion must be construed in light of
the appellant's due process rights.
That the statute was not so construed
Ee ——
Te
in the trial of this case constitutes
reversible error."
In State v Jalo, Or.App., 557 P.2d 1359
(1976), the Court of Appeals of Oregon,
relying on Davis _ vy Alaska, in banc held
that the Oregon "rape shield" statute had
to give way to defendant's right to show
that he had discovered the complainant's
prior sexual promiscuity, therefore,
giving her a motive to falsely accuse the
defendant of a sex offense. The court
said, "The only difference between Davis
and this case is that the policy of (the
Oregon rape shield statute) is to protect
a sex-crime complainant. On the facts at
bar, however, this policy must likewise
be subordinated to the defendant's con-
Sstitutional right to confrontation." (at
page 1362.)
In State vy LaClair, 433 A.2d 1326
(1981), the Supreme Court of New
Hampshire held that the protection from
undue harassment afforded to a
prosecutrix by the New Hampshire rape
shield law must yield to the defendant's
right to confront the evidence against
him. The Court stated that the sexual
activities of a prosecutrix immediately
prior to an alleged rape may be a
=28~=
relevant area for cross-examination.
"This is especially true where, as here,
the evidence of prior sexual activities
might explain physical injuries of the
prosecutrix." (Citing cases.) In rever-
sing the case, the court held that,
"Evidence of the prosecutrix's inconsis-
ten statements regarding her virginity
and evidence of her prior sexual activity
as it might explain the presence of sperm
in her vagina, is admissable at the new
trial." (at page 1330.)
In Walder vy United States, 347 U.S. 62,
Se hime. SOS, 74 S.Ct. 34 (1984),
evidence of defendant's possession of
narcotics had been suppressed because it
was illegally obtained in violation of
defendant's constitutional rights.
However, the defendant in his direct
testimony stated that he never sold,
possessed, or had anything to do with
narcotics. The trial court permitted the
prosecutor to introduce into evidence the
fact that defendant had been found in
possession of narcotics. At L.Ed. page
506, this Honorable Court in upholding
the trial court ruling said, "The sole
issue here is whether the Defendant's
assertion on direct examination that he
SE
-26-
never possessed any narcotics, opened the
door."
In Harris v New York, 401 U.S. 222, 28
L.Ed. 2d 1, 91 S.Ct. 163 (1971), defen-
dant's confession had been suppressed due
to a Miranda violation. Defendant then
took the stand and testified opposite to
his confession. The trial court per-
mitted the State to introduce his confes-
Sion in rebuttal. This Honorable Court
upheld the use of defendant's confession
for this purpose. At page 5 of the
opinion Chief Justice Burger wrote, "The
Shield provided by Miranda cannot be
perverted into a license to use perjury
by way of defense, free from the risk of
confrontation with prior inconsistent
utterances."
In the case at bar, the complaining
witness's testimony was the only evidence
against the Petitioner. If her testimony
were not believed by the jury, then the
Prosecution's case would have surely
failed. Therefore, it was critically
important that the Petitioner be per-
mitted the widest latitude in cross-
examining her. While the purpose of the
"Rape Shield" statute may be laudable,
nevertheless, there are some cases when
these purposes must be subordinated to a
-27-
defendant's superior right to confront
the witnesses against him. This such a
case.
The complaining witness testified that
anal sexual intercourse was extremely
painful to her on two previous occasions
and that as a result of this occasion,
she was unable to sit the next day.
There was absolutely no medical or other
testimony corroborating her statements to
this effect. Certainly, cross-
examination and subsequent rebuttal
testimony to the effect that she, in
fact, had anal sexual intercourse with
another person, and not only did not
complain, but that she initated it, and
enjoyed it, would have been devastating
to the State's case.
Whether the jury would have believed
such other witness is immaterial. The
Petitioner had a right to place this
testimony before the jury for its con-
Sideration.
Her denial of prior anal sexual inter-
course was not brought out by the Defen-
se, but was, in fact, brought out by the
Prosecution in the direct examination of
Ms. Schmid. Therefore, the Prosecution
violated the Rape Shield statute in order
to elicit testimony to support its case,
OE
-28-
and yet, this very statute was used to
bar Petitioner from devastating impeach-
ment on cross-examination and in rebuttal
testimony.
While a curative instruction was given
and may well have been sought by the
Petitioner, it was only after the trial
court made its ruling barring the cross-
examination and rebuttal testimony, and
after the court had refused to declare a
mistrial later in the proceedings. Such
a curative instruction was no substitute
for permitting the Defense's desired
cross-examination and rebuttal testimony.
Bruton vy U.S., 391 U.S. 123, 20 L.Ed.
476, 88 S.Ct. 1620 (1968).
In a most recent United States Supreme
Court decision regarding issues similar
to issues presented in this appeal, the
Court ruled that the Defendant was un-
reasonably limited in the cross-
examination of the complaining witness
regarding her cohabitation with another
man. In Qlden vy Kentucky, 488 U.S.227,
102 L.Ed 2d 513, 109 S.Ct.480 (1988), the
Court said, "The Kentucky Court of Ap-
peals failed to accord proper weight to
petitioner's Sixth Amendment right 'to be
confronted with the witnesses against
him.' That right, incorporated in the
SETS a
-29-
Fourteenth Amendment and therefore
available in state proceedings, Pointer v
Texas, 380 U.S. 400, 13 L.Ed. 2d 923, 85
S.Ct. 1065 (1965), includes the right to
conduct reasonable cross-examination.
Davis v Alaska, 415 U.S. 3698, 315-316, 39
L.Ed. 2d 347, 94 S.Ct. 1105 (1974)."
The Honorable Appellate Court for the
Second District properly concluded that
alleged rape victims may choose to
forego and waive the benefits conferred
upon them by the Rape Shield Statute.
(App. 11) The Appellate Court correctly
analyzed the trial as being one where
".,.there was so little corroborating
evidence, (that) the jury's verdict
depended almost exclusively on who it
found to be the most believable... ."
(App. 12) Therefore, her statement that
she had never had anal sex, other than
with the Petitioner, was the proper
subject of exploration on cross-
examination and rebuttal evidence which
was available to the Defense.
Credibility was crucial and Petitioner
was prejudiced when precluded from im-
peaching the only other eye-witness to
the occurrence about her past activity.
(App. 14)
While the Honorable Appellate Court
EO
-30-
decided the issues on the basis of
Statutory interpretion rather than on
Constitutional grounds, Petitioner urges
this Honorable Supreme Court to decide
this case on United States Constitutional
grounds of right to confrontation.
A very scholarly discussion of the Rape
Shield Statutes in the United States is
contained in the University of Minnesota
Law School's, Minnesota Law Review,
Vol.70, No.4 beginning on Page 763.
B) THE SCOPE OF CROSS-EXAMINATION OF THE
ALLEGED VICTIM RELATING TO HER AC-
TIVITIES WITH A MALE PERSON IN A
MUNDELEIN BAR JUST DAYS BEFORE THE
TRIAL WAS IMPROPERLY LIMITED IN
VIOLATION OF THE CONFRONTATION CLAUSE
OF THE SIXTH AMENDMENT OF THE UNITED
STATES CONSTITUTION AND IN VIOLATION
OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
On cross-examination, the complaining
witness stated that she was receiving
counselling from the Lake County Crisis
Center and LaCasa, which is a place for
rape victims. She said that the counselling
-3l1-
has changed her relationships with men to
the extent that she had not dated men
since the alleged sexual assault by
Petitioner. She was then asked whether
or not she had been out with a man on
February 27 (being the week before her
testimony in this case), at Annie's Bar
in Mundelien at around four (4) o'clock
in the morning. She answered, "I don't
recall any Annie's Bar." She specifical-
ly denied being out on a date.
Defense Counsel, in an offer of proof,
said that a witness available to the
Defense, by the name of Roosevelt Abron,
would testify that Ms. Schmid was seen by
him in a bar known as "Annie's" in Mun-
delein, Illinois just the Thursday before
the trial, at four (4) o'clock in the
morning. She was hanging all over a
gentleman friend of hers at the bar.
(R. 343-346)
The Court ruled that this evidence was
inadmissable and did not let the Defense
put Mr. Abron on to testify to that
incident.
As a result of this ruling, the
Petitioner was once again denied an
opportunity to severely impeach the only
witness against him. Again, this case
involved a credibility contest between
SS
-32-
the Petitioner and the complaining wit-
ness. Again, Petitioner should have been
permitted the widest latitude in cross-
examining the complaining witness and in
impeaching her with a rebuttal testimony.
The basis for the Court's ruling is not
clear from the record. If the Court
relied on the Rape Shield Statute for
this ruling, such reliance would be
misplaced because the statute refers only
to prior sexual activity. Therefore, the
ruling must have been based on relevance,
and we respectfully submit that such
basis was erroneous. When the star
witness for the Prosecution testifies one
way, in a strong and unequivocal manner,
and proof is available to the Defense to
the contrary, such contrary proof would
be relevant and material with respect to
the witness's crediblity.
This issue is very similar to the one
presented in Qlden vy Kentucky, 488
U.8.227, 102 L.Ed. 2d 513, 109 §.Ct.480
(1988). Again, the Court there concluded
that defendant was severely prejudiced
when limited in the cross-examination of
the complaining witness regarding her
cohabitation with another man, and this
United States Supreme Court stated, "The
Kentucky Court of Appeals failed to accord
-33-
proper weight to petitioner's Sixth
Amendment right ‘to be confronted with
the witnesses against him.' That right,
incorporated in the Fourteenth Amendment
and therefore available in state
proceedings, Pointer y Texas, 380
u.S.400, 13 L.Ed 24 923, 85 $.Ct. 1065
(1965), includes the right to conduct
reasonable cross-examination. Davis v
Alaska, 415 U.S. 308, 315-316, 39 L.Ed.
2d 347, 94 S.Ct. 1105 (1974).”
The Honorable Appellate Court recog-
nized the similarity between this issue
and the previous one, and ruled that the
Petitioner should have been permitted to
present evidence relative to
complainant's activity with the man in
Annie's Bar in Mundelein.
-34-
CONCLUSION
Wherefore, the petitioner, SANTIAGO
SANDOVAL, respectfully prays that a writ
of certiorari issue to the Supreme Court
of Illinois.
Respectfully submitted,
ROBERT P. WILL, JR.
WILL & BRISCOE
Seven South County Street
Waukegan, Illinois 60085
(708) 336-4440
Attorney for Petitioner
ae = _ ot r Pe. Sie ——_—_ = ———Soe — a . ase ——~ ja: cand a Re FR, As _ - ¥ i =
eu aan SSeS =p
APPENDIX
App. 1
Opinion of the
Appellate Court of Illinois
Second Judicial District
No. 2-87-0309 -- Filed January 13, 1989
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
V.
SANTIAGO SANDOVAL,
Defendant-Appellant.
JUSTICE NASH delivered the opinion of
the court:
After trial by jury defendant, Santiago
Sandoval, was found guilty of two counts
of criminal sexual assault (penis in
anus,penis in mouth) (I11.Rev.Stat.1985),
ch. 38, par. 12-13 (a) (1)) and battery
(I11.Rev.Stat.1985, ch. 38, par. 12-3) as
a lesser-included offense; he was’ found
App. 2
not guilty by the jury of aggravated
criminal sexual assault (I11.Rev.Stat.-
1985, ch. 38, par. 12-149A) (2)) and unlaw-
ful restraint (I11.Rev.Stat.1985, ch.
38, par. 10-3(a)). Defendant was sen-
tenced to 15 years' imprisonment and he
appeals, contending: (1) he was not
proved guilty beyond a reasonable doubt;
(2) erroneous and prejudicial evidentiary
rulings in trial require reversal; (3)
the verdicts of the jury were logically
and legally inconsistent; and (4) the
sentence was excessive as defendant had
no prior criminal record except for minor
traffic offenses.
