Petition for Writ of Certiorari — Sandoval v. Acevedo

Supreme Court brief1993

Ask Donna

What actually matters in this document.

Text

| GAtGE OG WR Geil |

| ——— ——

et ee -_

SUPREME C”"URT OF THE UNITED STATES

October Term, 1993

SANTIAGO SANDOVAL,

Petitioner,

VS.

GERADO ACEVEDO, Warden of East Moline

Correctional Center,

Respondent.

Petition For Writ Of Certlorarl

To The United States Court of Appeals

for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT P. WILL, JR.

Counsel of Record

WILL & BRISCOE

Seven South County Street

Waukegan, Illinois 60085

(708) 336-4440

—Y

“J

ww a

be:

QUESTIONS PRESENTED FOR REVIEW

itutional per se, or in the

ernative, whether the Illinois Rap

eld Statute was unconstitutionally

in this case in

-~ ‘ y ~ l Se 4 ,

4ation of the confrontation clause

Sixth Amendment of the United States

oe s _ ° + M4 + 5

Stitution and in violation of the due

c GS 1

cess clause of the Fourteenth Amend-

~ “4 “4 N N i Ve) Ve) cH Ve) (ee) wr

tw _—_ cd —™N CO @ ite)

0) “4 ot

< . . . . .

a, QO, OQ, Q, Q, QO,

OQ, Q, Oy Q, Q,

rt rt et = 0 io

e ° ° ° ° ° ° ° ° iad ° ” e hy e !

. . . . Q . . . . ia} . “rd . O .

. . . . {x] ° . c oo | . hu O . Qi .

. . . . a . . O . c . oe << . .

~— ‘2 . . ° —s . ° “4 ge iD) . oo re wm -

bY {x} . , . oO ° E4 Q O =) . ms ji n

Zz H4 . . . a e = | “A . Wed ° oc

[x] > ° ° ; a ° or, Q, G ) . Saba 0 oO

4 [2] ° ° ° - . ‘= Oo “r ky . | : Quer

> OG ° ° ° . Qa = . OW - a G

re . . : = . (1) re) oO Ow - (of E -r

Mm , ‘ - O = ) OO : ; O,

- O O . . - oe + oe 3 v . vo. SG

ol {x4 , , . W— fx) Oo MY ow - > €) +s O

[xy ep) . . bd VY) te ©) " E-d “4oerd ‘es

oO a (2) , : > ef, a O ow - oe * 43 ont

(x) tH . . ‘@) ) ba “=< @ i) oe ea a) 43 "s uw 3

mT = Fa : . mm f4 2 ) Q, ° On > oe

_ hd . : Qu (x) a oO i] @ = oe “Aedes OM

4 i) | ; nr €¢ G 4 Eno:+ Bo * OG«

a YW”) Oo = . | E4 ea mw rH a) Was . Oo)

{r] = O . r= 0 C% w ky ” . a G.* ”

fH m~m fH ' a Za [xy pe Or, Q, oe cs a we = a os

ae © 8 6&6 Co S&S = = ao Ss Dow Des ae

ely mM A bd C) : «tl Y) WM -r4d Sy i ie ro ae

Y) 4 EH f [uy WW i? a) * Ww Y

- (x4 ep) C) ~~ 2. i ” ” W-A wy wae 1) >

O © ra 4 oo (x) tH a4 “4 1) O @

4 O QO a] PM Q e) oO TW V-H GO ZM-cA OW

(x) bt VY) a fx) yA = c Vy wv 8) c @

WY | a: hd ep) fa [2] -r “4 re) ky YW @OM-d vw @w

(x) mM ba m aa et Ou cH — “4A 4G @ “4 £ QO, “AC

ee) cB Oy ) c fH Ay rH con gq OU Gc vwQO cw

ie fH Oo ‘ ©) Y) a HH HH —s a —.

had

TABLE OF AUTHORITIES

PAGES

Bruton v United States.,391 U.S.123 20

L.Ed.2d 476, 88 S.162

Ce ab ae aaa 30

Davis v Alaska, 415 U.S. 308, 39 L.Ed

2d 347, 94 §.Ct.1105

EN 22-23,

26,31, 35

Harris v New York, 401 U.S. 222, 28 L

wee eG 4, 92 §.Ct.163

eee 27-28

Olden v Kentucky, See, U.5.227, 102 2L.t4

ea o193, 109 §.Ct. 480

A 30,34

People v Campos,155 I11.App.3d 348,

507 N.E.2d 1342, 108 I1l.Dec.1

[214 eoe.2 Dist .i987)....... 20

People v Cornes, 80 I1l.App.3d 166,

399 N.E.2d 1346, 35 I1l.Dec.

SL) Ba 20,21

People v Ellison, 123 I11.App.3d 615,

463 N.E.2d 175, 79 I11.Dec.37

feeeemee.2 Dist.1984).....: 20

2a 923, 85 S.Ct.

(1965)

Pointer v Texas, 380 U.S. 400, 13 L.Ed.

34,39

(1978)

State v Jalo, Or.App.,

CERES) esd eh ek a wee eee

State v LaClair, 433 A.2d 1326(1981)..

United States ex rel. Fuller v Attorney General of

F.Supp.206 (1984) .23-24

(Ifinois, 589 §&

Walder v United States, 347 U.S.62,

58 1.804.502. 74 -§.Ce. 354

23. } is rae nn ere ayer arene 27

Miranda v Arizona 384 U.S.436,

16 L.Ed.2d 694, 86 S$.Ct.1602

Oe rg eos eee ee ee ee 28

CONSTITUTION

United States Constitution

Amenageent. Siti scs «ius wee es 5. 16;

19,20,28,

30;.32i32

United States Constitution

Fourteen ....... 13, se,

Si, jJesoe

Amendment

—V

STATUTES

Illinois Revised Statutes, 1985,

Chapter 38, Paragraph

a, Pere arr a 2 are en art rar 13,17,

18,15,20,

23-24,28,

29,31,34

MISCELLANEOUS

Minnesota Law Review, Vol. 70,

No. 4, Pages 763-916..... on

No. 93-252

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

Saja.

SANTIAGO SANDOVAL,

Petitioner,

vs.

GERADO ACEVEDO, Warden of East

Moline Correctional Center,

Respondent.

—V63<6C6SGasNuauwuwuwxauxqxlo_[hDHBHBHSV—X————————————————

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

Santiago Sandoval, Petitioner herein

respectfully prays that a Writ of Certio-

rari issue to review the judgment of the

United States Circuit Court of Appeals

for the Seventh Circuit entered in the

above-entitled case.

aia

OPINIONS BELOW

The opinion of the Appellate Court of

Illinois, Second Judicial District was

filed on January 13, 1989 and is reported

at 178 I11.App.3d 669, 533 N.E.2d 980,

127 I11.Dec. 898 (1989). It is repro-

duced in the Appendix (App. 1-24, 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.25-86, infra) .

The opinion of the United States

District Court for the Northern District

of Illinois was filed on March 31, 1992.

It is reproduced in the Appendix. (App.

88-153, infra) .

The opinion of the United States

Court of Appeals for the Seventh Circuit

was filed on May 20, 1993. (App. 154-

173, infra) .

JURISDICTION

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 Petition for Rehearing was

denied on April 9, 1990.

An order of this Honorable Court

denying Petition for Writ of Certiorari

was entered on October 29, 1990. It is

reproduced in the Ap

4 @

nae

be-

The opinion of the United States

_o 4 + T > rT + +

Vistrict Court for the Northern District

denying habeas corpus.

The opinion o

Court of Appeals for the Seventh Circuit

was filed on May 20, 1993 a

denial of habeas corpus by the United

States District Court for the Northern

District of Illinois.

This Petition is being filed within

90 days of the May 20, 1993 Opinion of

the United States Court of Appeals for

the Seventh Circuit Court. The jurisdic-

tion of this Court is invoked under 28

GoeeS.$i257 (3)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment to the Constitu-

tion 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 witnessesS against in his

4 |

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:

“a. In prosecutions for aggravat-

ed criminal sexual assault,

Criminal sexual assault, aggravat-

ed criminal sexual abuse or

Criminal sexual abuse, the prior

sexual activity or the reputation

of the alleged victim is inadmis-

Sible except as evidence concern-

ing the past sexual conduct of

the alleged victim with the

accused.

BS. 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

information as to the date, time

and place of the past sexual

conduct between the alleged

victim and the defendant. Unless

the court finds that reasonably

specific information as to date,

time or place, or some combina-

tion thereof, has been offered as

to prior sexual activity with the

defendant, counsel for the defen-

dant shall be ordered to refrain

from inquiring into prior sexual

activity between the alleged

victim and the defendant.”

STATEMENT OF THE CASE

On January 7, 1987, the Lake County,

Illinois grand jury by indictment charged

Petitioner, Santiago Sandoval, with two

counts of Aggravated Criminal Sexual

Assault, two counts of Criminal Sexual

Assault, and one count of Unlawful

Restraint. (R C€13-19) A jury trial

commenced on March 2, 1987, and concluded

on March 5, 1987. Petitioner was convict-

ed of two counts of Criminal Sexual

Assault and Battery, as a lesser included

offense, and found not guilty of Aggravat-

ed Criminal Sexual Assault and Unlawful

Restraint. (R €iz26=-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 Petition-

er in the summer of 1986; they dated for

two months prior to-~living together for

three months. Because of violent epi-

sodes 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

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 Assis-

tant State’s Attorney said, “Yes, with

others.” The witness then replied, “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

she thought he still had something in his

hand, the anal and oral acts were repeat-

ed. (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.

‘s.

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

act that was described here this morn-

ing?”, she answered “Yes”. Defense

Counsel then asked, “Okay, Now, you know

a fellow named ---”. A side-bar followed

a State objection, based upon the Illi-

nois Rape Shield Law [I1ll.Rev.Stat.

