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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LAWRENCE HEATH, )
) Court of Appeals No. A-4123
Appellant, ) Trial Court No. 3AN-90-6063
Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1290 - April 9, 1993]
)
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, John Reese, Judge.
Appearances: Margi Mock, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Shelley
K. Chaffin, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Lawrence Heath was convicted of two counts of second-
degree sexual abuse of a minor, AS 11.41.436(a)(1), following a
jury trial in the Anchorage superior court. Heath appeals his
convictions, arguing that the trial judge should have allowed him
to introduce evidence that his victim was a virgin. We affirm.
During the summer of 1990, 15-year-old J.A. lived with
her foster mother and worked at the Tastee Freeze on Northern
Lights Boulevard. One afternoon in July or August, J.A. left
work early. As she was walking from one bus stop to another,
Heath stopped his car and asked her if she needed a ride. At
first, J.A. said no. However, when Heath assured her that he was
friendly, J.A. accepted the ride despite her initial hesitation.
Once in the car, Heath began asking J.A. questions
about herself, including her name, her workplace, her school, and
her age. J.A. told Heath that she was 15 years old. She asked
him to drop her off at a bus stop on Dimond Boulevard, and he
complied. A few minutes later, however, Heath returned to the
bus stop and asked if she wanted a ride home. She accepted.
Heath stopped the car at a bus stop about four houses
from J.A.'s home. He then asked J.A. for a kiss. J.A. complied
because he had given her a ride. Heath then asked, without
explanation, if there was some private place they could go. J.A.
pointed to an open field. Heath said that the field was not
private enough, and asked for another suggestion. She pointed to
a street next to the field. Heath eventually parked his car
behind some condominiums.
As Heath and J.A. sat in the car, Heath began kissing
J.A.. He was soon on top of her. Heath put his hands down
J.A.'s shorts, and J.A. placed her hands over her genitals to
prevent Heath from touching her there. Heath asked if he could
put his penis inside her. J.A. initially said no, but eventually
she consented. After Heath had intercourse with J.A., he took
her home.
Following this incident, Heath stopped by the Tastee
Freeze three or four times to see J.A.; they exchanged small
talk. Heath also called her at home. About a week after the
first incident, Heath called J.A. and asked if she wanted to see
his apartment. J.A. said yes. As they traveled to the apart
ment, Heath told J.A. that they had a "secret relationship".
When they arrived at the apartment, Heath and J.A.
watched television and drank sodas in the living room. Again
they engaged in sexual intercourse. Heath then drove J.A. to
work.
During this time, J.A.'s foster mother noticed that
J.A. seemed withdrawn and sad, showing less concern for her
personal hygiene. To the foster mother, J.A. appeared trauma
tized. Moreover, J.A. began asking questions about pregnancy and
venereal disease. Finally, one evening, J.A. asked if it was
illegal for a 30-year-old man to have sex with a 15-year-old
girl. J.A. initially said that this question was hypothetical,
but then she began crying and said that it had happened. J.A.'s
foster mother called the Division of Family and Youth Services.
The ensuing investigation resulted in Heath's indictment.
At trial, Heath sought the court's permission to cross-
examine J.A. so as to elicit her testimony that she had been a
virgin before the first alleged act of intercourse with Heath.
By eliciting this evidence, Heath intended to attack J.A.'s
credibility. Heath wished to argue to the jury that it was
improbable that a 15-year-old virgin would choose to have her
first sexual experience with a stranger she had known for only a
few hours. The State opposed Heath's request, arguing that Heath
was asking the court to disregard Alaska's rape shield statute,
AS 12.45.045(a).1
Superior Court Judge John Reese denied Heath's request.
He found that evidence of J.A.'s virginity would not be relevant
to the issues being litigated:
[T]he policies [for] which the [rape] shield
statute was enacted ... revolve around rele
vancy, as well as quite a bit of effort to
prevent the battering of the victims. Here,
it would appear that pursuing [J.A.'s sexual]
history is not directly relevant to the
issues before the Court. ... [T]he relevancy
argument [that defense counsel] makes ... is
confusing. ... What you're left with is,
simply, impeachment -- [that] she perhaps is
lying about [the sexual encounters].
If that [is what] is going to come out,
I think that is going to raise more prejudice
than probative usefulness, as far as whether
the incident makes any sense the way she
describes it. So I don't think I will allow
inquiry into the history. ... It ... seem[s]
that the [proposed testimony] would confuse
issues substantially, and it doesn't seem
relevant.
As Judge Reese noted when he denied Heath's request,
the basic question is relevancy. Viewing the issue as one of
relevance sheds light on the applicability of the rape shield
statute, AS 12.45.045(a), to Heath's case. Under Alaska Evidence
Rule 401, evidence is relevant if it "make[s] the existence of
any [consequential] fact ... more or less probable". Does the
fact that a young woman has not previously engaged in sexual
intercourse make it more or less likely that she would engage in
sexual intercourse with an attentive and importuning stranger?
