STATE v. BUDIS

The opinion of the Court was delivered by POLLOCK, J.

This appeal involves a conflict between the Rape Shield Statute, N.J.S.A. 2C:14-7, and defendant's constitutional right to confront accusing witnesses. A jury convicted defendant, James G. Budis, of two counts of aggravated sexual assault, and the trial court sentenced him to fifteen years in prison. The charges stemmed from two incidents in 1988 between defendant and his cousin's nine-year-old daughter, T.D. At trial, defendant sought to cross-examine both T.D. and the investigating detective about the sexual abuse of T.D. by her stepfather in 1987. T.D. gave virtually identical descriptions of her stepfather's conduct and of defendant's acts. The purpose of the cross-examination was to show that T.D. had acquired knowledge of oral and vaginal sex from a source other than defendant. He argues that in the absence of such testimony, the jury would conclude that the infant must have obtained her knowledge from her encounters with him. The trial court admitted evidence of T.D.'s accusation against her stepfather and of the ensuing police investigation, but excluded the details of the stepfather's abuse. The Appellate Division reversed. 243 N.J. Super. 498, 580 A.2d 283 (1990). We granted the State's petition for certification, ___ N.J. ___ (1990), and now affirm.

I

On May 22, 1988, T.D. was staying with her father, an apartment house superintendent, who was separated from her mother. While playing a Nintendo boxing game with her brothers and cousin, T.D. commented that one boxer looked like he was "sucking the other guy off." When confronted by her father, T.D. at first refused to describe the source of her knowledge of oral sex. After her father washed her mouth out with soap, however, she described separate incidents of sexual abuse committed by her stepfather in 1987 and by defendant in 1988. The next day her father reported the incidents to the Division of Youth and Family Services.

On May 24, 1988, Detective Norman Cetuk of the Somerset County Prosecutor's Office interviewed T.D. about the occurrences. The 1987 incidents occurred while her mother was confined at Carrier Clinic, and T.D., then eight years old, was living with her stepfather. T.D. related that her stepfather would take her to his bed. He would then remove her clothes and place his erect penis in her mouth and vagina, but would not ejaculate.

She described two similar incidents involving defendant. The first occurred sometime before July 27, 1987, at her father's apartment. According to T.D., defendant asked her to accompany him to the apartment while he changed into his bathing suit. In her statement to the police, she said that defendant had taken off her clothes, but at trial she testified that she had removed them. As in her description of her stepfather's abusive conduct, T.D. related in both her statement and at trial that defendant put his erect penis in her mouth and vagina, but did not ejaculate. The incident lasted "about five minutes."

According to T.D., the second incident occurred approximately one week later. Her description of that incident in her statement to the police differed from her trial testimony. In her statement, she said that after taking T.D. and her brothers to an amusement park, defendant slept overnight at her father's apartment. During the night defendant entered T.D.'s bedroom and threatened to "beat up" her father if she did not remove her clothes. At trial she said that before going to the amusement park, defendant had asked her to sleep naked with him. She denied that defendant had threatened her or her father. Both in her statement and at trial, T.D. stated that defendant had committed the same acts of oral and vaginal sex as she had described in the other incidents involving defendant and her stepfather.

Detective Cetuk, accompanied by Detective Bob Besser of the Plainfield Police Department, interrogated defendant on May 25, 1988. Defendant acknowledged two encounters with T.D. His statement to the investigating officers differed from his trial testimony and from T.D.'s versions. According to defendant, the first occurrence took place when he slept overnight on the couch at the apartment. In the middle of the night, he awoke to find T.D. stroking and kissing his penis. In his statement he said that he "threw her off." He also said that the incident took "[m]aybe five minutes at the most," a phrase he justified at trial as a figure of speech to mean that he immediately rejected T.D. The second incident occurred when he went to the apartment to change into his bathing suit after returning from the amusement park. Without his knowledge, T.D. followed him, and while he was changing, started to stroke and kiss his penis. In his statement, he said that T.D.'s touching him "felt good," but at trial explained that he meant that "it didn't hurt." Defendant told the investigating police that T.D. had continued touching him for "a minute and a half," until her father entered the room. At trial he testified that he had pushed T.D. away from him. In both his statement and his testimony, defendant maintained that a few days after the second incident he told T.D. that if she did not stop her behavior, he would tell her father.

