{ "id": 8561058, "name": "STATE OF NORTH CAROLINA v. TERRY LEE FORTNEY", "name_abbreviation": "State v. Fortney", "decision_date": "1980-08-15", "docket_number": "No. 56", "first_page": "31", "last_page": "44", "citations": [ { "type": "official", "cite": "301 N.C. 31" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "361 A. 2d 352", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1976, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "240 Pa. Super. Ct. 403", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 818009 ], "year": 1976, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/pa-super/240/0403-01" ] }, { "cite": "4 Watts 380", "category": "reporters:state", "reporter": "Watts", "case_ids": [ 1842702 ], "year": 1835, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/watts/4/0380-01" ] }, { "cite": "33 S.W. 167", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1895, "pin_cites": [ { "page": "171", "parenthetical": "unchastity which \"destroys the standing\" of women in \"all the walks of life has no effect whatsoever on the standing for truth\" of men" } ], "opinion_index": 0 }, { "cite": "131 Mo. 519", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 856306 ], "year": 1895, "pin_cites": [ { "page": "532", "parenthetical": "unchastity which \"destroys the standing\" of women in \"all the walks of life has no effect whatsoever on the standing for truth\" of men" } ], "opinion_index": 0, "case_paths": [ "/mo/131/0519-01" ] }, { "cite": "77 Colum. L. Rev. 1", "category": "journals:journal", "reporter": "Colum. L. Rev.", "year": 1977, "pin_cites": [ { "page": "16" } ], "opinion_index": 0 }, { "cite": "229 S.E. 2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557231 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0001-01" ] }, { "cite": "377 A. 2d 74", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7977990 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/a2d/377/0074-01" ] }, { "cite": "113 Ariz. 22", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 586885 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ariz/113/0022-01" ] }, { "cite": "128 U. Pa. L. Rev. 544", "category": "journals:journal", "reporter": "U. Pa. L. Rev.", "year": 1980, "opinion_index": 0 }, { "cite": "179 S.W. 145", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1915, "pin_cites": [ { "page": "145" } ], "opinion_index": 0 }, { "cite": "132 Tenn. 655", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8535630 ], "year": 1915, "pin_cites": [ { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/tenn/132/0655-01" ] }, { "cite": "19 Wend. 192", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2023421 ], "year": 1838, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/wend/19/0192-01" ] }, { "cite": "94 A.L.R. 3d 257", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1979, "opinion_index": 0 }, { "cite": "242 S.E. 2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "820" } ], "opinion_index": 0 }, { "cite": "294 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574161 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0623-01" ] }, { "cite": "130 S.E. 2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "550" } ], "opinion_index": 0 }, { "cite": "259 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560554 ], "year": 1963, "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0354-01" ] }, { "cite": "149 S.E. 2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 707", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560547 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0707-01" ] }, { "cite": "67 S.E. 2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "234 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621741 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/234/0294-01" ] }, { "cite": "4 L. Ed. 2d 738", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1960, "opinion_index": 0 }, { "cite": "80 S. Ct. 670", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1960, "opinion_index": 0 }, { "cite": "362 U.S. 917", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177710, 6177582, 6177457, 6177203, 6177331, 6177852 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/us/362/0657-05", "/us/362/0657-04", "/us/362/0657-03", "/us/362/0657-01", "/us/362/0657-02", "/us/362/0657-06" ] }, { "cite": "111 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "251 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624134 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/251/0177-01" ] }, { "cite": "235 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561692 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0147-01" ] }, { "cite": "245 S.E. 2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563314 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0399-01" ] }, { "cite": "282 U.S. 687", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6933273 ], "weight": 3, "year": 1931, "pin_cites": [ { "page": "694" }, { "page": "220" }, { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/us/282/0687-01" ] }, { "cite": "408 