The evidence at trial disclosed that
the complainant and defendant met during
the summer of 1986 and lived together
in a Waukegan apartment for about three
months, together with complainant's two-
year-old son from a former marriage. The
complainant testified defendant would
become violent if she refused to have
sexual relations with him and that on
several occasions he inflicted physical
abuse on her. She and her child even-
tually moved out in October 1986.
Subsequently, she started to see
defendant again and for two months
everything was fine. On New Year's Eve,
5 |
App. 3
the couple went out for the evening,
first to see his sister-in-law in a
Waukegan hospital, who had a baby;
defendant's family was there too. They
then went to a friend's home in Waukegan
to a party and left there at 10:30 p.m.
to go to Cagney's bar in Kenosha. The
complainant testified that defendant
learned at Cagney's that she had recently
been out with a man named Tony, but had
lied to defendant about it. He accused
her of sleeping with Tony, which she
aenied. Defendant calmed down after a
while, and they shared a bottle of
champagne before leaving the bar to drive
to defendant's apartment.
The complainant further testified that
in his apartment they sat on the couch
together and defendant again accused her
of having sexual relations with the other
man. As he became angry, she started to
leave and he took her arm and told her to
sit down on the couch. Complainant
stated she was scared as defendant became
increasingly angry and emotional. He
said he was going to have sex with her
one last time and pushed her to the
floor, getting on top of her. He then
pushed her into the bedroom and, as she
Suspected defendant sought anal sex, the
App. 4
complainant begged him not to do it that
way because she had told him before that
it hurt and she didn't like it that way.
She testified that she had had anal sex
with defendant on two prior occasions
and, in response to a question by the
assistant State's Attorney, stated she
had never had anal sex with any other
person.
According to the complainant, a strug-
gle followed on the bed in which defen-
dant hit her repeatedly on the back of
her head, causing a bruise on her ear and
a lump on her head. He penetrated her
anus with his penis and thereafter told
her to perform oral sex upon him. She
refused, but acquiesced when he reached
into a closet and she believed defendant
might have a gun. This was followed by
another sequence of anal and then oral
sex. The next day she could not sit.
When the complainant noticed defendant
had nothing in his hand, she got up from
the bed upon which they were lying and
ran out the apartment door to the floor
above where she pounded on an apartment
door. She told the man who answered that
she had been raped and asked to use the
telephone; complainant called the police
and said she had been raped.
App. 5
In his testimony a trial, defendant's
version of the events that night was
substantially different than was the
complainant's. He stated they had had
anal sex a dozen times prior to the
incident in question and that she had
never expressed displeasure and sometimes
initiated it. On New Year's Eve, after
they arrived at his apartment, the
complainant started apologizing for
seeing another man. He told her that he
wanted nothing more to do with her, but
she became aggressive sexually and he
slapped her with the back of his hand to
keep her away. Eventually, they left the
couch and went into the bedroom and
disrobed and the complainant initiated
sexual activity, including anal and oral
sex. Defendant testified he was not
receiving any satisfaction and he told
her their relationship was over and he
couldn't trust her. When defendant
directed her to dress and leave his
apartment, she threatened him and stormed
out. Defendant denied threatening
complainant in any way and stated he had
never owned a gun or had one in his
apartment.
In addition to the testimony of these
parties at trial, evidence was offered to
ae
App. 6
impeach both defendant and complainant,
character evidence relating to defendant
was admitted, as was some physical
evidence.
We note initially that defendant has
waived consideration of the reasonable
doubt and inconsistent verdict issues for
failure to comply with Supreme Court Rule
341(e) (7) (107 I11.2d R. 341(e) (7).)
That rule requires, inter alia, that
argument in an appellant's brief shall
contain his contentions and the reasons
therefor, with citation of the authori-
ties relied on. It provides further that
points not argued are waived. (107
Ill1.2d R. 341(d)(7).) ~ While defendant
does argue facts he considers relate to
the reasonable doubt question, he offers
no supporting authority. Defendant's
argument directed to the inconsistent
verdict issue consists of the statement,
that, "If defendant was not guilty of
Unlawful Restraint, he logically could
not be guilty of Criminal Sexual As-
sault." He offers no citation of author-
ity in support of this argument. We
decline to research these issues for
defendant and his counsel and will not
address them. . People v Ramirez (1983),
98 Ill.2d 439, 472, 75 Ill.Dec. 241, 457
App. 7
N.E.2d 31; People v Deacon (1985), 130
Ill.App.3d 280, 294,85 I11.Dec. 549, 473
N.E.2d 1854.
; We consider first defendant's conten-
tion that the trial court erred by
improperly limiting cross-examination of
the complainant relating to her testimony
as to her prior sexual activity with
other persons.
During direct examination of her by the
assistant State's Attorney, the com-
plainant testified, in response to his
questions, that she had never had anal
sex with anyone else prior to her rela-
tionship with defendant. On cross-
examination, when detendant's counsel
sought to lay a foundation for impeach-
ment on this issue, the judge noted that
further foundation was not necessary
Since the witness had already testified
she had not had anal sex with anyone
else. The State objected to such inquiry
on the grounds that the rape shield
Statute (I11.Rev.Stat.1985, ch. 38, par.
115-7 (a)) barred inquiry as to the prior
sexual activity of the complainant with
others. The judge stated that as the
door had been opened, the defense could
bring in another witness to impeach the
complainant about the anal sex.
OO
App. 8
Subsequently, however, at the commence-
ment of defendant's case, the trial court
reconsidered its prior ruling. Defen-
dant's counsel made an offer of proof
that Roosevelt Abron would testify in
impeachment of the complainant that he
had anal sexual relations with her, that
she initiated it and enjoyed it. The
trial court ruled that the offered tes-
timony was precluded from evidence by the
rape shield statute. When instructing
the jury, the court admonished it to
disregard complainant's testimony she had
not had anal intercourse with anyone
other than defendant, stating that the
testimony was improper and was stricken.
Defendant argues that the refusal to
permit him to challenge the complainant's
testimony denied his constitutional right
to confront and cross-examine the wit-
nesses against him and requires a new
trial. The rape shield statute states in
pertinent part:
"In prosecutions for * * * criminal
sexual assault, * * * the prior
sexual activity for the reputation of
the alleged victim is inadmissible
except as evidence concerning the
past sexual conduct of the alleged
victim with the accused."
App. 9
(Emphasis added.) (I11.Rev.Stat.1985,
ch. 38, par 115-7(a).)
The State argues that this language is
absolute and does not allow for admission
of evidence that complainant had anal sex
with a third party. While neither the
parties’ nor our research has disclosed
an Illinois case directly on point, we do
not interpret the statute to be so broad
in scope as is urged by the State.
Although the statute on its face does not
establish any exceptions to the rule it
creates, examination of the factors which
prompted the rule leads to the conclusion
that it does not preclude an exceptions
for admission of the impeaching evidence
offered by defendant in this case.
The policy underlying the rape shield
Statute is to prevent the defendant from
using evidence of the complainant's past
sexual activity with third persons to
harass and humiliate her and shift the
jury's attention to irrelevant issues.
The statute also aids law enforcement by
encouraging victims to report criminal
sexual assaults without fear of exposure
of the details of their past sexual
activity. (People v Ellison (1984), 123
Til. Aop.3d 615, 626, 79 111. Bec. 37, 463
N.E.2d 175; People vy Cornes (1980), 80
App. 10
Ill.App.3d 166, 175-76, 35 I11.Dec. 818,
399 N.E.2d 1346.) According to the
~—eornes’ court:
"The legislature was acting well
within its power in enacting reason-
able legislation intended to
eliminate the cruel and abusive
treatment of the victim at trial by
precluding the admission of prejudi-
cial and irrelevant material and to
promote the lawful administration of
the criminal justice system." (Cor-
nes, 80 I11.App.3d at 175-76, 35
I1l.Dec. 818, 399 N.E.2d 1346.)
There is no doubt that the statute was
meant to protect the alleged victim in
sexual assault cases. Nor is there a
question that, because of the statute, an
alleged victim's sexual history cannot be
used against her when that history is not
relevant. In the present case, however,
the victim, by her own action at trial,
rendered her past sexual activities
relevant and thus admissible.
“TIT We note initially that there is
nothing in either the language of the
rape shield statute or the policies which
gave rise to it which expressly precludes
a victim from introducing evidence regar-
ding her own past sexual activities
ee er
App. 11
with third parties, or the lack of any
such activities. Since the statute was
enacted for the benefit of rape victims,
we conclude that such victims may choose
to forego that benefit and offer evidence
which would otherwise be prohibited by
the statute. Consequently, complainant
in this case was not restricted by the
statute from asserting that she had not
had anal sex with any partners other than
defendant. But cf., People vy Sales
(1986), 151 I11.App.3d 226, 231, 104
T11.Dec. 561, 502 N.E.2d 1221.
The nature of the evidence in this case
must be examined in order to understand
the significance of the testimony defen-
dant sought to impeach. Complainant and
defendant were the only direct witnesses
to the alleged sexual assault, and their
conflicting accounts of the incident
constituted the primary evidence present-
ed at trial. While testimony was given
that complainant made a prompt complaint
of rape to a neighbor of defendant, the
record contains little other corrobora-
tion of her testimony. No medical
evidence was presented relating to any
bodily injury of complainant, despite her
testimony that she could not sit the next |
day and that she suffered from swelling
i ll
App. 12
and bruising on and about her head. The
photograph of the bruise allegedly
inflicted upon her ear reveals, at best,
only slight discoloration, not inconsis-
tent with defendant's admission that he
back-handed her. Nothing was offered to
support complainant's testimony that her
panties were torn when defendant pulled
them down. None of the police officers
noticed the tear when the panties were
collected as evidence. Although one of
her earrings was found on the floor,
broken, complainant did not know when it
had fallen from her ear or how it had
been broken. Neither a gun nor any
evidence of a gun was found in defen-
dant's apartment. No neighbors testified
that they had heard yelling or sounds of
a struggle. In sum, the State's case
stood on complainant's essentially un-
substantiated testimony.
[2] Since there was so little cor-
roborating evidence, the jury's verdict
depended almost exclusively on who it
found to be the most believable of com-
plainant and defendant. It was in this
context that complainant asserted she had
never had anal sex prior to having it
with defendant. This claim was obviously
intended to underscore her
|
App. 13
testimony that on the occasion in ques-
tion she feared anal sex because it had
caused her a great deal of pain in the
past and that, although she pleaded with
defendant not to do it that way, he
penetrated her anus by use of force, as
charged in the indictment. Stated
another way, complainant made a statement
regarding her sexual history in order to
bolster her own credibility in the eyes
of the jury. In a case that turned on
the credibility of the parties, it seems
appropriate that defendant be given the
opportunity to challenge complainant's
testimony. In this sense, the refused
evidence which might have impeached
complainant's testimony became highly
relevant. The rape shield statute, as
noted earlier, prohibits evidence of past
sexual conduct when such concuct is
irrelevant to the issues. Since defen-
dant's proffered evidence was very
relevant to the issue of complainant's
credibility, its admission was not here
prohibited by the statute.
To interpret the statute otherwise
would encourage witnesses in these
circumstances to testify without regard
for the truth, secure in the knowledge
that they were insulated by the rape
App. 14
shield statute from confrontation with
any untruths they may choose to express.
A shield such as this was never meant to
be created by the statute. It is precise-
ly this result which is avoided by the
language in Carnes and Ellison that the
evidence to be barred by the statute is
that which is not relevant to the case
before the court, but is introduced
anyway for’ the sole purpose of humili-
ating the victim. Where the evidence is
relevant and is introduced, not to harass
the witness but only in a defensive
response to the alleged victim's own
initiative, the statute does not preclude
an exception to the general protective
umbrella it places over victims of sexual
assault. Once a complainant decides to
address her own past sexual conduct, or
lack of it, she relinquishes the statu-
tory protection and risks a challenge to
the truthfulness of her version of that
conduct.