(1977), Ch. 38, 125-7}. (m. 261) Defense

Counsel 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

-¥@-

responding 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

he recovered various items belonging to

Ms. Schmid. (R 305-334)

After the denial of a Motion for a

cted 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 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)

oOo

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

weeks after they met; she never expressed

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

ae 2

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

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

-43-

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

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 building’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 testi-

fied they were having a good time prior

to their going to the nightclub. (R 482-

505)

A Defense Motion for a Mistrial based

“ABs

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

said that when they recovered her pant-

ies, 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 testi-

fied that his reputation for peacefulness

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 follow-

ing: 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)

As in his Petitions to the United

States District Court for the Northern

District of Illinois and to the United

States Court of Appeals, Seventh Dis-

trict, in his Briefs to both the Appel-

late and Supreme Courts of Illinois,

Petitioner raised the issues of his

constitutional rights of confrontation

and due process. (See App. 9 and 32)

REASONS FOR GRANTING THE WRIT

THE ILLINOIS RAPE SHIELD STATUTE IS

UNCONSTITUTIONAL PER SE, OR IN THE

ALTERNATIVE, THE ILLINOIS’ RAPE

SHIELD STATUTE WAS UNCONSTITUTIONAL-

LY APPLIED TO THE PETITIONER IN THIS

CASE IN VIOLATION OF THE CONFRONTA-

TION 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 are

PRIOR SEXUAL ACTIVITY WAS IMPROP-

ERLY LIMITED IN VIOLATION OF THE

-46-

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

on UNITED STATES CONSTITUTION.

The alleged acts of forced sex in

this case were alternating acts of oral

and anal intercourse. The complaining

witness testified that she pleaded

Strongly with the Petitioner not to have

anal intercourse 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) y

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

ita aaa nl

< h

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: o. Okay And that prior to

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 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)

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 aggravat-

ed criminal sexual assault,

Criminal sexual assault, aggravat-

ed 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.”

Lik .ROv. Stat. L965,° Ch. Je. Fer.

115-/7a

-19-

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 made a motion for a mistrial

based upon the complaining witness’

testimony that she never had anal inter-

course with anyone other than Defendant.

This motion was denied. (R 511)

For purposes of this argument, the

pertinent provisions of the Sixth Amend-

ment to the United States Constitution

are as follows: “In all criminal prosecu-

tions, the accused shall enjoy the right

to be confronted with witnesses

against him; to have compulsory process

for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his

defense.” (U.S. Const., Amend. VI.) A

Similar provision appears in Article I,

-20-

Section 8 of the Illinois Constitution.

In People v Campos, 155 I11l.App.3d 348,

507 N.E.2d 1342, 108 Ill.Dec 1 (111.App.

2 Dist. 1987), the court said at page 7:

“The sixth amendment confronta-

tion 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 defen-

dant correctly points out that he

is entitled to present relevant

evidence (citing cases) and to

fully cross-examine to show bias,

nterest, or motive. (citing

an o~ uv

CaSes) sac

In People v Effison, 123 I1l.App.3d 615,

463 N.E.2d 175, 79 1I11.Dec. 37 (I11.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 harassing and humiliating

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 wheth-

er she consented to sexual rela-

tions with the defendant. Fur-

ther, exclusion of such evidence

keeps the jury’s attention fo-

cused only on issues relevant to

24.

the controversy at hand. Last,

but not necessarily least, the

exclusion promotes 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.”

In People v Cores, 80 I11.App.3d 166, 399

N.E.2d 1346, 35 Ill. Dec. 818 (1980), the

Court said at page 825:

“The exclusion of this evidence

does not prevent defendant from

challenging or attacking complain-

ant’s credibility or veracity or

otherwise utilizing cross- exami-

nation as an effective tool of

impeachment. It merely denied

defendant the Opportunity to

harass and humiliate the complain-

ant at trial and divert the

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 author-

ities 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

-22-

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 $.Ct. 1105 (1974), the prosecution,

pursuant to this statute moved for a

protective order to prevent any refer-

ence, in the course of cross-examination,

to the juvenile record of a crucial

prosecution witness. The defense indicat-

ed 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 certioran, this Honorable Court

reversed and remanded.

Chief Justice Burger wrote:

“We do not and need not challenge

the State’s interest as a matter

of its own policy in the adminis-

tration of criminal justice to

seek to preserve the anonymity of

a juvenile offender. (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

tight. Serious damage to the

strength of the State’s case

. |

-23-

would have been a real possibili-

ty had petitioner been allowed to

pursue this line of inquiry. In

this setting we conclude that the

right of confrontation is para-

mount to the State’s policy of

protecting a juvenile offender.

Whatever temporary embarrassment

might result to Green or his

family by disclosure of his

juvenile record--if the prosecu-

tion insisted on using him to

make its case--is outweighed by

petitioner’s right to probe into

the influence of possible bias in

the testimony of a crucial identi-

fication witness.”

In U.S. ex rel. Fuller v Attorney General of Illinois,

989 F.Supp. 206 (1984), the Court,

commenting on a state court’s refusal

allow an Illinois defendant, who put

evidence the prior sexual conduct

reputation of a complainant, stated

follows:

“The reviewing court must decide,

looking to the record as a whole

and 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

determination, we must decide

whether the probative value of

the excluded evidence “was such

that the defendant’s right to

-24.

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 recog-

nize that in some circumstances

sexual conduct may be

robative and therefore relevant

nad should be admitted, for

ance (1) where the evidence

ains a physical fact in

ence at trial, such as pres-

f semen, pregnancy, or the

Ss physical condition

g intercourse; (2)

e evidence tends to

Or? OU

we le WS

t 1 bias, prejudice or

t motive surrounding the

pe charge; or (3) where the

victim has engaged in @ prior

Because the defendant in that case

did not offer the excluded evidence for

any of the aforesaid purposes, his writ

of habeas corpus was denied.

In Shockley v State, 585 S.W.2d 645

(1978), the Court of Criminal Appeals of

2s.

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 consensual 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

witnesses 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

application must be construed in

light of the appellant’s due

process rights. That the statute

was not so construed in the trial

of this case constitutes revers-

ible error.”

In State v Jalo, Or.App., 557 P.2d 1359

(1976), the Court of Appeals of Oregon,

ial

-26-

relying on Davis v 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

constitutional right to confrontation.”

(at page 1362.)

In State v LaClnir, 433 A2d 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 prosecu-

trix immediately prior to an alleged rape

may be a relevant area for cross-exami-

nation. “This is especially true where,

as here, the evidence of prior sexual

activities might explain physical inju-

, |

ries of the prosecutrix.” (Citing cases.)

In reversing the case, the court held

that, “Evidence of the prosecutrix’s

inconsistent statements regarding her

virginity and evidence of her prior

sexual activity as it might explain the

presence of sperm in her vagina, is

admissible at the new trial.” (at page

1330.)

In Walder v United States, 347 U.S. 62, 98

L.Ed. 503, 74 S.Ct. 34 (1954), 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

never possessed any narcotics, opened the

Goor:*

In Harris v New York, 401 U.S. 222, 28

-28-

L.Ed. 2d 1, 91 $.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 permit-

ted the State to introduce his confession

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 confronta-

tion 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 permit-

ted the widest latitude in cross-examin-

ing her. While the purpose of the “Rape

Shield” statute may be laudable, neverthe-

less, there are some cases when these

purposes must be subordinated to a

defendant’s superior right to confront

the witnesses against him. This is such

-29-

a case.

The complaining witness testified

that anal sexual intercourse was extreme-

ly painful to her on two previous occa-

sions 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 state-

ments 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 initiated 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 consid-

eration.

Her denial of prior anal sexual

intercourse was not brought out by the

Defense, but was in fact, brought out by

the Prosecution in the direct examination

of Ms. Schmid. Therefore, the Prosecu-

tion violated the Rape Shield statute in

order to elicit testimony to support its

case, and yet, this very statute was used

| |

-30-

to bar Petitioner from devastating

impeachment 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 proceed-

ings. Such a curative instruction was no

substitute .or permitting the Defense’s

desired cross-examination and rebuttal

testimony. @Brutonv U.S., 391 U.S. 123, 20

L.Ed. 476, 88 S.Ct. 1620 (1968).

In a more recent United States Su-

preme Court decision regarding issues

Similar to issues presented in this

appeal, the Court ruled that the Defen-

dant was unreasonably limited in the

cross-examination of the complaining

witness regarding her cohabitation with

another man. In Olden v Kentucky, 488 U.S.

fe), 102 L.Ed 28 $13, i209 $§.Ct. 480

(1988), the Court said, “The Kentucky

Court of Appeals failed to accord proper

weight to petitioner’s Sixth Amendment

right ‘to be confronted with the witness-

es against him.’ That right, incorporat-

-34.

ed in the 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. 308,

315-316, 39 L.Ed. 2d 347, 94 S.Ct. 1105

(1974) .”

The konorable Appellate Court for the

Illinois Second District properly conclud-

ed that alleged rape victims may choose

to forego and waive the benefits con-

ferred upon them by the Rape Shield

Statute. (App. 11) The Illinois Appel-

late Court correctly analyzed the trial

as being one where “...there was so

little corroborating evidence, (that) the

jury’s verdict depended almost exclusive-

ly on who it found to be the most believ-

able... re (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 prejediced when precluded from

impeaching the only other eye-witness to

the occurrence about her past activity.

EEE UT'’>;—y 0 0 Od OO EE EEE EEE

So.

(App. 14-15)

While the Honorable Appellate Court

decided the issues on the basis of

statutory interpretation 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 Minneso-

ta Law School’s, Minnesota Law Review, Vol.

70, No. 4 beginning on Page 763.

B) THE SCOPE OF CROSS-EXAMI-

NATION OF THE ALLEGED VICTIM

RELATING TO HER ACTIVITIES

WITH A MALE PERSON IN A

MUNDELEIN BAR JUST DAYS BE-

FORE 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.

iene

-33-

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 counsel-

ling had changed her relationships with

men to the extent that she uad 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 Mundelein 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 Mundelein, 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 inadmissible and did not let the

Defense put Mr. Abron on to testify to

-34-

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

the Petitioner and the complaining

witness. 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 credibility.

The issue is very similar to the one

presented in Olden v Kentucky, 488 U.S. 227,

102 L.Ed. 2d 513, 109 S.Ct. 480 (1988).

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 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 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. 308, 315-316, 39

L.Ed. 2d 347, 94 S.Ct. 1105 (1974) .”

The Illinois 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 complai-

nant’s activity with the man in Annie’s

Bar in Mundelein.

