Commonwealth v. Harris

¶1(concurring in part and dissenting in part, with whom Greaney, J., joins). I concur with the court’s conclusion that the defendant is entitled to a new trial because the prosecutor’s closing argument was improper. I respectfully dis*734sent from so much of the court’s opinion as gives a trial judge discretion to admit in evidence a rape complainant’s past conviction of a crime involving sexual conduct solely for the purpose of impeaching her credibility.

¶2In Commonwealth v. Houston, 430 Mass. 616 (2000), I noted that “the Commonwealth’s legitimate interest in protecting rape victims sets an important limit on a judge’s discretionary authority to admit prior convictions submitted generally to impeach a complainant witness.” Id. at 621 (Marshall, C.J., concurring). It has always done so, both before and after the enactment of the general impeachment statute, G. L. c. 233, § 21, and its predecessor statutes.

¶3Today, the court concludes that juries will be permitted to infer that an alleged rape victim is more likely to be fabricating an accusation of rape because she has been convicted of a crime involving sexual conduct, such as being a “common nightwalker.” The court reasons that the Legislature, in enacting the rape-shield statute, G. L. c. 233, § 21B, inserted by St. 1977, c. 110, gave no “clear implication” that it intended to prohibit such use of an alleged rape victim’s past conviction. Ante at 725. I disagree. The legislative intent to that effect could not be more clear. Moreover, the rape-shield statute is a specific statute, adopted later in time than the impeachment statute, G. L. c. 233, § 21, and with a clear purpose. To the extent that any provision of the 1977 rape-shield statute conflicts with the Nineteenth Century general impeachment statute, well-settled principles of statutory construction require that the more recent statute be given full effect.

¶4As to legislative history, when the rape-shield statute was under consideration in 1977, the Legislature affirmatively chose not to permit impeachment of alleged rape victims by evidence of sexual conduct convictions. For more than one century it had been the established law of this Commonwealth that the credibility of an alleged rape victim may not be challenged simply because she had previously engaged in specific acts of sexual intercourse.1 The explanation for our rule was straightforward: “the victim’s consent to [sexual] intercourse with one man does *735not imply her consent in the case of another.” Commonwealth v. McKay, 363 Mass. 220, 227 (1973). The common law had been reaffirmed by this court just four months before enactment of the rape-shield statute, so there was no question as to its continued vitality. See Commonwealth v. Gouveia, 371 Mass. 566, 569 (1976) (prohibiting introduction of “evidence of instances of prior [sexual] intercourse of the victim”). When the common-law evidentiary rule prohibiting the introduction of “evidence of instances of prior [sexual] intercourse with other persons,” Commonwealth v. Gardner, 350 Mass. 664, 668 (1966), was codified by the Legislature in the 1977 rape-shield statute,2 the Legislature included within that prohibition all “specific instances” of sexual conduct. It did not create any exception for those “instances” of sexual conduct evidenced by a rape victim’s conviction. To the contrary, the Legislature considered, but rejected, several bills that would have permitted a rape complainant to be impeached by a conviction of prostitution or other criminal sexual conduct.

¶5Specifically, in early 1977, the Senate referred to its Committee on the Judiciary four “rape-shield” bills. Three of the bills had originated in the House; all three contained an exception to the rape-shield provisions that would have permitted impeachment of a rape complainant by her prior convictions.3 The fourth bill, which had originated in the Senate, contained no such exception. See 1977 Senate Doc. No. 752. The subsequently enacted statute did not include the exceptions contained in each of the three House bills that would have permitted rape complainants to be impeached by their prior convictions. See *736G. L. c. 233, § 21B; St. 1977, c. 110; 1977 Senate Doc. No. 1433.4

¶6The Legislature’s decision not to enact the proposed House bills is convincing, if not conclusive, evidence of legislative intent. See Green v. Wyman-Gordon Co., 422 Mass. 551, 556 (1996) (declining to read into statute a provision contained in predecessor bills but omitted from enacted statute). See also 2A N.J. Singer, Sutherland Statutory Construction § 48.04, at 431-433 (6th ed. 2000) (“[W]here the language under question was rejected by the legislature and thus not contained in the statute it provides an indication that the legislature did not want the issue considered”); Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334, 338 (Tex. 1979) (“The deletion of a provision in a pending bill discloses the legislative intent to reject the proposal. Courts should be slow to put back that which the legislature has rejected”). Contrary to the court’s reasoning, ante at 725 n.9, the “signal on the subject” from the Legislature is indeed clear: it had before it three bills that would permit impeachment of a complaining witness with a prior conviction of sexual conduct. It rejected all three in favor of a statute that does not permit impeachment by a criminal sexual conduct conviction. The court disregards this clear legislative choice. It creates an exception to the scope of rape-shield statute that the Legislature rejected, substituting its judgment for that of the Legislature on an important matter of social policy.5 This it may not do. See, e.g., Commonwealth v. Houston, 430 Mass. 616, 631 (2000) (Cowin, J., concurring) (“The Legislature is the body for enact*737ing social policy change”). The rape-shield statute should be enforced to exclude the evidence, as the Legislature intended.