Since credibility of the witnesses was
the crucial issue in the case, defendant
was severely prejudiced when he was
precluded from impeaching complainant's
testimony about her past activity.
Compiainant's claim stood intact before
the _jury and was undoubtedly persuasive
App. 15
that she was also telling the truth about
the alleged assault on her by defendant.
Had defendant been abie to introduce his
impeaching evidence regarding com-
plainant's past, the State's case might
have been seriously impaired. As it was,
however, it was defendant's defense that
was erroneously impaired, and he must be
given a new trial.
The error was not corrected by the oral
instruction to the jury to disregard
complainant's statement. Complainant had
already been heard and her testimony
already had its bolstering effect. Prior
to the instruction, the jury was given
the impression that, at the time in
question, the victim found anal sex
painful and an act to be feared because
she had only done it twice before with
defendant and because she had never done
it with anyone else. Merely telling the
jurors to not consider complainant's
testimony relating to her lack of such
conduct with others would not have
significantly altered that impression.
Defendant has urged us to consider this
matter on constitutional grounds.
However, constitutional questions will
not be decided by a reviewing court if
the matter can be disposed of on other
App. 16
grounds. (People vy Fleming (1971), 50
Il1l1.2d 141, 144, 277 N.E.2d 872; People v
Davis (1977), 50 I11.App.3d 163, 167, 8
Ill.Dec. 749, 365 W.E.2d 1135.) Since
the case before us has been resolved
“through statutory construction, we need
not address the constitutional issue.
See, however, Olden cv Kentucky,
__—*US. , 109 S.Ct. 480, 102 L.Ed2d
513 (1988).
[3] An issue similar to the first is
raised by defendant regarding testimony
elicited from complainant on cross-
examination as to the effect on her life
of the incident with defendant. When
asked if it had changed her relationship
with men, complainant responded that she
had not dated anyone since the occur-
rence. She was then questioned by
defendant's counsel about being in a
specific location at a time certain in
the company of a date. She again respon-
ded that she had not been on a date.
Defense counsel later attempted to
impeach this testimony with a rebuttal
witness who would have testified that he
saw complainant, just a few days before
the trial began, "hanging all over a
gentlemen friend of hers" at a bar. The
trial court refused to admit this evidence,
App. 17
and defendant argues that he was once
again improperly denied the right to
confront the complainant. The State
responds that the evidence was collateral
and irrelevant and correctly excluded.
In our view, the defendant should have
been allowed to impeach complainant as to
this matter.
As discussed earlier, this case came
down to an evaluation by the jury of the
credibility of complainant and defendant.
Complainant testified that defendant's
assault had a great effect on her in that
she had not dated at all since that
night. If the jury believed this testi-
mony, it was likely to believe that the
reason she had not dated was because she
had sex forced upon her by defendant.
Thus, any proof that complainant was not
honest about the aftermath of the alleged
assault would have been relevant to the
believability of her accusations against
defendant and should have been admitted.
Exclusion of defendant's impeaching
evidence on this issue compounded the
prejudice he suffered from the exclusion
of evidence under the rape shield statute
as described earlier.
Although we consider the issue to have
been waived, defendant has argued that he
App. 18
was not proved guilty beyond a reasonable
doubt. Mindful of the directive in
People vy Taylor (1979), 76 Ill2d 289, 29
Il1l.Dec. 103, 391 N.E.2d 366, we have
examined the evidence introduced against
defendant and find that, if believed by
the jury, it was sufficient to show
beyond a reasonable doubt that he was
guilty of -criminal sexual assault as
charged, as well as the lesser-included
offense of battery. Our finding raises
no inference as to defendant's guilt or
innocence which would be binding on
retrial, but is meant only to protect him
from the risk of being subjected to
double jeopardy.
Because of the errors made at trial we
reverse defendant's convictions and
remand for a new trial. We need not
consider the issues he raises as to the
sentence imposed.
REVERSED AND REMANDED FOR A NEW TRIAL.
WOODWARD, J., concurs.
Justice REINHARD, dissenting:
I respectfully dissent. During the
direct examination of the complaining
witness by the assistant State's Attor-
ney, the complainant testified, in
response to the prosecutor's question,
that she had never had anal sex with
App. 19
anyone else prior to her relationship
with defendant. The plain language of
the rape shield statute clearly prohibits
the admission of any evidence regarding a
victim's prior sexual activity other than
with defendant. (Il1.Rev.Stat.1985, ch.
38, par. 115-7(a).) This language has
been interpreted to bar admission of a
victim's lack of sexual activity with
anyone other than the defendant when
offered by the State. (People vy Sales
(1987), 151 Il11.App.3d 226, 231, 104
Ill.Dec. 561, 502 N.E.2d 1221.) Such an
interpretation is consistent with the
purpose of the statute, which is to
prevent evidence of a victim's prior
sexual activity, other than with defen-
dant, from being introduced into a case.
Thus, such evidence was incompetent and
it was improper in this case for the
State to introduce complainant's testi-
mony that she had not had anal inter-
course with anyone other than the defen-
dant.
Nevertheless, defendant failed to
object and, instead, attempted to attack
this testimony by cross-examination of
the complaining witness and by the
introduction of a witness who would
testify that he had anal sex with the
App. 20
complainant. While defendant was barred
by the trial judge from offering such
evidence on the basis of the rape shield
law, the court later did instruct the
jury to disregard complainant's testimony
that she had not had anal intercourse
with anyone other than defendant and to
give it no weight. The cour. further
stated that the testimony was improper
and was stricken. Under these circum-
stances, I would find that the specific
instructions to the jury by the court to
disregard this evidence was within its
discretion and avoided prejudicial harm.
It has been stated by our supreme court
in People vy Newman (1913), 261 Ill. 11,
103 N.E. 589, that “(t)he proper defense
against incompetent evidence is an
objection, and its introduction without
objection does not make evidence compe-
tent to contradict it. Parties cannot,
by mere silence or consent, create a
right to try an immaterial issue when
they might have had the adverse evidence
kept out or stricken out." (261 Ill. at
15, 103 N.E. at 591.) The appellate
court in more recent decisions, however,
has adopted the rule of "Curative admis-
sibility" whereby an opponent may reply
App. 21
with similar evidence if, in the discre-
tion of the trial judge, it is needed to
eradicate an unfair prejudice which might
ensue from the original evidence. People
vy Higgins (1979), 71 Ill.App.3d 912, 930-
31, 28 Ill.Dec. 173, 390 N.E.2d 340.
McCormick on Evidence § 57, at 133
(Cleary 2d ed. 1972) explains this rule:
"If again the first incompetent
evidence is relevant, or though
irrelevant is prejudice-arousing, but
the adversary has failed to object or
to move to strike out, where such an
objection might apparently have
avoided the harm, then the allowance
of answering evidence should rest in
the judge's discretion. He should
weigh the probable influence of the
first evidence, the time and
distraction
incident to answering it, and the
possibility and effectiveness of an
instruction to the jury to disregard
at. However, here various courts
have indicated that introduction of
the answering evidence is a matter of
right."
Under the "curative admissibility”
Principle, defendant's evidence to rebut
the State's incompetent evidence was
il
App. 22
properly barred by the trial court. The
trial court instructed the jury to
disregard the complainant's testimony on
this point. I do not agree with the
majority that the jurors would be unlike-
ly to heed the court's specific instruc-
tions. Furthermore, the single question
the prosecutor asked the complainant on
this subject was not repeated nor is the
answer, later stricken, sufficiently
prejudicial to allow the defendant to
rebut this incompetent evidence. The
trial court did not abuse its discretion
in proceeding in the manner it did.
I also disagree with the majority's
decision that, following testimony
elicited from the complainant on cross-
examination as to the effect on her life
of the incident with defendant, the trial
court erred in not allowing defendant to
impeach complainant as to this matter. A
cross-examiner may not impeach a witness
on a collateral matter and must accept
the witness' answer. (People vy Collins
(2965), 106 111.2d 237, 269, 67 111 .Dec.
910, 478 N.E.2d 267.) The majority
reasons that because complainant's
credibility is at issue any impeachment
of complainant as to the impact of the
incident on her life would affect her
App. 23
credibility and, therefore, such inquiry
is a noncollateral matter. Such an
analysis would be true, however, whenever
a party attempts to impeach a witness and
would render all such inquiries noncol-
lateral. The test to be applied in
determining if a matter is collateral is
whether the matter could be introduced
for any purpose other than to contradict.
(Collins, 106 I11.2d at 269, 87 I11.Dec.
at 924, 478 N.E.2d at 281.) Because the
issue here is whether complainant was
forced to have anal and oral sex with
defendant against her will, the question
to the complainant on cross-examination
by defendant as to the incident's effect
on her life is an inquiry which has no
purpose in this case other than to
contradict. As the application of the
"collateral" test is best left largely in-
the control of the trial judge, subject
to his abuse of discretion (Collins, 106
Ill. 2€ at 269~-70, 87 111 .Dec. at 924,
478 N.E.2d at 281), I would find that the
trial court's ruling refusing to allow
impeachment on this collateral matter was
not an abuse of discretion.
For the foregoing reasons, I dissent
and would affirm the defendant's convic-
tion.
App. 24
THE PEOPLE OF THE STATE OF ILLINOIS,
Appellant,
V.
SANTIAGO SANDOVAL,
Appellee.
No. 68286.
Supreme Court of Illinois.
Jan. 17, 1990.
Rehearing Denied April 9, 1990.
Justice CLARK delivered the opinion of
the court:
At issue in this case is the admis-
sibility of certain evidence about the
sexual history of the complainant under
the State's rape shield statute
(T11.Rev.Stat.19867, ch 38, par.115<-7).
Santiago Sandoval, appellee, was found
guilty on two counts of criminal sexual
assault (I11.Rev.Stat.1985), ch. 38, par.
12-13(a)(1)) and one count of battery
(I1l1.Rev.Stat.1985, ch 38, par.i2-
14(a) (2) ) and unlawful restraint
(I1l1.Rev.Stat.1985, ch.38, par.10-3(a))
following a trial by jury in the Lake
County circuit court. On appeal, the
convictions were reversed and the cause
was remanded for a new trial. (178
App. 25
Ill.App. 3d 669, 127 I1ll.Dec. 898, 533
N.E.2d 980.) This court granted the
State's petition for leave to appeal
pursuant to our Rule 315(a)). Two ques-
tions are presented for review: (1) Is
evidence of a victim's sexual relations
with men other than defendant strictly
precluded under the rape shield statute
or may a victim waive the rule of eviden-
ce, thus allowing the evidence of prior
sexual conduct? (2) Is evidence that a
victim has not dated since the alleged
attack properly excluded as collateral?
For the reasons stated below, we reverse.
The incident which led to the indict-
ment,euphemistically referred to as "date
rape" occurred on January 1, 1987.
Sandoval had a date on New Year's Eve
with his 20-year-old former live-in
girlfriend; following a separation begun
when the complainant moved out of the
apartment she shared with Sandoval, the
two had begun seeing one another again
and had plans to celebrate the new year
together.Although Sandoval's and com-
plainant's accounts of how the evening
ended differed substantially, both in-
dicate that repeated acts of anal inter-
course followed by oral sex occurred. We
will detail the events of the evening
App. 26
only as they are relevant for our
analysis.
Sandoval testified that the events of
New Year's Eve merely represented the
same pattern which had occurred through-
out his prior tempestuous relationship
with the complainant: a fight was fol-
lowed by making love. Sandoval further
testified that an argument began when,
during their evening out, he learned from
an acquaintance that the complainant
allegedly had an affair with another man
during their on-again/off-again separa-
tion. Although the evening seemed to be
following the same old pattern of fight-
ing followed by sex, he stopped the
lovemaking (which he testified had been
mutual and consensual to that point)
because he could not continue, knowing
that complainant had an affair during
their separation. He ended the sexual
encounter and told complainant to leave
his house. Sandoval acknowledged that
they had anal sex, a practice which was
initiated by complainant on this occa-
sion, followed by oral sex, which he
also asserts was initiated by his part-
ner, Sandoval argues that the present
charges stem from the complainant's anger
at being rejected after she had initiated
a | ee
ah
App. 27
sex between them; indeed, he testified at
trial that as complainant left the
apartment, she threatened him. Shortly
thereafter, the police knocked at his
door.