U.S. 204", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782725 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/408/0204-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 4, "year": 1973, "pin_cites": [ { "page": "295" }, { "page": "1046" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "415 U.S. 308", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174956 ], "weight": 13, "year": 1974, "pin_cites": [ { "page": "321" }, { "page": "1112-13" }, { "page": "356", "parenthetical": "Stewart, J., concurring" }, { "page": "320" }, { "page": "1112" }, { "page": "356" }, { "page": "314" }, { "page": "1109" }, { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/us/415/0308-01" ] }, { "cite": "380 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525264 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0400-01" ] }, { "cite": "566 S.W. 2d 181", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9932017 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/sw2d/566/0181-01" ] }, { "cite": "257 N.W. 2d 268", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1977, "opinion_index": 0 }, { "cite": "76 Mich. App. 705", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2166344 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/mich-app/76/0705-01" ] }, { "cite": "128 Cal. Rptr. 864", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 3, "year": 1976, "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "56 Cal. App. 3d 685", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 6040296 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/cal-app-3d/56/0685-01" ] }, { "cite": "196 Colo. 367", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 4558872 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/colo/196/0367-01" ] } ], "analysis": { "cardinality": 1276, "char_count": 28151, "ocr_confidence": 0.71, "pagerank": { "raw": 1.078820959881826e-06, "percentile": 0.9850008629846759 }, "sha256": "e4909ca6781c6f2c7cefe39ad98a7165b20ccb6e0ee6dc99f264cefbe98de743", "simhash": "1:79e7920ea65155d7", "word_count": 4699 }, "last_updated": "2023-07-14T21:17:56.373032+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Brock took no part in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. TERRY LEE FORTNEY" ], "opinions": [ { "text": "CARLTON, Justice.\nI.\nThe evidence tended to show that on 5 May 1979 Georgia Guthrie Shepard, a 23-year-old cocktail waitress, returned to her home in a Raleigh apartment complex after work at approximately 2:00 a.m. While still in the parking lot, she was accosted by a man armed with a gun who grabbed her and forced her to a sitting position between two cars with his arm around her neck. At his order, she stopped screaming, took off her clothes and walked to her car.\nOnce in the car, her assailant had oral sex with her against her will, then forced her to have intercourse. Finished, he drove her car to the end of the parking lot, stopped to talk to someone in a truck and then forced her into taking him into her apartment to make coffee for him.\nMs. Shepard and her assailant met an apparent mutual friend, a James Atkinson, on their way into the apartment. Atkinson entered the apartment with them and stayed while Ms. Shepard and the assailant played a game of backgammon. When Atkinson left, the assailant, still in control of his gun, again performed oral sex on Ms. Shepard and had intercourse with her against her will.\nAfter the man left, Ms. Shepard waited in her darkened apartment until it was light and then ran to a woman friend\u2019s apartment. The friend called police. Ms. Shepard apparently never returned to the apartment to live.\nDefendant\u2019s defense was consent.\nPrior to trial, pursuant to G.S. 8-58.6(c), defendant moved for an in camera hearing to determine the admissibility of certain evidence tending to show that Ms. Shepard had engaged in prior acts of sexual intercourse with third parties. At the in camera hearing defendant presented evidence that three different blood groupings of semen were found on clothing Ms. Shepard wore the night of the assault. Type B was found in her vagina, on her jeans and on her body suit, type O was found on her panties and panty hose and type A was found on her bathrobe. Testimony also indicated defendant\u2019s blood type was type B, while the victim\u2019s was type 0.\nWhen questioned closely by defense counsel about this discrepancy, Ms. Shepard testified that she had intercourse with her boyfriend a day and a half before the rape. On that day, Thursday, May 3, she was wearing the same underwear she wore the morning of the rape. She further testified she had not washed her bathrobe for at least a year and that her prior roommate, a sister, had worn it at times. She said she had not had intercourse with any man other than her boyfriend for the four years prior to the assault.\nDefense counsel offered no evidence at the in camera hearing other than the different blood-typed semen stains.