Cite as: 529 U. S. 513 (2000)
Ginsburg, J., dissenting
use of evidence in a way that systematically disadvantages one side. Consider, for example, a rule providing that evidence of a rape victim's sexual relations with persons other than the accused is admissible to prove consent, or a rule providing that evidence of a sexual assault defendant's prior sexual offenses is inadmissible to show a propensity to commit that type of crime. A statute repealing either of the above rules would "always run in the prosecution's favor . . . [by] mak[ing] it easier to convict the accused." Ante, at 546.7 Yet no one (until today) has suggested that such a statute would be ex post facto as applied to offenses committed before its enactment.
The Court resists the conclusion that Article 38.07 functions as a rule of witness competency by asserting that "[b]oth before and after the amendment, the victim's testimony was competent evidence." Ante, at 544. In all but the most technical sense that blanket statement is dubious. If the victim was 14 years old or older at the time of the offense (18 or older under the amended statute) and her testimony is unbolstered by corroboration or outcry, the jury may not credit that testimony in determining whether the State has met its burden of proof. Such a victim is of course not literally forbidden from testifying, but that cannot make the difference for Ex Post Facto Clause purposes between a sufficiency of the evidence rule and a witness competency rule. Evidence to which the jury is not permitted to assign weight is, in reality, incompetent evidence.
7 Cf. Fed. Rules Evid. 412(a)(1) (restricting admissibility of "[e]vidence offered to prove that any alleged victim [of sexual misconduct] engaged in other sexual behavior"); 412(b)(1)(B) (providing that "evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused" is admissible to prove consent); 413(a) (providing that "evidence of the defendant's commission of another offense or offenses of sexual assault is admissible" in sexual assault cases notwithstanding Rule 404(b)'s general prohibition on the introduction of prior bad acts evidence "to show action in conformity therewith").
563
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