The complainant's testimony depicted a
somewhat different conclusion to the
evening. Complainant testified that
Sandoval had become angry when he learned
that she had been out with another man a
week earlier. Rather than be left
stranded at the bar in Wisconsin where
they were when Sandoval learned about the
evening out, complainant got into
Sandoval's car as he was leaving.
Sandoval then drove directly to his
apartment. Leaving her coat in the car,
the complainant followed Sandoval into
the apartment where she attempted to talk
with him about their relationship. She
testified that he continued to get more
upset and angry. She tried to leave, but
Sandoval grabbed her arm; he told her,
according to her testimony, that he was
going to have sex with her one last time.
After a physical confrontation in the
living room, Sandoval pushed complainant
into the bedroom, where he hit her
several times on the back of the head,
told her he was going to make it hurt,
App. 28
and forced her into repeated acts of anal
intercourse followed by oral sex.
Complainant testified that she begged
Sandoval not to engage in anal sex with
her; although she testified that they had
had anal sex on two prior occasions, she
indicated that she had told Sandoval that
she did not enjoy it and that it hurt,
Finally, when complainant thought that
she could escape without being caught,
the complainant ran out of the apartment
to an upstairs apartment where the
resident allowed her to call the police.
When she knocked on the neighbor's door
she was wearing only undergarments and a
skirt. She left behind her purse, her
Sweater, and some jewelry.
During the complainant's direct exami-
nation at trial, the following exchange
occurred between the State's Attorney and
the complainant:
"Q. Now , you had had anal _ sex with
him before?
A. Xes.
Q. And on how many occasions had he
had anal sex with you?
A. Twice.
Q. And do you recall at whose re-
quest that occurred?
A. [Sandoval's]).
App. 29
Q. Had you ever had anal sex in the
A. With others?
Q. Yes, with other people.
A. Wo.”
No objection to this testimony was made
by the defense counsel.
On cross-examination, the complainant
again reiterated that she had not had
anal intercourse with others. Defense
counsel, in an attempt to impeach the
complainant, then asked "Okay. Now you
know a fellow named ---." The State's
Attorney objected to the question, basing
the objection on the preclusion of such
testimony in the provisions of the rape
shield statute. Although the trial court
initially indicated that the defense
could, in its case in chief, bring in
testimony to impeach the complainant
because the prosecution had "opened the
door," the court later reversed that
ruling. Having reviewed the rape shield
Statute, the court found that such
testimony was excluded under the provi-
sions of the statute. Out of the hearing
of the jury, the court admonished both
the defense counsel for not objecting to
the original question posed by the
prosecution, and the prosecutor, for
App. 30
asking a question precluded by the
statute. The court indicated to counsel,
outside the presence of the jury, that
the defense could not ignore the stric-
tures of the rape shield statute by
failing to objection and then attempt to
premise its case on information precluded
under the statute. Defense counsel, by
offer of proof for the record and out of
the hearing of the jury, indicated that a
certain male individual would have
testified that, when he dated the com-
plainant, they had engaged in anal sex.
Following the court's denial of defense
counsel's motion for mistrial and just
prior to giving the jury instructions,
the court, on defense counsel's motion,
instructed the jury to disregard the
complainant's testimony that she had not
had anal sex with others. Rather than
allow further inadmissible testimony to
further taint the trial, the court struck
the complainant's testimony.
The trial court also rejected defense
counsel's attempts to impeach the com-
plainant's testimony, elicited on cross-
examination, that the incident with
Sandoval had changed her relationship
with men and that she had been unable to
date Since the occurrence. Defense
App. 31
counsel questioned complainant about her
presence at a certain bar, just a few
days before the trial, with another
gentleman. When the complainant denied
being on a date, defense ccunsel indi-
cated to the court that he wished to
impeach with a witness who would testify
that he saw the complainant, just a few
days before the trial, at a local bar
"hanging all over a gentleman friend of
hers." The trial court refused to admit
this evidence.
Sandoval appealed his conviction,
arguing that the court's refusal to allow
him to challenge the complainant's
testimony denied him his constitutional
right to confront and cross-examine the
witness against him. .The appellate court
did not reach the constitutional issue on
the impeachment testimony about past
sexual experiences, however. Rather, it
looked to the language of the statute and
concluded that the rape shield statute
did not preclude a complainant from
testifying about her own past sexual
activities, or lack thereof, with third
parties. In essence, the appellate court
found that the complainant's own waiver
of the statute's protection precluded
assertion of that protection as a shield
App. 32
against the defendant. As to the com-
plainant's testimony that she had not
dated, without citation to authority, the
appellate court also reversed. The court
reasoned that since the case "came down
to an evaluation by the jury of the
credibility of complainant and defendant"
(178 Ill.App.3d at 677, 127 I1l.Dec. 898,
533 N.E.2d 980), the defendant's im-
peaching evidence was allowable as
relevant to the believability of
[complainant's] accusations against
defendant" (178 I11.App.3d at 678, 127
I11.Dec.898, 533 N.E.2d 980).
For the reasons stated below, we
reverse the judgment of the appellate
court.
[1] Prior to enactment of the rape
shield statute in 1978 (Iil. Rev. Stat.
1978, ch.38, par. 115-7), to a certain
extent a victim's sexual history was
admissible at trial when the affirmative
defense of consent was alleged by the
defendant. However, any testimony
offered was strictly limited by the
courts to the victim's general reputation
for immorality and unchastity (People v
Collins (1962), 25 I11.2d 605, 611, 186
N.E.2d 30; see also People v Ellison
(1984), 123 Ill. App. 3d at 624, 79 Ill.
App. 33
Dec. 37, 463 N.E.2d 175). This court
noted in Collins that, since lack of
consent was an element of the complaint,
"it is permissible, in order to show the
probability of consent by the prosecu-
trix, that her general reputation for
immorality and unchastity be shown. The
underlying thought here is that it is
more probable that an unchaste woman
would assent to such an act than a
virtuous woman * * *." (Collins, 25 Ill.
2d at 611, 186 N.E.2d 30.) It has been
averred that the premise of this ration-
ale was based on the presumption that
"([t)ruthfulness and chastity in women
were thought to be virtues that were
found only together. No ‘'unchaste' woman
was expected to be truthful." (Murphy,
Rape Shield Statute Upheld by Illinois
Appellate Court, 69 I11.B.J. 110 (1980)
(hereafter cited as Murphy, Rape Shield
Statute).) Support for acknowledgment of
the prevalence of such a presumption is
found in clear judicial statements: ¢:
"It is a matter of common knowledge that
the bad character of a man for chastity
does not even in the remotest degree
affect his character for truth, when
based upon that alone, while it does that
Of a woman.'" Murphy, Rape Shield Statute
App. 34
at 100, quoting State v. Sibley (1895),
131 Mo. $19, $31-32, 33 S.W. 167, 171.
The rape shield statute departs dramati-
cally from the courts' prior position.
Effective January 4, 1978, the rape
shield statute provides:
~ 2 In prosecutions for [rape or
deviate] sexual assault * * *, the
prior sexual activity or the repu-
tation of the alleged victim is
inadmissible except as evidence
concerning the past sexual conduct of
the alleged victim with the accused.
b. No evidence admissible under this
Section shall be introduced unless
ruled admissible by the trial judge
after an offer of proof has been made
at a hearing to be held in camera in
Order to determine whether the
defense has evidence to impeach the
witness in the event that prior
sexual activity with the defendant is
denied. Such offer of proof shall
include reasonably specific informa-
tion as to the date, time and place
of the past sexual conduct between
the alleged victim and the defendant.
Unless the court finds that reasonab-
ly specific information
App. 35
as to date, time or place, or some
combination thereof, has been offered
as to prior sexual activity with the
defendant, counsel for the defendant
shall be ordered to refrain from
inquiring into prior sexual activity
between the alleged victim and the
defendant." Ill. Rev. Stat. 1987, ch
38, par. 115-7.
The constitutionality of the rape
shield statute has been addressed on
several occasions by the appellate court
(see People vy Buford (1982), 110 Ill.
App. 3d 46, 65 I11.Dec. 721, 441 N.E.2d
1235; People vy Bachman (1981), 92 Ill.
App. 3d 419, 47 I11.Dec. 253, 414 N.E. 2d
1369; People vy Cornes (1980), 80 Ill.
Apo.3d 166, 35 I11.Dec. 818, 399 N.E.2d
1346), though it has not been addressed
by this court. We note that in the case
before us, the appellate court did not
address the constitutionality of the
Statute; rather, it reached its decision
based on statutory construction. (178
ITll.App.3d at 677, 127 I11.Dec. 898, 533
N.E.2d 980.) Noting that a court of
review will not decide constitutional
questions when the matter can be disposed
of on other grounds (178 I11.App.3d at
677, 127 Il1l.Dec. 898, 533 N.E.2d 980,
App. 36
citing People v Fleming (1971), 50 Ill.
2d 141, 144, 277 N.E.2d 872), the appel-
late court looked to the "factors which
prompted the rule" and determined that
the rule "does not preclude an exception
' for admission of the impeaching evidence
offered by defendant in this case." (178
I1ll.App.3d at 674, 127 I11.Dec. 898, 533
N.E.2d 980.) Having determined that the
proffered evidence was relevant because
the case rested on the complainant's
credibility, the court concluded:
"Where the evidence is relevant and
is introduced, not to harass the
witness but only in a defensive
response to the alleged victim's own
initiative, the statute does not
preclude an exception to the general
protective umbrella it places over
victims of sexual assault. Once a
complainant decides to address her
Own past sexual conduct, or lack of
it, she relinquishes the statutory
protection and risks a challenge to
the truthfulness of her version of
that conduct." 178 Ill.App.3d at
676, 127 I11.Dec.898,533 N.E.2d 980.
We do not find the appellate court's
construction cof the statute persuasive.
The language of the statute, quoted in
ih
App. 37
its entirety above, is concise and
precise. Resort to legislative nistory--
the factors which prompted the rule--is
necessary only when the statute is vague
or ambiguous and clarification of the
underlying intent is needed to assist
interpretation of the language. (People
y Boykin (1983), 94 I11.2d 138, 141, 68
I11.Dec. 321, 445 N.E.2d 1174.) The rape
shield statute is neither vague nor
ambiguous. We note that the statute does
not limit its proscription to a defen-
dant's attempts to introduce evidence of
the victim's prior sexual encounters; the
statute says quite simply that "the prior
sexual activity * * * is inadmissible."
(Il1l.Rev.Stat. 1987, ch. 38, par. 115-
7(a).) The words of limitation which
follow do not indicate that only the
defendant is prohibited from introducing
such evidence; the exception addresses
only the "past sexual conduct of the
alleged victim with the accused." gad.
Rev. Stat. 1987, ch. 38, par. 115-7(a).
The clear and unambiguous language of
the statute has been noted by the appel-
late court in several cases. The court
in People vy Cornes (1980), 80 I11l. App.
3d 166, 175, 35 I11.Dec. 818, 399 N.E.2d
1346, noted:
App. 38
"KR reading of the s *« * statute
reveals that the legislature clearly
and unequivocally abrogated the old
Illinois rule permitting reputation
evidence of the complainant's chas-
tity and immorality as it pertained
to the issue of consent. ([Citation.]
The express language of the rape
shield law precludes the admission of
evidence of prior sexual activity and
reputation of the complainant
except when it
concerns the past sexual conduct of
complainant with the defendant."
