FILED

October 20, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

(HEARD AT MORRISTOWN)

 FOR PUBLICATION

STATE OF TENNESSEE, ) Filed: October 20, 1997

)

Appellant, )

) HAMILTON CRIMINAL

)

Vs. )

) HON. DOUGLAS A. MEYER,

) JUDGE

STEPHEN TRACY SHELINE, )

)

Appellee. ) No. 03-S-01-9701-CR-00002

For Appellant: For Appellee:

John Knox Walkup Donald Mart Lasley

Attorney General & Reporter Chattanooga, Tennessee

Michael E. Moore

Solicitor General

Linda A. Ross

Associate Solicitor General

Nashville, Tennessee

At trial:

Gary D. Gerbitz

District Attorney General

Rebecca Stern

Assistant District Attorney General

Chattanooga, Tennessee

O P I N I O N

COURT OF CRIMINAL APPEALS

REVERSED; JUDGMENT OF TRIAL

COURT REINSTATED. ANDERSON, C.J.
1

 Ora l argu me nt wa s hea rd in th is cas e on M ay 7, 1997, in Mo rristo wn, H am blen C ounty,

Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. (Supreme Court Advancing Legal Education for

Students ) project.

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The question presented by this appeal is whether the trial court correctly

applied the Tennessee “rape shield” rule when it excluded evidence of a rape

victim’s prior sexual conduct.1

The Court of Criminal Appeals, with one judge dissenting, held that the

evidence should have been admitted under the exception set out in Tennessee

Rules of Evidence 412, which allows the admission of specific instances of a

victim’s sexual conduct with persons other than the defendant if the evidence 

demonstrates a pattern of sexual behavior so distinctive and so closely

resembling the defendant’s version of events that it tends to prove that the victim

consented to the act charged. Because of the perceived error, the Court of

Criminal Appeals reversed the defendant’s rape conviction. 

We conclude that the proffered evidence of the rape victim’s prior sexual

conduct did not demonstrate a pattern of sexual behavior so distinctive and so

closely resembling the defendant’s version of the events that it was relevant on

the issue of consent. On the contrary, it was the type of evidence specifically

intended to be excluded by the Tennessee Rape Shield Law as set forth in Rule

412 of the Tennessee Rules of Evidence. We therefore reverse the Court of

Criminal Appeals and reinstate the rape conviction. 

BACKGROUND

The defendant, Stephen Tracy Sheline, and the victim were 23-year-old

university students who met one evening at a local bar where both had been

drinking. During the evening, Sheline approached the victim, who knew he was

a student. He told her he needed a ride, and she agreed to give him a ride

home to his fraternity house. When Sheline said he no longer lived at the

fraternity and was between apartments, the victim said she offered to let him
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sleep on the living room couch in her apartment, which she shared with three

other women. Sheline testified that she simply offered to let him stay at her

apartment.

The victim testified that when they arrived at her apartment, the defendant

pushed her against a wall and attempted to lift up her skirt. She resisted and

told Sheline that he was to sleep on the living room couch. According to the

victim, she said goodnight and went into her bedroom, and then went into the

adjacent bathroom. When she emerged, Sheline was in her bedroom wearing

only his pants. Although the victim resisted, he put her on the bed and pushed

up her skirt. She fought him, “tried to wiggle out from underneath” him, and “told

him to stop.” Sheline, however, held the victim’s hands down at her sides and

vaginally penetrated her with his penis. When the victim was able to get away,

she ran from her apartment to a neighbor’s apartment for help. The neighbor

testified that the victim was crying hysterically.

Sheline’s version was different. He said that he met the victim at the bar,

and that an acquaintance told him that the victim “thought he was cute and that

she wanted to kiss him.” He said he spent most of the evening with his friends,

but the victim talked to him periodically and also hugged him. According to his

version, when the bar closed, the victim asked if he wanted a ride home, and he

agreed. As they drove towards his fraternity house, he told her he was between

apartments and she offered to let him stay at her apartment. When they arrived

at the victim’s apartment, he said he sat down on the bed while the victim went

into the bathroom. Sheline testified that when she emerged from the bathroom,

they started kissing and touching, and they removed their shirts. He said he

performed oral sex on the victim and then penetrated her with his penis. They

stopped having intercourse when the victim said, “I don’t think we can do this

anymore.” They continued to kiss and hug for several minutes, and then

Sheline fell asleep.
2

 The defendant proffered the testimony of a third witness, Richard Burns, who testified

that he had sexual intercourse with the victim on numerous occasions in the course of a steady

dating rela tions hip. T he C ourt o f Crim inal Appeals af firm ed the trial c ourt’s ruling exc luding this

testimony; thus, the ruling with respect to Burns is not before us.

