The opinion of the court was delivered by: Justice Freeman
Docket No. 94620-Agenda 8-September 2003.
A jury in the circuit court of Winnebago County convicted defendant James K. Santos of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 1998)) of T.K. The circuit court sentenced him to a four-year prison term. The appellate court reversed defendant's conviction because of jury instruction error. The court also addressed an issue likely to recur on remand, and reversed the trial court's ruling that certain evidence must be excluded pursuant to section 115-7 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7 (West 1998)), commonly known as the "rape shield" statute. 333 Ill. App. 3d 1. We granted the State leave to appeal. See 177 Ill. 2d R. 315(a). The State admits that defendant is entitled to a new trial because of the errors in the jury instructions; the State's only argument before this court is that the appellate court erred in reversing the trial court's application of the rape shield statute. We reverse the appellate court in part and remand for a new trial.
Defendant does not challenge the sufficiency of the evidence on appeal. Accordingly, we will summarize the evidence adduced at trial except where greater specificity is necessary to our resolution of the legal issues.
Many of the facts surrounding the charges against defendant are undisputed. In May 1999 T.K. was 16 years old. She and defendant met at a party at the home of Angie Enna and Herbert Reaves late on May 8 or in the early morning hours of May 9. At the time Enna and Reaves were 25 and 20 years old, respectively. T. K., who had been drinking since approximately 9 p.m. on May 8, was already somewhat inebriated when she arrived at the party that night. When defendant subsequently arrived, there was no alcohol at the party, and T.K. was among the people who went with defendant to purchase more. Defendant purchased T.K. a beer at her request. After returning the other persons to the party, defendant and T.K. left again in defendant's car.
Defendant and T.K. testified to different versions of the subsequent events at trial. Both agreed that after riding around for several hours, defendant parked the car in a remote area where the two engaged in sexual intercourse. T.K. testified that she told defendant that she was 16 years old before the two engaged in any sexual activities. She also testified that all sexual contact between her and defendant occurred without her consent and against her will. Defendant, by contrast, testified that T.K. made advances upon him and told him she was 18 years old, only revealing that she was 16 years of age when the two were already engaged in sexual intercourse. He testified that when she informed him of this fact, he immediately ceased all sexual activities with her.
The State charged defendant with criminal sexual assault (720 ILCS 5/12-13(a) (West 1998)) and two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(ii), (d) (West 1998)). The first count of aggravated criminal sexual abuse alleged that defendant had committed an act of sexual conduct with T.K. by the use of force or threat of force. 720 ILCS 5/12-16(c)(1)(ii) (West 1998). The second count alleged that defendant had committed an act of sexual penetration with T.K., at a time when T.K. was between the ages of 13 and 17 and defendant was at least 5 years older than she. 720 ILCS 5/ 12-16(d) (West 1998). The jury acquitted defendant of the charge of criminal sexual assault and the charge of aggravated criminal sexual abuse involving an act of sexual conduct, but convicted defendant on the charge of criminal sexual abuse involving an act of sexual penetration. The circuit court sentenced defendant to four years' imprisonment.
The appellate court reversed defendant's conviction and remanded for a new trial. The appellate court held that the circuit court committed reversible error in its issues instruction to the jury. The court determined that there was sufficient evidence adduced at trial to support the defense theory that defendant had reasonably believed that T.K. was over 16 years of age. Accordingly, the appellate court held, the circuit court was required to instruct the jury that the State had the burden of proving beyond a reasonable doubt that defendant did not reasonably believe the victim to be of age. The failure to properly instruct the jury on the State's burden of proof constituted reversible error, entitling defendant to a new trial. 333 Ill. App. 3d at 8.
The appellate court also elected to address an additional issue because it was likely to recur on remand. Before trial, defendant filed a motion in limine requesting the court's permission to cross-examine T.K. regarding inconsistent statements she had made to the authorities. Specifically, on May 9, T.K. told medical personnel who were collecting rape kit samples that she had not engaged in sexual intercourse with anyone other than the defendant in the previous 72 hours. However, in August 1999, when DNA testing revealed that defendant could not have been the source of semen recovered from the victim, T.K. admitted to the police that she had in fact engaged in sexual intercourse with someone else on May 9. The State objected to the introduction of this evidence, contending it was barred under the rape shield statute. The trial court ruled in the State's favor and excluded the evidence from consideration.
The appellate court held that the circuit court erred in excluding the evidence. 333 Ill. App. 3d at 9. The appellate court noted that the rape shield statute contains an exception, permitting the introduction of evidence the statute would otherwise bar where admission of such evidence is "constitutionally required." Relying on its earlier decision in People v. Grano, the appellate court held that the circuit court should have allowed defendant to inquire regarding T.K.'s statements, because "T.K.'s credibility was at issue." 333 Ill. App. 3d at 9. The court remanded for a new trial, and directed the circuit court to permit defendant to cross-examine T.K. with her inconsistent statements.
In partial dissent, Justice O'Malley disagreed with the majority regarding the evidence the circuit court had excluded under the rape shield statute. See 333 Ill. App. 3d at 10-11 (O'Malley, J., concurring in part and dissenting in part). The dissenting justice argued that the appellate court majority erred in stating that Grano involved "prior inconsistent statement[s]." 333 Ill. App. 3d at 10 (O'Malley, J., concurring in part and dissenting in part). She also noted that, regardless, the instant case did not involve prior inconsistent statements, because the statements in question were inconsistent only with each other, not with any statement the victim had made during her in-court testimony. The dissenting justice concluded that the cross-examination was impermissible regardless of the rape shield, because inconsistent out-of-court statements were not a proper basis for impeaching a witness' credibility. 333 Ill. App. 3d at 11 (O'Malley, J., concurring in part and dissenting in part).