-36-

CONCLUSION

Wherefore, the Petitioner, SANTIAGO

SANDOVAL, respectfully prays that a writ

of certiorari issue to the United States

Court of Appeals for the Seventh Circuit.

Respectfully submitted,

ROBERT P. WILL, JR.

WILL & BRISCOE

Seven South County Street

Waukegan, Illinois 60085

(708) 336-4440

Attorney for Petitioner

APPENDIX

oe aa Sa a ae

a 7 ;

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)

(T1l.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 not guilty by the

jury of aggravated criminal sexual

assault (I11l.Rev.Stat.-1985, ch. 38, par.

12-149A) (2)) and unlawful restraint

(I1ll.Rev.Stat. 1985, ch. 38, par. 10-

ata) ). Defendant was sentenced to 15

ears’ imprisonment and he a eals,

y p

App. 2

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 eventual-

ly moved out in October 1986.

Subsequently, she started to see

defendant again and for two months

everything was fine. On New Year’s Eve,

the couple went out for the evening,

first to see his sister-in-law in a

Waukegan hospital, who had had a baby;

defendant’s family was there too. They

then went to a friend’s home in Waukegan

App. 3

to a party and left there at 10:30 p.m.

to go to 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

denied. 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 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

App. 4

assistant State’s Attorney, stated she

had never had anal sex with any other

person.

According to the complainant, a

Struggle followed on the bed in which

defendant 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 defen-

dant 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.

In his testimony at trial, defen-

dant’s version of the events that night

was substantially different than was the

App. 5

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

hey arrived at his apartment, the com-

plainant 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. Defen-

dant 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 impeach both defendant and

complainant, character evidence relating

to defendant was admitted, as was some

App. 6

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, interaha, that argument

in an appellant’s brief shall contain his

contentions and the reasons therefor,

with citation of the authorities relied

on. It provides further that points not

argued are waived. (207 Tli.26@ KR. 342 (a)

(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 con-

sists of the statement, that, “If defen-

dant was not guilty of Unlawful

Restraint, he logically could not be

guilty of Criminal Sexual Assault.” He

offers no citation of authority 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 I11.2d 439, 472,

75 Ill.Dec. 241, 457 N.E.2d 31; People v

Deacon (1985), 130 I1l.App.3d 280, 294, 85

App. 7

I1l.Dec. 549, 473 N.E.2d 1854.

We consider first defendant’s

contention 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

complainant 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 defendant’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 (I1l1.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.

Subsequently, however, at the

App. 8

commencement of defendant’s case, the

trial court reconsidered its prior

ruling. Defendant’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

=. The trial court ruled that the

offered testimony 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 inter-

course 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 witness-

es against him and requires a new trial.

The rape shield statute states in perti-

nent part:

“In prosecutions for ***crimi-

nal 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 ac-

App. 9

cused,” (Emphasis added.)

(Ill.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 8ex

with a third party. While neitner 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 ig 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 exception

for admission of the impeaching evidence

offered by defendant in this case,

The policy underlying the rape

Shield statute is to prevent the defen-

dant from using evidence of the compliain-

ant’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 enforce-

ment 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

App. 10

Ill.App.3d 615, 626, 79 Ill.Dec. 37, 463

N.E.2d 175; ‘People v. Cornes (1980), 80

I1l1.App.3d 166, 175-76, 35 I11.Dec. 818,

399 N.E.2d 1346.) According to the

Cornes’ court:

“The legislature was acting

well within its power in

enacting reasonable legisla-

tion intended to eliminate the

cruel and abusive treatment of

the victim at trial by preclud-

ing the admission of prejudi-

cial and irrelevant material

and to promote the lawful

administration of the criminal

justice system.” (Cornes, 80

Ill.App.3d at 175-76, 35

122. Dee. 181, 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.

{1} We note initially that thee is

nothing in either the language of the

rape shield statute or the policies which

App. 11

gave rise to it which expressly precludes

a victim from introducing evidence

regarding her own past sexual activities

with third parties, or the lack of any

such activities. Since the statute was

enacted for the benefit of the 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 restrict-

ed by the statute from asserting that she

had not had anal sex with any partners

other than defendant. But cf, People v Sales

(1986), 151 I1l.App. 3d 226, 231, 104

I1l.Dec. 561, 502 N.E.2d 1221.

The nature of the evidence in this

case must be examined in order to under-

Stand the significance of the testimony

defendant 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

presented at trial. While testimony was

given that complainant made a prompt

complaint of rape to a neighbor of

defendant, the record contains little

other corroboration of her testimony. No

App. 12

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 and bruising on and about

her head. The photograph of the bruises

allegedly inflicted upon her ear reveals,

at best, only slight discoloration, not

inconsistent with defendant’s admission

that he back-handed her. Nothing was

offered to support complainant’s testimo-

ny 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

defendant’s apartment. No neighbors

testified that they heard yelling or

sounds of a struggle. In sum, the

State’s case stood on complainant’s

essentially unsubstantiated testimony.

[2] Sinee there was so little corroborat-

ing evidence, the jury’s verdict depended

almost exclusively on who it found to be

the most believable of complainant and

App. 13

defendant. It was in this context that

complainant asserted she had-never had

anal sex prior to having it with defen-

dant. This claim was obviously intended

to underscore her testimony that on the

occasion in question she feared anal sex

because it had caused her a great deal of

pain in the past and that, although she

pieaded 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 stat-

ute, as noted earlier, prohibits evidence

Of past sexual conduct when such conduct

is irrelevant to the issues. Since

defendant’s proffered evidence was very

relevant to the issue of complainant’s

Credibility, its admission was not here

prohibited by the statute.

App. 14

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

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 Cornes 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 humiliat-

ing 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 statuto-

ry protection and risks a challenge to

the truthfulness of her version of that

conduct.

Since credibility of the witnesses

+1 NS

App. 15

was the crucial issue in the case,

defendant was severely prejudiced when he

was precluded from impeaching complain-

ant’s testimony about her past activity.

Complainant’s claim stood intact before

the jury and was undoubtedly persuasive

that she was also telling the truth about

the alleged assault on her by defendant.

Had defendant been able to introduce his

impeaching evidence regarding complai-

nant’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

App. 16

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

grounds. (People v Fleming (1971), 50 I11.2d

141, 144, 277 N.E.2d 872; People v Davis

(2977). 30: (32,00. 34. 262, 267.078

£62 .00C. 49, 3698.8. 26. tisost Since

the case before us has been resolved

through statutory construction, we need

not address the constitutional issue.

—————— /

See, however, Olden v Kentucky, vs.

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 respond-

App. 17

ed 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

gentleman friend of hers” at a bar. The

trial court refused to admit this evi-

dence 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 testimo-

ny, 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

VG ee

App. 18

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 was not proved guilty beyond a

reasonable doubt. Mindful of the direc-

tive in People v Taylor (1979). 76 Ill.2d

289, 29 I11.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

App. 19

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

anyone else prior to their 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. (I1l.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 v. Sales

(1987), 151 I1ll.App.3d 226, 231, 104

tii. Dec, S61, 502 N.E.24° 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.

App. 20

Thus, such evidence was incompetent and

it was improper in this case for the

State to introduce complainant’s testimo-

ny that she had not had anal intercourse

with anyone other than the defendant.

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

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 court 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 v Newman (1913), 261 I1l. 11,

103 N.E. 589, that “[tJhe proper defense

against incompetent evidence is an

App. 21

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.” (zig. Til. at

LS, 203 H.E. ot $91.) The appellate

court in more recent decisions, however,

nas adopted the rule of “curative admissi-

bility” whereby an opponent may reply

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. Peoplev

Higgins (1979), 71 111.App.3d 912, 930-31,

28 I11.Dec. 173, 390 N.E.2d 340.

McCormick on Evidence § 57, at 133

(Cleary 2d ed. 1972) explains this rule:

“if again the first incompe-

tent evidence is relevant, or

though. irrelevant is preju-

dice-arousing, but the adver-

sary has failed to object or

to move to strike out, where

such an objection might appar-

ently have avoided the harm,

then the allowance of answer-

ing evidence should rest in

the judge’s discretion. He

should weigh the probable

influence of the first evi-

dence, the time and distrac-

App. 22

tion incident to answering it,

and the possibility and effec-

tiveness of an instruction to

the jury to disregard it.

However, here various courts

have indicated that introduc-

tion 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

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

App. 23

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 v Collins

(1985), 106 Ill 2d 237, 269, 87 I11l.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

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

oncollateral. The test to be applied in

determining if a matter is collateral is

whether the matter could be introduced

iOr any purpose other than to contradict.

(Collins, 106 I11.2d at 269, 87 I1ll.Dec. at

924, 478 N.F. 2d at 281.) Because the

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

aera cena

App. 24

“collateral” test is best left largely in

the control of the trial judge, subject

to his abuse of discretion (Collins, 106

Ill. 2d at 269-70, 87 I11.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. 25

Opinion of the

Supreme Court of Illinois

No. 682286. -- Filed Jan. 17, 1990

Rehearing Denied April 9, 1990.

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellant,

Vv.

SANTIAGO SANDOVAL,

Appellee.

Justice CLARK delivered the opinion

of the court:

At issue in this case is the admissi-

bility of certain evidence about the

sexual history of the complainant under

the State’s rape shield Statute

(Tll.Rev.Stat. 1987, ch 38, par.115-7).

Santiago Sandoval, appellee, was found

guilty on two counts of criminal sexual

assault (I11.Rev.Stat. wear, ch. 38,

par. 12-13 (a) (1)) and one count of

battery (I11l.Rev.Stat. 1985, ch |

par.12-14(a) (2)) and unlawful restraint

(I1ll.Rev.Stat. 1985, ch. 38, par. 10-

3(a)) following a trial by jury in the

Lake County Circuit Court. On appeal,

App. 26

the convictions were reversed and the

cause was remanded for a new trial. (178

lll.app. 3¢€ 669, .127 I11.Dee. $96, S33

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 evi-

dence, 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

indictment 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

complainant’s accounts of how the evening

App. 27

ended differed substantially, both

indicate that repeated acts of anal

intercourse followed by oral sex

occurred. We will detail the events of

the evening 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

followed 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-

App. 28

sion, followed by oral sex, which he also

asserts was initiated by his partner.

