State v. Dennis J. Thornton, 2009AP3074-CR, District 2, 4/13/11
Scienter is not an element of § 940.225(3). State v. Lederer, 99 Wis. 2d 430, 433, 299 N.W.2d 457 (Ct. App. 1980) (statute requires proof of victim’s nonconsent – in contradistinction, presumably, of defendant’s knowledge of lack of consent – thus isn’t overbroad; legislature isn’t barred from establishing strict liability offense even where penalty is severe), applied and followed, ¶¶9-10.
Exclusion of “double hearsay” upheld: Witness precluded from testifying that victim’s husband told him that victim said she and Thornton had been kissing the night of the assault (thus, according to the defense, supporting the theory that Thornton’s subsequent act was consensual, not assaultive). The husband denied making the statement, as did the victim. The proffered testimony would have been inconsistent with the husband’s testimony, thus admissible as a prior inconsistent statement. But with regard to the victim, the proffer was hearsay within hearsay, and satisfied no exception, ¶¶11-16.
Thornton’s arguments attacking the victim’s credibility were for the jury to resolve, not the court, ¶¶17-19.