On certification to the Superior Court, Appellate Division, whose opinion is reported at 243 N.J. Super. 498 (1990).
For affirmance and remandment -- Chief Justice Wilentz, and Justices Clifford, Pollock, Garibaldi and Stein. Justices Handler and O'Hern, dissenting. The opinion of the Court was delivered by Pollock, J. O'Hern, J., dissenting. Justice Handler joins in this opinion.
[125 NJ Page 524] This appeal involves a conflict between the Rape Shield Statute, N.J.S.A. 2C:14-7, and defendant's constitutional right to confront accusing witnesses. A jury convicted defendant, James G. Budis, of two counts of aggravated sexual assault, and the trial court sentenced him to fifteen years in prison. The charges stemmed from two incidents in 1988 between defendant and his cousin's nine-year-old daughter, T.D. At trial, defendant sought to cross-examine both T.D. and the investigating detective about the sexual abuse of T.D. by her stepfather in 1987. T.D. gave virtually identical descriptions of her stepfather's conduct and of defendant's acts. The purpose of the cross-examination was to show that T.D. had acquired knowledge of oral and vaginal sex from a source other than defendant. He argues that in the absence of such testimony, the jury would conclude that the infant must have obtained her knowledge from her encounters with him. The trial court admitted evidence of T.D.'s accusation against her stepfather and of the ensuing police investigation, but excluded the details of the stepfather's abuse. The Appellate Division reversed. 243 N.J. Super. 498, 580 A.2d 283 (1990). We granted the State's petition for certification, N.J. (1990), and now affirm.
On May 22, 1988, T.D. was staying with her father, an apartment house superintendent, who was separated from her mother. While playing a Nintendo boxing game with her brothers and cousin, T.D. commented that one boxer looked like he was "sucking the other guy off." When confronted by her father, T.D. at first refused to describe the source of her knowledge of oral sex. After her father washed her mouth out with soap, however, she described separate incidents of sexual abuse committed by her stepfather in 1987 and by defendant in 1988. The next day her father reported the incidents to the Division of Youth and Family Services.
On May 24, 1988, Detective Norman Cetuk of the Somerset County Prosecutor's Office interviewed T.D. about the occurrences. The 1987 incidents occurred while her mother was confined at Carrier Clinic, and T.D., then eight years old, was living with her stepfather. T.D. related that her stepfather would take her to his bed. He would then remove her clothes and place his erect penis in her mouth and vagina, but would not ejaculate.
She described two similar incidents involving defendant. The first occurred sometime before July 27, 1987, at her father's apartment. According to T.D., defendant asked her to accompany him to the apartment while he changed into his bathing suit. In her statement to the police, she said that defendant had taken off her clothes, but at trial she testified that she had removed them. As in her description of her stepfather's abusive conduct, T.D. related in both her statement and at trial that defendant put his erect penis in her mouth and vagina, but did not ejaculate. The incident lasted "about five minutes."
According to T.D., the second incident occurred approximately one week later. Her description of that incident in her statement to the police differed from her trial testimony. In her statement, she said that after taking T.D. and her brothers to an amusement park, defendant slept overnight at her father's
apartment. During the night defendant entered T.D.'s bedroom and threatened to "beat up" her father if she did not remove her clothes. At trial she said that before going to the amusement park, defendant had asked her to sleep naked with him. She denied that defendant had threatened her or her father. Both in her statement and at trial, T.D. stated that defendant had committed the same acts of oral and vaginal sex as she had described in the other incidents involving defendant and her stepfather.
