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Rape-Shield, § 972.11(2)(b) – Assault by 3d Party – Alternative Source of Sexual Knowledge

State v. Richard Dodson, 219 Wis.2d 65, 580 N.W.2d 181 (1998), unpublished decision below.
For Dodson: Michael J. Backes

Issue/Holding: Applying the test of State v. Pulizzano, 155 Wis. 2d 633, 647-48, 456 N.W.2d 325 (1990), the court finds evidence of prior sexual assaults necessary “to rebut the logical and weighty inference that the victim gained sexual knowledge because the defendant committed the acts charged,” ¶30:

¶31     In this case, the jury heard evidence that the defendant sexually touched and had intercourse with B.W.S.  The State relied on the child’s sexual knowledge and evidence of the child’s physical injury to corroborate the victim’s allegation that he was sexually assaulted.  In other words, the corroborating evidence of physical injury bolstered the victim’s credibility, especially as to the sexual intercourse charge.  The court of appeals correctly reversed the conviction for sexual assault based on sexual intercourse because the jury heard the victim’s testimony and corroborating evidence that the sexual intercourse occurred, but did not hear the impeaching evidence.

¶32     However, it is difficult to conclude that the evidence of sexual intercourse, corroborated by the physical injury, did not also bolster B.W.S.’s credibility in the eyes of the jury with regard to the two sexual contact charges.  The State asserts that without the underlying assumption that the jury would believe that a nine-year old child could not describe the sexual contact unless it occurred, evidence of the prior sexual assault is not necessary to the defendant’s case.  However, the jury could have and probably did use the victim’s version of the assaults, vis-a-vis the sexual intercourse charge and corroborating evidence, to convict on the sexual contact charges as well.  Had the jury learned of the defendant’s evidence regarding prior sexual assaults committed on B.W.S. by a third party, it may have questioned the victim’s credibility in the entire matter. Accordingly, we conclude as to the fourth prong of the Pulizzano test, that the rebutting evidence is necessary to the defendant’s case because it may have created enough of a reasonable doubt that the jury would have acquitted not only on first-degree sexual assault based on sexual intercourse but also on the remaining charges based on sexual contact.

This evidence is as relevant to contact as intercourse, because “it is impossible to conceive of sexual intercourse which does not involve [contact].” ¶26.

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