Defendant was indicted for two counts of aggravated sexual assault. T.D.'s stepfather pled guilty to separate counts of sexual assault and aggravated sexual assault, and has since been sentenced.

Before trial, defense counsel asked the court to allow him to elicit from Detective Cetuk the details of the sexual abuse committed by T.D.'s stepfather. Relying on the Rape Shield Statute, the court prohibited that inquiry. The testimonial portion of defendant's trial, which consisted of the testimony of T.D., Detective Cetuk, and defendant, lasted less than a day. The trial court permitted limited cross-examination of both T.D. and Detective Cetuk about T.D.'s allegations of abuse against her stepfather and the resulting investigation. Defense counsel was not permitted to explore either the circumstances of the abuse or the nature of the acts. Apparently troubled by the conflicting evidence, the jury deliberated for approximately a day and a half before returning a guilty verdict. During that time, it sent four notes to the court requesting the re-reading of portions of the testimony of both T.D. and defendant and additional instructions on the elements of sexual assault.

Writing for the Appellate Division, Judge Long stated that the trial court had erred by not permitting defense counsel to inquire into the details of the stepfather's prior sexual assault. The court noted that the State conceded the occurrence of the prior acts and their close resemblance to the charges against defendant. It then concluded that defendant's constitutional right to confrontation under the federal and New Jersey constitutions required the admission of the details of the prior acts "to dispel the devastating implication that [a] * * * child of tender years could not have known of such intimate sexual acts unless they occurred at defendant's initiation." 243 N.J. Super. at 510, 580 A.2d 283. Ruling that the jury should have been told that an alternative source existed for T.D.'s sexual knowledge, the court reversed and remanded for a new trial. We agree that the probative value of the evidence outweighed its possible prejudicial effect. The evidence, however, is relevant, and therefore admissible, only to show an alternative source for the infant's sexual knowledge, not to prove that she was likely to or actually did initiate sexual conduct with defendant.

II

Once again we turn to the perplexing problems surrounding the reporting and prosecution of child sexual abuse. See, e.g., State v. D.R., 109 N.J. 348 , 537 A.2d 667 (1988) (concerning admissibility of child's out-of-court statements describing sexual abuse). Child sexual abuse cases raise many of the same vexatious questions raised in the prosecution of other types of sexual assault. Like rape victims, victims of such abuse may feel ashamed or guilty about the assault. Victims of both kinds of assault may be intimidated by a trial, especially cross-examination about the details of the event. Consequently, both rape and child sexual abuse have been underreported. See Estrich, Rape, 95 Yale L.Rev. 1087, 1161-69 (1986) (discussion of underreporting of rape); Note, Victimizing the Child Victim: Vermont Rule of Evidence 807 and Trauma in the Courtroom, 11 Vt.L.Rev. 631 (1986) (only one to ten percent of incidents of child sexual assault are ever disclosed). The trial of both kinds of cases poses difficult problems of proof for the prosecution and the defense. Generally, the act occurs in private, with only the victim and the assailant present. In the absence of independent witnesses, the case often turns on an assessment of the credibility of the participants, an assessment better left to the trier of fact. Our primary function is to provide guidelines for making that assessment.

In response to problems surrounding the reporting and prosecution of sexual assault cases, legislatures throughout the United States, including New Jersey, have enacted rape shield laws. See 243 N.J. Super. at 506 n. 1, 580 A.2d 283 (listing rape-shield laws). Those laws represent a legislative response to the common law rule permitting cross-examination of a rape victim about her prior sexual conduct. Such conduct was traditionally considered evidence of the victim's inclination to consent to sexual intercourse and of her lack of moral character and credibility. Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum.L.Rev. 1, 12-15 (1977); Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn. L.Rev. 763, 766-67, 792-94 (1986). Because of the "character assassination" of the victim, rape trials sometimes degenerated to embarrassing invasions of the victim's privacy. See Galvin, supra, 70 Minn.L.Rev. at 767.

One of the primary purposes of the statutes is to protect rape victims from excessive cross-examination, thereby encouraging them to report the abuse. Id. at 805. The statutes also guard against the improper use of evidence of the victim's prior sexual experience. 23 C. Wright and K. Graham, Federal Practice and Procedure, Evidence § 5382 at 514-15 (1980); see Berger, supra, 77 Colum.L.Rev. at 30-31 (describing juror reluctance to vindicate rights of "unworthy" accuser). Thus, in addition to protecting victims of sexual assault, rape-shield statutes preserve the integrity of trials. Galvin, supra, 70 Minn.L.Rev. at 806. By ensuring that juries will not base their verdicts on prejudice against the victim, the statutes enhance the reliability of the criminal justice system.