Detective Cetuk, accompanied by Detective Bob Besser of the Plainfield Police Department, interrogated defendant on May 25, 1988. Defendant acknowledged two encounters with T.D. His statement to the investigating officers differed from his trial testimony and from T.D.'s versions. According to defendant, the first occurrence took place when he slept overnight on the couch at the apartment. In the middle of the night, he awoke to find T.D. stroking and kissing his penis. In his statement he said that he "threw her off." He also said that the incident took "[m]aybe five minutes at the most," a phrase he justified at trial as a figure of speech to mean that he immediately rejected T.D. The second incident occurred when he went to the apartment to change into his bathing suit after returning from the amusement park. Without his knowledge, T.D. followed him, and while he was changing, started to stroke and kiss his penis. In his statement, he said that T.D.'s touching him "felt good," but at trial explained that he meant that "it didn't hurt." Defendant told the investigating police that T.D. had continued touching him for "a minute and a half," until her father entered the room. At trial he testified that he had pushed T.D. away from him. In both his statement and his testimony, defendant maintained that a few days after the second incident he told T.D. that if she did not stop her behavior, he would tell her father.
Defendant was indicted for two counts of aggravated sexual assault. T.D.'s stepfather pled guilty to separate counts of
sexual assault and aggravated sexual assault, and has since been sentenced.
Before trial, defense counsel asked the court to allow him to elicit from Detective Cetuk the details of the sexual abuse committed by T.D.'s stepfather. Relying on the Rape Shield Statute, the court prohibited that inquiry. The testimonial portion of defendant's trial, which consisted of the testimony of T.D., Detective Cetuk, and defendant, lasted less than a day. The trial court permitted limited cross-examination of both T.D. and Detective Cetuk about T.D.'s allegations of abuse against her stepfather and the resulting investigation. Defense counsel was not permitted to explore either the circumstances of the abuse or the nature of the acts. Apparently troubled by the conflicting evidence, the jury deliberated for approximately a day and a half before returning a guilty verdict. During that time, it sent four notes to the court requesting the re-reading of portions of the testimony of both T.D. and defendant and additional instructions on the elements of sexual assault.
Writing for the Appellate Division, Judge Long stated that the trial court had erred by not permitting defense counsel to inquire into the details of the stepfather's prior sexual assault. The court noted that the State conceded the occurrence of the prior acts and their close resemblance to the charges against defendant. It then concluded that defendant's constitutional right to confrontation under the federal and New Jersey constitutions required the admission of the details of the prior acts "to dispel the devastating implication that [a] * * * child of tender years could not have known of such intimate sexual acts unless they occurred at defendant's initiation." 243 N.J. Super. at 510, 580 A.2d 283. Ruling that the jury should have been told that an alternative source existed for T.D.'s sexual knowledge, the court reversed and remanded for a new trial. We agree that the probative value of the evidence outweighed its possible prejudicial effect. The evidence, however, is relevant, and therefore admissible, only to show an alternative source for
the infant's sexual knowledge, not to prove that she was likely to or actually did initiate sexual conduct with defendant.
Once again we turn to the perplexing problems surrounding the reporting and prosecution of child sexual abuse. See, e.g., State v. D.R., 109 N.J. 348, 537 A.2d 667 (1988) (concerning admissibility of child's out-of-court statements describing sexual abuse). Child sexual abuse cases raise many of the same vexatious questions raised in the prosecution of other types of sexual assault. Like rape victims, victims of such abuse may feel ashamed or guilty about the assault. Victims of both kinds of assault may be intimidated by a trial, especially cross-examination about the details of the event. Consequently, both rape and child sexual abuse have been underreported. See Estrich, Rape, 95 Yale L.Rev. 1087, 1161-69 (1986) (discussion of underreporting of rape); Note, Victimizing the Child Victim: Vermont Rule of Evidence 807 and Trauma in the Courtroom, 11 Vt.L.Rev. 631 (1986) (only one to ten percent of incidents of child sexual assault are ever disclosed). The trial of both kinds of cases poses difficult problems of proof for the prosecution and the defense. Generally, the act occurs in private, with only the victim and the assailant present. In the absence of independent witnesses, the case often turns on an assessment of the credibility of the participants, an assessment better left to the trier of fact. Our primary function is to provide guidelines for making that assessment.