Sandoval argues that the present charges

stem from the complainant’s anger at

being rejected after she had initiated

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

=< 5a

App. 29

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,

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

examination at trial, the following

exchange occurred between the State’s

Attorney and the complainant:

"i>, Now, you had had anal sex with

him before?

App. 30

A. Yes.

Q. And on how many occasions had he

had anal sex with you?

A. Twice.

O. And do you recall at whose

request that occurred?

A. {[Sandoval’s].

Q. Had you ever had anal sex in the

past? |

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 coun-

sel, in an attempt to impeach the com-

plainant, then asked “Okay. Now you know

a fellow named ---.” The State’s Attor-

ney 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

App. 31

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 criginal question posed by the

prosecution, and the prosecutor, for

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 engaged in anal sex.

Following the court’s denial of

defense counsel’s motion for mistrial and

just prior to giving the jury instruc-

tions, 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

App. 32

to further taint the trial, the court

struck the complainant’s testimony.

The trial court also rejected

defense counsel’s attempts to impeach the

complainant’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

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 counsel indicat-

ed 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

App. 33

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

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 I1ll.Dec. 898,

533 N.E. 2d 980), the defendant’s impeach-

ing evidence was allowable as relevant to

the believability of [complainant’s]

accusations against defendant” (178

Tll.App.3d at 678, 127 Ill.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 (Ill. Rev. Stat.

-™

App. 34

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 immorali-

ty and unchastity (People v Collins (1962), 25

I11.2d 605, 611, 186 N.E.2d 30; see also

People v Ellison (1984), 12 Iil.App.3d at 624,

72 222.006... 375 (S63 RB ee hte 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, 25 111.

2d at 611, 186 N.E.2d 30.) It has been

averred that the premise of this ratio-

nale 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,

App. 35

Rape Shield Statute Upheld by Illinois Appellate Court,

69 Ill. 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 remot-

es degree affect his character for

truth, when based upon that alone, while

it does that of a woman.’” Murphy, Rape

Shield Statute at 100, quoting State v Sibley

(1693),.°231 Mo. $19, 531-32, 33 8.8. 167,

The rape shield statute departs

dramatically from the court’s prior

position. Effective January 4, 1978, the

rape shield statute provides:

“

a. In prosecutions for [rape

Or deviate] sexual assault * *

*, 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 ac-

cused.

b. No evidence admissible

under this Section shall be

introduced unless ruled admis-

Sible by the trial judge after

an offer of proof has been

App. 36

made at a hearing to be held

in camera in order to deter-

mine whether the defense has

evidence to impeach the wit-

ness 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

reasonably specific informa-

tion 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.” iil. Reve. Stat.

iSe7, ch 36, par. iis-7.

The constitutionality of the rape

shield statute has been addressed on

several occasions by the appellate court

see People v Buford (1982), 110 I11.App.3d

4G, 65 111.006. .721,. 442) 0.6.26: 12357

People v Bachman (1981), 92 I11.App.3d 419,

47 I1l.Dec. 253, 414 N.E.2d 1369; People v

Cornes (1980), 80 I11.App.3d 166, 35 Ill.

Dec. 818, 399 N.E.2d 1346), though it has

not been addressed by this court. We

App. 37

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 statuto-

ry construction. (178 I1ll.App3d at 677,

i27 111.Dec. 8698, 533 N.E.2da 980.)

Noting that a court of review will not

decide constitutional questions when the

matter can be disposed of on other

grounds. (278. 131 .app.3d at 677, i127

lii.Dec. 9869, .533 N.Es,za 980, citing

People v Fleming (1971), 50 I11.2d 141, 144,

27? WE. 26. 672), the appellate 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 I11.App.

3d at 674, 127 I11.Dec. 898, 533 N.E.2d

980.) Having determined that the prof-

fered evidence was relevant because the

case rested on the complainant’s credibil-

ity, the court concluded:

“Where the evidence is rele-

vant and is introduced, not to

harass the witness but only in

a defensive response to the

alleged victim’s own initia-

tive, the statute does not

preclude an exception to the

general protective umbrella it

places over victims of sexual

App. 38

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 truthful-

ness of her version of that

conduct.” 178 I11.App.3d at

676, i27 111.Dec. 836; Sa

N.E.2d 980.

We do not find the appellate court’s

construction of the statute persuasive.

The language of the statute, quoted its

entirety above, is concise and precise.

Resort to legislative history--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 v

Boykin (1983), 94 I11.2d 138, 141, 68

I1.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.”

(I11.Rev.Stet. 1987, ch 30; par... 815-

4+48)) The words of limitation which

App. 39

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.”

iil -Rev.Stat. 1967, ch. 38, par. 115-

7(a).

The clear and unambiguous language

of the statute has been noted by the

appellate court in several cases. The

court in People v Cornes (1980), 80 I1l.App.3d

OG, 270) oo 2a8.Dec. 818, 399 N.E.2d

1346, noted:

“A reading of the * * * stat-

ute reveals that the legisla-

ture clearly and unequivocally

abrogated the old Illinois

rule permitting reputation

evidence of the complainant’s

chastity 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

App. 40

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

Ill .App.3d@ at. 173-75, 35 itii.dec. $618,

399 N.E.2d 1346.

A similar result was reached in

People v Ellison (1984), 123 I1l.App.3d 615,

79 Fi). 000. 273 466s. B.S Ste: 28

constru-ing 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 prior

sexual conduct of the alleged victim with

the accused.” CEffison, 123 I11.App.3d at

623, 79 I111.Dec. 37, 463 N.E.2d 175.

We find the statutory analysis of

the appellate court in Cornes and Elfison

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.

NE ty Cena BEAT RNY OPE DER NAT

Bp Sade to aso at ite aed Wa cs

She ars 4

ai gtd

» hy S

ibe retire eh Shere Ge Ae. nets)

App. 41

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 “nei-

ther the victim’s prior sexual activity

nor her reputation should ever be in-

Quired into 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. I111.H.R., No. 4, 80th

Tll. Gen. Assem, 6404 (1977), as quoted

in Comment, The Mlinois Rape Shield Statute: Privacy

Act Any Cost?, 15 J. Mar. L.Rev. 157, 164

(1982) .) The present form of the stat-

ute, incorporating the Governor’s amend-

ments, was adopted by the House overwhelm-

ingly. (See 80th Ill. Gen. Assem., House

App. 42

Proceedings, November 3, 1977, at 59

(motion to concur in amendatory veto on

House Bill 760).) The Senate concurred.

(See 80th I1l. Gen. Assem., Senate

Proceedings, November 22, 1977, at 10

(motion to accept the specific recommenda-

tions of the Governor as to House Bill

760); see also People v Ellison (1984), 123

I11.App.3d@ 615, 623-24, 79 Zaibsbec. af;

463 N.E.2d 175 (discussing the legisla-

tive 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 admission of

evidence of the sexual history of the

victim unless it relates to sexual

conduct with the defendant.

[2] Having efound that the statutory

language clearly precludes the admission

of prior sexual acts of the victim, we

turn now to consider defendant’s constitu-

tional 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

A Ried Peete %

Ss IS ath a id Dann papi Be AS che

ne rah:

PMA OMY ARTE eR LR AD IR

ak telah’ Sry

abil ih Be

palettes UE bn

wetiey

oe i laa hho Beak tiie EDDM 8 ae trp a cc

psienscnimatit cies

App. 43

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 involve-

ment 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 * * *,” (712.

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-exami-

nation,” (Douglas v Alabama (1965), 380

woe wees 428, 65 §.Ct. 1074, 1076, 13

L.Ed.2d 934, 937.) The extent or scope

aac eereee

App. 44

of this primary interest, the right of

cross-examination, was reviewed by the

Supreme Court in MDavis v Alaska (1974), 415

U.S. 308, 94 S.Ct. 1105, 39 L.Ed.Zd 347.

At issue in Davis was the right of the

defendant to question an adverse 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

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

aabeticines Ws

the

App. 45

confrontation clause to cross-

examine, noted:

“Cross-examination is the

principal means by which the

believability of a witness and

the truth of his testimony are

tested. Subject always to the

broad discretion of a trial

judge to preclude repetitive

and unduly harassing interroga-

tion, 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 traditionally

been allowed to impeach, i.e.,

discredit, the witness. One

way of discrediting the wit-

ness is to introduce evidence

of a prior criminal conviction

of that witness. By so doing

the cross-examiner intends to

afford the jury a basis to

infer that the witness’ charac-

ter 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 credibil-

ity of the witness. A more

particular attack 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 personal-

ities in the case at hand.

App. 46

The partiality of a witness is

subject to exploration 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’ motiva-

tion in testifying is a proper

and important function of the

constitutionally protected

right of cross-examination.

‘Citation. i" . 423 9.6. 86 229,

94 §.Ct. -at 110, 39 &.86.264 Of

353-54.

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 MDavis

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 propo-

Sition that not even a statute can be

used to shelter a witness whose motive,

App. 47

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 prevent the

Statute from creating an exception to the

well-settled and accepted admissibility

of the motive, bias or prejudice of a

particular witness.

The Court in Davis 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

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 iaentifying

Suspects. Had this theory been before

the trial court, the resulting verdict

may have been different. (415 U.S. at

Sif, 3S 8$.0t. at 1111-12, 39 L.Ed.2d at

335:.) 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.

$id U.S. Ot" 316, 94 S.Ct. at 1924,°°39

L.Ed at 354-55.

Sandoval’s reliance on Davis is

App. 48

misplaced. 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 testimony wherein he indicated

that the complainant initiated the sexual

encounter, that after a time of having

sex the defendant decided that the

relationship would not work, that he then

told complainant to leave, and that this

charge of rape is a retaliation for

rejection. We fail to see, and Sandoval

has not explained, what impact complain-

ant’s prior sexual encounters with a

third party would have on this theory.

Properly 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).

Nor do we perceive how the proffered

testimony would reveal the witness’ bias,

prejudice or motive to testify falsely in

on he cle ar al

“eee re Ae 1 bites

hatayt Miners f

selena eh dpi aad AGAR CRIN

ate

fire ahaa RN UR ne BE sa tei! a EIN RN tS att aby PS

}

App. 49

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 praccice.

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

without consent. (See I1l1.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 sensibilities 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 initiat-

ed such acts with others.