Cornes involved a defendant who was
precluded from putting on testimony about
the complainant's abortion and about her
reputation for chastity, information
which the defendant asserted was neces-
sary to show the closeness of his rela-
tionship with the complainant. The court
noted that under either, the old
Illinois common law or the current
Statute, the defendant could not put into
evidence specific acts of the complainant
or her general moral reputation. Cornes,
80 Il1l.App.3d at 173-75, 35 I1ll.Dec. 818,
399 N.E.2d 1346.
A similar result was reached in People
YVWELLison (1984), 123 I11.App.3d 615, 79
App. 39
111.Dec. 37, 463 N.E.2d 175. In con-
struing the language of the statute, the
court noted that "it is clear the prior
sexual activity or the reputation of the
alleged victim is inadmissible except as
evidence concerning the prior sexual
conduct of the alleged victim with the
accused." Ellison, 123 I11.App.3d at
623, 79 I11.Dec. 37, 463 N.E.2d 175.
We find the statutory analysis of the
appellate court in Cornes and £llison
persuasive. The language of the statute
is clear and unambiguous; it leaves no
room for introduction of reputation or
specific-act evidence from any party in
the action. |
We note that even were we to find that
the language of the statute is vague or
ambiguous, a review of the legislative
history supports a construction which
prohibits anyone from introducing evi-
dence of the victim's sexual history
unless it relates to the relationship
between the victim and the accused.
The first draft of House Bill 760
allowed admission of evidence relating to
the victim's general reputation for
chastity. The Governor amendatorily
vetoed the act, stating in a letter to
the House of Representatives that "neither
App. 40
the victim's prior sexual activity nor
her reputation should ever be inquired
inte in a rape case unless she was
previously involved with the alleged
rapist." (Emphasis added.) (Letter from
‘Governor James Thompson to the Illinois
House of Representatives (Oct. 24, 1977),
reprinted in J.I11.H.R., No. 4, 80th Ill.
Gen. Assem. 6404 (1977), as quoted in
Comment, The Illinois Rape Shield
Statute: Privacy At Any Cost?, 15 J.
Mar. -L.Rev. i687, i364 (1962) .) The
present form of the statute, incor-
porating the Governor's amendments, was
adopted by the House overwhelmingly.
(See 80th Ill. Gen. Assem., House Proceed-
ings, November 3, 1977, at 59 (motion to
concur in amendatory veto on House Bill
760).) The Senate concurred. (See 80th
Ill. Gen. Assem., Senate Proceedings,
November 22, 1977, at 10 (motion to
accept the specific recommendations of
the Governor as to House Bill 760); see
also People v Ellison (1984), 123 111.
App.3d 615, 623-24, 79 I1l1.Dec. 37, 463
N.E.2d 175 (discussing the legislative
history of House Bill 760); Comment, The
illinois Rape Shield Statute, 15 J.
Marshall L.Rev. at 162-64 (same) .) The
statute in its present form precludes
App. 41
admission of evidence of the sexual
history of the victim unless it relates
to sexual conduct with the defendant.
[2] Having found that the statutory
language clearly precludes the admission
of prior sexual acts of the victim, we
turn now to consider defendant's consti-
tutional attack on the statute. Sandoval
asserts that the rape shield statute
unconstitutionally denied him the right
to confront the witness against him when
the trial court excluded the testimony of
a proffered witness. This witness would
have testified that he had at one time
dated the complainant and that they had
engaged in anal sex which at times was
initiated by the complainant. The
testimony was essential, Sandoval argues,
to rebut the complainant's testimony on
direct examination that she had not had
anal sex with others prior to her invol-
vement with Sandoval. Sandoval further
asserts that admission of the proffered
impeachment testimony is controlled by
Davis v Alaska (1974), 415 U.S. 308, 94
§.Ct. 1105, 39 L.Ed.2d 347.
The Illinois Constitution provides:
"In criminal prosecutions, the accused
shall have the right * * * to meet the
witnesses face to face * * *," (Ill.
ee
App. 42
Const. 1970, art. I, § 8.) The United
States Constitution, with provisions
applicable to the States under the
fourteenth amendment, similarly provides:
"In all criminal prosecutions, the
accused shall enjoy the right * * * to be
confronted with the witnesses against
him." U.S. Const., amend. VI.
It is well accepted that "a primary
interest secured by [the confrontation
clause) is the right of cross-
examination." (Douglas v Alabama (1965),
380 U.S. 415, 418, 85 S. Ct. 1074, 1076,
13 L.Ed.2d 934, 937.) The extent or
scope of this primary interest, the right
of cross-examination, was reviewed by the
Supreme Court in Davis v Alaska (1974),
415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d
347. At issue in Davis was the right of
the defendant to question an advcrrse
witness about his juvenile adjudication
for burglary resulting in a probation.
The defendant theorized that because the
witness was on probation when the stolen
property was found near his home, he
_ would have been prone to make a quick
(and perhaps erroneous) identification of
suspects seen near his home in order to
assure that police attention would not
center on himself. The trial court
App. 43
granted the prosecutor's motion for a
protective order, however, under an
Alaska statute which precluded the
defendant from asking about the witness'
juvenile record. The order further
prevented the defendant from rebutting
the witness' assertion during cross-
examination that he had never been
questioned by law enforcement officers
before, clearly an untruthful statement
in light of his prior record. The
Supreme Court, in holding that the
defendant had been denied his right under
the confrontation clause to cross-
examine, noted:
"Cross-examination is the principal
means by which the believability of a
witness and the truth of his tes-
timony are tested. Subject always to
the broad discretion of a trial judge
to preclude repetitive and unduly
harassing interrogation, the cross-
examiner is not only permitted to
delve into the witness' story to test
the witness' perceptions and memory,
but the cross-examiner has tradition-
ally been allowed to impeach, i.e.,
discredit, the witness. One way of
discrediting the witness is to
int roduce evidence of a prior
App. 44
criminal conviction of that witness.
By so doing the cross-examiner in-
tends to afford the jury a basis to
infer that the witness' character is
such that he would be less likely
than the average trustworthy citizen
to be truthful in his testimony. The
introduction of evidence of a prior
crime is thus a general attack on the
credibility of the witness. A more
particular attack on the witness'
credibility is effected by means of
cross-examination directed toward
revealing possible biases,
prejudices, or ulterior motives of |
the witness as they may relate
. directly to issues or personalities
in the case at hand. The partiality
of a witness is subject to explora-
tion at trial and is ‘always
relevant as discrediting the witness
and affecting the weight of his
testimony.' (Citation. ] We have
recognized that the exposure of a
witness' motivation in testifying is
a proper and important function of
the constitutionally protected right
of cross-examination. (Citation.]"
4i5 0.8. a¢ 316, 04 3.Ce. a. 130, 39
L.Ed.2d at 353-54.
App. 45
We have quoted from Davis at some
length to highlight the types of situa-
tions in which the Supreme Court has
indicated that the right of confrontation
through cross-examination guaranteed
under the constitutions supersedes a
Statutory right granted a witness or a
policy of the State. With the Davis
decision, the Court does not present the
defense with a blanket invitation to
attack a witness. Rather, Davis limits
such an attack to situations where the
confrontation is both relevant and based
on a showing of bias, prejudice or
motive. Thus, Davis stands for the
proposition that not even a statute can
be used to shelter a witness whose
motive, prejudice or bias may affect
testimony before the court. The emphasis
of Davis was not to create an exception
to the statutory protection, but to
Rrevent the statute from creating an
exception to the well-settled and accept-
ed admissibility of the motive, bias or
prejudice of a particular witness.
The Court in caves evaluated the
constitutional right of the defendant
based on a defendant's opportunity to
present the theory of his case. The
defendant merely attempted to show, in
App. 46
Davis, the possible motive or bias of the
witness who might have reason to offset
suspicion from himself, because of his
own past record, by hastily identifying
Suspects. Had this theory been before
the trial court, the resulting verdict
may have been different. (415 U.S. at
319, 95 $.Ct. at Lili-i2, 39 &.8d.2d at
Jaeee The Supreme Court protected the
defendant's right to fully explore a
theory of defense before the jury or the
court which would be making the decision.
415 0.8. 6G dag, 3% 8.0G. G6 itil, 39
L.Ed at 354-55.
Sandoval's reliance on Davis is mis-
placed. The case before this court,
although also analyzing a statute which
ultimately served to prevent certain
information about an individual from
being considered by the jury, presents a
quite different scenario. Sandoval's
theory at trial was that the woman
scorned (complainant) was out to even the
score. The jury heard Sandoval's testi-
mony wherein he indicated that the
complainant initiated the sexual encoun-
ter, that after a time of having sex the
defendant decided that the relationship
would not work, that he then told com-
plainant _to leave, and that this charge
App. 47
cf rape is a retaliation for rejection.
We fail.to see, and Sandoval has not
explained, what impact complainant's
prior sexual encounters with a third
party would have on this theory. Proper-
ly rejected is the old theory that a
woman's sexual morality bears a direct
relationship to her truthfulness; there-
fore, no correlation can be made as was
made in Davis between a witness' prior
record and the witness' credibility (the
general attack on the witness' credi-
bility). Nor do we perceive how the
proffered testimony would reveal the
witness' bias, prejudice or motive to
testify falsely in charging the defendant
(particular attack on the witness'
credibility). Even were the proffered
testimony true, the fact that complainant
had engaged in anal sex in a prior
relationship has no bearing on the
present sexual assault charge merely
because the information is also about a
sexual practice.
The activities under scrutiny by a
trial court in a case alleging sexual
assault must relate to the exchange
between the complainant and the person
accused, that is whether the sexual
attentions were forced upon another
ey Oi Re te
App. 48
without consent. (See I1ll.Rev.Stat.
1987, ch. 38, par. 12-13.) Here it
appears from our review of the record
that the accused is attempting to do
precisely what the rape shield statute
was enacted to prevent: to divert the
jury's attention from the accusation
against him (forcing the complainant to
perform sexual acts, acts which defense
counsel stressed might offend the sensi-
bilities of some) by offering testimony
that would indicate that this complainant
had not only initiated similar sexual
acts in the past with the defendant, but
had also initiated such acts with others.
Sandoval's rationale, moreover, places
undue emphasis on the particular type of
sexual act or method of the act rather
than on the force and dominance of one
over another with the use of sex. An
emphasis that complainant had engaged in
anal sex with other would only serve to
accentuate the particular type of sexual
contact rather than the use of force to
accomplish contact. To emphasize a
particular type of sexual contact is to
emphasize form over substance, triggering
the “sensibilities” of the jurors rather
than encouraging a fact-based decisional
process. -
App. 49
This case does not present a situation
in which the jury was presented with what
the defendant alleges is a completely
unbelievable portrait of the complainant
which is only rebuttable with introduc-
tion of the proffered testimony. We note
that the fact that complainant was
sexually experienced would have been
evident to the jury, for it was clear
from the testimony that she was a 20-year-
old mother of a two-year-old child.
Additionally, both complainant and
defendant testified that they had lived
together for several months in a sexual
relationship and that they had engaged in
anal sex on a number of occasions. That
the number of times differed was a matter
that went to credibility. We find that
any concern over a number is entirely
misplaced, for complainant's possible
acquiescence became a question for the
jury when complainant testified that she
had engaged in anal sex with defendant on
more than one prior occasion. Moreover,
we note that it is not the role of this
court to judge "specific actions" (ji.e.,
anal sex or oral sex) based. on whether
those particular acts, in and of them-
selves, offend our sensibilities; rather,
we must aetermine whether the basic
App. 50
elements of the offense charged have been
proven (here, the elements are whether
sexual penetration was accomplished
through use of force or threat of force).
Information about the complainant's prior
sexual practices does not have any
bearing on the charge levied against
Sandoval by the complainant.
