99-2189 State v. Dunlap

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“In the present case, the acts that Dunlap seeks to admit are not even close to the type of act he is accused of committing. Dunlap is alleged to have committed an act of finger-to-vagina sexual contact with possible digital penetration. The prior behaviors that Dunlap seeks to introduce – that the complainant had touched men in the genital area, writhed on men’s laps, masturbated, and ‘humped the family dog’ – bear very little similarity to the acts at issue in the present case.”

Accordingly, because defendant’s offer of proof does not meet the second prong of the Pulizzano test, his evidence was therefore not admissible over the rape shield law. Further, the circuit court properly held that the State did not open the door to defendant’s proffered evidence when it offered expert testimony to explain inconsistencies in the complainant’s testimony as behaviors commonly displayed by sexual assault victims. (See, State v. Jensen, 147 Wis. 2d 240 [1988]).

The decision of the Court of Appeals is reversed and defendant’s sexual assault conviction is reinstated.

CONCURRING OPINION: Sykes, J. “In Part II C of the majority opinion, the court concludes that because the child protective services investigator’s expert testimony was Jensen evidence, it did not “open the door” under the curative admissibility doctrine to the admission of evidence that was otherwise barred by the rape shield statute. I write separately because, in my view, the inapplicability of the curative admissibility doctrine does not depend upon a conclusion that the investigator’s expert testimony was Jensen evidence.”

Court of Appeals, Wilcox, J.

Attorneys:

For Appellant: Jack E. Schairer, Madison

For Respondent: Marguerite M. Moeller, James E. Doyle, Madison