¶1dissenting:
¶2I respectfully dissent from the majority opinion with regard to its conclusion that W. Va. Code, 61-8B-12 [1976], the rape shield law, is not unconstitutional. That provision of the Code is manifestly unconstitutional and I hope that the next rape conviction which is affirmed by our Court is appealed to the United States Supreme Court. Every conviction for sexual assault while this statute is on the books will be prima facie infirm unless trial judges make a record in every individual rape prosecution conclusively showing that they will disregard the statute and grant the defendant his rights to confrontation. This record is particularly important in guilty pleas to foreclose defendants from asserting that their pleas were coerced by prospective unconstitutional statutory limitation on Sixth Amendment rights in the event they had chosen to proceed to jury trial.
¶3This society’s rising consciousness of unjust discrimination against women has brought a rash of enthusiasm for reform. Among the most egregious and intensely felt wrongs is the social tradition which has denied the legitimacy of sexuality in women with the infamous attendant “double standard” for men and women. This Court unanimously concurred in the opinion in J. B. v. A. B., _ W. Va. _, 242 S.E.2d 248 (1978) which forbade depriving women of their children for sexual escapades which would be tolerated in men. There are occasions, therefore, when it is possible to eradicate the old law’s *698discrimination; however, there are other occasions, such as our Legislature’s attempt at a rape shield law, when alleged reform is mere obeisance to popular enthusiasm — a product of sophisticated lynch-mob mentality. To take liberty for a moment with Cato, McCarthyism in defense of trendy values is still a vice. Lynching in a popular cause is no less lynching.
¶4The confrontation clause of W. Va. Const., art. Ill, § 14 and its counterpart in the Sixth Amendment to the Constitution of the United States provides that one may confront his accusers about all issues relevant to his guilt. This constitutional right is absolute and cannot be limited by statute. A prohibition against the introduction of a woman’s past sexual conduct where such evidence is relevant is no more legitimate than a prohibition against introduction of alibi evidence in prosecutions for armed robbery.
¶5In a recent case limiting the protection afforded to a juvenile’s record, the Supreme Court held that the interests of the accused in introducing evidence of a juvenile’s prior conviction outweighed the state’s interest in protecting the juvenile’s reputation, Davis v. Alaska, 415 U.S. 308 (1974). Although the Supreme Court did not declare the statute protecting juvenile offenders’ anonymity to be unconstitutional, they did set aside the statute and concluded that it would be unfair to have the accused bear the full burden of the State’s interest in the secrecy of juvenile records. Id. at 319. After reviewing the scope of the confrontation clause of the Sixth Amendment the Court stated that, “[c]ross examination is the principal means by which the believability of a witness and the truth of the testimony are tested.” Id. at 316.
¶6Our rape shield statute, like the statute in Davis, not only conflicts with the confrontation clause, it also limits the defendant’s Sixth Amendment right to “present his own witnesses to establish a defense.” Washington v. Texas, 388 U.S. 14, 19 (1967). When the United States Supreme Court refused to quash a subpoena for certain *699tapes and documents in the hands of President Richard Nixon, the Justices balanced the President’s assertion of executive privilege against the rights of the Watergate defendants to compel production of witnesses and materials favorable to the defendants, United States v. Nixon, 418 U.S. 683 (1974). Chief Justice Burger stated that “[t]he right to the production of all evidence at a criminal trial ... has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right ‘to be confronted with the witnesses against him’ and ‘to have compulsory process for obtaining witnesses in his favor’. ... It is the manifest duty of the courts to vindicate those guarantees and to accomplish that it is essential that all relevant and admissible evidence be 'produced.” (Emphasis added) Id. at 711.
¶7Although the particular facts before us do not present the best setting for testing the constitutionality of the shield law, we may still apply the Davisbalancing test to the suspect statute. Under that test there are two relevant inquiries: first, the probative value of the evidence sought to be excluded and second, the legitimate state interest sought to be protected. In considering the relevancy of prior sexual history this statute limits the inquiry to prior sexual relations with the defendant or evidence for impeachment purposes if the prosecutrix introduces character evidence.