The appellate court has long recognized
that under the rape shield statute the
complainant's prior sexual activities are
irrelevant to a sexual assault charge
unless those activities involved the
complainant and the accused. Indeed, the
rape shield statute has survived constitu-
tional review in the appellate court
against attack similar to that now under
consideration. The court in People _y
Cornes noted:
"Defendant's right of confrontation
necessarily includes the right to
cross-examine witnesses, but that
right does not extend to matter which
are irrelevant and have little or no
probative value. Complainant's past
sexual conduct has no bearing on
whether she has consented to sexual
relations with defendant. The legis-
lature recognized this fact and chose
to exclude
App. 51 _
evidence of complainant's reputation
for chastity as well as specific acts
of sexual conduct with third persons
in cases of rape and sexual deviate
assault. * * * The legislature was
acting well within its powers in
enacting reasonable legislation
intended to eliminate the cruel and
abusive treazment of the victim at
trial by precluding the admission of
prejudicial and irrelevant material
and to promote the lawful administra-
tion of the criminal justice system."
80 Ill. App.3d at 175-76, 35 I11.Dec.
818, 399 N.E.2d 1346.
In People vy Buford (1982), 110 Ill.
App.3d 46, 65 I11.Dec. 721, 441 N.E.2d
1235, the court specifically addressed
the defendant's right of confrontation in
light of Davis v Alaska and rejected the
defendant's allegation that he was not
allowed to confront the witness.
The trial court's application of the
rape shield statute in Buford prevented
the defendant from showing that the com-
plainant had previously been convicted of
solicitation for prostitution in 1972.
(110 Ill.App.3d at 50, 65 I111.Dec.721,
441 N.E.2d 1235.) Defendant contended
App. 52
that because the complainant was current-
ly on Federal probation for a 1978 mail
fraud charge, she had a motive to
fabricate her testimony in order to
prevent an inference that she was working
as a prostitute, thereby protecting her
probation. (110 I1ll.App.3d at 50, 65
Il1l.Dec. 721, 441 N.E.2d 1235) The
defendant testified that he had known the
complainant since 1972 when he met her in
an area of Chicago frequented by prosti-
tutes. Since that time he had paid her
weekly to have sex. Complainant testi-
fied on both direct and cross-examination
that she did not know the defendant and
had never seen him before the night of
the attack. (110 Ill.App.3d at 49, 52,
65 111.Dec. 721, 441 N.E.2d 1235.) The
defendant argued that acknowledgment or
testimony indicating that the complainant
had been convicted of solicitation in
1972 would affect her probation; there-
fore she had to fabricate the charge of
sexual assault. The court noted that the
1972 conviction had no present relevance
to the 1978 probation and that, ad-
ditionally, defense counsel had oppor-
tunity to cross-examine the complainant
and to present the defendant's testimony
~-
App. 53
about the relationship between the
parties before it concluded:
"In Davis, the [(C]Jourt noted that the
defense was confronted with a situa-
tion in which the jury simply could
not be made aware of the defendant's
theory of the case. In the instant
case, the defense presented its
theory of the case at length. * *
*'Complainant's past sexual conduct
has no bearing on whether she has
consented to sexual relations with
defendant.'(Citation.]" 110 I11.Ap-
p.3¢ at 52, 65 i11.Dec. 721i, 441
N.E.2d 1235.
The appellate court again reviewed the
statute under a constitutional attack
which asserted that the rape shield
statute "abrogat(ed] * * * [defendant's]
sixth amendment right to present a full
and fair defense" in People y Ellison
(1984), 123 Ill.App.3d 615, 622, 79 Ill.
Dec. 37, 463 N.E.2d 175. The defendant
in Ellison based one of his arguments on
appeal on the trial court's preclusion
of evidence concerning the victim's
"Sexual experience or reputation for
sexual activity.” (123 Ill. App. 3d at
oss. 78 Zii. Dec. 37, @63 BW. EB. 24 178.)
The appellate court rejected defendant's
App. 54
argument that Davis v Alaska was
dispositive, relying on the Supreme
Court's citation in Davis to Chambers y
Mississippi (1973), 410 U.S. 284, 93 S.
Ct. 1038, 35 L.Ed. 2d 297, and noted that
the Court "held that the constitution
requires that the competing interests of
the defendant's right of confrontation
and the State's public policy for enac-
ting the rule be closely examined and a
balance struck." (Ellison, 123 I1l.
App.3d at 625, 79 I11.Dec. 37, 463 N.E.
2d 175.) The Ellison court further noted
that:
"The State policy underlying the rape
shield statute * * * is to prevent
the defendant from harassing and
humiliating the prosecutrix at trial
with evidence of either her reputa-
tion for chastity or specific acts of
sexual conduct with persons other
than the defendant, since such
evidence has no bearing on whether
she consented to sexual relations
with the defendant. Further, ex-
clusion of such evidence keeps the
jury's attention focused only on
issues relevant to the controversy at
hand. Last, but not necessarily
least, the ~exclusion promotes
oul
App. 55
effective law enforcement because
victims can report crimes of rape and
deviate sexual assault without fear
of having the intimate details of
their past sexual activity brought
before the public." (123 I11.App.3d
at 626, 79 I11.Dec. 37 463 N.E.2d
A793.)
Although the defendant argued that the
proffered testimony was crucial to his
defense because "the case * * * ‘boiled
down to the word of the prosecutrix
against [his]'" (123 I1ll1.App.3d at 626-
27, 79 I11.Dec. 37, 463 N.E.2d 175), the
court concluded that the defendant's need
for the excluded evidence was not clearly
shown.
Sandoval argues that this case, like
Ellison, boils down to the jury's determi-
nation of the credibility of the parties
and he was denied the opportunity to
confront the witness with what he alleges
was a lie. He also argues that, unlike
Ellison, this case centers on com-
plainant's testimony on direct examina-
tion, rather than on testimony elicited
under cross-examination.
We note, however, that the testimony
which Sandoval wished to introduce, as
was also the case in £llison, was not
App. 56
relevant to the matter being tried. The
testimony would have added no information
which could have helped the jury decide
whether or not the complainant had been
forced to have sex with the defendant on
this occasion. Sandoval was not pre-
vented from presenting his theory of the
case. Indeed, he testified that fighting
and making love was a pattern he and
complainant repeated often; he testified
that anal sex was often initiated by the
complainant and that they had engaged in
this type of sex on at least a dozen
occasions; he testified, and it was
corroborated by testimony from defen-
dant's brother, that the complainant had
physically hit the defendant on a prior
occasion when she was angry and then
falsely accused the defendant of Striking
her; Sandoval also testified that com-
plainant threatened him when she left the
apartment. See Buford, 110 Ill.App 3d at
92, 65 I1l.Dec. 721, 441 N.E.2d 1235
(where the court held that limitation on
Cross-examination did not infringe
defendant's right of confrontation where
the defendant had opportunity to present
his theory of the case).
Even if this court were to assume that
the complainant was not truthful when she
App. 57
testified that she had not had anal sex
with others, we would not be required to
reverse the verdict of the jury based on
a denial of defendant's right of confron-
tation. Impeachment of a witness is
restricted to relevant matters; a witness
may not be impeached on collateral or
irrelevant matters. People vy Collins
(1985), 106 I11.2d 237, 269, 87 T11l.Dec.
910, 478 N.E.2d 267; People vy Columbo
(1983), 118 Ill.App.3d 882, 966, 74 Ill.
Dec. 304, 455 N.E.2d 733.
People vy Columbo is helpful in analyz-
ing this situation. In Columbo, a murder
trial, a prosecution witness was called
who had been involved in a sexual rela-
tionship with the co-defendant, Frank
DeLuca. During this relationship, DeLuca
had taken photographs of the witness
performing “unnatural sexual acts with
other men, a woman and a dog." (118 Ill.
App.3d at 963, 74 Ill.Dec. 304, 455 N.E,
2a: 30.) When the relationship ended,
DeLuca told the witness that he had
burned the pictures; the pictures were
not burned, however, and ended up in the
possession of defense counsel prior to
the trial. Following the State's motion
in limine to preclude the defendant from
cross-examining the witness about these
App. 58
pornographic photographs, the court
carefully delineated the scope of any
questions regarding the photographs. At
trial, the witness specifically denied
ever participating in certain sexual ‘acts
with a woman and with a dog--statements
which defendant could prove were lies by
Showing particular photographs or by
further cross-examining the witness. The
trial court denied defendant's efforts to
impeach the witness. The appellate court
upheld the trial court, noting that the
particular sexual acts were unrelated to
the material issue of homicide and that a
witness may not be impeached on a col-
lateral matter. (118 Ill.App.3d at 966-
67, 74 I11.Dec. 304, 455 N.E.2d 733.)
The court further noted that the defen-
dant had ample opportunity to show that
the witness' decision to testify may have
been based on efforts at retaliation for
not returning the photographs, that is,
the witness may have been biased. 118
Tll.App.3d at 967, 74 Ill.Dec. 304, 455
N.E.2d 733.
Both the legislature and the courts
have found that a complainant's prior
sexual history is irrelevant in a trial
for sexual assault. Since prior sexual
history is irrelevant, as in Columbo, the
App. 59
witness may not be impeached on irrele-
vant or collateral matters. See also
People vy Schott (1976), 39 I11.App.3d
266, 272-73, 350 N.E.2d 49 (where the
court upheld the trial court's denial of
defendants' efforts to impeach a witness
by offering the testimony of another
person to show that a State witness'
testimony on direct examination was false
when he testified that he had gone to 4
particular farm to buy a gun (and not
drugs as defendants alleged); defendants
were on trial for robbery of a victim
they claimed to have gone to see in order
to buy drugs and they asserted that it
was necessary to impeach the witness to
verify that the victim did indeed sell
drugs).
Sandoval further argues that impeach-
ment testimony was necessary because the
complainant's statement that she had not
engaged in this particular type of sex
before would have given greater weight to
her statement that she did not consent to
the sexual encounter, that in fact she
begged Sandoval not to do it because that
kind of sexual encounter hurt. Com-
plainant's assertion could have been
rebutted by testimony that she had
engaged in this particular type of sex on
App. 60
numerous occasions with another. Whether
the complainant had participated in this
particular sexual practice 2 times or 20
times has no bearing, however, on whether
a particular instance of sex was con-
sented to or was painful. (See Ill. Rev.
Stat. 1987, ch. 38, par. 12-13 9(a)(1).)
Nor, we note, is it an element of the
Statute that the assault be painful.
Mere absence of pain during or even
enjoyment of particular sexual practices
with certain individuals does not equate
to absence of pain or enjoyment of the
particular practice in all circumstances;
nor, we note, does it have any bearing on
the issue of consent. An act performed
with gentleness on one occasion may be
quite different than that same act
performed with anger, hostility, or
vehemence. Thus, even had complainant
initiated anal intercourse with others in
the past, we fail to see its relevance to
the charges levied against -landoval.
The supreme court of Michigan was
faced with the task of determining the
constitutional application of its rape
shield statute in People y Hackett
(1984),421, Mich. 338, 365 N.W.2d, 120.
Hackett is a consolidated case presenting
two distinct factual backgrounds. In each
App. 61
instance, the court held that introduc-
tion of evidence about the sexual history
of the complainant was inadmissible.
The first of the consolidated cases
involved a defendant who “sought to
introduce specific instances of the
complainant's prior homosexual conduct
with prisoners of the same race as
defendant to circumvent the inference
that it would be improbable that a white
male prisoner would consent to sodomy by
a black male prisoner." (421 Mich. at
351, 365 N.W.2d at 126.) In upholding
the trial court's exclusion of the
proffered testimony, the court noted:
"Like prostitution, the fact that a
person is a homosexual, standing
alone, has little or no logical
relevance between the excluded prior
sexual acts evidence and the issues
of consent or credibility. Thus, to
the extent defendant sought to
introduce evidence as tO com-
plainant's reputation as a homosexual
or to specific acts of homosexuality
for the purpose of bolstering his
defense of consent, we find such
evidence is irrelevant." (421 Mich.
at 353, 365 N.W.2d at 126-27.)