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As a result of a police investigation, the defendant was indicted for rape. 

His defense was that the sexual intercourse was consensual. At trial in a juryout proceeding, the defendant proffered the testimony of two witnesses under

Tenn. R. Evid. 412.2

 

The first witness, Eric Gray, testified during the offer of proof that he and

the victim had known each other for a year, were good friends, and that he had

engaged in sexual intercourse with her on two occasions. The first time, he said

he and the victim were drinking heavily at a bar and then returned to Gray’s

apartment where they engaged in oral sex and sexual intercourse. The second

time, he and the victim went to a basketball game, to a fraternity party, and then

to the victim’s apartment, where they engaged in sexual intercourse. 

The second witness, Gary Jindrak, testified during the offer of proof that

he and the victim talked in the bar on the same evening she met the defendant. 

He said they kissed and the victim put her arm around him. He testified that later

she asked him to go home with her, but he declined. Jindrak testified that he

never had sexual relations with the victim at any time.

The defendant argued to the trial court that he was entitled to present the

testimony of Gray and Jindrak because the victim’s “promiscuity” was relevant to

his defense of consent. The trial court ruled that the proffered testimony of Gray

and Jindrak was inadmissible. The trial then proceeded on the proof of the

victim and the defendant and other supporting witnesses. After deliberating, the

jury accredited the victim’s testimony and found the defendant guilty of rape. 

On appeal, the Court of Criminal Appeals, in a two to one decision,

reversed the rape conviction on the grounds that the trial court erred in excluding
3

 See Lee v. Sta te, 132 Tenn. 655, 179 S.W. 145 (1915)(“No impartial mind can resist

the conclusion that a female who had been in a recent habit of illicit intercourse with others will not

be so likely as to resist as one who is spotless and pure.”).

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the evidence of the first sexual episode described by Gray, as well as the events

on the evening in question described by Jindrak. The majority concluded that 

[t]he evidence of the first sexual encounter with Gray is relevant to

the issue of consent because the factual scenario so closely

resembles the Defendant’s version of the facts that it constitutes

one episode of a distinctive pattern in which the victim met an

acquaintance at a bar, was drinking, and eventually had sexual

relations with that person. This encounter is also similar to the

events described by witness Gary Jindrak, and these two

encounters taken in conjunction with the Defendant’s version of the

facts, constitute a distinctive pattern.

Judge John Peay dissented. He did not agree that the testimony established a

distinctive pattern that closely resembled the defendant’s version of the events. 

His dissent reasoned that if the victim’s behavior with Gray was distinctive, then

“every woman who has sexual relations with a man she meets in a bar is

engaging in ‘distinctive’ sexual behavior.” The dissent also concluded that the

court should not presume from Jindrak’s testimony that the victim would have

consented to sexual intercourse with Jindrak, or that the testimony had any

relevance to whether the victim consented to have sex with the defendant. 

We granted the State’s application for permission to appeal to review the

applicability in this case of the rape shield provisions set forth in Tenn. R. Evid.

412. 

TENNESSEE RAPE SHIELD LAW

Rape shield laws were adopted in response to anachronistic and sexist

views that a woman who had sexual relations in the past was more likely to have

consented to sexual relations with a specific criminal defendant.3

 Those

attitudes resulted in two rape trials at the same time -- the trial of the defendant

and the trial of the rape victim based on her past sexual conduct. It has been

said that the victim of a sexual assault is actually assaulted twice -- once by the
4

 See Annota tion, Modern Status of Admissibility in Forcible Rape Prosecution, of

Com plainant’s Prior Sexu al Acts, 94 A.L.R. 3d 257 (1979 & 199 6 supp.).

5

 This rule of evidence superseded Tenn. Code Ann. § 40-17-119, which had said that

“[s]pecific instances of prior consensual sexual activity between the victim and any person other

than the offender shall not be admitted into evidence in prosecutions [citations omitted]; provided,

that when consent by the victim is at issue, such evidence may be admitted if it is first established

to the court outside the presence of the jury and spectators by the method of clearing the

courtroom that such activity shows such a relation to the conduct involved in the case on the part

of the victim that is releva nt to the issu e of con sent.”

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offender and once by the criminal justice system. The protections in rape shield

laws recognized that intrusions into the irrelevant sexual history of a victim were

not only prejudicial and embarrassing but also a practical barrier to many victims

reporting sexual crimes. As the comments to Tennessee’s rape shield law (Rule

412) observe:

[T]he rule. . . takes into account that the public’s interest in

prosecuting and convicting people guilty of various sexual offenses

is frustrated when sexual assault victims refuse to report the

offenses or to testify about them at trial because of the possible

admission of evidence of their sexual history. Moreover, the rule

seeks to minimize the likelihood that evidence of the alleged

victim’s sexual history may cause the jury to be unfairly prejudiced

against the victim.