In response to problems surrounding the reporting and prosecution of sexual assault cases, legislatures throughout the United States, including New Jersey, have enacted rape shield laws. See 243 N.J. Super. at 506 n. 1, 580 A.2d 283 (listing rape-shield laws). Those laws represent a legislative response to the common law rule permitting cross-examination of a rape victim about her prior sexual conduct. Such conduct was traditionally considered evidence of the victim's inclination to
consent to sexual intercourse and of her lack of moral character and credibility. Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum.L.Rev. 1, 12-15 (1977); Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn.L.Rev. 763, 766-67, 792-94 (1986). Because of the "character assassination" of the victim, rape trials sometimes degenerated to embarrassing invasions of the victim's privacy. See Galvin, supra, 70 Minn.L.Rev. at 767.
One of the primary purposes of the statutes is to protect rape victims from excessive cross-examination, thereby encouraging them to report the abuse. Id. at 805. The statutes also guard against the improper use of evidence of the victim's prior sexual experience. 23 C. Wright and K. Graham, Federal Practice and Procedure, Evidence § 5382 at 514-15 (1980); see Berger, supra, 77 Colum.L.Rev. at 30-31 (describing juror reluctance to vindicate rights of "unworthy" accuser). Thus, in addition to protecting victims of sexual assault, rape-shield statutes preserve the integrity of trials. Galvin, supra, 70 Minn.L.Rev. at 806. By ensuring that juries will not base their verdicts on prejudice against the victim, the statutes enhance the reliability of the criminal justice system.
Consistent with these policies, N.J.S.A. 2C:14-7 limits exceptions to the admission of evidence of a victim's previous sexual conduct in prosecutions for sexual assault and criminal sexual contact. When a defendant seeks to offer such evidence for any purpose, the trial court must, under the statute, weigh the probative value of the evidence against its prejudicial effect. The statute provides the following procedure for the admission of prior sexual conduct evidence:
When the defendant seeks to admit such evidence for any purpose, he must apply for an order of the court before the trial or preliminary hearing * * *. After the application is made, the court shall conduct a hearing in camera to determine the admissibility of the evidence. If the court finds that evidence offered by the defendant regarding the sexual conduct of the victim is relevant and that the probative value of the evidence offered is not outweighed by its collateral nature or by the probability that its admission will create undue
prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim, the court shall enter an order setting forth with specificity what evidence may be introduced and the nature of the questions which shall be permitted * * *. [ N.J.S.A. 2C:14-7(a).]
In addition, the statute prescribes the circumstances under which the trial court may consider the evidence to be relevant. The court may find evidence of prior sexual conduct relevant only if "it is material to negating the element of force or coercion or to proving that the source of semen, pregnancy or disease is a person other than defendant." N.J.S.A. 2C:14-7(c). For all other purposes, the statute declares evidence of prior sexual conduct irrelevant. To this extent, the statute differs from Federal Rule of Evidence 412, which, in addition to permitting evidence of past sexual behavior to show the source of semen or injury, permits such evidence if "constitutionally required." Fed.R.Evid. 412(b)(1), (2).
Here, defendant does not dispute that the statute bars admission of evidence of T.D.'s prior sexual victimization. He argues, however, that by restricting the purposes for which the evidence may be admitted, the statute deprives him of a defense. Defendant contends that the evidence of T.D.'s prior sexual abuse is relevant to rebut the inference that she would not have sufficient knowledge of sexual acts to behave as he described. In addition, defendant asserts that because T.D. is a minor and therefore legally incapable of consent, the admission of the evidence will not prejudice her or contravene the statutory purposes. Consequently, defendant claims that application of the statute in this case violates his constitutional right to confrontation. Hence, we turn to an analysis of that right.
Both the federal and New Jersey constitutions guarantee criminal defendants the right "to be confronted with the witnesses against them." U.S. Const. amend VI; N.J.Const. art. 1, para. 10. Among the primary interests protected by the ...