Consistent with these policies, N.J.S.A. 2C:14-7 limits exceptions to the admission of evidence of a victim's previous sexual conduct in prosecutions for sexual assault and criminal sexual contact. When a defendant seeks to offer such evidence for any purpose, the trial court must, under the statute, weigh the probative value of the evidence against its prejudicial effect. The statute provides the following procedure for the admission of prior sexual conduct evidence:

When the defendant seeks to admit such evidence for any purpose, he must apply for an order of the court before the trial or preliminary hearing * * *. After the application is made, the court shall conduct a hearing in camera to determine the admissibility of the evidence. If the court finds that evidence offered by the defendant regarding the sexual conduct of the victim is relevant and that the probative value of the evidence offered is not outweighed by its collateral nature or by the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim, the court shall enter an order setting forth with specificity what evidence may be introduced and the nature of the questions which shall be permitted * * *. [N.J.S.A. 2C:14-7(a).]

In addition, the statute prescribes the circumstances under which the trial court may consider the evidence to be relevant. The court may find evidence of prior sexual conduct relevant only if "it is material to negating the element of force or coercion or to proving that the source of semen, pregnancy or disease is a person other than defendant." N.J.S.A. 2C:14-7(c). For all other purposes, the statute declares evidence of prior sexual conduct irrelevant. To this extent, the statute differs from Federal Rule of Evidence 412, which, in addition to permitting evidence of past sexual behavior to show the source of semen or injury, permits such evidence if "constitutionally required." Fed.R.Evid. 412(b)(1), (2).

Here, defendant does not dispute that the statute bars admission of evidence of T.D.'s prior sexual victimization. He argues, however, that by restricting the purposes for which the evidence may be admitted, the statute deprives him of a defense. Defendant contends that the evidence of T.D.'s prior sexual abuse is relevant to rebut the inference that she would not have sufficient knowledge of sexual acts to behave as he described. In addition, defendant asserts that because T.D. is a minor and therefore legally incapable of consent, the admission of the evidence will not prejudice her or contravene the statutory purposes. Consequently, defendant claims that application of the statute in this case violates his constitutional right to confrontation. Hence, we turn to an analysis of that right.

III

Both the federal and New Jersey constitutions guarantee criminal defendants the right "to be confronted with the witnesses against them." U.S. Const. amend VI; N.J. Const. art. 1, para. 10. Among the primary interests protected by the right of confrontation are the opportunity for defendants to face their accusers and to cross-examine the state's witnesses. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40, 53 (1987); Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974); California v. Green, 399 U.S. 149, 157-58, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489, 496-97 (1970). The right protects against improper restrictions on questions defense counsel may ask during cross-examination. Ritchie, supra, 480 U.S. at 52, 107 S.Ct. at 999, 94 L.Ed.2d at 54 . It further encompasses the right to elicit favorable testimony on cross-examination of the state's witnesses. See Davis, supra, 415 U.S. at 318, 94 S.Ct. at 1111, 39 L.Ed.2d at 354-55 ; see also Weston, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567, 604-06 (1978) (distinguishing confrontation, which permits examination of adverse witnesses, and compulsory process, which guarantees defendant's right to call and examine witnesses for defense). Coupled with the rights to compulsory process and to due process, the right of confrontation guarantees criminal defendants "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636, 645 (1986).

The right to confront and cross-examine accusing witnesses is "among the minimum essentials of a fair trial," Chambers v. Mississippi, 410 U.S. 284, 294-95, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297, 308 (1973); (citing In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682, 694 (1948)), and applies to the states through the fourteenth amendment, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). This right, however, is not absolute, and may, in appropriate circumstances, bow to competing interests. Chambers, supra, 410 U.S. at 295, 93 S.Ct. at 1046, 35 L.Ed.2d at 309; Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 340, 39 L.Ed. 409, 411 (1895) (confrontation clause must yield to considerations of public policy and necessities of case). States may exclude evidence helpful to the defense if exclusion serves the interests of fairness and reliability. Crane, supra, 476 U.S. at 690, 106 S.Ct. at 2146, 90 L.Ed.2d at 644; Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15, 19 (1985) (confrontation clause guarantees the " opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish"). Thus, trial courts "retain wide latitude * * * to impose reasonable limits on * * * cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683 (1986); see also Tanford Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544, 558 (1980) (neither logic nor case law indicates defendant's sixth-amendment right compels admission of evidence the prejudicial effect of which outweighs probative value). Because confrontation is fundamental to a fair trial, however, its "denial or significant diminution calls into question the ultimate integrity of the fact-finding process and requires that the competing interests be closely examined." Chambers, supra, 410 U.S. at 295, 93 S.Ct. at 1046, 35 L.Ed.2d at 309 .