A trial court's evidentiary rulings are to be
overturned only if they constitute an abuse of discretion. Keogh
v. W.R. Grasle, Inc., 816 P.2d 1343, 1349 n.11 (Alaska 1991);
Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980). Abuse of
discretion exists only when "the trial court's decision is
clearly untenable or unreasonable", Gonzales v. State, 691 P.2d
285, 286 (Alaska App. 1984). See also State Farm Insurance Co.
v. American Manufacturers Mutual Ins. Co., ___ P.2d ___, Alaska
Opinion No. 3902 (12/11/92), slip opinion at 5 n.2 (abuse of
discretion exists when the trial court's decision is "manifestly
unreasonable"). Thus, Heath's argument to this court is
necessarily premised on the assertion that any reasonable person
would conclude that a virgin is less likely than other people to
consent to intercourse with a stranger. Heath's premise,
however, is not self-evident.
That young people with no prior sexual experience can
be swayed by the blandishments of more sophisticated adults,
there can be no doubt. Judge Reese was not convinced that J.A.'s
status as a virgin made it any more likely or unlikely that she
would yield to Heath's sexual advances, and Heath presented no
data or other evidence to support his argument that the evidence
was relevant. Compare Page v. State, 657 P.2d 850, 851-53 (Alaska
App. 1983), where this court upheld a trial judge's refusal to
assume that a person's possession of pornographic books and
magazines made it any more or less likely that that person would
commit a sexual assault.
When Judge Reese concluded that J.A.'s status as a
virgin did not make it any more or less likely that she would
consent to have sexual intercourse with Heath, his ruling echoed
the premise underlying the rape shield statute. See Kvasnikoff
v. State, 674 P.2d 302, 306 (Alaska App. 1983):
Until recently, female victims of
heterosexual rape suffered under a rule of
relevancy which reflected the view that a
woman who consented to sex with one
individual was more likely to have consented
to sex with another. This rule was finally
rejected [as] more a creature of ... male
fantasy ... than one of logical inference.
See also State v. Gavigan, 330 N.W.2d 571, 575 (Wis. 1983), in
which the court noted that use of a victim's chastity or
unchastity as evidence of consent or lack of credibility has now
largely been abandoned because of the growing recognition that
prior willingness to engage in sexual conduct bears no logical
correlation to either consent or credibility.
"The primary purpose of the Rape Shield Statute is to
prevent the use of evidence of past sexual conduct as proof of
the victim's current willingness to consent." Daniels v. State,
767 P.2d 1163, 1167 n.2 (Alaska App. 1989). Heath's argument is
that people with no prior sexual experience are less likely to
consent to a particular act of sexual intercourse. This argument
is simply the inverse of the argument the rape shield law was
designed to forestall - that people who have sexual experience
are more likely to consent to a particular act of sexual
intercourse. In fact, Heath's argument (that virgins are less
likely to consent) silently rests on this forbidden proposition.
Had Heath succeeded in eliciting testimony that J.A. was a
virgin, it seems inescapable that he would have ultimately argued
to the jury that J.A. should be distinguished from teenagers with
sexual experience who would more likely have consented to have
sex with Heath.
We interpret AS 12.45.045(a) and Evidence Rule 401 to
preclude the use of evidence of a victim's lack of sexual experi
ence as circumstantial proof of the victim's current
unwillingness to consent to a particular sexual act.2 Accord,
State v. Gavigan, 330 N.W.2d at 576-77; People v. Autry, 364
S.E.2d 341, 345 (N.C. 1988). But see People v. Johnson, 671 P.2d
1017, 1020 (Colo. App. 1983). We thus conclude that Judge Reese
did not abuse his discretion when he ruled that Heath's proposed
evidence was irrelevant.
The judgement of the superior court is AFFIRMED.
_______________________________
1 AS 12.45.045(a) provides:
In prosecutions for the crimes of sexual
assault in any degree, sexual abuse of a
minor in any degree, or unlawful exploitation
of a minor, or an attempt to commit any of
these crimes, evidence of the complaining
witness' previous sexual conduct may not be
admitted nor may reference be made to it in
the presence of the jury except as provided
in this section. [The statute then
prescribes procedures by which a defendant
can seek to admit such evidence.] If the
court finds that evidence [of] the sexual
conduct of the complaining witness is rele
vant, and that the probative value of the
evidence offered is not outweighed by the
probability that its admission will create
undue prejudice, confusion of the issues, or
unwarranted invasion of the privacy of the
complaining witness, the court shall make an
order stating what evidence may be introduced
and the nature of the questions that may be
permitted. The defendant may then offer
evidence under the order of the court.
2 We note, however, that evidence introduced for some other
relevant purpose does not become inadmissible merely because it
tends to show that the victim was a virgin. See State v.
Gavigan, 330 N.W.2d at 377-78. Compare the cases listed in
Daniels v. State, 767 P.2d at 1167 n.2, holding that evidence of
a victim's prior sexual conduct is not admissible when offered as
circumstantial proof of the victim's consent, but it may be
admissible to prove bias, motive to fabricate, or some other
relevant proposition.