¶8At the outset, it is important to remember that the proffered evidence will automatically be narrowed by the requirements of materiality (for example the prior sexual conduct of a minor may not be introduced in a statutory rape since consent is not at issue) and relevancy (unrelated sexual history may not be admissible). Just as evidence of the rise and fall of the Nile River is inadmissible in a tax case, so too the sexual proclivities of the prosecutrix may be unrelated to any reasonable theory of defense. The general rule is that inquiries which are irrelevant to matters before the jury cannot be pursued on either direct or cross-examination, *700Pittsonberger v. Andrews, 112 W. Va. 651, 166 S.E. 367 (1932). However, it is unreasonable to suggest that habitual, indiscriminate sex with strangers is totally irrelevant. In our State where there is no requirement for corroboration, the defendant may be unable to refute the charges absent proof of a motive for a false charge. There are countless possible situations where the defendant would be unable to present a plausible defense other than a fraudulent charge. Wherever there is no requirement of corroboration, the character of the prose-cutrix and defendant become the only issue when the facts are disputed and there are no independent witnesses. For example, in State v. DeLawder, 28 Md. App. 212, 344 A.2d 446 (1975), the defendant sought to prove that the alleged victim of rape had accused him because she feared she was pregnant by another man and wished to attribute her unwanted pregnancy to a sexual assault. There was no applicable rape shield statute in this instance; however, the defendant was accused of statutory rape since the victim was under the age of 14 years. The general rule in a carnal knowledge prosecution had been that evidence of prior intercourse with the defendant, or evidence of a reputation for unchastity was immaterial when offered as an excuse or justification and, therefore, inadmissible for that reason. The Maryland court, recognizing that the prosecutrix may have been motivated to fabricate a rape because she feared revealing the pregnancy to her mother without rape as an explanation, applied the Davisapproach in reversing a carnal knowledge conviction. Under W. Va. Code, 61-8B-12(a) [1976] the evidence of prior sexual history of the prosecutrix would have been inadmissible because the victim’s inability to consent was based on the fact she was below the critical age. More importantly, this potentially vital evidence regarding a feared pregnancy by another man would have been inadmissible regardless of the age of the prosecutrix, unless she had chosen to make her previous sexual conduct an issue under W. Va. Code, 61-8B-12(b) (1976). Certainly, the prior sexual history may be relevant and its admissibil*701ity mandated by the Constitution for that reason “[where] the defendant alleges the prosecutrix actually consented to an act of prostitution.” Pope v. Superior Court, 113 Ariz. 22, 28, 545 P.2d 946 (1976).
¶9As stated earlier, there is no question that the policy in this statute is a legitimate one. The protection of the prosecutrix from unnecessary inquiry into her private life and the concomitant encouragement of rape reporting is laudable. However, with cross-examination so severely limited by this statute and with no corroboration requirement, the defendant may be left with no avenue of defense. In weighing the increased reports of rape against the possibility of an unjust conviction it must not be forgotten “that traditionally the penalty for rape has been a severe one; that unlike other crimes carrying severe penalties, there have been no delineated degrees of rape; and that factual circumstances of rape, more than those of any other crime, readily lend themselves to strong and different interpretations depending upon one’s station or experiences in life, including age, sex, race and environment.” Arnold v. United States, 358 A.2d 335, 349 (D.C.1976) (Mack, J. concurring in part and dissenting in part). In this regard it is worth noting that nationwide, 89% of the 455 men executed for rape between 1930 and 1969 were black men and nearly all of the complainants were white. See Note, The Rape Corroboration Requirement: Repeal Not Reform, 81 Yale L.J. 1365, 1380 N. 103 (1972).
¶10It is possible to envisage a case where a women has deliberately set out to convict an innocent man of rape— possibly because an original extortion scheme failed. What, for example, would happen if a notorious prostitute were to entice a man to her room and then threatened to “yell rape” if she were not paid? The fact that she is a woman of low moral character, i.e., a person who engages routinely in a calling which is prohibited by law, is indeed relevant to the issue of whether she initiated the encounter and enticed the defendant to her room. When it is her word against his, character determines the jury’s conclusion of who is the victim.
¶11*702While the distinction between rough wooing and rape has always been clear in the law it is not always clear in the back seat of a car or under an apple tree. Since in West Virginia we have a rule that a conviction for rape can be had upon the uncorroborated testimony of the female, syl. pt. 4 of the majority opinion, the character of the female in question may on occasion legitimately be put in issue and this may lead to a history of prior sexual relations. What if a woman were so deranged that she routinely encouraged men to make sexual advances toward her, immediately after the consummation of the act demanded that they marry her, and then upon refusal (possibly from guilt) reconstructed the act in her own mind (to such an extent that she believed it herself) and alleged rape rather than mutual passion? If the entire event occurred in a patch of woods off a lonely road, the man’s only credible defense, if he could find the witnesses, would be that the prosecutrix had done the same thing with other males on other occasions.