App. 62
The court indicated that "there is no
logical nexus between a complainant's
reputation for unchastity, whether it
involves heterosexual or homosexual
activity, and the character trait for
truthfulness or untruthfulness." 421
Mich. at 352, 365 N.W.2d at 126.
In the second of the consolidated cases
the defendant sought to introduce evi-
dence of the complainant's reputation for
unchastity, a specific instance of prior
sexual conduct, and a statement made by
the complainant about her unhappy marital
Situation. The court noted that the
right to confrontation "requires only
that the defendant be permitted to
introduce relevant and admissible evi-
dence." (421 Mich. at 354, 365 N.W.2d at
127.) Neither reputation evidence nor
evidence of a specific instance of
conduct with a third party has any
relevance to the issue of complainant's
consent with the defendant. Although the
court recognized that certain "extra-
Ordinary circumstances" (421 Mich. at
355, 365 N.W.2d at 128) could make such
information relevant, it concluded that
the case before it did not present such a
Situation.
The Michigan Supreme Court described
App. 63
those “extraordinary circumstances,"
those instances in which it indicated
that information about the prior sexual
history of a complainant could be rele-
vant and necessary to preserve a defen-
dant's constitutional right to confronta~-
tion. The court noted:
"For example, where the defendant
proffers evidence of a complainant's
prior sexual conduct for the narrow
purpose of showing the complaining
witness' bias, this would almost
always be material and should be
admitted. [(Citations.] Moreover in
certain circumstances, evidence of a
complainant's sexual conduct may also
be probative of a complainant's
ulterior motive for making a false
charge. (Citations. ] Additionally,
the defendant should be permitted to
show that the complainant has made
false accusations of the rape in the
past." (421 Mich. at 348, 365 N.W.2d
at 124-25.)
In a footnote, the court also noted the
"extraordinary circumstances" accepted by
a Federal court as examples of circum-
stances which would enhance the probative
value of the proffered evidence:
"teyidence [which] is explanative of
App. 64
a physical fact which is in evidence
at trial, such as the presence of
semen, pregnancy, or a victim's
physical condition indicating inter-
course, or where the evidence tends
to establish bias, prejudice,or
ulterior motive surrounding the
charge of rape. Sexual history might
also be relevant where the victim has
engaged in a prior pattern of be-
havior clearly similar to the conduct
immediately in issue.'" 421 Mich. at
355 n. 4, 365 N.W.2d at 128 in 4,
quoting United States vy Kasto (8th
Cir. 1978), S64 F.2d 268, 27i an. 2.
The Federal case cited by the Michigan
court is similar to another Federal case
which Sandoval argues is dispositive of
the issue before this court. In United
States ex rel, Fuller v Attorney General
(N. D. Ill. 1984), 589 F.Supp. 206 aff'd
mem.(7th Cir. 1985), 762 F.2d 1016, the
court noted the same "circumstances"
quoted above which list times when more
extensive cross-examination may occur or
testimony be introduced. Sandoval
emphasizes before this court the excep-
tion which would admit evidence where the
victim has engaged in a "prior pattern of
App. 65
behavior," presumably, though not specifi-
cally articulated, on the assumption that
a pattern of engaging in anal sex fits
the exception. We are not prepared to
conclude that testimony from another man
that the complainant and he had engaged
in anal sex fits the "prior pattern"
exception, for to do so would require us
to determine that the particular practice
was so unusual, so outside the norm, that
it had distinctive characteristics which
make it the complainant's modus operandi.
Even scholars and practitioners who
advocate a change in the rape shield
Statutes discuss and describe this
exception for "pattern of behavior" as
Similar to cases where pattern evidence
is admitted because it shows the indivi-
dual's unique "signature." (See
generally Galvin, Shielding Rape Victims
ion_the State and Federal Courts; A
Proposal for the Second Decade, 70 Minn.
L. Rev. 763, 830-48 (1986); Tanford &
Bocchino, Rape Victim Shield Laws and the
Sixth Amendment, 128 U. Pa. L. Rev. 544,
586-89 (1980).) The mere fact that the
complainant had engaged in anal sex with
another partner at some time in the past
is not such a distinctive act as to make
App. 66
it probative or relevant to the charges
against Sandoval.
Cases from other States which have
allowed proffered testimony that at first
blush appears to bring a complainant's
sexual history to the fore are not
dispositive of the situation before us.
The cases are but manifestations of the
exceptions already noted by the cases
discussed above. The cases allowed
testimony to show the possibility that
another had caused a pregnancy (Shockley
y State (Tenn. 1978), 585 S.W.2d 645); to
show the complainant's possible motive to
falsely accuse the defendant (State v
Jala (1976), 27 Or.App. 845, 557 P. 2d
1359; see also Qlden v Kentucky (1988),
488 US, 227, 109 S.Ct, 480, 102 L.Ed, 2d
213 (State's rape shield law did not bar
testimony that complainant and third
party were living together when that
testimony was relevant to the accused's
theory (complainant's motive to lie) of
the case that complainant consented to
the sexual encounter with the accused,
but alleged rape rather than jeopardize
her relationship with the third party who
Saw her get out of the accuséd's car and
who happened to also be -a State's witness
in the case against accused)); to show
App. 67
that the complainant had filed false
charges of rape in the past (Smith yv
State (1989), 259 Ga. 135, 377 S.E.2d
158; Stewart v State (Ind. 1988), 531
N.E.2d 1146); and to show the sexual
activities of the complainant prior to
the alleged rape where such activities
might explain physical injuries (State v
ZaClair (1981), 121 N.H. 743, 433 A.2d
1326).
Though not cited by Sandoval, our
review uncovered one case which does not
fit neatly into the noted exceptions.
State vy Williams (1986), 21 Ohio St. 3d
33, 487 N.E.2d 560, however, is not
dispositive of the situation now before
this court. Williams involved the
court's review of a complainant's testi-
mony on direct examination that she did
not consent to sex with the defendant.
The defendant testified at a pretrial
hearing that he had numerous prior sexual
encounters with the complainant, that she
was a prostitute and he was her pimp. At
trial the complainant testified that she
did not consent to sex with defendant
because she never consented to sex with
men since she is a lesbian. The trial
court denied defense attempts to have a
witness testify as to his prior sexual
App. 68
relations with the victim and to admit
testimony as to the victim's reputation
as a prostitute. The Ohio Supreme Court
noted that, since a key factor in the
case was consent, although the victim's
credibility would be impeached with
admission of testimony relating the
accused's relationship with her or her
reputation as a prostitute, the "prof-
fered evidence has a more important
Purpose, which is to negate the implied
establishment of an element of the crime
charged. For this reason, the probative
value of the testimony outweighs any
interest the state has in exclusion."
(21 Ohio St. 3d at 36, 487 N.E.2d at
563.) The court found that the rape
shield law as applied violated the
defendant's right of confrontation.
At the core of the Williams case was
the issue of consent based on com-
plainant's claim that she never consented
to sex with men. This claim, if believed
by the jury, would bolster complainant's
assertion that she therefore did not
consent with defendant on this occasion.
In the case before us, Sandoval and the
complainant acknowledged that they had
engaged in sex on prior occasions.
Moreover,-both acknowledged that they had
App. 69
engaged in anal sex on prior occasions,
although their testimony indicated
differing attitudes about the practice.
Unlike Williams, the issue in this case
was whether there was consent to engage
in sex on this given occasion with
Sandoval, not whether there was consent
to engage in a particular variation of
sexual contact. Complainant did not deny
engaging in anal sex with the defendant
on prior occasions, nor did she deny
having a sexual relationship with the
defendant. Whatever particular sexual
practices she engaged in with other men,
such testimony would not impact testimony
about her actions with the defendant.
Williams is therefore not helpful to
Sandoval's case.
Nor do we find reliance on United
States Supreme Court decisions disposi-
tive in this case. In Walder v United
States (1954), 347 U.S. 62, 74 S.Ct. 354,
98 L.Ed. 503, the Court addressed the
application and scope of the doctrine of
Weeks y United States (1914), 232 U.S.
383, 34 S.Ct. 341, 58 L.Ed. 652. Weeks
precluded the prosecution from utilizing
evidence procured in violation of the
fourth amendment to secure a conviction.
(Walder, 347 U.S. at 64-65, 74 S.Ct. at
App. 70
356, 98 L.Ed. at 507.) Walder involved a
defendant's appeal from a conviction for
transactions in narcotics in 1952. The
defendant had also been indicted for
Similar offenses in 1950; the 1950 case
was dismissed when the court ruled that
the evidence a heroin capsule was inad-
missible because of an unlawful search
and seizure. At trial on the 1952
indictment, the defendant testified that
he had never purchased, sold or possessed
illegal narcotics. The prosecution then
questioned him about the heroin capsule
taken from his home in 1950; the defen-
dant denied that any narcotics were taken
from him at that time. In upholding the
trial court's admission of extrinsic
evidence to impeach the defendant's
contention, the Court noted:
"It is one thing to say that the
Government cannot make an affirmative
use of evidence unlawfully obtained.
It is quite another to say that the
defendant can turn the illegal method
by which evidence in the Government's
possession was obtained to his own
advantage, and provide himself with a
shield against contradiction of his
untruths."
App. 71
(347 U.S. at 65, 74 S.Ct. at 356, 98
L.Ed. at 507.)
The Court reasoned that "of his own
accord, the defendant went beyond a mere
denial of complicity in the crimes of
which he was charged and made the sweep-
ing claim that he had never dealt in or
possessed any narcotics" before noting
that "there is hardly justification for
letting the defendant affirmatively
resort to perjurious testimony in re-
liance on the Government's disability to
challenge his credibility." 347 U.S. at
65, 74 S.Ct. at 356, 98 L.Ed. at 507.
Use of the prior inadmissible evidence
in Walder was specifically limited by the
trial court as being "solely for the
purpose of impeaching the defendant's
credibility." (347 U.S. at 64, 74 S.Ct.
at 355, 98 L.Ed at 506.) In the case
before us, however, the defendant had
ample opportunity to challenge the
credibility of the complainant without
resort to additional extrinsic evidence,
evidence which courts and the legislature
have labelled highly prejudicial.
Sandoval and others testified as to the
relationship that Sandoval had with the
complainant; testimony was offered by
“Sandoval's brother which supported the
App. 72
allegation that the complainant had at
times been the aggressor in their rela-
tionship and had falsely accused Sandoval
in the past of abusive treatment; testi-
mony further alleged that Sandoval and
complainant had often engaged in anal
sex. Unlike the situation in Walder, in
which the only means the prosecution had
to challenge the credibility of the
defendant was by the use of the prior
evidence, the credibility of the com-
plainant in the case before us was
Clearly before the jury for review. No
further attack merely on an issue of
credibility was necessary.
Harris v, New York (1971), 401 U.S.
222, 91 S.Ct. 643, 28 L.Ed.2d 1, relied
on by Sandoval, is similarly inapposite.
Harris involved use of a prior statement
made by the defendant, inadmissible in
the prosecution's case in chief under
Miranda v Arizona (1966), 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed.2d 694, to impeach
the credibility of the defendant when he
denied on the witness stand making a sale
of heroin to an undercover policeman.
The Court noted that it "does not follow
from Miranda that evidence inadmissible
against an accused in the prosecution's
case in chief is barred for all purposes,
App. 73
provided of course that the trustworthi-
ness of the evidence satisfied legal
standards." (Harris, 401 U.S. at 224, 91
S.Ct. at 645, 28 L.Ed.2d at 4.) The
proviso noted by the Court was elaborated
upon in its concluding statements: "The —
shield provided by Miranda cannot be
perverted into a license to use perjury
by way of a defense, free from the risk
of confrontation with prior inconsistent
utterances." (401 U.S. at 226, 91 S.Ct.
at 646, 28 L.Ed.2d at 5.) Impeachment
was based on utilization of a prior
inconsistent statement by defendant who
was privileged to testify in his own
defense, though he was not required to do
so. Thus, the waiver of the general
principle of exclusion of statements
taken in violation of Miranda was not
based on any deficiency or constitutional
problem with Miranda, but because the
defendant chose to take the stand and
make statements inconsistent with prior
statements on matters that were relevant
and probative.