\nThe judge, at the conclusion of the in camera hearing, ruled that evidence of the type 0 and type A semen stains was inadmissible unless a State\u2019s witness \u201copened the door\u201d while on the witness stand. The judge also ordered, however, that defense counsel could question Ms. Shepard at trial as to her sexual activity with third persons on the night of the crime. This defense consel apparently chose not to do.\nDuring trial, another in camera examination was held on the judge\u2019s own motion at the time the State tendered the testimony of the expert serologist who had examined semen stains on the victim\u2019s clothing. At that time, the expert stated that while he determined positive results for three different blood groups when he tested Ms. Shepard\u2019s clothing \u201c[it was] possible on the ones that were group \u2018O\u2019 that the group \u2018O\u2019 came from the victim.\u201d The judge thereupon reaffirmed the earlier order that the presence of secretions other than blood type B on the victim\u2019s clothes were irrelevant and inadmissible.\nDefendant took the stand on his own behalf and denied ever raping Ms. Shepard, asserting that their contact was casual and consensual. He admitted having a gun but denied he ever took it out of the glove compartment of his truck.\nThe jury returned verdicts of guilty of first degree rape, kidnapping and crime against nature. Defendant appeals.\nI \u2014 I HH\nAt issue in this case is the constitutionality of North Carolina\u2019s rape victim shield statute, G.S. 8-58.6. Defendant asserts this statute is unconstitutional both On its face and in its application to him. We disagree and find no error in the proceedings against him.\nG.S. 8-58.6 provides in pertinent part:\nRestrictions on evidence in rape or sex offenses cases. \u2014 (a) As used in this section, the term \u201csexual behavior\u201d means sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.\n(b) The sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:\n(1) Was between the complaint [sic] and the defendant; or\n(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or\n(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant\u2019s version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or\n(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.\n(c) No evidence of sexual behavior shall be introduced at any time during the trial of a charge of rape or any lesser included offense thereof or a sex offense or any lesser included offense thereof, nor shall any reference to any such behavior be made in the presence of the jury, unless and until the court has determined that such behavior is relevant under subsection (b). Before any questions pertaining to such evidence are asked of any witness, the proponent of such evidence shall first apply to the court for a determination of the relevance of the sexual behavior to which it relates. The proponent of such evidence may make application either prior to trial pursuant to G.S. 15A-952, or during the trial at the time when the proponent desired to introduce such evidence. When application is made, the court shall conduct an in-camera hearing, which shall be transcribed, to consider the proponent\u2019s offer of proof and the arguments of counsel, including any counsel for the complainant, to determine the extent to which such behavior is relevant. In the hearing, the proponent of the evidence shall establish the basis of admissibility of such evidence. If the court finds that the evidence is relevant, it shall enter an order stating that the evidence may be admitted and the nature of the questions which will be permitted....\nDefendant argues that because this statute prevents him from automatically questioning a prosecuting witness about her prior sexual experience, his right to confront the witness against him has been compromised in violation of his constitutional rights.\nDefendant is mistaken on several grounds. First, there is no constitutional right to ask a witness questions that are irrelevant. People v. McKenna, 196 Colo. 367, 585 P. 2d 275 (1978); People v. Blackburn, 56 Cal. App. 3d 685, 128 Cal. Rptr. 864 (1976); People v. Thompson, 76 Mich. App. 705, 257 N.W. 2d 268 (1977); Smith v. Commonwealth, 566 S.W. 2d 181 (Ky. App. 1978).\nSecond, in its impact and application, this statute is primarily procedural and does not alter any of defendant\u2019s substantive rights. And third, there are valid policy reasons, aside from relevance questions, which support this statute.\nIII.\nThe sixth amendment of the Constitution, made applicable to state criminal proceedings by Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965), guarantees the right of an accused in a criminal trial to be confronted with the witnesses against him. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). However, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process, Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297, 309 (1973), citing Mancusi v. Stubbs, 408 U.S. 204, 92 S. Ct. 2308, 33 L. Ed. 2d 293 (1972). See also Davis v. Alaska, supra at 321, 94 S. Ct. at 1112-13, 39 L. Ed. 2d at 356 (Stewart, J., concurring).