At the same time, rape shield laws recognize those circumstances in which the

admission of such evidence, despite its potentially embarrassing nature, must be

admitted to preserve an accused’s right to a fair trial. See State v. Shockley,

585 S.W.2d 645 (Tenn. Crim. App. 1978).

As does nearly every jurisdiction,4

 Tennessee’s “rape shield” rule limits the

admissibility of evidence about the prior sexual behavior of a victim of a sexual

offense, and establishes procedures for determining when evidence is

admissible. Tenn. R. Evid. 412 5 provides: 

Notwithstanding any other provision of law, in a criminal trial,

preliminary hearing, deposition, or other proceeding in which a

person is accused of an offense under Tenn. Code Ann. § 39-13-

502 (aggravated rape), 39-13-503 (rape), 39-13-504 (aggravated

sexual battery), 39-13-505 (sexual battery), 39-13-507 (spousal

sexual offenses), or the attempt to commit any such offense, the

following rules apply:

(a) Definition of sexual behavior.-- In this rule, ‘sexual behavior’

means sexual activity of the alleged victim other than the sexual act

at issue in the case.
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(b) Reputation or opinion.-- Reputation or opinion evidence of the

sexual behavior of an alleged victim of such offense is inadmissible

unless admitted in accordance with the procedures in subdivision

(d) of this Rule and required by the Tennessee or United States

Constitution.

(c) Specific instances of conduct.-- Evidence of specific instances

of a victim’s sexual behavior is inadmissible unless admitted in

accordance with the procedures in subdivision (d) of the Rule, and

the evidence is:

(1) Required by the Tennessee or United States

Constitution, or

(2) Offered by the defendant on the issue of credibility

of the victim, provided the prosecutor or victim has

presented evidence as to the victim’s sexual

behavior, and only to the extent needed to rebut the

specific evidence presented by the prosecutor or

victim, or

(3) If the sexual behavior was with the defendant, on

the issue of consent, or

(4) If the sexual behavior was with persons other than

the defendant,

(i) to rebut or explain scientific or medical evidence, or 

(ii) to prove or explain the source of semen, injury,

disease, or knowledge of sexual matters, or

(iii) to prove consent if the evidence is of a pattern of

sexual behavior so distinctive and so closely

resembling the defendant’s version of the alleged

encounter with the victim that it tends to prove that

the victim consented to the act charged or behaved in

such a manner as to lead the defendant reasonably

to believe that the victim consented.

. . . .

(Emphasis added).

Accordingly, if, as in the present case, the victim’s sexual behavior was

with persons other than the defendant, it may be admissible under the rule only

(i) to rebut or explain scientific or medical evidence, 

(ii) to prove or explain the source of semen, injury, disease, or

knowledge of sexual matters, or

(iii) to prove consent if the evidence is of a pattern of sexual

behavior so distinctive and so closely resembling the defendant’s

version of the alleged encounter with the victim that it tends to

prove that the victim consented to the act charged or behaved in
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such a manner as to lead the defendant reasonably to believe that

the victim consented.

Tenn. R. Evid. 412(c)(4)(emphasis added). As with other evidentiary rulings, the

admissibility of the evidence rests in the discretion of the trial court.

When evidence is offered under the rule, the trial court must conduct a

non-public hearing and consider the admissibility of the proposed evidence, and

if otherwise admissible, then determine whether its probative value outweighs its

unfair prejudice to the victim. Tenn.R. Evid. 412(d). As with other evidentiary

rulings, the admissibility of the evidence rests in the discretion of the trial court.

 The State contends that the Court of Criminal Appeals’ opinion threatens

to resurrect ill-founded and fallacious presumptions about alleged sexual victims

and that its interpretation of the Rule 412(c)(4)(iii) exception effectively engulfs

the entire rule. The State argues that the testimony of Gray and Jindrak did not

establish a pattern of distinctive sexual behavior by the victim that so closely

resembled the defendant’s version of events as to be relevant on the issue of

consent. The defendant, however, maintains that the Court of Criminal Appeals

correctly interpreted Rule 412(c)(4)(iii), and that excluding the evidence denied

his rights under the Tennessee and United States Constitutions.

