Manhattan ? A Riley County district court judge has refused to hear an appeal from prosecutors who are trying to shield a woman’s sexual history in a rape case.

Judge David Stutzman returned the rape case Tuesday to magistrate court, saying he can’t hear an appeal of a case that still is in the preliminary hearing stage.

That makes it likely the victim’s sexual history will be admitted as evidence in the early stages of the case.

County Atty. Valerie Peterson has repeatedly objected to allowing the victim’s previous sexual conduct to be admitted, citing the state’s rape shield law.

Daniel Drown, 21, of Manhattan, and Kenneth E. Ward, 21, of Fort Riley, each are charged with one count of rape and two counts of aggravated criminal sodomy. The case stems from an Aug. 17, 2002, attack, in which they are accused of raping and forcefully engaging in oral sex with a 20-year-old Nebraska woman outside a Manhattan motel.

In his ruling, Stutzman noted the inappropriate nature of the action while the case still was being heard in magistrate court.

“If this appeal were to be allowed, there would be little to distinguish this situation from an appeal of a hearsay ruling by the magistrate or any of the hundreds of other evidentiary rulings that must be made at one time or the other,” the judge wrote.

Magistrate Judge Paul Wright ruled May 16 to allow testimony about the victim’s sexual activities during the hours just before the alleged rape.

The case is set for a status hearing July 15. The preliminary hearing began Dec. 31, but questions about the admissibility of the victim’s sexual history stalled the proceedings.