By: WISCONSIN LAW JOURNAL STAFF//July 22, 2014//
Wisconsin Supreme Court
Criminal – Evidence – Rape shield law
The circuit court did not err in refusing to admit evidence of consensual masturbation in a trial alleging forcible sexual intercourse.
“We hold that the circuit court’s refusal to admit the proffered evidence of the prior sexual relationship was proper under Wisconsin’s rape shield law, Wis. Stat. § 972.11. Such evidence is admissible only if the following three criteria are satisfied: 1) the proffered evidence relates to sexual activities between the defendant and the complainant; 2) the evidence is material to a fact at issue in the case; and 3) the evidence is of sufficient probative value to outweigh its inflammatory and prejudicial nature. State v. DeSantis, 155 Wis. 2d 774, 785, 456 N.W.2d 600 (1990). Here, while we agree with the court of appeals that the circuit court improperly found that the proffered evidence of prior sexual conduct was not material, we nevertheless conclude the circuit court correctly excluded the evidence because Sarfraz failed to establish, under the third DeSantis prong, that the probative value of the evidence outweighed its inherent prejudice.”
Reversed and Remanded.
2012AP337-CR State v. Sarfraz
Gableman, J.