# Petition for Writ of Certiorari — Sandoval v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1810%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 498 U.S. 938 ## Text ee) 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, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1810%3A1. Public record. Not legal advice.