\nThus, while a defendant may generally cross-examine to impugn the credibility of a witness, this right is not inviolate. Indeed the Supreme Court has expressly stated that a court has a duty to protect a witness \u201cfrom questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him.\u201d Alford v. United States, 282 U.S. 687, 694, 51 S. Ct. 218, 220, 75 L. Ed. 624, 629 (1931) quoted in Davis v. Alaska, supra at 320, 94 S. Ct. at 1112, 39 L. Ed. 2d at 356. Implicit in this statement is the recognition that in such cross-examination, the probative value of any admission is outweighed by its prejudicial effect. The question of the proper scope of cross-examination, therefore, involves resolving the \u201ctension between the right of confrontation and the State\u2019s policy of protecting the witness. ...\u201d Davis v. Alaska, supra at 314, 94 S. Ct. at 1109, 39 L. Ed. 2d at 352.\nA.\nPrior to the enactment of G,S, 8-58.6, it was permissible in this jurisdiction to admit ev\u00edd\u00e1oce of a prosecuting witness\u2019s general reputation for unchastity in a rape trial both to attack her credibility as a witness and to show the likelihood of her consent. State v. Banks, 295 N.C. 399, 245 S.E. 2d 743 (1978); State v. Goss, 293 N.C. 147, 235 S.E. 2d 844 (1977); State v. Grundler, 251 N.C. 177, 111 S.E. 2d 1 (1959), cert. denied, 362 U.S. 917, 80 S. Ct. 670, 4 L. Ed. 2d 738 (1960).\nAdmissibility of such evidence, however, was bound by the normal test of relevance: evidence was admissible if it had any logical tendency to prove a fact in issue and its reception was neither forbidden by a specific rule of law, State ex rel. Freeman v. Ponder, 234 N.C. 294, 67 S.E. 2d 292 (1951), or of such weak probative force that it was outweighed by the likelihood of prejudice, Pearce v. Barham, 267 N.C. 707, 149 S.E. 2d 22 (1966); Modern Electric Company, Inc. v. Dennis, 259 N.C. 354, 359, 130 S.E. 2d 547, 550 (1963).\nThis Court\u2019s reluctance to apply blindly the per se rule that any previous sexual behavior of a rape victim is relevant was recognized in State v. McLean, 294 N.C. 623, 242 S.E. 2d 814 (1978). There, the defendant unsuccessfully attempted to show that the prosecuting witness voluntarily lived in an \u201cenvironment of ... immorality.\u201d This Court affirmed the order of the trial judge denying admission. Justice Huskins, speaking for the Court, reasoned that \u201cwhether [the victim] lived in an \u2018environment of sexual immorality\u2019 or in a cloistered convent has no relevance to the issues in a case such as this\u201d where consent was not argued. Id. at 632, 242 S.E. 2d at 820.\nG.S. 8-58.6 is nothing more then than a codification of this jurisdiction\u2019s rule of relevance as that rule specifically applies to the past sexual behavior of rape victims. As such, the statute embodies a legislative recognition that decisions such as State v. McLean, supra, \u201c[reject] the notion that all sexual behavior, however proved, has some intrinsic relevance in a sexual assault proceeding, and [require] a more specific showing of relevance before such behavior can be proved.\u201d Detailed Comments on Draft Law, Legislative Research Commission, Report to the 1977 General Assembly of North Carolina: Sexual Assaults 92 (1977).\nSuch a recognition results in a more logical and just trial both for the State and for the defendant than blind application of the former rule. The idea that any previous sexual behavior of a rape victim is perse relevant to a rape proceeding was based on two views of human behavior which no longer withstand the scrutiny of rational investigation.\nFirst, evidence of a woman's sexual behavior with a third person is no longer considered by most legal and psychological authorities to be probative of her tendency to willingly consent to the embraces of her accused rapist. See Annot., 94 A.L.R. 3d 257 (1979) and cases cited therein. Unlike the often quoted Judge Cowen in People v. Abbot who reasoned, \u201cAnd will you not more readily infer assent in the practised Messalina, in loose attire, than in the reserved and virtuous Lucretia?\u201d 19 Wend. 192, 195 (New York 1838), or the court in Lee v. State, 132 Tenn. 655, 658, 179 S.W. 145, 145 (1915) which stated, \u201c[N]o impartial mind can resist the conclusion that a female who had been in a recent habit of illicit intercourse with others will not be so likely to resist as one who is spotless and pure,\u201d common sense and sociological surveys make clear that prior sexual experience by a woman with one man does not render her more likely to consent to intercourse with an often armed and frequently strange attacker. Indeed, one court has stated that belief in the probative value of such evidence on the issue of consent was \u201cmore a creature of a one-time male fantasy of the \u2018girls men date [or] the girls men marry\u2019 than one of logical inference.