Prior to trial, the defendant filed a motion seeking a hearing to "determine the admissibility of evidence of prior consensual sexual activity between the alleged victim . . . and persons other than the Defendant." See State v. Howard, 121 N.H. 53, 58-59, 426 A.2d 457, 460-61 (1981). According to the motion, "[d]efense counsel intend[ed] to cross examine this juvenile witness . . . in regard to prior and subsequent acts of sexual contact and intercourse . . . to preclude any inference that so young a victim would not have known about the described sexual acts unless he had experienced them with the Defendant as alleged and to raise questions about his credibility in general."

See, esp., Bell v. Harrison, 670 F.2d 656 (6th Cir. 1982) (Tennessee statute); State v. Blue, 592 P.2d 897 (Kan. 1979); Commonwealth v. Joyce, 415 N.E.2d 181 (Mass. 1981); State v. Howard, 426 A.2d 457 (N.H. 1981); State v. Jalo, 557 P.2d 1359 (Or.App. 1976); Shockley v. State, 585 S.W.2d 645 (Tenn.Crim.App. 1978); Winfield v. Commonwealth, 301 S.E.2d 15 (Va. 1983); State v. Hudlow, supra, 659 P.2d 514 (Wash. 1983). The holdings of two of these state court decisions apply to the case at bar.

4. Rape — Evidence — Prior Sexual Activity The supreme court has held that evidence of a prosecutrix' prior sexual activity could be relevant and admissible in certain limited circumstances and that the prosecutrix may be cross-examined about prior inconsistent statements relating to her previous sexual activity. 5. Rape — Evidence — Prior Sexual Activity The supreme court will apply State v. Howard, 121 N.H. 53 (1981), in which the court held that evidence of a prosecutrix' prior sexual activity could be relevant and admissible in certain limited circumstances, retroactively when the issue it addresses has been properly raised in the trial court and preserved for appeal. 6. Rape — Evidence — Prior Sexual Activity Where defendant, charged with aggravated felonious sexual assault and kidnapping, had challenged the trial court's application of the rape shield statute by excepting to its ruling and appealing to the supreme court, he was entitled to the procedural protections of State v. Howard, 121 N.H. 53 (1981), where his notice of appeal had been filed one month before the decision in Howard, and he was entitled to demonstrate at a hearing held out of the presence of the jury that due process required introduction of evidence concerning the prosecutrix' prior consensual sexual activity, that evidence being admissible when the trial court, in its discretion, determines that the probative value of

4. Constitutional Law — Due Process — Rape Shield Law The effect of State v. Howard, 121 N.H. 53, 426 A.2d 457, is to make evidence of a prosecutrix's prior sexual activity with persons other than the defendant admissible when trial court, in the exercise of its discretion, determines that due process so requires. U.S. CONST. amend. VI; N.H. CONST. pt. 1, art. 15; RSA 632-A:6 (Supp. 1979).

RSA 632-A:6 provides, in part, that "[p]rior consensual sexual activity between the victim and any person other than the [defendant] shall not be admitted into evidence in any prosecution under this chapter." In State v. Howard, 121 N.H. 53, 426 A.2d 457 (1981), "this court held that the requirement of due process and the right of confrontation limit the application of the rape shield law when evidence of the victim's prior sexual activity with people other than the defendant has a `probative value in the context of [a] particular case [that] outweighs its prejudicial effect on the [victim].'" State v. Goulet, 129 N.H. 348, 351, 529 A.2d 879, 881 (1987) ( quoting Howard, 121 N.H. at 58-59, 426 A.2d at 460-61).

Its purpose was to protect the victim of a rape "from being subjected to unnecessary embarrassment, prejudice and courtroom procedures that only serve to exacerbate the trauma of the rape itself." State v. Howard, 121 N.H. 53, 57, 426 A.2d 457, 459 (1981); see State v. LaClair, 121 N.H. 743, 745, 433 A.2d 1326, 1328 (1981). The underpinnings of the privilege are grounded in the constitutional right to privacy.

Some courts have addressed the admissibility of the prior sexual conduct evidence by determining its relevance in general, its similarity to the alleged sexual offense, the availability of alternative sources showing the child had a previous ability to describe sexual activity, and how advanced the child's sexual knowledge was for his/her age. 83 A.L.R.4th 692-93.        Lavery urges this court to adopt the reasoning in Summitt v. State, 101 Nev. 159, 697 P.2d 1374 (1985), and State v. Howard, 121 N.H. 53, 426 A.2d 457 (1981). In Summitt, the defendant was convicted of sexual assault involving acts of cunnilingus and fellatio.

Woods v State, 657 P.2d 180 (Okla Crim App, 1983). See also State v Howard, 121 N.H. 53; 426 A.2d 457 (1981); State v Vonesh, 135 Wis.2d 477; 401 N.W.2d 170 (1986). Other state court decisions noted in part I(B) cite Davis, but were decided without reference to the "significantly different impression" standard stated in Van Arsdall and applied in Olden.

1. Sexual Assault — Rape Shield Law — Exception to Provisions Defendant's request, during his trial for felonious sexual assault, for a hearing under State v. Howard, 121 N.H. 53 (1981), to determine whether testimony of victim was admissible as exception to rape shield law, should not have been denied as untimely. RSA 632-A:6 (Supp. 1983).

This conclusion is consistent with the result reached in many other jurisdictions. See, e.g., Pratt v Parratt, 615 F.2d 486 (CA 8, 1980), Turley v State, 356 So.2d 1238 (Ala Crim App, 1978), Marion v State, 267 Ark. 345; 590 S.W.2d 288 (1979), People v Blackburn, 56 Cal.App.3d 685; 128 Cal.Rptr. 864 (1976), People v McKenna, 196 Colo. 367; 585 P.2d 275 (1978), Roberts v State, 268 Ind. 127; 373 N.E.2d 1103 (1978), People v Cornes, 80 Ill. App.3d 166; 399 N.E.2d 1346 (1980), State v Ball, 262 N.W.2d 278 (Iowa, 1978), State v Blue, 225 Kan. 576; 592 P.2d 897 (1979), Smith v Commonwealth, 566 S.W.2d 181 (Ky App, 1978), State v Dawson, 392 So.2d 445 (La, 1980), Cantrell v State, 50 Md. App. 331; 437 A.2d 696 (1981), State v Hamilton, 289 N.W.2d 470 (Minn, 1979), State v Howard, 121 N.H. 53; 426 A.2d 457 (1981), State v Ryan, 157 N.J. Super. 121; 384 A.2d 570 (1978), State v Herrera, 92 N.M. 7; 582 P.2d 384 (Ct App, 1978), People v Mandel, 61 A.D.2d 563; 403 N.Y.S.2d 63 (1978), rev'd on other grounds 48 N.Y.2d 952; 425 N.Y.S.2d 63; 401 N.E.2d 185 (1979), State v Fortney, 301 N.C. 31; 269 S.E.2d 110 (1980), State v Piper, 261 N.W.2d 650 (ND, 1977), State v Gardner, 59 Ohio St.2d 14; 391 N.E.2d 337 (1979), Cameron v State, 561 P.2d 118 (Okla Crim App, 1977), State v Blake, 53 Or. App. 906; 633 P.2d 831 (1981), State v McCoy, 274 S.C. 70; 261 S.E.2d 159 (1979), Washington v Cosden, 18 Wn. App. 213; 568 P.2d 802 (1977), State v Green, 260 S.E.2d 257 (W Va, 1979). III