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Rape-Shield, § 972.11 – Prosecutorial Door-Opening

State v. Charles A. Dunlap, 2002 WI 19, reversing 2000 WI App 251, 239 Wis. 2d 423, 620 N.W.2d 398; affirmed on habeas, Dunlap v. Hepp, 436 F. 3d 739 (7th Cir 2006)
For Dunlap: Jack E. Schairer, SPD, Madison Appellate

Issue: “(W)hether a defendant who is charged with sexual assault should be allowed to present evidence of sexual behavior exhibited by the child complainant prior to the alleged assault, even though the evidence would normally be barred by the rape shield law, because the State has introduced expert testimony to explain the complainant’s reporting behavior.”

Holding: Door-opening, known as “the curative admissibility doctrine,” is approached in three steps: 1) whether the excluded evidence was in fact inadmissible (here, by the rape shield law); 2) if so. Whether any exception to inadmissibility applies; 3) whether the state opened the door, to make this otherwise inadmissible evidence admissible. ¶15. Applying these steps:

  • 1) The rape shield law applies (the excluded behavior included allegations of masturbation and touching men’s genitals, ¶8). ¶16.
  • 2) The judicial exception to the rape shield law, State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), isn’t satisfied, because the excluded acts don’t closely resemble those on trial:

    ¶27. 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.

  • 3) Expert testimony that the complainant’s behavior was consistent with sexual assault victims doesn’t alone open the door to evidence otherwise barred under the rape shield law. ¶33. Nor did this testimony cross a line and amount to comments by the expert on the credibility of the complainant. ¶¶39-30.

 

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