State v. Ryan Hugh Mulhern, 2019AP1565-CR, petition to review granted 1/20/21; reversed 6/21/22; case activity (including PFR and briefs)
Issue presented (from the state’s PFR)
Does § 972.11(2)(b), the “rape shield” statute, bar relevant evidence of the complainant’s lack of sexual conduct when the state offers the evidence to corroborate the complainant’s allegation of sexual assault and the evidence is not prejudicial to the complainant or the defendant and causes none of the harms the rape shield law is intended to protect against?
The text of § 972.11(2)(b) bars admission of “any evidence” of a complainant’s “prior sexual conduct,” which the cases hold includes a lack of sexual conduct, “meaning that evidence that a complainant had never had sexual intercourse is inadmissible. …. This prohibition extends to indirect references to a complainant’s lack of sexual experience or activity. …. Evidence of this nature is prohibited because it ‘is generally prejudicial and bears no logical correlation to the complainant’s credibility.’” State v. Bell, 2018 WI 28, ¶63, 909 N.W.2d 750, 380 Wis.2d 616, citing and quoting State v. Gavigan, 111 Wis. 2d 150, 156, 159, 330 N.W.2d 571 (1983). The legislature has created three exceptions to this rule, § 972.11(2)(b)1., 2., and 3., and said that those are the only exceptions there are, regardless of the purpose for the admission of the evidence, § 972.11(2)(c). State v. Mitchell, 144 Wis. 2d 596, 619, 424 N.W.2d 698 (1988). In other words: courts, don’t make any more exceptions. To get around this ban on court-made exceptions, the state is asking the court to redefine evidence of the complainants’s lack of sexual conduct as not being about “prior sexual conduct,” and thus not subject to the bar in § 972.11(2)(b)—at least when the state offers it as evidence in support of a criminal charge.
Here’s how the issue arose. At Mulhern’s trial on sexual assault and suffocation charges, the state—over Mulhern’s objection—elicited from the complainant the fact that she had no sexual activity with anyone else during the week before the alleged assault. Tests of the vaginal swabs of the complainant swabs showed male DNA, but not enough to specifically identify Mulhern, and the state DNA analyst testified there would probably be no male DNA in the vagina after five days. Because the complainant testified she did not have sex with anyone else in the week before the assault, the state argued to the jury that the DNA must have been Mulhern’s and that the DNA evidence therefore refuted Mulhern’s testimony that he did not have intercourse with the complainant. Given Gavigan and Bell, the state conceded in the court of appeals that the evidence shouldn’t have been admitted, but argued the error was harmless. The court of appeals didn’t agree and ordered a new trial.
Now the state is asking the court to hold that a complainant’s lack of sexual conduct isn’t covered by the rape shield statute when the evidence is relevant, offered by the state, and doesn’t contravene the purposes of § 972.11(2). Despite Bell and Gavigan, the state claims exclusion of lack of prior conduct isn’t always consistent with the purposes of the rape shield law. Those purposes are: exclusion of irrelevant or unfairly prejudicial evidence; preventing a defendant from harassing and humiliating the complainant; preventing the trier of fact from being misled or confused by collateral issues and deciding a case on an improper basis; and promoting effective law enforcement “because victims will more readily report such crimes and testify for the prosecution if they do not fear that their prior sexual conduct will be made public.” State v. Pulizzano, 155 Wis. 2d 633, 647, 456 N.W.2d 325 (1990). These purposes, the state claims, support holding that evidence like the kind introduced in this case is consonant with the rape shield law’s purposes: it was relevant to the DNA evidence presented at trial and didn’t confuse the issues with a collateral matter; it lacked any unduly prejudicial effect against the complainant; it wasn’t harassing or humiliating to her because it was introduced by the state; and it isn’t likely to deter people from reporting a crime or participating in a prosecution out of concern that her lack of sexual activity over a discrete period will be made public.
So, we have a state’s petition of a court of appeals decision, which granted a new trial, was based on a rule excluding the state from introducing the evidence it wants, and was issued in the shadow of Marsy’s Law…. Look for a decision changing the reach of the rape shield statute later this term.
If the court carves out an exception for this situation, it could potentially benefit the defense, assuming it’s applied evenly. Several of my colleagues have had cases where DNA was found in the alleged victim’s intimate swabs or smears, tests were inconclusive as to the identity of the DNA, the defense wanted to argue the alleged victim had sexual intercourse with a 3rd party during the preceding days to show the potential source of the DNA, and the court excluded it based on rape shield. This case presents the reverse of that–the State arguing that since the alleged victim didn’t have sex with anyone else in the preceding days, the DNA must have come from the defendant. I believe this evidence should be admissible on both sides, as both seem like a logical extension of the exception under 972.11(2)(b)(1)–“Evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered.” The limitation on the “for use” should be essentially eliminated, so that it would extend to situations where the question is who contributed the DNA, as relevant to an argument that the DNA could/could not have been from the defendant.