Relying on the Rape Shield Statute, the trial court restricted significantly defendant's cross-examination of both T.D. and Detective Cetuk. In reviewing those restrictions, we confront two questions. First, we must ascertain, apart from the Rape Shield Statute, whether the evidence was relevant to the defense. If the evidence is relevant, we then must decide whether its probative value outweighs its prejudicial effect. See Crane, supra, 476 U.S. at 689-90, 106 S.Ct. at 2146, 90 L.Ed.2d at 644-45; Davis, supra, 415 U.S. at 319, 94 S.Ct. at 1111, 39 L.Ed.2d at 355. If so, the evidence may not constitutionally be excluded.

When a defendant seeks to elicit evidence of the prior sexual abuse of a child, the Rape Shield Statute directs trial courts to conduct a pre-trial in camera hearing. N.J.S.A. 2C:14-7. The probative value of the prior acts depends on clear proof that they occurred, that the acts are relevant to a material issue in the case, and that they are necessary to the defense. State v. Pulizzano, 155 Wis.2d 633, 655-56, 456 N.W.2d 325, 335 (1990). When evidence is offered to show a child's knowledge of sexual acts, its relevance also depends on whether the prior abuse closely resembles the acts in question. See State v. Padilla, 110 Wis.2d 414, 428-29, 329 N.W.2d 263, 271 (Wis.Ct.App. 1982). The reason for requiring similarity between the acts is that prior acts are more likely to affect the child's ability to describe the acts in question if they closely resemble the previous ones.

When assessing the prejudicial effect of such evidence, the court should consider the likely trauma to the child and the degree to which admission of the evidence will invade the child's privacy. Such prejudice may be diminished if the evidence can be adduced from sources other than the child. In the present case, as the Appellate Division suggested, the evidence could have been elicited from another witness, the official documents involving the convictions arising out of the prior abuse, or by stipulation. 243 N.J. Super. at 513, 580 A.2d 283. If the victim is questioned about the prior abuse, the court should guard against excessive cross-examination. Furthermore, the court should limit any such examination to the information relevant to the defense. By controlling cross-examination of the victim, the trial court can prevent the "pointless and cruel foraging" feared by the dissent. Post at 544-45, 593 A.2d at 796-97.

The proper balance of relevance and prejudicial effect depends on the facts of each case. For example, both considerations can vary with the age of a child. We recognize that everyone, young and old alike, is inundated with information on sexuality. Sources include television, movies, tabloids, and magazines. As children mature, they likely will learn about sexuality from many sources. Thus, evidence of prior sexual experience is less probative in cases involving older children. Conversely, the possibility of prejudice increases as a child matures. A constant concern is that the evidence may divert the jury's attention from the behavior of the defendant to that of the victim. For example, the evidence may mislead a jury to conclude that one who assaults a more sexually experienced child is not culpable, especially if the child initiated the encounter.

In this case, the evidence of T.D.'s prior abuse by her stepfather and her consequent knowledge of sexual acts is relevant to the defense in two ways. First, it rebuts the inference that T.D. acquired the knowledge to describe sexual matters from her experience with defendant. See, e.g., Commonwealth v. Ruffen, 399 Mass. 811, 815, 507 N.E.2d 684, 687 (1987) (evidence of prior sexual abuse relevant to show why such a child would know enough about sexual matters to describe them). Second, the evidence is relevant to show that T.D. had the knowledge to initiate the sexual acts as described by defendant.

The State argues that evidence of an infant's ability to describe sexual acts is relevant only in those cases in which the defendant denies that any sexual contact occurred. Here, the State contends that defendant does not deny that T.D. could have learned to describe sexual acts from her encounters with him. We disagree. Defendant denies that he ever had vaginal intercourse with T.D. or that his penis ever came in contact with her vaginal area. By contrast, T.D. claims that defendant placed his penis in her vagina. To the extent that their stories differ about the nature of the contact, T.D.'s ability to describe the sexual acts relates to the defense.