In the case before us, even if we were
to assume that the complainant lied when
she denied having anal sex with others,
we fail to see how Harris applies; though
not specifically relevant to the charges,
es
App. 74
it was clear that complainant had sex
with others in the past, that the com-
plainant had made no prior statements
about her sexual history with parties
other than the defendant, nor was the
information relevant or probative of any
fact in issue other than to attack the
complainant's credibility.
In summary, although various Supreme
Court cases have limited application of
rules or statutes which preclude use of
certain evidence, in each case the Court
was recognizing the preeminence of
longstanding rules of evidence: in
Davis, that bias, motive or prejudice
could be shown; in Walder, that defen-
dant's prior "crimes" could be used to
impeach when he chose to testify; in
Harris, that prior inconsistent state-
ments are admissible to impeach.
Although we certainly recognize that
there may be certain situations in which
the preclusion of the rape shield statute
may not apply because of the defendant's
greater constitutional right to confronta-
tion, we need not specifically adopt the
rationale of our sister State courts
since we conclude that we are not here
confronted with an applicable situation
demanding emphasis of the right of
App. 75
confrontation over the preclusion of the
rape shield statute.
The trial court did not err in ex-
Cluding the proffered testimony of
someone who would testify that he had
anal sex with the complainant. The
complainant's original statement that she
had not had anal sex with others was
Clearly inadmissible under the rape
shield statute, as already noted. Such
error would not have been cured, however,
by further compounding the problem with
admission of more evidence precluded by
the statute. We are not required to
remand this case for a new trial, how-
ever, because, the trial judge, prior to
Submission of the case to the jury,
properly instructed the jury to disregard
the complainant's statement that she had
not had anal sex with others before her
relationship with Sandoval.
As the State has noted, judicial
admonishments to juries are routine;
indeed, it is "the almost invariable
assumption of the law that jurors follow
their instructions." (Richardson v Marsh
(1987), 481 U.S. 200, 206, 107 S.Ct.
1702, 1707, 95 L.Ed.2d 176, 185, see also
Watkins v Sowders (1981), 449, U.S. 341,
101 S.Ct. 654, 66 L.Ed.2d 549 (jury
App. 76
instructed not to consider erroneously
admitted eyewitness identification
evidence); Harris v New York (1971), 401
U.S. 222, 91 S.Ct. 643, 28 L.Ed.2da 1
(jury instructed to consider statement
for impeachment but to disregard as
Substantive evidence of guilt); Walder y
United States (1954), 347 U.S. 62, 74
S.Ct. 354, 98 L.Ed. 503 (same) .)
Although the Supreme Court has recognized
an exception to the general assumption
that a jury follows instructions in
Bruton vy United States (1968)), 391 U.S.
123, 88 S.Ct. 1620, 20 L.Ed.2d 476, the
Court in Richardson noted that Brutop
only “recognized a narrow exception"
(Richardson, 481 U.S. at 207, 107 S.Ct.
at 1707, 95 L.Ed.2d at 185).
In Bruton, co-defendants were tried
together; a non-testifying co-defendant's
confession which expressly implicated the
second defendant presented a situation
"in which the risk that the jury will
not, or cannot, follow instructions is so
great, and the consequences of failure so
vital to the defendant, that the practi-
cal and human limitations of the jury
System cannot be ignored." (Bruton, 391
U.S. at 135, 88 S.Ct. at 1627, 20 L.Ed.2d
at 485.) . This case does not present a
App. 77
situation which would require this court
to conclude that the jury did not or
could not follow instructions.
Furthermore, even were we to conclude
that it was error to exclude the rebuttal
testimony if the complainant's statements
were utilized by the jury in reaching a
decision, we would not find error here.
The jury was properly admonished to
ignore the complainant's statement.
We also note that People vy Sales
(1986), 151 I1l1.App.3d 226, 104 I11.Dec.
561, 502 N.E.2d 1221, which remanded a
case for a new trial, addressed the issue
of the prosecution's elicitation of
statements from the complainant about her
sexual history and is not inapposite. In
Sales, the complainant, when questioned
by the prosecution, testified that she
had not had sexual relations with anyone
in the 10 days prior to the attack and
that prior to the attack she had never
had sexual relations with anyone. The
appellate court noted that "(Tejliciting
this testimony was clearly prohibited
under the Illinois rape shield statute.”
(151 Il1l1.App.3d at 231, 104 I11.Dec. 561,
502 N.E.2d 1221.) Sales supports an
analysis prohibiting any reference to a
aa TT
App. 78
complainant's sexual history or reputa-
tion but does not require that Sandoval
receive a new trial. Unlike Sales, where
the jury utilized the complainant's
testimony in reaching its decision, the
jury in Sandoval's case was clearly and
unequivocally instructed to ignore the
complainant's testimony. As we noted
above, errors corrected by the court with
instructions to the jury do not require
a reversal.
The second issue for review involves
the trial court's refusal to allow
testimony that the complainant had been
seen out with a man just prior to the
beginning of the trial, Sandoval argues
this testimony was necessary to rebut
complainant's testimony, first elicited
during cross-examination, that she has
not been able to date since the incident
with the defendant.
{[3] This court has long noted that the
latitude allowed on cross-examination and
rebuttal is a matter within the sound
discretion of the trial court; a review-
ing court will not interfere unless there
has been a clear abuse of discretion
resulting in a manifest prejudice to the
defendant. People v Collins (1985), 106
Ill.2ad 237, 269, 87 111.Dec. 910, 478
App. 79
N.E.2d 267; People vy Peter (1973), 55
Tll.2d 443, 451-52, 303 N.E.2d 398.
[4] Upon review of the record, we find
no abuse of discretion resulting in
prejudice to the defendant. What the
complainant has done since the incident
which resulted in the charges against the
defendant has not relevance in a determi-
nation of defendant's guilt or innocence.
It is well accepted that a cross-examiner
may not impeach the witness on a col-
lateral matter; the answer must be
accepted. (Collins, 106 Il11.2d at 269,
67 %13.Dec. 910, $478 W.8.2d 267.)
Whether or not a matter is collateral may
be determined by asking the question:
Could the matter be introduced for any
purpose other than to contradict?
(Collins, 106 I11.2d at 269, 87 I11.Dec.
910, 478 WN.E.2d 267.) The question
before the jury was whether the defendant
forced the complainant to have anal and
Oral sex against her will. The subse-
quent effect on her life, that is,
whether or not she was dating, could be
offered for no other purpose than to
contradict a statement of the com-
plainant. It would present the jury with
no additional information about the
charges against the defendant. Absent an
App. 80
abuse of discretion, a reviewing court
should not interfere with the trial
judge's ruling. Collins, 106 Ill.2d at
269-70, 87 I11.Dec. 910, 478 N.E.2d 267.
For the reasons stated above, we
reverse the judgment of the appellate
court and affirm the judgment of the
circuit court.
Appellate court judgment reversed:
, T b dae | Fi
Justice MILLER, specially concurring:
I concur in the court's judgment
affirming the defendant's convictions. I
would decide the case on grounds narrower
than those relied on by the majority,
however, and for that reason I write
separately.
At the defendant's trial, the prosecu-
tor asked the complaining witness on
direct examination whether’ she _ had
previously engaged in anal sexual rela-
tions with persons other than the defen-
dant. The witness said that she had not.
When defense counsel made inquiry on
cross-examination to establish a founda-
tion for later impeachment, the trial
judge indicated that 2 foundation was not
necessary and that he would allow the
impeachment. The trial judge later
reconsideted that ruling, however, and
App. 81
barred defense counsel from introducing,
during the defendant's case in chief,
testimony from a witness who would have
contradicted the complainant's assertion.
Before the jury began its deliberations,
the judge struck the complainant's brief
statement regarding her prior sexual
conduct with persons other than the
defendant and specifically admonished the
jurors to disregard that evidence. The
State concedes that the complaining
witness' testimony was improper.
It is apparent that defense counsel's
remedy was to object to the evidence,
rather than attempt to impeach it. The
"rape shield statute" (Ill Rev. Stat.
1987, ch. 38, par. 115-7), applicable in
prosecutions for aggravated and unaggrav-
ated offenses of criminal sexual assault
and criminal sexual abuse, bars the
introduction of evidence concerning a
victim's prior sexual conduct with
persons other than the accused. The
statute expresses the judgment that such
evidence is irrelevant, and the statute
thus removes a potential disincentive to
the prosecution of those offenses. The
statute does not purport to establish an
evidentiary privilege, which a witness
may elect to assert or waive, but is
App. 82
instead phrased as a general prohibition,
applicable to both the prosecution and
the defense. It is therefore something
of a fiction to say, as the appellate
court did in the proceedings below, that
the complainant in this case waived the
protection of the statute by her testi-
mony. (See, e,.g., 178 I11.App.3d at 675,
127 I11.Dec. 898, 533 N.E.2d 980 ("In the
present case, however, the victim, by her
Own action at trial, rendered her past
sexual activities relevant and thus
admissible").) The statutory bar on such
evidence is not eliminated simply because
prohibited testimony already has been
introduced through the complaining
witness.
Although defense counsel did not make a
contemporaneous objection to the prosecu-
tor's improper question, the trial judge
Subsequently granted the defendant
appropriate relief. At the close of
evidence, the trial judge struck the
complainant's testimony concerning her
prior sexual conduct with others and
instructed the jurors to disregard her
statement. I agree with the majority's
ultimate conclusion that the trial
judge's actions were sufficient to cure
any error occurring in the introduction
App. 83
of the evidence. In light of that
result, it is appropriate to question the
usefulness of the majority's detailed
discussion of two additional issues, the
defendant's confrontation right, and the
circumstances under which evidence of
prior sexual conduct would ever be
admissible, and I do not join those
portions of the opinion. Indeed, the
court appears to recognize the hypo-
thetical nature of its treatment of those
issues when it declares, "Furthermore,
even were we to conclude that it was
error to exclude the rebuttal testimony
if the complainant's statements were
utilized by the jury in reaching a
decision, we would not find error here.
The jury was properly admonished to
ignore the complainant's statement." 135
Tll. 2€ at 193, 1711.Dec. at ’
552 N.E.2d at 741.
With respect to the second question
raised on appeal, I agree with the
court's conclusion that the complaining
witness' social activity subsequent to
the offenses charged here was a col-
lateral matter, and that the impeaching
testimony proffered by defense counsel
was properly excluded on that basis.
Finally, I note that in the appellate
App. 84
court the defendant raised an issue
concerning his sentence, which that court
did not address in light of its decision
granting the defendant a new trial. In
the appellee's brief filed before this
court, defense counsel correctly observed
that the appellate court did not each the
sentencing issue. Counsel has not,
however, made an alternative request for
relief in the event we affirm the defen-
dant's convictions: counsel neither
presents the sentencing issue as grounds
for cross-relief, nor asks that the cause
be remanded to the appellate court for
consideration of the question. Accord-
ingly, one may conclude that the issue
has been abandoned.
App. 85
Order of the Illinois Supreme Court
Petition for Rehearing
(Letterhead of)
ILLINOIS SUPREME COURT
JULEANN HORNYAK, CLERK
SUPREME COURT BUILDING
SPRINGFIELD, ILLINOIS 62706
(217) 762-2035
April 9, 1990
Robert P. Will, Jr.
Will & Briscoe
7 S. County Street
Waukegan, Illinois
No.68286--People State of Illinois, appel-
lant, v. Santiago Sandoval, appellee:
Appeal, Appellate Court, Second District.
The Supreme Court today DENIED the
petition for rehearing in the above
enf$tled cause.
The mandate of this Court will issue to
the appropriate Appellate Court and/or
Circuit Court or cther agency on April
19, 1990.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.