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Rape-Shield, § 972.11 – Semen Swab Not Linked to Defendant

State v. Tyrone Booker, 2005 WI App 182
For Booker: Jeffrey W. Jensen

Issue: Whether the trial court erroneously exercised discretion under the rape-shield law, and denied effective cross-examination, by excluding evidence of semen swabs of the alleged sexual assault victim not linked to Booker, where the allegations against him involved touching not intercourse.

Holding:

¶16      … The statute lists three types of evidence that are exceptions to the rape shield law: (1) evidence of the complainant’s past conduct with the defendant; (2) evidence of specific instances of sexual conduct used to show the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered; and (3) evidence of prior untruthful allegations of sexual assault made by the complainant.  Wis. Stat. § 972.11(2)(b). The evidence that Booker sought to introduce does not fall within any of the exceptions.

¶17      We next analyze the evidence in light of the judicial exception to the rape shield law first codified in Pulizzano.  …

¶18      … Booker has failed to satisfy all five of the Pulizzano factors. The prior acts do not closely resemble the allegations in this case. Here, S.M.R. claimed Booker sexually assaulted her by touching her—she never claimed that Booker had sexual intercourse with her. Whether S.M.R. engaged in sexual intercourse with other men does not impact her complaint that Booker sexually assaulted her. His claim that S.M.R. is lying and conspiring with Donta to harm Booker is pure speculation. … Thus, because there was no hard evidence of improper motive for the accusation, the semen evidence was rightfully ruled inadmissible.

 

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