The State concedes that the appellate court acted correctly in granting defendant a new trial based on the jury instructions. The State's only argument before this court is that the appellate court erred in overruling the circuit court order barring defendant from cross-examining T.K. about her inconsistent statements regarding whether she had engaged in sexual activities with anyone else during the 72 hours preceding the assault. The State contends that the trial court acted correctly in excluding this evidence from the trial.
Evidentiary rulings are reviewed for abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89 (2001). A trial court abuses its discretion only when its ruling is " ` "arbitrary, fanciful or unreasonable" ' or ` "where no reasonable man would take the view adopted by the trial court." ' " People v. Donoho, 204 Ill. 2d 159, 182 (2003), quoting People v. M.D., 101 Ill 2d 73, 90 (1984) (Simon, J., dissenting), quoting Peek v. United States, 321 F.2d 934, 942 (9th Cir. 1963).
The rape shield statute provides in pertinent part as follows:
"In prosecutions for *** criminal sexual assault, [and]
aggravated criminal sexual abuse, *** the prior sexual activity or
the reputation of the alleged victim *** is inadmissible except
(1) as evidence concerning the past sexual conduct of the alleged
victim *** with the accused when this evidence is offered by the
accused upon the issue of whether the alleged victim *** consented
to the sexual conduct with respect to which the offense is
alleged; or (2) when constitutionally required to be admitted."
725 ILCS 5/115-7(a) (West 1998).
Thus the statute absolutely bars evidence of the alleged victim's prior sexual activity or reputation, subject to two exceptions: (1) evidence of past sexual activities with the accused, offered as evidence of consent; and (2) where the admission of such evidence is constitutionally required.
The appellate court determined that the circuit court erred in excluding the evidence. The court relied exclusively on People v. Grano, 286 Ill. App. 3d 278 (1996). The appellate court stated that in Grano, the court had
"determined that the [rape shield] statute was not designed to
preclude the admission of all evidence related to sex. Instead,
the legislative intent of the rape shield statute is to exclude
evidence of actual sexual history or reputation of the victim, not
evidence offered for the purpose of impeachment, even when that
evidence relates to sex." 333 Ill. App. 3d at 9.
After discussing Grano, the appellate court noted that the credibility of the alleged victim, T.K., was at issue in the instant case, and concluded that "the trial court misapplied the rape shield statute as a basis for excluding the evidence of T.K.'s inconsistent statements." We find the appellate court to have erred.
Grano does not support the appellate court's holding in this case. In Grano, the appellate court reviewed a circuit court ruling that the rape shield statute precluded the defendant from introducing evidence that the complainant had previously falsely accused three other men of sexual assault. The court reasoned that the circuit court had erred in determining that the rape shield statute barred the introduction of this evidence because a verbal accusation was not "sexual activity." Grano, 286 Ill. App. 3d at 288. This finding meant that the rape shield statute had no bearing on the case at all, and thus the trial court had erred in excluding the evidence.
The same is not true of the instant case. Here, although as in Grano the evidence at issue does consist of statements by the complainant, those statements clearly reveal the complainant's "prior sexual activity." Accordingly, the rape shield does come into play. Contrary to the reasoning of the dissenting justice (see slip op. at 17-18 (McMorrow, C.J., dissenting)), and the appellate court majority, the statute makes no exception based on the purpose for which the evidence is offered. It is of no moment to the statute's application that defendant sought to introduce the evidence for purposes of impeachment, rather than as an explicit attack on the victim's character. The rape shield statute absolutely bars the introduction of the evidence, unless one of the two exceptions listed in the statute is applicable.
The first exception relates only to prior sexual activity between the victim and the accused, offered for purposes of establishing a defense of consent. This exception is inapplicable in the instant case, as the prior activity revealed by the evidence in question was not between complainant and defendant. 725 ILCS 5/115-7(a)(1) (West 1998).
The second exception permits introduction of evidence which the statute would otherwise operate to exclude, "when constitutionally required." 725 ILCS 5/115-7(a)(2) (West 1998). The evidence in question in this case is two out-of-court statements which were inconsistent with each other, but not with any statement made by the witness on direct examination. We find that the constitution did not require that this evidence be admitted.
As the dissenting justice in the appellate court noted, what defendant wished to do by introducing this evidence was to impeach the victim's credibility with a specific act of untruthfulness. He wished to show the jury that T.K. had lied on one occasion-when she told medical personnel she had not had sexual intercourse with anyone else in the previous 72 hours-in order to support his argument that when she testified in court she was lying about what had occurred between her and the defendant. Far from being constitutionally required, specific-act impeachment is prohibited in Illinois. *fn1 See, e.g., People v. West, 158 Ill. 2d 155, 162 (1994) (upholding trial court ruling prohibiting cross-examination regarding specific instances of untruthfulness and rejecting contention that evidence of specific acts of untruthfulness may be brought out even in cases involving children who are too young to have developed a reputation); People v. Morrow, 303 Ill. App. 3d 671, 680 (1999) ("Although the defendant's credibility was an issue in this case, specific instances of untruthfulness are not admissible to attack a witness's believability"); Podolsky & Associates L.P. v. Discipio, 297 Ill. App. 3d 1014, 1026 (1998) ("In Illinois a witness's credibility may not be impeached by inquiry into specific acts of misconduct which have not led to a criminal conviction"); People v. McGee, 286 Ill. App. 3d 786, 796 (1997) ("specific instances of untruthfulness are not admissible to attack a witness's believability"); M. Graham, Cleary & Graham's Handbook of Illinois ...