Moreover, the State concedes not only the occurrence of the prior abuse by T.D.'s stepfather, but that it closely resembled the charges against defendant. Indeed, as the Appellate Division observed, T.D. used nearly identical language to describe each of the incidents. 243 N.J. Super. at 512, 580 A.2d 283. Under these circumstances, evidence that T.D. had learned about vaginal intercourse from a source other than defendant supports his contention that he did not have intercourse with her. The majority of out-of-state courts agree that the prior sexual abuse of a youthful victim is relevant to rebut the inference that the complainant could not describe the details of sexual intercourse if the defendant had not committed the acts in question. See, e.g., State v. Oliver, 158 Ariz. 22, 28, 760 P.2d 1071, 1077 (1988) (evidence of prior sexual abuse relevant to show ability to fabricate); State v. Jacques, 558 A.2d 706, 708 (Me. 1989) (prior sexual abuse of victim admissible to rebut the inference of child's inability to describe accurately acts of sexual intercourse); Ruffen, supra, 399 Mass. at 815, 507 N.E.2d at 687 (prior sexual abuse of ten-year-old relevant to show child's personal knowledge of sexual acts and terminology); Summit v. State, 101 Nev. 159, 163-64, 697 P.2d 1374, 1377 (1985) (evidence of prior sexual abuse relevant to rebut inference that sexual abuse described by six-year-old complainant must have occurred or she could not have described it); State v. Baker, 127 N.H. 801, 805, 508 A.2d 1059, 1062 (1986) (due process requires admission of prior sexual experience of youthful victim to show knowledge of sexual acts); People v. Ruiz, 71 A.D.2d 569 , 570, 418 N.Y.S.2d 402, 403 (1979) (prior sexual experience of victim admissible to show ability to describe acts of sexual intercourse); Pulizzano, supra, 155 Wis.2d at 651-53, 456 N.W.2d at 333 (prior sexual abuse relevant to show alternative source for sexual knowledge). Respected scholars agree with those courts. See, e.g., Galvin, supra, 70 Minn.L.Rev. at 865-67 (prior sexual abuse of child should be admissible to show source of knowledge); Myers, The Child Witness: Techniques for Direct Examination, Cross-Examination and Impeachment, 18 Pac.L.J. 801, 905-07 (1987) (evidence of prior abuse should be admitted to counteract inference drawn from child's description of abuse); Comment, Rape Shield Statutes: Constitutional Despite Unconstitutional Exclusions of Evidence, 1985 Wisc.L.Rev. 1219, 1234 (prior abuse relevant to show child's ability to describe sexual acts emanated from source other than defendant).

The dissent finds that the evidence of T.D.'s prior sexual abuse is only marginally relevant. Post at 542, 593 A.2d at 795. In so finding, the dissent disagrees with our conclusion that the evidence is highly relevant, a conclusion shared by the Appellate Division, State v. Ross, 249 N.J. Super. 246 , 251-53, 592 A.2d 291, 293-94, cert. denied, ___ N.J. ___ (1991); 243 N.J. Super. at 513, 580 A.2d 283; and by the majority of out-of-state cases. Supra at 534-35, 593 A.2d at 791-92. Although we recognize that children today are more sexually sophisticated than those of an earlier era, we doubt that a jury would expect a nine-year-old girl to describe the actions of cartoon prize fighters as looking like one boxer "was sucking the other guy off." We likewise doubt that a jury would expect a child of such tender years to know the intricacies of oral and vaginal sex. Contrary to the dissent's assertion, post at 542, 593 A.2d at 795, it is not an "unproven myth" that sexual abuse contributes to a child's ability to describe sexual acts. Indeed, authorities recognize that such abuse significantly enhances that ability. Myers, supra, 18 Pac.L.J. at 906 ("prior sexual experience with individuals other than defendant may improperly enhance the believability of the child's description of fabricated or imagined abuse"); Lloyd, The Corroboration of Sexual Victimization of Children, in A.B.A. National Legal Resource Center for Child Advocacy Protection, Child Sexual Abuse and the Law, 103, 105 (3d ed. 1982) ("[t]he child who can describe an adult's erect penis and ejaculation has had direct experience with them").