\u201d People v. Blackburn, supra at 690-91, 128 Cal. Rptr. 864, 867.\nWeighed against the weak probative value of such evidence is the much more probable result of prejudice to the State\u2019s case when such evidence is admitted. The now classic Chicago Jury Study, originally published in 1966, suggested that jury prejudice operates against the prosecution in rape trials where the jury sees the prosecuting witness having \u201ccontributed\u201d to her plight, including having had sexual experience out of marriage. H. Kalven, Jr., & H. Zeisel, The American Jury, 24951 (Phoenix ed. 1971). Although this study has been criticized as being out of date, see Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U. Pa. L. Rev. 544 (1980), more recent evidence considered by the drafters of G.S. 8-58.6 suggests that the tendency toward prejudice still applies to North Carolina juries when the victim has had prior sexual experience.\nFurthermore, introduction of such evidence tends to divert jury attention to collateral issues, State ex rel. Pope v. Superior Court of County of Mohave, 113 Ariz. 22, 545 P. 2d 946 (1976), and focuses jury deliberation on the private life of the victim, see, e.g., McLean v. United States, 377 A. 2d 74 (Dist. Col. 1977), rather than the guilt or innocence of the defendant. An example is State v. Davis, 291 N.C. 1, 229 S.E. 2d 285 (1976), where the defendant introduced evidence that the prosecuting witness\u2019s reputation for chastity in Charlotte was \u201cbad,\u201d and contended that this evidence was probative of the woman\u2019s consent on the night of the alleged rape. In view of the fact that the prosecuting witness had moved to Charlotte from Atlanta less than a month prior to the incident to begin her first job and had spent all the intervening weekends at home in Atlanta, and in view of the fact that the defendant was apprehended by police in the very act of raping the victim, whose screams had alerted a neighbor, the fact that the State had to find and present rebuttal character witnesses to this reputation evidence was a totally unnecessary exploration of an issue collateral to the focus of the trial \u2014 the defendant\u2019s guilt or innocence. We think our Legislature intended G.S. 8-58.6 to prevent such abuses.\nIndeed, not only have 46 other jurisdictions rejected the notion that evidence of sexual acts of the victim are per se probative of her consent, Tanford & Bocchino, supra at 544, these jurisdictions also no longer consider all evidence of sexual behavior as probative of a victim\u2019s credibility in general. See People v. Thompson, supra; Annot., 94 A.L.R. 3d, supra and cases cited therein.\nThis prior per se rule seems rooted in antiquity. Dean Wig-more questioned the emotional stability and, thus, the credibility of women making rape accusations. Cf. 3A J. Wigmore, Evidence \u00a7 924 at 736 (Chad. rev. 1970) (calling for medical examination of victim\u2019s emotions prior to prosecuting the accused). Many courts apparently extended this thinking to include the notion that unchaste women were especially prone to lying, see, e.g., Berger, Maw\u2019s Trial, Woman\u2019s Tribulation: Rape Cases in the Courtroom, 77 Colum. L. Rev. 1,16 (1977) and cases cited therein, although some courts expressly held this inference did not extend to men. Cf., State v. Sibley, 131 Mo. 519, 532, 33 S.W. 167, 171 (1895) (unchastity which \u201cdestroys the standing\u201d of women in \u201call the walks of life has no effect whatsoever on the standing for truth\u201d of men). Common sense dictates the unreasonableness of this attitude. If sexual experiences outside marriage render one woman less truthful than her virgin sister, then sexual experience outside marriage would be an issue at any trial where a woman was a witness. This is plainly not the case. A woman, just as a man, \u201cmay be intemperate, incontinent, profane and addicted to many other vices that ruin the reputation, and yet retain a scrupulous regard for the truth. ...\u201d Gilchrist v. McKee, 4 Watts 380, 386 (Pa. 1835), quoted in Commonweath v. Crider, 240 Pa. Super. Ct. 403, 406, 361 A. 2d 352, 354 (1976).\nB.\nThis is not to say, however, that evidence of a victim\u2019s prior sexual behavior can never be relevant to an issue presented at trial. As we construe its language and permissible application, the rape victim shield law, G.S. 8-58.6, codifies primarily procedural rules and thus does not unduly impinge upon defendant's substantive right to confront his accusing witness. Unlike the situation in Davis v. Alaska, supra, where the defendant was totally prevented by an Alaskan witness protection law from cross-examining a witness against him about a fact that would give rise to a reasonable supposition of bias, and unlike the situation in Chambers v. Mississippi, supra, again where state law totally prevented a defendant from presenting evidence that another had confessed to the crime charged, G.S. 8-58.6 contains no such total prohibitions. Thus, although statutory, the rape victim shield law is analogous to judge-made rules of evidence which prevent the admission of opinion evidence, hearsay testimony and convictions of very old standing where the probative value of the evidence is outweighed by the possibility of jury prejudice. No one seriously considers that the policy decision not to admit such analogous evidence is on its face a violation of the fifth or sixth amendments. We see no difference in the impact of G.S. 8-58.6. The statute\u2019s exceptions provide ample safeguards to insure that relevant evidence is not excluded. G.S. 8-58.6(b)(2) specifically provides: \u201c(b) The sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior: ... (2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant. ...