¶12Recently it has become fashionable to speak in terms of “balancing” the interests; however, in constitutional matters we do not balance unless there are conflicting constitutional mandates. For example, the United States Supreme Court has spoken of balancing prior restraints on the freedom of the press against other compelling interests, Near v. Minnesota, 283 U.S. 697 (1931), but there has been no case permitting a prior restraint in the past fifty years. Any restraint has always carried a “heavy presumption against its constitutional validity”, New York Times Co. v. United States, 403 U.S. 713, 714 (1971). Thus when the Court speaks of balancing interests they allow only for the most remote case of extraordinary circumstances such as the publication of the sailing dates of transports or the number and location of troops prior to the battle of Normandy. Certainly imminent national peril is an issue of constitutional dimensions.
¶13The principle to be gleaned from this discussion is that whenever a court speaks of balancing, the decision will fall in favor of the constitutional principle whenever a *703constitutional proposition finds itself on the scale opposite any other principle of less than constitutional dimension. When any “balancing” of the embarrassment to the prosecutrix against the right to confront a witness is performed the court is actually addressing the probative value and relevance of past sexual history. There is, however, no balance in operation here, because if it is shown that there is any relevance to the defendant’s asserted defense, then possible innocence cannot be outweighed by certain embarrassment.
¶14However, this does not mean to condone the prior practice of routinely cross-examining every prosecutrix about her past sexual history, without regard to relevance. That practice was due to consummate insensitivity on the part of judges who failed to recognize the chilling effect of such ordeals on the prosecution for rape. Under close scrutiny for relevance the bulk of pri- or sexual history will be inadmissible, and to insure the greatest possible privacy it is probably the better course to conduct the initial proceedings to determine the relevance of prior sexual history to the defendant’s theory of defense in chambers. A trial court in the exercise of its sound discretion can always exclude evidence which is both irrelevant and scandalous; however, on a showing of the least relevance in chambers, and this does not imply a balancing test as suggested in the majority opinion, it would be unconstitutional to deny inquiry into a prosecutrix’s past sexual history where such history is likely to lead to the reasonable inference on the part of the jury that the prosecutrix is lying — or more accurately stated — is likely to produce such question concerning her credibility as to raise a reasonable doubt about the defendant’s guilt.
¶15While it is true that a prostitute can be raped, it is a denial of human experience to assert that a woman of loose sexual standards is as unlikely to be a party to a fraudulent charge as a woman who is highly circumspect about her sexual activities. The factual situation set forth in Cannellas v. McKenzie,_W. Va._, 236 *704S.E.2d 327 (1977) is an example of a prosecutrix of such low moral character that her history alone created a reasonable doubt about the defendant’s guilt. She was a voluntary social companion; she voluntarily entered defendant’s truck at a late hour after drinking all day and smoking marijuana all evening; and, at the age of 16, she had already acquired a promiscuous past. She was out on the night of the alleged rape many hours after her parents had instructed her to be home and she testified that she was afraid of being “whipped” for being out late. The facts read like the first act of Arthur Miller’s The Crucible where he shows the circumstances surrounding the first accusations of witchcraft in Salem, Massachusetts at the end of the 17th century by a child who looked exactly like the prosecutrix in Cannellas. It is not correct to say that Mr. Cannellas was necessarily innocent, but it is correct to say that the character of the prosecutrix raised a reasonable doubt about his guilt. Mr. Cannellas had no other defense than that this child enjoyed sexual relations and voluntarily offered herself to him. Had she been of prior chaste character the credibility of this defense would have been significantly impaired.
¶16It probably bears repeating that there is not one set of constitutional rights for unpopular criminals and another for ordinary ones. While women have a legitimate right not to be intimidated by the specter of public disclosure of every liason they have ever enjoyed, a defendant in a rape trial has a right not to spend ten years in prison for a crime he has not committed. The happy medium is for the trial court to exercise substantial control and to limit inquiries about prior sexual history to those instances where the totality of the circumstances indicate that prior sexual history is relevant.
¶17While the majority opinion implies that a constitutional procedure can be applied notwithstanding the statute, the very existence of the statute has a direct bearing on every stage of the proceedings regardless of the trial judge’s ultimate ruling on the admissibility of prior con*705duct. This statute must be struck down and another which complies with W. Va. Const., art. III, sec. 14 and the Sixth Amendment put in its place.