By contrast, adults generally have greater sexual knowledge than children. Consequently, a jury would be less likely to assume that an adult rape victim learned to describe sexual acts from the incident with her assailant. Hence, the dissent's analogy to adult rape victims is misplaced. Post at 544, 546, 548, 593 A.2d at 796, 797, 798.

The crux of the defense is not that T.D. fabricated the incidents, but that she initiated them, and that defendant promptly tried to stop her. To this aspect of the defense, evidence of an alternative source of T.D.'s sexual knowledge is crucial. Judge Long noted that the jury would naturally be disinclined to believe that a nine-year-old child would know enough about sexual acts to initiate the alleged encounters. 243 N.J. Super. at 510, 580 A.2d 283. Without concrete evidence that T.D. knew of such acts, defendant's explanation for the incidents is subject to disbelief.

The dissent contends that because consent is not a defense to a charge of child sexual abuse, evidence that T.D. initiated the sexual conduct with defendant is irrelevant. That contention is incorrect. Although defendant claims that T.D. initiated the sexual contact, his defense is not that she consented to the sexual acts. Instead, he claims that T.D. approached him and that he immediately rebuffed her. Defendant's version, if believed by the jury, would constitute a defense. Thus, evidence that tends to support his claim that T.D. knew how to initiate these acts is "exquisitely important" to the defense. 243 N.J. Super. at 510, 580 A.2d 283. Although the jury may reject defendant's contention that the victim initiated the acts, the issue remains one for the jury's consideration. The implication of the dissent, however, is that an accused may be convicted of child sexual abuse even if the child approached him and he immediately rebuffed her.

In this case, the prosecutor's summation highlighted the relevance of the evidence. The prosecutor argued that defendant's version of the incidents was unbelievable because of T.D.'s age. Because the State placed in issue T.D.'s knowledge of sexual acts, defendant should be permitted to adduce evidence of an alternative source of her knowledge. Ross, supra, 249 N.J. Super. at 249-50, 592 A.2d at 292-93.

The State relies primarily on three cases from other jurisdictions to support its argument that the trial court properly excluded the evidence. See State v. Clarke, 343 N.W.2d 158, 162-63 (Iowa 1984) (evidence of prior sexual experience not admissible to show ability to fantasize act of oral sex); People v. Arenda, 416 Mich. 1, 12, 330 N.W.2d 814, 818 (1983) (when defendant makes no offer to prove prior sexual abuse, prejudice to victim outweighs probative value of evidence); Commonwealth v. Appenzeller, 388 Pa. Super. 172, 176-77, 565 A.2d 170, 171-72 (1989) (evidence of prior sexual abuse irrelevant in subsequent sexual abuse trial), appeal denied, 588 A.2d 507 (1990). We disagree with these cases, which represent a minority view. Moreover, in Arenda, supra, 416 Mich. at 6, 330 N.W.2d at 815, the trial court permitted defense counsel to question an eight-year-old victim concerning the child's sexual conduct with others, which the child repeatedly denied. The Michigan Supreme Court affirmed the trial court's ruling that in the face of the child's denial and in the absence of an offer of proof that such conduct had occurred, defense counsel could not continue that avenue of inquiry. Ibid. In Clarke, unlike in the present case, the defendant sought to question the victim about prior sexual conduct that was voluntary. Furthermore, the defendant did not make an offer of proof of the victim's prior sexual experience or make any showing that the "excluded" evidence existed. 343 N.W.2d at 159. Here, the State concedes that the prior acts occurred and that they closely resemble those allegedly committed by defendant. In sum, we find the cases cited by the State to be unpersuasive.

We now turn to the second issue, whether the prejudicial effect of the evidence outweighs its probative value. The Rape Shield Statute directs trial courts to consider whether evidence of prior sexual conduct will "create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim." N.J.S.A. 2C:14-7. Similarly, the confrontation clause does not compel the admission of evidence that will prejudice the victim, jeopardize her safety, or confuse the jury. Van Arsdall, supra, 475 U.S. at 679, 106 S.Ct. at 1435, 89 L.Ed.2d at 683. Consequently, we must consider both the prejudice to the victim and the possibility of subversion of the trial process by confusing the jury or permitting a verdict based on improper grounds.