\u201d This exception is clearly intended, inter alia, to allow evidence showing the source of sperm, injuries or pregnancy to be someone or something other than the defendant. See generally, Tanford & Bocchino, supra at 553.\nLikewise, G.S. 8-58.6(b)(3) preserves an accused defendant\u2019s substantive rights when it provides that a victim\u2019s sexual history is admissible if it\n(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant\u2019s version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant resonably to believe that the complainant consented\nThis includes evidence which indicates that a victim\u2019s pattern of behavior gives rise to the strong inference of consent within the facts of a given situation.\nG.S. 8-58.6(b)(l) provides that any evidence of prior sexual behavior between a complainant and a defendant is admissible and G.S. 8-58.6(b)(4) provides that sexual behavior offered as the basis of an expert psychiatric opinion that complainant fantasized or invented the acts is admissible. All of these exceptions define those times when the prior sexual behavior of a complainant is relevant to issues raised in a rape trial, and are not a revolutionary move to exclude evidence generally considered relevant in trials of other crimes.\nNor does the statute stop with definitions. If any question arises concerning evidence of a victim\u2019s prior sexual history, that question may be presented at an in camera hearing where opposing counsel may present evidence, cross-examine witnesses and generally attempt to discern the relevance of proffered testimony in the crucible of an adversarial proceeding away from the jury. In summary, then, G.S. 8-58.6 merely contains and channels long-held tenets of relevance by providing a statutory definition of that relevance and by providing a procedure to test that definition within the context of any particular case. Defendant\u2019s substantive right to cross-examine is not impermissibly compromised.\nC.\nFinally the State has legitimate policy reasons, aside from questions of relevance, which support the permissibility of G.S. 8-58.6. Rape is one of the most underreported of crimes. Estimates are that from SVz, President\u2019s Commission on Law Enforcement and Administration of Justice, The Challenges of Crimes in a Free Society 21-22 (1967) to 20, Berger, supra at 5, times the number of rapes reported actually occur. Only 60% of those arrested are charged and conviction rates for those charged are low compared to other crimes, Berger, supra at 6 (35% for rape as compared to 70% for other crimes). See also National Institute of Law Enforcement, U.S. Department of Justice, Forcible Rape: An Analysis of Legal Issues 3 (1978) (3% of 635 rape complaints in the sample resulted in convictions of rape or some lesser crime). Part of the reluctance of victims to report and prosecute rape stems from their feeling that the legal system harasses and humiliates them. National Institute of Law Enforcement, U.S. Department of Justice, Forcible Rape: Final Project Report 15 (1978). We think the drafters of G.S. 8-58.6 knew this and framed the law accordingly. Detailed Comments to Draft Law, supra. In so doing, the Legislature did not unduly infringe on defendant\u2019s constitutional rights. As noted above, the U.S. Supreme Court has held that the right to confront the witnesses against one does not extend to unnecessary witness harassment and humiliation. Alford v. United States, supra. G.S. 8-58.6 merely codifies this stance.\nIV.\nDefendant, however, argues that the portion of the statute as applied to him, G.S. 8-58.6(b)(3), is unconstitutional. In this, he relies on little more than his original argument that the statute is unconstitutional.\nDefendant presented no testimony at either of the in camera hearings held on this point that indicated that the victim\u2019s sexual behavior on past occasions conformed to the defendant\u2019s version of the facts in this event. If the defendant had shown that the victim commonly accosted strangers in parking lots seeking sexual partners or that she often met men in apartment parking lots and took them to her car for sexual congress, then clearly the relevance of such evidence is established under the statute and would have been admissible.