App. 50

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 conduct is to

emphasize form over substance, triggering

the “sensibilities” of the jurors rather

than encouraging a fact-based decisional

process.

This case does not present a situa-

tion in which the jury was presented with

what the defendant alleges is a complete-

ly unbelievable portrait of the complain-

ant which is only rebuttable with intro-

duction 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

App. 51

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” (te,

anal sex or oral sex) based on whether

those particular acts, in and of them-

selves, offend our sensibilities; rather,

we must determine whether the basic

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 recog-

nized that under the rape shield statute

the complainant’s prior sexual activities

are irrelevant to a sexual assault charge

unless those activities involved the

App. 52

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 v Cores

noted:

“Defendant’s right of confron-

tation 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. Complain-

ant’s past sexual conduct has

no bearing on whether she has

consented to sexual relations

with defendant. The legisla-

ture recognized this fact and

chose to exclude 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 legisla-

tion intended to eliminate the

cruel and abusive treatment of

the victim at trial by preclud-

ing the admission of prejudi-

cial and irrelevant material

and to promote the lawful

administration of the criminal

justice system.” 8 0

lil .App.3d 23¢ 175-76, 35

T1l.Dec. 818, 399 N.E.2d 1346.

In People v Buford (1982), 110

App. 53

Iii .App.3a 46, 65 I111.Dec. 721, 441

N.E.2d 1235, the Court specifically

addressed the drfendant’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 SBuford prevented

the defendant from showing that the

complainant had previously been convicted

of solicitation for prostitution in 1972.

(110 Til. App.ad at 50, 65 Ill. Dec. 721,

S42 4.8. 2414235.) Defendant contended

that because the complainant was current-

ly on Federal probation for a 1978 mail

fraud charge, she had a motive to fabri-

cate her testimony in order to prevent an

inference that she was working as a

prostitute, thereby protecting her

probation. (110 Ill.App.3d at 50, 65

pease. fee, 291 NLE.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

App. 54

had never seen him before the night of

the attack. (110 Iilil.App.3a at 49, Sd,

65 I11.Dec. 721, 441 N.E.2d 1235.) The

defendant argued that acknowledgement 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, addition-

ally, defense counsel had opportunity to

cross-examine the complainant and to

present the defendant’s testimony about

the relationship between the parties

before it concluded:

“In Davis, the [C]ourt noted

that’ the defense was confront-

ed with a situation 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. * * ***Com-

plainant’s past sexual conduct

nas no bearing on whether she

has consented to sexual rela-

tions with defendant.’ [Cita-

tio0n.i” 110 224 .Age.28 2t oe;

65 Z11.0e¢c. Fei, 646i" 8.2 ee

iZ33.

The Appellate Court again reviewed

the statute under a constitutional attack

App. 55

which asserted that the rape shield

statute “abrogat[ed] * * * [defendant’s]

sixth amendment right to present a full

and fair defense”-in People v Ellison (1984),

123 I11.App.3d 615,

622, 79 I11.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 experi-

ence or reputation for sexual activity.”

(123 Ill.App.3d at

463 N.E.2¢d 175.)

$25,°> 19 212.00¢. 37;

The Appellate Court

rejected defendant’s argument that Davisv

Alaska was dispositive, relying on the

Supreme Court’s citation in MDavis to

Chambers v Mississippi (1973), 410 U.S. 284, 93

S.ct.. 1038, 3S L.&d.2d 297, and noted

that the Court “held that the constitu-

tion requires that

the competing inter-

ests of the defendant’s right of confron-

tation and the State’s public policy for

enacting the rule be closely examined and

a balance struck.”

(Elfison, 123, 111.App.

34. at 625, 79 111 .Dec.37, 463 N.E.2d

175.) The Elfsoncourt further noted that:

“The State policy

rape shield statute

underlying the

* *-* 38 to prevent

App. 56

the defendant from harassing and humiliat-

ing the prosecutrix at trial with evi-

dence 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, exclusion of such evidence keeps

the jury attention focused only on issues

relevant to the controversy at hand.

Last, but not necessarily least, the

exclusion promotes effective law enforce-

ment 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

I11l.Dec. 37 463 N.E.2d 175.)

Although the defenmdant argued that

the proffered testimony was crucial to~

his defense because “the case * * *

‘boiled down to the word of the prosecu-

trix against [his]’” (123 I11.App.3d at

626-27, 79 I111.Dec. Si, See see eer

the Court concluded that the defendant’s

need for the excluded evidence was not

Clearly shown.

Sandoval argues that this case, like

———<x«a—

eee

App. 57

—

Elfison, boils down to the jury’s determina-

tion 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

Elfison, this case centers on complainant’s

testimony on direct examination, 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 Ellison, was not

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 prevent-

ed 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

App. 58

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, 110 111.App.3d at

S24, 68. 2id- Oe. idle 4558 Eee teno

(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 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 confrontation. Impeachment of a

witness is restricted to relevant mat-

ters; a witness may not be impeached on

collateral or_irrelevant matters. Peoplev

Collins (1985), 106 I11.2d 237, 269, 87

Ill. ec. 910, 478 N.E.2d 267; S®People v

Columbo (1983), 118 Ill. App.3d 882, 966,

74 I11.Dec. 304, 455.N.E.26 733.

People v Columbo is helpful in analyzing

Ieee emma

App. 59

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.” eo! Beak Be

App.3d at 963, 74 I11.Dec. 304, 455 N.E.

26 T33;) 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 fimine to preclude the defendant from

cross-examining the witness about these

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

App. 60

particular sexual acts were unrelated to

the material issue of homicide and that a

witness may not be impeached on a collat-

eral matter. (118 I11.App.3d at 966-67,

74 I11.Dec. 304, 455 N.E.2d 733.) The

Court further noted that the defendant

had ample opportunity to show that the

witness’s 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

Ill.App.3d at 967, 74 I11.Dec. 304, 455

N.E.2¢ 730.

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

witness may not be impeached on irrele-

vant or collateral matters. See also

People v Schott (1976), 39 I11.App.3d 266,

272-73, 350 N.E.2d 49 (where the court

upheld the trial court’s denial of

defendant’s 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 a

particular farm to buy a gun (and not

AS iaied WA BES GAS

I OE eS ean eS or

App. 61

drugs as defendants alleged); defendants

were on trial for robbery of a victim

they claimed to have gone to seein order

to buy drugs and they asserted that it

was necessary to impeach the witness to

verify tnat 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. Complain-

ant’s assertion could have been rebutted

by testimony that she had engaged in this

particular type or sex on numerous

occasions witn 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 consent-

ed to or was painful. (See Ill. Rev.

Stat. 1987, ch 36, pec. ié-i2F 9ta}). (a}.3

Nor, we note, is it an element of the

Statute that the assault be painful.

Mere absence of pain during or even

App. 62

enjoyment of particular sexual practices

with certain individuals does not equate

to apsence 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 Sandoval.

The Supreme Court of Michigan was

faced with the task of determining the

constitutional application of its rape

shield statute in fPeople v Hackett (1984),

421, Mich. 338, 365 N.W.2d, 120: Hackett

is a consolidated case presenting two

distinct factual backgrounds. In each

instance, the court held that introduc-

tion of evidence about the sexual history

of the complainant was inadmissible.

The frrst 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

eo. Sy rn

App. 63

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 exclIusion 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

complainant’s reputation as a

homosexual or to specific acts

of homosexuality for the

purpose of bolstering his

defense of consent, we find

such evidence irrelevant.”

(421 Mich. at 353, 365 N.W.2d

at 126-27.)

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 untruthfuiness.” 421

Mich. 352, 365 N.W.2d at 126.

In the second of the consolidated

cases the defendant sought to introduce

evidence of the complainant’s reputation

for unchastity, a specific instance of

App. 64

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

Bats? 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 “extraordi-

nary circumstances (421 Mich. at 355, 365

N.W.2d at 128) could make such informa-

tion relevant, it concluded that the case

before it did not present such a situa-

tion.

The Michigan Supreme Court described

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 defen-

dant proffers evidence of a

complainant’s prior sexual

conduct for the narrow purpose

App. 65

of showing the complaining

witness’ bias, this would

almost always be material and

should be admitted. [Cita-

tions. ] 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” accept-

ed by a Federal court as examples of

circumstances which would enhance the

probative value of the proffered evi-

dence:

“Y*evidence ([which] is

explanative of a physical fact

which is in evidence at trial,

— such as the presence of semen,

pregnancy, or victim’s physical

condition indicating inter-

course, or where the evidence

tends to establish bias,

prejudice, or motive surround-

ing the charge of rape.

Sexual history might also be

“relevant where the victim has

engaged in a prior pattern of

behavior clearly similar to

the conduct immediately in

issue.’” 421 -Mich. -@¢° 339. °n.

App. 66

4, 365 N.W.2d @t i226 itn 4S;

quoting United States v Kasto (8th

Cir. 1978), $84 F.2@ 268, 2s

ae £

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 patter of

behavior”, presumably, though not specifi-

cally articulated, on the assumption that

a patter 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

App. 67

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 “patter of behavior” as

similar to cases where pattern evidence

is admitted because it shows the individu-

al’s unique “signature.” (See generally

Galvin, “Shielding Rape Victims in 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 WU. Pa. L. Rev. 544, 586-89

(1980).) The mere fact that the complain-

ant had engaged in anal sex with another

partner at some time in the past 1s not

such a distinctive act as to make 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

App. 68

another had caused a pregnancy (Shockley v

State (Tenn. 1978). 585 S.W.2d 645); to

show the complainant’s possible motive to

falsely accuse the defendant (State v Jalo

(1976), 27 Or.App. 845, 557 P.2d 1359;

see also Olden v Kentucky (1988), 488 U.S.

227, 109 S.Ct. 480, 102 L.Ed.i2cd $13

(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 accused’s car and

who happened to also be a State’s witness

in the case against the accused); to show

that the complainant had filed false

charges of rape in the past (Smith v State

(1389), 259 Ga. i335, ‘37 3.8.26 i358:

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 LaClair (1981),

App. 69

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 v Williams (1986), 21 Ohio St.3d 33, 487

N.E.2d 560, however, is not dispositive

of the situation now before this court.