As we consider these arguments, we first turn to the language of Rule

412(c)(4), which requires a pattern of sexual behavior. Although there is no

Tennessee case on the issue, it is clear that a “pattern” of sexual conduct

requires more than one act of sexual conduct. Cohen, Paine and Sheppeard,

Tennessee Law of Evidence, § 412.4 at 236. The plain language of the rule

speaks of “specific instances” of sexual conduct with “persons” other than the

defendant. Moreover, other jurisdictions have consistently observed that a

“pattern” of sexual conduct denotes repetitive or multiple acts and not just an

isolated occurrence. See State v. Ginyard, 468 S.E.2d 528 (N.C. App. 1996);
6

 Although kissing does not necessarily have a sexual connotation, the trial judge ruled

on this testimony under Rule 412. “Sexual behavior is defined in Rule 412 as “sexual activity of

the alleged victim oth er than the sexua l act at issue in the cas e.” This b road de finition “deals with

sexua l intercours e as we ll as every othe r variety of se xual exp ression .” Cohen , et al., supra,

§ 412.2 a t 241. Th us, we c onsider the inciden t under R ule 412 a s well. 

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State v. Woodfork, 454 N.W.2d 332 (S.D. 1990); Kaplan v. State, 451 So.2d

1386, 1387 (Fla. App. 1984); State v. Patnaude, 438 A.2d 402 (Vt. 1981); State

v. Jones, 617 P.2d 1214 (Haw. 1980); Parks v. State, 249 S.E.2d 672 (Ga. App.

1978). 

The rule also requires that the pattern consist of sexual behavior so

distinctive and so closely resembling the defendant’s version that it tends to

prove that the victim consented to the act charged. The advisory comments to

Rule 412 use the word “signature” cases to describe the distinctive behavior

required. As the Illinois Supreme Court has said, the sexual conduct must be “so

unusual, so outside the normal, that it had distinctive characteristics which make

it the complainant’s modus operandi.” People v. Sandoval, 552 N.E.2d 726, 738

(Ill. 1990); see also State v. Crims, 540 N.W.2d 860 (Minn. App. 1995); Jeffries

v. Nix, 912 F.2d 982, 986 (8th Cir. 1990). Moreover, to have probative value on

the issue of consent, the pattern of distinctive sexual conduct must closely

resemble the defendant’s version of facts. Cohen, et al., supra, § 412.4 at 246-

47.

Applying the rule and the foregoing principles to the facts of this case, we

conclude that there was no pattern of prior sexual behavior on the victim’s part. 

Gray testified that on one occasion in the past he had oral sex and sexual

intercourse with the victim after the couple met in a bar where both had been

drinking. On the second occasion, he and the victim had sexual intercourse after

attending a basketball game and a fraternity party. On the other hand, Jindrak

testified only that the victim kissed him and asked him to go home with her.6 For

the Jindrak testimony to be considered part of a “pattern,” a court would have to

presume that the victim would have consented to engage in sexual intercourse
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with Jindrak. We are unwilling to make such a presumption. The two separate

occasions of sexual intercourse described by Gray, therefore, do not establish

the required pattern of sexual conduct.

Moreover, there was nothing so distinctive about the testimony of either

Gray or Jindrak that so closely resembled the defendant’s version of the events

that took place between he and the victim. The described acts could hardly be

characterized as signature cases. As Judge Peay observed in his dissent, to

decide otherwise is to hold that any woman who has sexual intercourse with

someone she meets in a bar is automatically engaging in “distinctive” sexual

conduct. Other courts have rejected such a conclusion as well: 

We observe, however, that a victim’s sexual history with others only

goes to show a generalized attitude toward sex and says little if

anything about her attitude toward a specific act of sex with the

defendant. . . . We conclude that the evidence of [the victim’s]

sexual advances, over a period of years, toward some of the men

she had met in a bar is not relevant, in itself, to establish that she

consented to have sex with [the defendant].

State v. Peite, 839 P.2d 1223, 1229 (Idaho App. 1992). 

Accordingly, we hold that the evidence proffered by the defendant did not

establish a pattern of distinctive sexual behavior as required for admissibility

under Tenn. R. Evid. 412(c)(4)(iii), and it was properly excluded by the trial court. 

CONSTITUTIONALITY

The defendant maintains that the application of the rape shield provision

under the facts of this case violated his right to present evidence and to confront

witnesses under the United States and Tennessee Constitutions. U.S. Const.

amend VI & XIV; Tenn. Const. art. I, § 9. He argues that the evidence was also

critical to his defense and necessary to ensure his right to a fair trial.
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The United States Supreme Court has said that “the rights to confront and

cross examine witnesses and to call witnesses in one’s own behalf have long

been recognized as essential to due process,” and emphasized that the denial or

“significant diminution” of these rights “calls into question the ultimate integrity of

the fact finding process and requires that the competing interest be closely

examined.” Chambers v. Mississippi, 410 U.S. 284, 295-96, 93 S.Ct. 1038,

1046, 35 L.Ed.2d 297 (1973).