\nHere, however, defendant made no attempt to present evidence of the victim\u2019s behavior and instead only offered the evidence that three different semen stains were found on clothing the victim had worn. Such evidence is not probative of the victim\u2019s consent to the acts complained of. Indeed, the only inference such evidence raises is that the victim had had sex with two individuals other than the defendant at some time prior to the night of the rape. Without a showing of more, this is precisely the kind of evidence the statute was designed to keep out because it is irrelevant and tends to prejudice the jury, while causing social harm by discouraging rape victims from reporting and prosecuting the crime.\nNaked inferences of prior sexual activity by a rape victim with third persons, without more, are irrelevant to the defense of consent in a rape trial. G.S. 8-58.6 merely codifies this rule, and is constitutional both on its face and in its application to the facts sub judice.\nIn the defendant\u2019s trial, therefore, we find\nNo error.\nJustice Brock took no part in the consideration or decision of this case.\nDrafters of the law had a report of a local study done by psychologists at N.C. State University indicating victim\u2019s prior sexual history had a strong impact on verdicts in a hypothetical fact situation otherwise the same. Legislative Research Commission Report, supra at 104. This substantiates a recent national survey of prosecutors which found that 74% believed a victim\u2019s previous sexual conduct had considerable impact in a jury trial (as opposed to \u201cnone,\u201d \u201cslight,\u201d and \u201csome\u201d). National Institute of Law Enforcement and Criminal Justice, U.S. Department of Justice, Forcible Rape: A National Survey of the Response by Prosecutors, Prosecutors Volume 1 27 (1977).\nWe note that the original draft of the rape victim shield law expressly provided for the admission of evidence that showed \u201can origin of semen other than the alleged defendant.\u201d Legislative Research Commission Report, supra at 57. This language was apparently broadened in the law as enacted.\nEven this inference is weak. The serologist testified that the blood type O he obtained from the victim\u2019s panty hose and pants could have been an artifact of victim\u2019s own blood type. Blood type A, found only on her bathrobe, could, by the victim\u2019s testimony, have come from a friend of her sister who had borrowed the robe. The only semen obtained from the victim\u2019s vagina was type B which was defendant\u2019s blood type.", "type": "majority", "author": "CARLTON, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Special Deputy Attorney General Thomas F. Moffitt, for the State.", "J. Franklin Jackson for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERRY LEE FORTNEY\nNo. 56\n(Filed 15 August 1980)\n1. Constitutional Law \u00a7 65; Rape \u00a7 4.3- rape victim shield statute - constitutionality\nThe rape victim shield statute, G.S. 8-58.6, does not violate a rape defendant\u2019s constitutional right to confront the witnesses against him because it prevents him from automatically questioning the victim about her prior sexual experience since (1) there is no constitutional right to ask a witness questions that are irrelevant, (2) the statute is primarily procedural in its impact and application and does not alter any of the defendant\u2019s substantive rights, and (3) there are valid policy reasons, aside from questions of relevance, which support the statute.\n2. Rape \u00a7 4.3- rape victim shield statute - proper application to defendant\nThe rape victim shield statute, G.S. 8-58.6, was not unconstitutionally applied to defendant when the trial court excluded evidence that three different semen stains were found on clothing worn by an alleged rape victim since the inference raised by such evidence \u2014 that the victim had had sex with two persons other than defendant at some time prior to the sexual acts in question \u2014 was not probative of the victim\u2019s consent to those acts.\nJustice Brock took no part in the consideration' or decision of this case.\nOn appeal as a matter of right from judgment of Martin, Judge, entered at the 27 July 1979 Session of Superior Court, Wake County, imposing life sentence for conviction of first degree rape. Defendant\u2019s motion to bypass the Court of Appeals for review of convictions of kidnapping and crime against nature arising out of the same event was allowed 18 March 1980.\nOur decision today addresses for the first time the question whether North Carolina\u2019s rape victim shield statute, G.S. 8-58.6, enacted by the 1977 Legislature, is constitutional. We also determine whether the statute was constitutionally applied to this defendant on the facts before us.\nAttorney General Rufus L. Edmisten, by Special Deputy Attorney General Thomas F. Moffitt, for the State.\nJ. Franklin Jackson for defendant-appellant." }, "file_name": "0031-01", "first_page_order": 59, "last_page_order": 72 }