Wiliams involved the court’s review of a

Seine hd Da

complainant’s testimony on direct examina-

tion that she did not consent to sex with

the defendant. The defendant testified

at a pretrial hearing that he had numer-

ous prior sexual encounters with the

ed ARES IRY LOU eae ale

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 as to

i his prior sexual 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

Bee iad

be impeached with admission of testimony

relating the accused’s relationship with

her or her reputation as a prostitute,

App. 70

the “proffered 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 out-

weighs any interest the state has in

exclusion.” (21 Ohio 8t.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 Wihams case was

the issue of consent based on complain-

ant’s claim that she never consented to

sex with me. 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

engaged in anal sex on prior occasions,

although their testimony indicated

differing attitudes about the practice.

Unlike Wilfams, 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

col

App. 71

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

‘oeee), 347 U.S. 62, 74 S.Ct. 354, 98

eG s 303, the Court addressed the

application and scope of the doctrine of

Weeks v 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

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

App. 72

was dismissed when the court ruled that

the evidence, a heroin capsule, was

inadmissible 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 advan-

tage, and provide himself with

a shield against contradiction

of his untruths..” (247 O.4.

at Soa, (4. 3.6e. et: 356; 36

Lika. ot. 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

nme

App. 73

possessed any narcotics” before noting

that “there is hardly justification for

letting the defendant affirmatively

resort to perjurious testimony in reli-

ance 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 limit-

ed by the trial court as being “solely

for the purpose of impeaching the defen-

dant’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

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; testimo-

ny further alleged that Sandoval and

complainant had often engaged in anal

App. 74

sex. Unlike the situation in Walder, in

which the only means the prosecution had 4

to challenge the credibility of the

defendant was by the use of the prior :

evidence, the credibility of the complain- |

ant in the case before us was clearly

before the jury for review. No further

attach merely on an issue of credibility

was necessary.

Harris v New York. (1971), 401 U.S. 222,

91 S.Ct. 643, 28 L.Ed.2d 1, relied on by

Sandoval, is similarly inapposite. MHarris

involved use of a prior statement made by

the defendant, inadmissible in the

prosecution’s case in chief under Miranda

v Arizona (1966), 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694, to impeach the

credibility of the defendant when he

denied on the witness stand making a ale

of heroin to an undercover policeman.

The Court noted that it “odes not follow

from Miranda that evidence inadmissible

against an accused in the prosecution’s

case in chief is barred for all purposes,

provided of course that the trustworthi-

ness of the evidence satisfied legal

standards.” Harris, 401 U.S. at 224, 91

App. 75

$.ct. eat 645, 28 L.b4€.24¢ at 4€). The

proviso noted by the Court was elaborated

upon in its concluding statements: “The

shield provided by Miranda cannot be

perverted into a license to use perjury

by ways of a defense, free from the risk

of confrontation with prior inconsistent

utterances.” (401 U.S. at 226, 91 S.Ct.

at 646, 28 L.Ed.2d at 5). Impeachment

was based on utilization of a prior

inconsistent statement by defendant who

was privileged to testify in his own

defense, though he was not required to do

SO. Thus, the waiver of the general

principle of exclusion of statements

taken in violation of Miranda was not

based on any deficiency or constitutional

problem with Miranda, but because the

defendant chose to take the stand and

make statements inconsistent with prior

statements on matters that were relevant

and probative.

In the case before us, even if we

were to assume that the complainant lied

when she denied having anal sex with

others, we fail to see how Harrisapplies;

though not specifically relevant to the

charges, it was clear that complainant

App. 76

had sex with others in the past, that the

complainant had made no prior statements

about her sexual history with parties

other than the defendant, nor was the

information relevant or probative of any

fact in issue other than to attack the

complainant’s credibility.

In summary, although various Supreme

Court cases have limited application of

rules or statutes which preclude use of

certain evidence, in each case the Court

was recognizing the preeminence of

longstanding rules of evidence: in Davis,

that bias, motive or prejudice could be

shown; “in Walder, that defendant’s prior

“crimes” could be used to impeach when he

chose to testify; in MHarris, that prior

inconsistent statements are admissible to

impeach.

Although we certainly recognize that

there may be certain situations in which

the preclusion of the rape shield statute

may not apply because of the defendant’s

greater constitutional right to confronta-

tion, we need not specifically adopt the

rationale of our sister State courts

since we conclude that we are not_here

confronted with an applicable situation

App. 77

demanding emphasis of the right of

confrontation over the preclusion of the

rape shield statute.

The trial court did not err in

excluding the proffered testimony of

someone who would testify that he had

anal sex with the complainant. The

complainant’s original statement that she

had not had anal sex with others was

clearly inadmissible under the rape

shield statute, as already noted. Such

error would not have been cured, however,

by further compounding the problem with

admission of more evidence precluded by

the statute. We are not required to

remand this case for a new trial, howev-

er, because, the trial judge, prior to

submission of the case to the jury,

properly instructed the jury to disregard

the complainant’s statement that she had

not had anal sex with others before her

relationship with Sandoval.

As the State has noted, judicial

admonishments to juries are routine;

indeed, it is “the almost invariable

assumption of the law that jurors follow

their instructions.” (Richardson v Marsh

(1987), 481 U.S. 200, 206, 107 S.Ct.

1702, 1707, 95 L.Ed.2d 176, 185, see also

App. 78

Watkins v Sowders (1981), 449, U.S. 341, 101

S. Ct. 654, 66 L.Ed.2d 549 (jury instruct-

ed not to consider erroneously admitted

eyewitness identification evidence);

Harris v. New York (1971), 401 U.S. 222, 91

S.Ct. 643, 28 L.Ed.2d 1 (jury instructed

but to consider statement for impeachment

but to disregard as substantive evidence

of guilt); Walder v United States (1954), 347

U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503

(same) .) Although the Supreme Court has

recognized an exception to the general

assumption that a jury follows instruc-

tions in Sruton v United States (1968), 391

U.S. 123, 88 $.Ct. 1620, 20 L.Ed.2¢4 476,

the Court in Richardson noted that Bruton

only “recognized a narrow exception”

(Richardson, 481 U.S. at 207, 107 S.Ct. at

1707, 95 L.Ed.2d at 185).

In Bruton, co-defendants were tried

together; a non-testifying co-defendant’ s

confession which expressly implicated the

second defendant presented a situation

“in which the risk that the jury will

not, Or cannot, follow instructions is so

great, and the consequences of failure so

vital to the defendant, that~-the practi-

Le EARL SD OLDS a

App. 79

cal and human limitations of the jury

system cannot be ignored.” (Bruton, 391

U.S. @t 135, 68 $.Ct. at 1627, 20 2.84.24

at 485.) This case does not present a

Situation which would require this court

to conclude that the jury did not or

could not follow instructions.

Furthermore, even were we to con-

clude that it was error to exclude the

rebuttal testimony if the complainant’s |

Statements were utilized by the jury in

reaching a decision, we would not find

error here. The jury was properly

admonished to ignore the complainant’s

statement.

We also note that WPeoplev Sales (1986),

151 Ill.App.3d 226, 104 I11.Dec. 561, 502

N.E.2d 1221, which remanded a case for a

new trial, addressed the issue of the

prosecution’s elicitation of statements

from the complainant about her sexual

history and is not inapposite. In Safes,

the complainant, when questioned by the

prosecution, testified that she had not

had sexual relations with anyone in the

10 days prior to the attack and that

prior to the attack she had never had

sexual relations with anyone. The

> App. 80

Appellate Court noted that (e)liciting

this testimony was Clearly prohibited

under the Illinois rape shield statute.”

(251 Ill.App. 3d at 231, 104 24 Jee.

961, 502 N.E.2d 1221.) Sales supports an

analysis prohibiting any reference to a

complainant’s sexual history or reputa-

tion but does not require that Sandoval

receive a new trial. Unlike Sales, where

the jury in Sandoval’s case was clearly

and unequivocally instructed to ignored

the complainant’s testimony. As we noted

above, errors corrected by the court with

instructions to the jury do not require

reversal.

The second issue for review involves

the trial court’s refusal to allow

testimony that the complainant had been

seen Out with a man just prior to the

beginning of the trial, Sandoval argues

this testimony was necessary to rebut

complainant’s testimony, first elicited

during cross-examination, that she has

not been able to date since the incident

with the defendant.

{3} This court has long noted that

the latitude allowed on cross-examination

and rebuttal is a matter within the sound

discretion of the trial court; a review-

App. 81

ing court will not interfere unless there

has been a clear abuse of discretion

resulting in a manifest prejudice to the

defendant. People v Collins (1985), 106

Tii.2a 237, 269, 87 111.Dec. 910, 478

N.E.2d 267; People v Peter (1973), 55 1I11.2d

443, 451-52, 303 N.E.2d 398.

[4] Upon review of the record, we

find no abuse of discretion resulting in

prejudice to the defendant. What the

complainant has done since the incident

which resulted in the charges against the

defendant has not relevance in a determi-

nation of defendant’s guilt or innocence.

It is well accepted that a cross-examiner

may not impeach the witness on a collater-

al matter; the answer must be accepted.

(Collins, 106 I11.2d at 269, 87 I11.Dec.

910, 478 N.E.2d 267.) The question

before the jury was whether the defendant

forced the complainant to have anal and

Oral sex against her will. The subse-

quent effect on her life, that is,

whether or not she was dating, could be

offered for no other purpose than to

contradict a statement of the complain-

ant. It would present the jury with no

additional information about the charge

App. 82

against the defendant. Absent an abuse

of discretion, a reviewing court should )

not interfere with the trial judge’s |

ruling. Collins, 106 I11.2d at 269-70, 87 |

I11.Dec. 910, 478 N.E.2da 267.

For the reasons stated above, we

reverse the judgment of the Appellate

Court and affirm the judgment of the

Circuit Court.

Appellate Court judgment reversed;

Circuit Court judgment affirmed,

Justice MILLER, specially concur-

ring:

I concur in the court’s judgment

affirming the defendant’s convictions. I

would decide the case on grounds narrower

than those relied on by the majority,

however, and for that reason I write

separately.

At the defendant’s trial, the

prosecutor asked the complaining witness

On direct examination whether she had

previously engaged in anal sexual rela-

tions with persons other than the defen-

dant. The witness aid that she had not.

