State v. Aveen

• Citation: 169 N.W.2d 749,284 Minn. 194
• Decision Date: 25 July 1969
• Docket Number: No. 41149,41149
• Parties: , 35 A.L.R.3d 1447 STATE of Minnesota, Respondent, v. George AVEEN, Jr., Appellant.
• Court: Supreme Court of Minnesota (US)

Page 749

169 N.W.2d 749

284 Minn. 194, 35 A.L.R.3d 1447

STATE of Minnesota, Respondent, v. George AVEEN, Jr., Appellant.

No. 41149.

Supreme Court of Minnesota.

July 25, 1969.

Syllabus by the Court

Evidence of the prior chastity of the complaining witness in a rape case was not inadmissible, even though defendant offered no evidence directly attacking her chastity, where the defensive cross-examination and closing argument were obviously directed at establishing that the sexual intercourse was not without her consent. The testimony of the complaining witness and a physician that she was a virgin prior to this act was relevant and material to that issue, upon which the prosecution had the burden of proof, and in this situation counterbalanced the inflammatory character, if any, of such testimony.

C. Paul Jones, Public Defender, Rosalie E. Wahl, Minneapolis, for appellant.

Douglas M. Head, Atty. Gen., James J. O'Connor, Asst. Atty. Gen., Richard H. Kyle, Sol. Gen., St. Paul, James C. Harten, County Atty., Mankato, Charles C. Johnson, Dist. Pros., Mankato, for respondent.

Heard before KNUTSON, C.J., and ROGOSHESKE, SHERAN, PETERSON and FRANK T. GALLAGHER, JJ.

OPINION

PETERSON, Justice.

Defendant appeals from the judgment of conviction under a charge of raping a 19-year-old girl. The only substantial issue is whether it was prejudicial error to admit evidence, in the prosecution's case in chief, that the complaining witness was a virgin prior to the alleged rape, where the defendant made no direct attack upon her prior chastity but in cross-examining her as to the circumstances of the encounter undertook to establish that this act was not committed without her consent.

The relevant factual situation can be simply stated without all the sordid details. Defendant and two male companions, total strangers to the complaining witness, had repeated sexual intercourse with her in an automobile at a secluded place shortly after midnight on April 14, 1967. She had entered the automobile upon their offer to drive her to her dormitory on the campus of Mankato State College as she was walking alone and in that direction from downtown Mankato. Although defendant offered no evidence on his own behalf, his cross-examination of the complaining witness, as his closing argument confirmed, was obviously directed toward establishing her consent to all the events that occurred, including this sex orgy.

The evidence for the prosecution did not seek to establish that the complaining witness physically resisted these acts, for the information charging the crime stated that the victim's resistance had been overcome by 'her fear of immediate and great bodily harm.' ¹ The complaining witness testified that she had never experienced sexual intercourse with any person prior to this event. A physician who had examined the complaining witness shortly after the event testified, over objection, as follows:

'Q. And based on your examination, Doctor, of this patient and on reasonable medical certainty, do you have an opinion whether or not this was or was not the first experience of this patient in that area, whether she had had sexual intercourse before?

'A. Yes, it would be my opinion that this was the first sex experience for this young lady.

'Q. Is this based upon the physical examination?

'A. This is based upon the physical examination and also upon the fact, well, I should have mentioned this, earlier in the interrogation of the patient before the examination I did ask her if she did ever have sexual intercourse before and she said definitely not, and then, of course, the physical findings corroborated this.'

The precise issue is one of first impression in this state. Although there are instructive decisions in other jurisdictions, none is precisely in point. At least three jurisdictions have held that such evidence of prior virginity is admissible as relevant and material when the fact of consent is directly in issue. See, Myers v. State, 105 Tex.Cr.R. 426, 289 S.W. 49; Edmondson v. State (Fla.App.) 146 So.2d 395; State v. Bradley, 72 Ariz. 16, 230 P.2d 216. At least four jurisdictions have held such evidence, although otherwise relevant, is inadmissible unless in rebuttal of a direct attack by defendant upon the complaining witness' reputation for chastity. See, People v. O'Brien, 130 Cal. 1, 62 P. 297 (dicta), but compare People v. Pollock, 25 Cal.App.2d 440, 77 P.2d 885, and People v. Ross, 179 Cal.App.2d 684, 4 Cal.Rptr. 73; Smith v. State, 150 Ark. 193, 233 S.W. 1081 and Bethel v. State, 178 Ark. 277, 10 S.W.2d 370, but compare Ward v. State, 203 Ark. 1024, 160 S.W.2d 864; Leinberger v. State, 204 Ind. 311, 183 N.E. 798; Baker v. State, 82 Miss. 84, 33 So. 716.

Kidd v. State, 97 Okl.Cr. 415, 266 P.2d 992, is factually most analogous...