State v. Muhammad Sarfraz, 2013 WI App 57, petition for review granted 9/17/13; case activity
The circuit court erroneously excluded evidence of prior sexual activity between Sarfraz and I.N., the complainant. She alleged Sarfraz, wearing a mask and saying he was the landlord, knocked on the door of her apartment, came in when she opened the door, and forcibly engaged in sexual intercourse with her. (¶¶2-3). Sarfraz’s defense was that he and I.N. had a romantic relationship before the alleged assault and the intercourse was consensual. (¶5).
Applying the three-part test for admissibility under Wis. Stat. § 972.11(2)(b)1., see State v. DeSantis, 155 Wis. 2d 774, 785, 456 N.W.2d 600 (1990), and State v. Jackson, 216 Wis. 2d 646, 658-59, 575 N.W.2d 475 (1998), the circuit court concluded the evidence satisfied the first part of the test–that a reasonable person could reasonably infer from the evidence Sarfraz would present that the prior sexual conduct occurred. The court of appeals agrees with this conclusion. (¶23).
As to the second part of test–whether the evidence of the prior consensual sexual conduct is relevant to a material fact in the case–the circuit court concluded that because the evidence did not involve force, it was “not material to what happened here.” (¶25). This ruling was incorrect:
¶26 The trial court essentially held that for evidence of the past sexual conduct between Sarfraz and I.N. to be admissible, it must be of the same type and nature that is charged as a crime. Neither the language of Wis. Stat. § 972.11(2)(b), nor relevant case law, require that the prior sexual conduct between the accuser and the accused be the same as that alleged in a criminal case. ….
¶27 Sarfraz established that evidence of prior sexual conduct was material to a fact at issue. That I.N. may have masturbated Sarfraz on numerous occasions, both at Sarfraz’s apartment and at her own, is relevant to the issue of whether I.N. consented to sexual contact on May 15, 2010. The full scope of their sexual relationship is relevant to whether it is believable that Sarfraz attempted to conceal his identity from someone who knew him so well in a physical sense. No mask was recovered from either I.N.’s apartment, Sarfraz’s taxi, or any other location searched by police. If the jury believed that Sarfraz was a frequent visitor and engaged in explicit sexual conduct with I.N. at her apartment, then the jury could reasonably infer that Sarfraz did not pretend to be I.N.’s landlord, wear a mask, or force his way into her apartment. The jury could also reasonably infer that the testimony of Riffat and Uddin, both of whom stated that they caught Sarfraz and I.N. together in romantic situations, was credible. Therefore, explicit evidence of Sarfraz’s and I.N.’s prior consensual contact is material to the question of whether the sexual contact alleged here was consensual.
Sarfraz also satisfies the third part of the test–the probative nature of the evidence outweighs any prejudice to the complainant–because evidence of prior sexual contact between himself and I.N.provides “the missing piece” of evidence that would allow the jury to question I.N.’s credibility:
¶30 …. The probative value of prior sexual activity evidence—namely, evidence that I.N. masturbated Sarfraz―outweighs any potential for prejudice to I.N. A jury that believed Sarfraz could reasonably infer from the context of the entire relationship that I.N. consented to elevated sexual contact (intercourse) to regain Sarfraz’s favor after her attack. The evidence the trial court barred supports each aspect of Sarfraz’s defense. If the jury heard all of Sarfraz’s evidence of prior sexual contact between I.N. and himself, and believed the evidence, it could have reasonably concluded that: (1) Sarfraz did not conceal his identity and force his way into I.N.’s apartment; (2) Sarfraz and I.N. had indeed discussed marriage; and (3) I.N. consented to, or perhaps even initiated, sexual intercourse with Sarfraz. Under this set of facts, we conclude that evidence of prior sexual conduct was far more probative of the defense theories than prejudicial to I.N.
The trial court allowed Sarfraz to put in some evidence his prior relationship with I.N., including hugging, kissing, and lying in bed together, though without reference to sexual activity. (¶¶7, 9, 12, 15, 34). To the dissent, the excluded evidence of sexual activity was essentially unnecessary to Sarfraz’s defense, as his theory for why I.N. would lie about the forcible assault was not based solely on the evidence of sexual activity and was supported by the evidence he was allowed to introduce. (¶¶35-37). And, the dissent concludes, even if the sexual activity evidence was marginally relevant, it was outweighed by its prejudice to I.N. (¶¶38-39).