This does not mean that a defendant has a right to present irrelevant

evidence. Wood v. State of Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992). 

Moreover, the Supreme Court has recognized that even the right to present

relevant evidence “may, in an appropriate case, bow to accommodate other

legitimate interests in the criminal trial process.” Chambers, 410 U.S. at 295, 93

S.Ct. at 1045. For instance, a trial judge has the discretion “to limit reasonably a

criminal defendant’s right to cross-examine a witness ‘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.’” Michigan v.

Lucas, 500 U.S. 145, 149, 111 S.Ct. 1743, 1746, 114 L.Ed.2d 205 (1991). 

In Michigan v. Lucas, the Supreme Court addressed the potential impact

of rape shield laws on a defendant’s right to present evidence and to confront

adverse witnesses. In that case evidence of the victim’s prior sexual relations

with the defendant was excluded based on the defendant’s failure to make a

timely offer of proof under a Michigan rape shield law. In holding that the

exclusion did not per se violate the sixth amendment, the Court stressed that the

rape shield statute “represents a valid legislative determination that rape victims

deserve heightened protection against surprise, harassment, and unnecessary

invasions of privacy.” Id., 500 U.S. at 153, 111 S.Ct. at 1748. 
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The Tennessee rule, in addition to establishing specific circumstances in

which evidence relating to a victim’s prior sexual history may be admissible, also

states that such evidence is admissible if required under either the Tennessee or

United States Constitutions. Tenn. R. Evid. 412(b) & (c)(1). The comments to

the rule cite two examples from other states. In the first case from Oregon, the

defendant claimed that the victim falsely accused him of rape because he had

threatened to tell the victim’s parents about her active sexual conduct with

others. The Oregon court concluded that the defendant’s right to confrontation

was violated when the rape shield law prevented him from proving the victim’s

motive to lie about her sexual activity with the defendant. State v. Jalo, 557 P.2d

1359 (Or. App. 1976). 

In the second case from Pennsylvania, the defendant was prevented from

trying to show that the victim accused him of rape to get him out of the house so

that she could then resume sexual activity with another family member. The

Pennsylvania Supreme Court held that where “the Rape Shield Law purports to

prohibit the admission of evidence which may logically demonstrate a witness’

bias, interest, or prejudice or which properly attacks the witness’ credibility, it

unconstitutionally infringes upon the accused’s right of confrontation under the

sixth amendment to the United States Constitution. . . .” Commonwealth v.

Black, 487 A.2d 396 (Pa. Super. 1985).

Although the case by case nature of such an inquiry precludes a complete

list, other courts have recognized similar circumstances in which the prior sexual

history of a victim may be relevant and necessary to preserve a defendant’s right

to confrontation. See People v. Sandoval, 552 N.E.2d at 737-38 (quoting,

People v. Hackett, 365 N.W.2d 120 (Mich. 1984)); see also Commonwealth v.

Joyce, 415 N.E.2d 181 (Mass. 1981).
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In the case before us for decision, the evidence of the victim’s prior sexual

behavior was offered not to show the victim’s motive, bias, or a history of false

claims, but rather, to show consent. As we have discussed, relevance to the

issue of consent requires more than an isolated act or acts of sexual behavior --

it requires a pattern of distinctive sexual behavior by the victim that closely

resembled the defendant’s version of events. The fact that the victim may have

had sexual relations with Gray after meeting him in a bar is not relevant to

whether she consented to sexual relations with the defendant. Likewise, the

victim’s conduct with Jindrak had no bearing on the consent issue. 

In sum, the proffered testimony was the type of evidence required to be

excluded under Rule 412. The trial court’s application of Rule 412, therefore, did

not deny the defendant’s rights under the Tennessee or United States

Constitutions. 

CONCLUSION

The proffered evidence of the victim’s sexual behavior with persons other

than the defendant did not establish a pattern of sexual behavior so distinctive

and so closely resembling the defendant’s version of the encounter with the

victim that it tends to prove the victim consented to the act charged and it,

therefore, was not admissible under Rule 412(c)(4)(iii), nor was its admission into

evidence required by the United States or Tennessee Constitutions. We

therefore reverse the judgment of the Court of Criminal Appeals and reinstate

the rape conviction of the trial court. The costs of this appeal are taxed to the

defendant, for which execution may issue, if necessary.

_______________________________

RILEY ANDERSON, CHIEF JUSTICE

Concur:

Drowota, Reid, Birch, and Holder, JJ.
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