When defense counsel made inquiry on

cross-examination to establish a founda-

tion for later impeachment, the trial

App. 83

judge indicated that a foundation was not

necessary and that he would allow the

impeachment. The trial judge later

reconsidered the ruling, however, and

barred defense counsel from introducing,

during the defendant’s case in chief,

testimony from a witness who would have

contradicted the complainant’s assertion.

Before the jury began its deliberations,

the judge struck the complainant’s brief

statement regarding her prior sexual

conduct with persons other than the

defendant and specifically admonished the

jurors to disregard that evidence. The

Stat concedes that the complaining

witness’ testimony was improper.

It iS apparent that defense coun-

sel’s remedy was to object to the evi-

dence, rather than attempt to impeach it.

The “rape shield statute” (Ill Rev. Stat.

1987, ch. 38, par. 115-7), applicable in

prosecutions for aggravated and

unaggravated offenses of criminal sexual

assault and criminal sexual abuse, bars

the introduction of evidence concerning a

victim’s prior sexual conduct with

persons other than the accused. The

statute expresses the judgment that such

evidence is irrelevant, and the statute

App. 84

thus removes a potential disincentive to

the prosecution of those offenses. The

statute does not purport to establish an

evidentiary privilege, which a witness

may elect to assert or waive, but is

instead phrased as a general prohibition,

applicable to both the prosecution and

the defense. It is therefore something

of a fiction to say, as the Appellate

Court did in the proceedings below, that

the complainant in this case waived the

protection of the statute by her testimo-

ny. (See, eg., 178 Ill.App.3d at 675,

127 I1l1.Dec. 898, 533 N.E.2d 980 (“In the

present case, however, the victim, by her

Own action at trial, rendered her past

sexual activities relevant and thus

admissible”).) The statutory bar on such

evidence is not eliminated simply because

prohibited testimony already has been

introduced through the complaining

witness.

Although defense counsel did not

make a contemporaneous objection to the

prose-cutor’s improper question, the

trial judge subsequently granted the

defendant appropriate relief. At the

close of evidence, the trial judge struck

the complainant’s testimony concerning

App. 85

her prior sexual conduct with others and

instructed the jurors to disregard her

statement. I agree with the majority’s

ultimate conclusion that the trial

judge’s actions were sufficient to cure

any error occurring in the introduction

of the evidence. in iignt of -that

result, it is appropriate to question the

usefulness of the majority’s detailed

discussion of two additional issues, the

defendant’s confrontation right, and the

circumstances under which evidence of

prior sexual conduct would ever be

admissible, and I do not join those

portions of the opinion. Indeed, the

court appears to recognize the hypotheti-

cal nature of its treatment of those

issues when it declares, “Furthermore,

even were we to conclude that it was

error to exclude the rebuttal testimony

if the complainant’s statements were

utilized by the jury in reaching a

decision, we would not find error here.

The jury was properly admonished to

ignore the complainant’s statement.” 135

Peeeo @t 193, aa ee. tt is. Soe

wee.ea at 741.

With respect to the second question

raised on appeal, I agree with the

App. 86

court’s conclusion that the complaining

witness’ social activity subsequent to

the offenses charged here was a collater-

al matter, and that the impeaching

testimony proffered by defense counsel

was properly excluded on that basis.

Finally, I note that in the Appellate

Court the defendant raised an issue

concerning his sentence, which that Court

did not address in light of its decision

granting the defendant a new trial. In

the appellee’s brief filed before this

court, defense counsel correctly observed

that the Appellate Court did not reach

the sentencing issue. Counsel has not,

however, made an alternative request for

relief in the event we affirm the defen-

dant’s convictions: counsel neither

presents the sentencing issue as grounds

for cross-relief, nor asks that the cause

be remanded to the Appellate Court for

consideration of the question. According-

ly, one may conclude that the issue has

been abandoned.

App. 87

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

October 29, 1990

Mr. Robert P. Will Jr.

Seven South County Street

Waukegan, IL 60085

Re: Santiago Sandoval

v. Illinois

No. 90-66

Dear Mr. Will:

The Court today entered the following order in the

above entitled case:

The petition for a writ of certiorari is denied.

Very truly yours,

(signed) Joseph F. Spaniol, Jr., Clerk

App. 88

Opinion of the

United States District Court

for the

Northern District of Illinois

No. 91 C 1532--Filed March 31, 1992

United States of America ex rel.

Santiago Sandoval,

Petitioner

Gerado Acevedo, Warden of

East Moline Correctional Center,

Respondent

Jerry Gilmore, Warden of the

Galesburg Correctional Center, was

Originally named as the respondent in

this action. However, the petitioner’s

reply brief reveals that on April 17,

1991, the petitioner was transferred to

the East Moline Correctional Center in

East Moline, Illinois. Accordingly,

pursuant to Rule 2(a) of the Rules

Governing Section 2254 Cases in the

United States District Courts, Gerado

Acevedo, Warden of the East Moline

facility, has been substituted as the

respondent,

App. 89

Petitioner Santiago Sandoval seeks a

writ of habeas corpus pursuant to 28

U.S.C. §2254. Sandoval was convicted in

the Circuit Court of Lake County, Illinois

on charges of criminal sexual assault and

battery and sentenced to a fifteen-year

prison term. The primary issue raised in

this petition is whether the trial court

on two occasions improperly precluded the

defense from impeaching the testimony of

the complaining witness regarding her

sexual activity prior to and after the

encounter at issue in this case, in

violation of his constitutional right to

oe faie trial.

Relying upon the [Illinois rape

shield statute, Ill. Rev. Stat. ch. 38,

§115-7(a) (1985), the court prohibited

Sandoval from presenting evidence concern-

ing the complainant’s past sexual conduct

with an individual other than the defen-

dant, despite the fact that the prosecu-

tion had itself elicited testimony on

this subject during direct examination.

The trial court also precluded Sandoval

from introducing evidence regarding the

App. 90

complainant’s conduct Subsequent to the

incident at issue in the prosecution.

Sandoval raised these Claims on

direct appeal from his conviction. The

Illinois Appellate Court reversed

Sandoval’s conviction, finding that the

rape shield statute’s bar upon inquiry

into the complainant’s prior sexual

history was a protection which could be

waived and had been waived by the prosecu-

tion in this case.. Similarly, it

reasoned that inquiry concerning the

waS proper given the complainant’s

testimony that she had been unable to

date other men since Sandoval had raped

her. The Illinois Supreme Court reversed

the Appellate Court’s decision and

affirmed the conviction, finding that the

trial court acted Properly in applying

the rape shield statute and in precluding

evidence concerning the complainant’s

Prior and subsequent sexual activity with

others.

In his habeas petition, Sandoval

Challenges the Illinois Supreme Court’s

resolution of his constitutional claims.

He also raises two additional grounds for

reversal of his conviction. For the

App. 91

reasons set forth below, Sandoval’s

petition is denied.

iil. FACTS

The factual summary set forth below

is drawn from the evidence as summarized

by the Illinois courts. See People v

Sandoval, 135, I111.2d 159, 142 111.Dec.

135, 552 N.E.2d 726 (1990); People v

Sandoval, 178 I11.App.3d 669, 127

I11.Dec.898, $83 WN.E.2¢4 980 (2d

Dist.1988) .2

228 U.S.C. §2254\d) provides that a

federal court reviewing the judgment of a

State court proceedings shall presume as

correct “a determination after a hearing

on the merits of a factual issue, made by

a state court of competent jurisdiction

.” This provision applies to a state

appellate court’s summary of the evidence

presented at trial. See Sumner v Mata, 449

U.S. 539, 547, 12013 8S. Ct. 764, 769

(1981). The statute goes on to identify

eight circumstances which can overcome

the presumption of correctness; however,

Sandoval asserts none of these here.

Therefore, this Court will accept the

facts as they have been summarized by the

Illinois Appellate and Supreme Courts.

These Courts have agreed upon the essen-

tial facts of the case. However, this

Court has cited and relied upon both

Opinions in summarizing the facts be-

cause, taken together, the two opinions

supply a more complete account of the

aken alone,

App. 92

Sandoval was convicted of having

committed criminal sexual assault and

battery upon his former girlfriend.

Sandoval met the complainant in the

Summer of 1986, and the two subsequently

lived together for three months. The

complainant moved out of the residence

she had shared with Sandoval in October,

1986. According to the complainant, her

relationship with Sandoval was tumultuous

even before the attack at issue in this

case. She testified that during the

period of time in which she lived with

Sandoval, he became violent when she

refused sexual relations with him and

that on several occasions he inflicted

physical abuse upon her.

Although the complainant left the

apartment she had shared with Sandoval in

October of 1986, she and Sandoval resumed

dating shortly thereafter. They made

plans to celebrate New Year’s Eve togeth-

er, and their date that evening culminat-

ed in the events which underlie

Sandoval’s conviction. These events took

place in the early morning hours of

January 1, 1987. Although Sandoval’s

account of the evening differs from the

complainant’s version, he does not deny

App. 93

that he engaged in repeated acts of anal

intercourse and oral sex with the com-

plainant.

The complainant gave the following

account of events:

Sandoval and the complainant went to

a bar in Kenosha, Wisconsin at about

10:30 p.m. on New Year’s eve. While they

were at the bar, Sandoval learned that

the complainant had recently dated

another man. Sandoval became angry and

accused the complainant of having engaged

in sexual relations with this other man,

which the complainant denied. After

awhile, Sandoval and the complainant left

the bar and drove to his apartment.

At the apartment, the two discussed

their relationship. Sandoval again

accused the complainant of having had

sexual relations with the other man she

had been seeing, and he became more upset

and angry as he did so. The complainant

testified that she became scared and

attempted to leave the apartment but that

Sandoval grabbed her arm, told her that

he was going to have sex with her one

last time, pushed her to the floor, and

positioned himself on top of her.

According to the complainant, Sandoval

App. 94

then pushed her into the bedroom, hit her

several times on the back of the head,

told her he was going to make it hurt,

and forced her to engage in repeated acts

of anal intercourse followed by oral sex.

