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filed: December 28, 1979.


No. 2105 October Term, 1978, Appeal from the Order and Judgment of Sentence in the Court of Common Pleas of Laneaster County, Criminal Division, No. 1230, 1979.


Samuel M. Mecum, Lancaster, for appellant.

Edward F. Browne, Jr., Assistant District Attorney, Lancaster, submitted a brief on behalf of the Commonwealth, appellee.

Price, Spaeth and Lipez, JJ. Spaeth, J., files a concurring opinion.

Author: Price

[ 274 Pa. Super. Page 201]

In this appeal we are asked to determine the constitutionality of a portion of the Pennsylvania rape shield law (18 Pa.C.S. § 3104(b)). Because we find that section of the Crimes Code passes constitutional muster in the face of the arguments advanced, and because we determine appellant's other allegations of error to be without merit, the order and judgment of sentence are affirmed.*fn1

Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, the following is a summary of the pertinent facts adduced at trial. After leaving work at 11:00 p. m. on May 7, 1976, Miss Pamela Kay Fisher accompanied her boyfriend to a party hosted by a mutual acquaintance. The occasion failed to produce a convivial

[ 274 Pa. Super. Page 202]

    atmosphere between the two, and an argument ensued which later prompted Miss Fisher to leave her companion's truck during the ride home following the party. She was quickly picked up by another male friend, and while the two were stopped at a gas station, they encountered three friends, including appellant, who invited them to another party. In fact, the three took Miss Fisher, unaccompanied, to a building used by the Sons of Satan Motorcycle Club.

After entering the building and being given a beer, Miss Fisher was embraced by one of the three men. When she resisted, appellant joined the fracas and forced the victim onto a sofa. Miss Fisher swung her hand out and struck appellant, who promptly responded by bloodying Miss Fisher's nose and striking her twice more. He then ordered her to rise, and upon her refusal, dragged the victim to another sofa and demanded that she undress. Stalling for time, Miss Fisher persuaded appellant to undress first, while she surreptitiously attempted to unlock the front door. The endeavor was unsuccessful, and appellant tore off her clothing, forced her upon the sofa, and proceeded to have intercourse with the victim. During this time, appellant continued to pummel Miss Fisher about the head because of the latter's struggle to free herself. She finally feigned unconsciousness and a later "revival", and was then allowed to gather her clothing, dress, and leave the clubhouse still in the company of her three abductors. When the group stopped for dinner, Miss Fisher escaped, and after a short rest at home, reported the incident to the police.

Appellant's first contention is based on the following facts. Prior to trial, appellant filed a motion and offer of proof indicating his intention to introduce evidence establishing the victim's prior sexual conduct with appellant, as well as her consent to the sexual intercourse on the night in question. This motion was submitted pursuant to 18 Pa.C.S. § 3104(b) which provides:

"(a) General rule. - Evidence of specific instances of the alleged victim's past sexual conduct, opinion evidence of the alleged victim's past sexual conduct, and reputation

[ 274 Pa. Super. Page 203]

    evidence of the alleged victim's past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

(b) Evidentiary proceedings. - A defendant who proposes to offer evidence of the alleged victim's past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a)."

Appellant accompanied the above motion with a challenge to the constitutionality of the statute, alleging that its effect was to deny him his fifth amendment rights, his right to due process, and his right to confront his accusors. Following an in camera hearing convened in accordance with 18 Pa.C.S. § 3104(b), and attended by the district attorney, the Honorable John A. Walter ruled the statute constitutional and held that appellant could testify at trial, if he so chose, as to his prior sexual relations with the victim. The hearing judge also ruled that the assistant district attorney would not be forbidden from discussing the in camera proceedings with the victim or any other Commonwealth witness.

Appellant now raises two challenges to the constitutionality of 18 Pa.C.S. § 3104(b).*fn2 Initially, he cites the decisions by the United States Supreme Court in Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), and

[ 274 Pa. Super. Page 204]

    that of our own supreme court in Commonwealth v. Contakos, 455 Pa. 136, 314 A.2d 259 (1974), as support for his contention that the disclosure requirement of 18 Pa.C.S. § 3104(b) violates his due process rights guaranteed by the fourteenth amendment. We disagree.

The raison d'etre of 18 Pa.C.S. § 3104, and similar rape shield laws in other jurisdictions, is to partially correct the manner in which our criminal justice system has approached the victim of a sexual assault. That system, and society in general, has been severely criticized as being overly solicitous in protecting the interests of the alleged male perpetrator, to the virtual exclusion of the female's sensibilities and legal rights.*fn3 In apparent response to this condemnation, several jurisdictions have enacted legislation designed to alleviate the physical trauma and emotional disorientation suffered by the sexually assaulted female. E. g., 1974 Conn.Pub.Acts. 74-131; 1974 Iowa Acts ch. 1271, § 2 (repealing the requirement that testimony of complainant be corroborated); Act of July 30, 1975, P.L. 131, No. 65, § 1, 35 P.S. § 10171 (requiring health education institutions to give instruction in treating rape victims to provide for their physical and emotional well being); Minn.Stat.Ann. §§ 241.51 to 53 (Supp.1979) (directing development of community-based

[ 274 Pa. Super. Page 205]

    programs to aid victims of sexual assault); see generally Rudstein, Rape Shield Laws: Some Constitutional Problems, 18 William and Mary L.Rev. 1, 2-3 (1976) [hereinafter cited as Rudstein]. The most prevalent type of reform, however, deals with statutes altering the traditional rules of evidence in rape cases so as to limit in some degree the defendant's inquiry into the previous sexual life of the alleged victim.*fn4

At common law, rape had traditionally been defined as sexual intercourse between a male and a female, not his wife, by force and against her will. See, e. g., 18 Pa.C.S. § 3121; Perkins, Criminal Law 152 (2 ed. 1969). Such a definition made lack of consent a material element of the offense, and its presence a recognized defense. To assist the defendant in establishing such consent, it has almost universally been held that one accused of forcible rape may attempt to prove the complainant's bad character for chastity.*fn5 See I Wigmore, Evidence §§ 66, 200 (3d ed. 1940). This constitutes an exception to the general rule in criminal law that evidence of bad character, whether reputation, opinion from observation, or specific acts, will not be received to prove that the person whose character is sought to be shown engaged in certain conduct on a particular occasion. Commonwealth v. Connolly, 217 Pa. Super. 201, 269 A.2d 390 (1970); 1 Wigmore, Evidence § 57 (3d ed. 1940); McCormick,

[ 274 Pa. Super. Page 206]

Evidence § 91 (2d ed. 1972).*fn6 Although this information might possess some degree of relevancy, "a doctrine of Auxilliary Policy . . . operates to exclude what is relevant, -- the policy of avoiding the uncontrollable and undue prejudice, and possible unjust condemnation, which such evidence might induce . . . ." I Wigmore, Evidence § 57 (3d ed. 1940).

In the case of rape, however, the admission of such testimony is merely one facet of the offense which makes it sui generis.*fn7 It is premised on the a priori conclusion of the courts that it is more probable that an unchaste woman would assent to intercourse than a virtuous woman.*fn8 See Rudstein, supra at 4. The classic, if rather extravagant, formulation of ...

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