The Appellate Division concluded that the admission of evidence of prior sexual abuse cannot prejudice the victim or contravene the purposes of the Rape Shield Statute. 243 N.J. Super. at 512-13, 580 A.2d 283. Both the Somerset County prosecutor and the Attorney General vigorously challenge that conclusion. They contend that even when the evidence is not offered to degrade the victim or to impugn the victim's character, its admission may chill reporting of other offenses. We find their contention has merit. Our abiding concern is that to avoid subjecting their already-stigmatized children to the further trauma of litigation, parents may not report instances of child abuse. See Libai, The Protection of the Child Victim of a Sexual Offense in the Criminal Justice System, 15 Wayne L.Rev. 977, 983-86, 1015 (1969) (chronicles effects of "legal process trauma"). The admission of evidence that may embarrass children, subject them to more intensive interrogation, or further invade their privacy may add to parental reluctance to permit their children to testify. Also, admission of such evidence may intensify whatever anxiety children suffer from testifying in court. See D.R., supra, 109 N.J. at 360, 537 A.2d 667 (courtroom experience stressful and intimidating for children); State v. Sheppard, 197 N.J. Super. 411, 420, 484 A.2d 1330 (Law Div. 1984); Libai, supra, 15 Wayne L.Rev. at 1015.

Finally, depending on the age of the victim, the possibility exists that the jury may misuse the evidence. Because trusted adults may exploit their position to commit sexual abuse, a child may appear to be a "willing" participant. In such a case, prior sexual abuse may focus the jury's attention on the child's behavior instead of the defendant's. Confronted with a sexually sophisticated victim, a jury may be inclined to excuse a defendant who claims that the victim initiated the acts. Thus, the trial court should instruct the jury that a child's apparent "consent" or "willingness" does not exculpate a defendant.

In the present case, we agree with the Appellate Division that the evidence of T.D.'s prior victimization may be admitted without undue prejudice. First, defense counsel may be able to elicit the evidence through cross-examination of Detective Cetuk without subjecting T.D. to cross-examination. If the trial court should allow cross-examination of T.D. on her prior abuse, it should confine the examination to her recollection of the occurrence. Defense counsel may not try to show on cross-examination of T.D. that her prior victimization enhanced the likelihood that she initiated the encounters with defendant. As the Appellate Division commented, the prior abuse "was unlikely to prejudice [T.D.] in the jury's eyes. Indeed, the contrary is true. Sympathy for her plight was the more likely response." 243 N.J. Super. at 513, 580 A.2d 283. We are sensitive to the possibility that evidence of T.D.'s prior abuse may invade her privacy and cause her anxiety or embarrassment. On balance, we believe that these factors do not outweigh the significant probative value of the evidence. The trial court, however, should deliver an instruction on the limited purpose of the evidence and expressly instruct the jury that it may not consider the evidence as an attack on T.D.'s character. The sole purpose of the evidence is to rebut any inference about the source of T.D.'s knowledge of sexual practices and her ability to describe or initiate sexual acts.

Contrary to the dissent's assertion, this case has nothing to do with "the mythology that once pervaded the jurisprudence of rape" that an "unchaste" woman is more likely to consent to a sexual assault. Post at 544, 593 A.2d at 796. As we have stated, evidence of the victim's prior sexual abuse may not be used to support an inference that she "consented" to the acts with defendant. Plainly stated, the victim's "consent" is not an issue. Moreover, defense counsel may not use evidence of prior sexual abuse to impugn T.D.'s character or to impeach her credibility. To the contrary, the relevance of the evidence is limited to her knowledge of sexual acts.

Like the Appellate Division, we cannot find that the omission of this evidence was harmless beyond a reasonable doubt. See Rule 1:7-5. Although evidence was adduced about T.D.'s prior abuse, the restrictions on defense counsel's cross-examination diluted the connection between T.D.'s sexual awareness and that abuse. That restriction prevented the jury from learning that T.D.'s stepfather, not defendant, may have been the source of her knowledge of vaginal and oral sex. The jury's determination of defendant's guilt depended on whether it believed his story or T.D.'s. In that context, we cannot say that the omission of evidence crucial to the credibility of defendant's version was harmless error. We agree with the Appellate Division that the jurors, "as triers of fact and as sole judges of credibility," were entitled to know that defendant may not have been the sole source of T.D.'s sexual knowledge. 243 N.J. Super. at 515, 580 A.2d 283.

The judgment of the Appellate Division is affirmed, and the matter is remanded to the Law Division.