The complainant testified that she

begged Sandoval not to engage in anal sex

with her. She stated that although she

and Sandoval had had anal intercourse on

two prior occasions, she had told him

that she did not enjoy anal sex and that

it hurt. On direct examination, the

complainant also testified that she had

never engaged in anal intercourse with

anyone other than Sandoval.

The complainant testified further

that she acquiesced in the sexual activi-

ty because she believed that Sandoval

might have a gun. At a point when she

believed she could escape, the complain-

3 As discussed below, Sandoval’s

counsel did not object to this testimony,

Rather, the defense sought to impeach the

complainant’s testimony by establishing

that she had, in fact, engaged in anal

intercourse with another individual.

However, the trial court ultimately

precluded the defense from eliciting

evidence on this point,

App. 95

ant ran upstairs to a neighbor’s apart-

ment, where she called the police and

told them that she had been raped. When

she knocked on the neighbor’s door, she

was wearing only undergarments and a

skirt. She had left behind her sweater,

purse and some jewelry in Sandoval’s

apartment.

Sandoval testified that the course

of events that evening was merely a

recurrence of a familiar scenario in his

relationship with the complainant -- a

fight_followed by sexual intercourse. He

gave the following account of the night

in question:

Like the complainant, Sandoval

testified that they had had an argument

that evening after he learned that the

complainant had recently dated another

man. Sandoval maintained, however, that

the subsequent sexual encounter was

consensual and that it had actually been

initiated by the complainant.

Sandoval testified that he called a

halt to the sexual encounter on this

occasion because he was still upset that

the complainant had been seeing another

man. He said that he told the complain-

ant that he could not trust her and that

App. 96

their relationship was over. Sandoval

contended that the complainant had

pressed sexual charges against him

because she was angry at him for reject-

ing her sexual advances. He testified

that she had threatened him as she

Stormed out of his apartment.

Sandoval also testified that he and

the complainant had engaged in anal

intercourse on at least a dozen occasion.

He stated that she had never expressed

displeasure with the practice, and that

she sometimes had initiated it.

The primary claim in Sandoval’s

habeas petition, and the focus of his

State court appeal, concerns the trial

court’s ruling limiting his ability to

elicit testimony concerning the complain-

ant’s prior sexual conduct with other

persons. This issue finds its Origin in

the following exchange between the

complainant and the Assistant State’s

Attorney on direct examination:

Q: Now, you had had anal sex with him

before?

A: Yes,

Q: And on how many occasions had he

had anal sex with you?

A: Twice.

App. 97

Q: And do you recall at whose request

that occurred?

A: [{Sandoval’s].

Q: Had you ever had anal sex in the past?

With others?

Q: Yes, with other people?

A: No.

(Rat) 296-07 .)

Sandoval did not object to this line

of questioning. (See id.; and see R. at

513.) On cross-examination, however, his

counsel sought to impeach the complainant

by questioning her about another man:

Q: Okay. Now, I guess it’s in

the nature of a situation like

this to be a little indeli-

cate, and for that, I apolo-

gize, but you mentioned in

your testimony that when you

had anal sex that night 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?

A: Yes.

Os And that you told

[Sandoval] that you didn’t

like it because it was pain-

ful?

App. 98

A: Yes.

Q: Okay. And that prior to

this incident with Ray,you had

not had anal sex before ever?

A: Yes.

QO: Okay. Now you know what

we’re talking about when we

say “anal sex”, the act that

was described here in court

this morning?

A: Yes.

QO: Okay. Now, you know a

fellow named --

(R. “at 280.) The State objected at this

juncture, and a sidebar took place. (R.

at 281.) Sandeval’s counsel alleged that

contrary to her testimony, the complain-

ant had in fact engaged in anal sex with

the individual whom he had been about to

name. Sandoval’s attorney sought both to

question the complainant about this

individual and to offer the individual’s

independent testimony that he and the

complainant had engaged in anal sex. (R.

at 282, 284-85.) Sne State invoked the

Illinois rape shield statute, Ill. Rev.

Stat. ch. 38, %115-7(a) (1985)4, and

In * pertinent part, the statute

provides:

App. 99

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 inadmissible except as evidence

concerning the past sexual conduct of the

alleged victim with the accused.

77) Rew Seat. ch, 38, 9115-7 la) (1985).

argued that evidence concerning the

complainant’s prior sexual activity with

another person was inadmissible. (R. at

wens 103, 295-66, 287.)

The trial court was initially

inclined to permit the impeachment,

reasoning that the State had opened the

door to such evidence. (R. at 284, 286,

287, 290.) The court indicated that it

was unnecessary for the defense to

question the complainant about the other

individual, given that she had already

denied having had anal sex with anyone

other than Sandoval. (R. at 284-85,

290). However, the court held that the

defense would be permitted to call the

individual to the stand and accomplish

the impeachment through his testimo-

ny.(R. at 284-85, 290).

Subsequently, at the beginning of

the defense case, the trial court thought

the better of the matter and precluded

the defense both from presenting the

App. 100

testimony of the other individual and

from cross-examining the complainant on

this subject. (R. 358-62; see also R.

512-17.) Upon reflection, the court had

concluded that the rape shield statute

did prohibit testimony concerning the

complainant’s prior sexual activity with

others. (R. 358-62.)5 Sandoval himself

did take the stand, and, as set forth

above, he was permitted to testify that

he and the complainant had engaged in

anal sex on dozen occasions, that the

complainant had never expressed discom-

fort with it, and that the complainant

had, in fact, initiated anal sex on some

occasions. (R. at 394-96.) In his final

instructions, the court instructed the

jury that “testimony of [the complainant]

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, [are]

instructed to disregard that testimony

and give it no weight whatsoever in your

> When the court announced its

change of heart on the proposed impeach-

ment, the defense moved for mistrial.

The court denied that motion. (R. at

ES ae

App. 101

deliberations.” (R. at 631.)

Sandoval also contends that he was

improperly precluded from presenting

impeaching testimony concerning her

sexual activity since the rape. On

cross-examination, the complainant

indicated that she was undergoing counsel-

ing and that she had not dated men since

the incident with Sandoval. (R. at 263.)

Sandoval’s counsel then proceeded to

question the complainant about whether

she had recently been out with another

man at a certain bar. The complainant

denied having been on a date. (R. at

264-65.) In an offer of proof,

Sandoval’s counsel indicated that he was

prepared to present the testimony of

another individual (the same one who

would have testified as to his prior

sexual relationship with the complainant)

to the effect that he had seen the

complainant in a bar just prior to trial

“hanging all over a gentleman friend of

hers.” (R. 343-345.) The trial court

precluded the testimony. (R. at 362.)

The jury found Sandoval guilty on

two counts alleging criminal sexual

assault and one count alleging battery,

but acquitted him on charges of aggravat-

App. 102

ed criminal sexual assault and unlawful

restraint. The trial court sentenced him

to the statutory maximum of fifteen years

in prison. ‘

Sandoval appealed to the Illinois

Appellate Court, which, over a dissent,

reversed his conviction and remanded for

a new trial. The majority held that the

evidence offered to impeach the complain-

ant about her past sexual conduct had

been improperly excluded. The court

reasoned that because the rape shield

Statute was enacted for the benefit of

the complaining witness, it did not

prohibit the complainant from introducing

evidence of her own sexual history and

thereby waiving the protections of the

statute. 127 I11.Ddec. 302°03,> 332 8.8,

2d 984-85. Because, in this case, the

State had elicited testimony from the

complainant about her prior sexual

history with other people, the Appellate

Court concluded that the impeaching

evidence proffered by the defense was

relevant to the complainant’s credibility

and, therefore, should have been allowed:

To interpret the statute

otherwise would encourage

witnesses in these circumstanc-

es to-testify without regard

App. 103

for the truth, secure in the

knowledge that they were

insulated by the rape 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 precisely this result

which is avoided by the lan-

guage in [People v Cornes (1980),

80 Ill.App.3d 166, 175-76, 35

Ill.Dec. 818, 399 N.E.2d 1346]

and [People v Ellison (1984), 123

Ii1.App.3¢ 615, 626, 79

111.Dec. 37, 463 N.E.2¢ 173; 3

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 humiliating 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 initia-

tive, 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 truthful-

ness of her version of that

conduct.

127 Iii1.Dec. at 902-03, 533 N.E.2a at

984-85. Observing that the relative

App. 104

credibility of the complainant and the

defendant was crucial to the outcome of

the case, the Court concluded that the

exclusion of the impeaching evidence was

severely prejudicial to Sandoval. 127

Ill.Dec. at 903, 533 N.E.2d at 985. The

court also found the evidence concerning

the complainant’s subsequent sexual

conduct relevant to her credibility and

concluded again that the evidence had

been excluded improperly. 127 111.Dec.

at 903, 533 N.E.2d at 985. The convic-

tion was accordingly reversed on these

two grounds. Because the case had been

decided on a question of statutory

construction, the constitutional claims

were not addressed. 127 Ili.Dec. at 903,

933 N.E.2da at 985.

The dissent (Reinhard, J.) deemed it

a violation of the rape shield statute

for the State to have elicited testimony

from the complainant that she had never

had anal intercourse with another individ-

ual. 127 ill.Dec. at 904, 533 N.E.2d at

986. In this context, the dissent

reasoned, it lay within the discretion of

the trial court whether to permit

Sandoval to offer further evidence on

this same subject under the doctrine of

App. 105

Curative admissibility or to foreclose

any further inquiry into this area and

instruct the jury to disregara the

complainant’s testimony. 127 I11.Dec. at

904-05, 533 N.E.2d at 986-87. The

dissent also perceived no error in the

trial court’s decision not to permit

rebuttal evidence concerning the complain-

ant’s subsequent social life, finding

that this was a collateral matter as to

which the trial judge was justified in

precluding impeachment. 127 1I11.Dec. at

905, 533 N.E 2d at 987.

Sandoval raised three additional

Cclaims-before the appellate court: (1)

that he was not proved guilty beyond a

reasonabie doubt; (2) that the verdicts

of the jury were logically and legally

inconsistent; and (3) that the sentence

was excessive. The appellate court ruled

that Sandoval had waived review of the

sufficiency of the evidence and the

consistency of the verdicts because he

had failed to comply with Illinois

Supreme Court Rule 341(e)(7) by failing

to cite authorities in support of his

argument. é 127. Til. Bee. at 900-

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.