By: WISCONSIN LAW JOURNAL STAFF//April 9, 2013//
Wisconsin Court of Appeals
Criminal
Evidence — rape shield law
Evidence of prior sexual conduct between the defendant and the victim was improperly excluded in the defendant’s sexual assault trial.
“At the evidentiary hearing, Sarfraz argued that: (1) it was implausible that he would have to trick his way into I.N.’s apartment by wearing a mask and claiming to be the landlord; (2) I.N. had a motive to attack him with a knife because he expressed hesitation about leaving his family to marry I.N.; and (3) I.N. enticed him into having sex with her as a means of apologizing for the knife attack. 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.”
Reversed and Remanded.
Recommended for publication in the official reports.
Dist. I, Milwaukee County, Cimpl, J., Kessler, J.
Attorneys: For Appellant: Dall’osto, Raymond M., Milwaukee; Keppel, Kathryn A., Milwaukee; Luczak, Jason D., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Brien, Daniel J., Madison