¶7The Legislature’s 1977 decision not to permit impeachment of an alleged rape victim by a prostitution conviction, for example, was entirely reasonable. In the years leading up to the enactment of the rape-shield statute, reports had described the difficulty of obtaining convictions in rape cases because of court room prejudice against alleged rape victims. See, e.g., H. Kalven, Jr. & H. Zeisel, The American Jury 249-254 (1966) (reporting study finding that juries acquit rape defendants because of the victims’ “contributory fault”); Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum. L. Rev. 1, 71 (1977) (“Studies have shown that judges — although less so than jurors — tend to distrust the complaining witness”).6 Prejudice or disbelief occurs with particular intensity when the complainant is a prostitute, and courts have long sought means to minimize jury bias against prostitutes. See, e.g., Commonwealth v. Churchill, 11 Met. 538, 539 (1846) (evidence of prostitution inadmissible to impeach credibility of female witness). See also Commonwealth v. Vandenhecke, 248 Mass. 403, 404 (1924) (“The rule is well established that the fact that a female witness is a prostitute or keeps a house of ill fame is not admissible to impeach her”). Prostitutes are frequent victims of rape. See, e.g., Anderson, From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law, 70 Geo. Wash. L. Rev. 51, 113 & n.367 (2002) (citing studies substantiating that more than seventy per cent of prostitutes are victims of rape). Yet societal beliefs persist that prostitutes cannot be raped, or that they are not harmed by rape, or that they somehow deserve to be raped. Id. at 113-117. In enacting the rape-shield statute, the Legislature could well have recognized that these prejudices outweighed the little — or nonexistent — probative value of a sexual conduct conviction in determining a rape complainant’s credibility. The likelihood of a jury impermissibly using such *738evidence would outweigh almost inevitably any modicum of impeachment value such a conviction might have. The Legislature considered but decided not to reject the “long held view” that prostitution (or evidence of other sexual conduct) simply is not relevant to credibility. Commonwealth v. Joyce, 382 Mass. 222, 231 (1981), citing Commonwealth v. Vandenhecke, supra.

¶8General Laws c. 233, § 21, permits the use of a prior conviction solely “to affect [the witness’s] credibility.” In a case such as this, where the witness is a rape complainant who claims lack of consent, the issue of her credibility mirrors precisely the issue of her consent. The law is settled that a rape complainant’s prior instances of sexual conduct are not admissible to prove consent to sexual intercourse. Commonwealth v. Gardner, 350 Mass. 664, 668 (1966). But if a judge may now permit evidence of an alleged rape victim’s prior conviction of criminal sexual conduct to be introduced to impeach her credibility, i.e., to show that she is fabricating her testimony to the effect that she did not consent to sexual intercourse, that evidentiary rule is vitiated. And, while in any particular case the evidence of a prior conviction of prostitution or some other sexual offense may be “extremely brief,” I cannot regard introduction of that evidence as “almost clinical.” Ante at 727 n.12. Courts have long recognized the difficulty in persuading juries that prostitutes are the victims of rape. Any evidence that reinforces juror prejudice may be decisive.

¶9Established canons of statutory construction reinforce this conclusion. Application of those principles here is not “problematic,” as the court suggests, ante at 724, nor would application be merely “mechanical[].” Ante at 725. “When a new provision conflicts with a prior statute, the new provision, as the last expression of the Legislature, controls.” Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 215 (1997). See 2B N.J. Singer, Sutherland Statutory Construction § 51.02 (6th ed. 2000) (“Where two statutes are involved each of which by its terms applies to the facts before the court, the statute which is the more recent of the two irreconcilably conflicting statutes prevails or one of the statutes can be deemed an exception to the general rule enunciated in the other statute”). The evidence *739at issue in this case — conviction of being a common night-walker — is an “instance[] of a victim’s sexual conduct” inadmissible under the precise terms of the rape-shield statute. But the general impeachment statute, G. L. c. 233, § 21, would permit a judge to admit the conviction in evidence to impeach the complainant. The rape-shield statute, as the more recent expression of the Legislature’s intent, must control so as to exclude the evidence. Doev. Attorney Gen., supra.Moreover, when the provisions of two statutes are in conflict, “the more specific provision, particularly where it has been enacted subsequent to a more general rule, applies over the general rule.” Id.See 2B N.J. Singer, supra (“Where a conflict exists the more specific statute controls over the more general one”).

¶10There is no need to create artificial constraints — discussing the need to harmonize and alluding to possible implied repeal, ante at 725 — to arrive at the result. The rape-shield statute requires that the evidence be excluded. The court’s contrary conclusion eviscerates the statute, subverts the Legislature’s intent to protect rape victims, and leaves the most vulnerable of victims, almost always women, subject to being put on trial themselves for conduct the Legislature and this court has deemed irrelevant to a jury’s consideration. I respectfully dissent.