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Particular Examples of Misconduct, § 904.04(2) — (Non-)Consent & State v. Alsteen

State v. Timothy M. Ziebart, 2003 WI App 258
For Ziebart: Robert R. Henak

Issue: Whether the holding of State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982) (re sexual assault where the defendant admits the act but claims consent: prior sexual misconduct has no probative value) imposes an absolute bar against admissibility of prior other-acts to prove the contested issue of consent.


¶20. Although, as the supreme court explained, consent, in the context of sexual conduct, “is unique to the individual,” id., and although, therefore, the prior non-consent of one person to sexual contact may not be introduced solely to prove the non-consent of another person to sexual contact, the preclusion of such other-acts evidence is not absolute. Where, as here, the other-acts evidence of non-consent relates not only to sexual contact but also to a defendant’s modus operandi encompassing conduct inextricably connected to the strikingly similar alleged criminal conduct at issue, the evidence of non-consent may be admissible to establish motive, intent, preparation, plan, and absence of mistake or accident under Wis. Stat. § 904.04(2).

¶21. In this case, the trial court recognized that, while the assaults of Daryl and Mary differed in some respects, they shared what the court termed “some strong similarities … in terms of the person representing [himself to be] a police officer and the basic act of physical and sexual degradation.” Noteworthy, also, was Ziebart’s vigilante-like modus operandi; his determination to deal with “crack whores,” in Mary’s assault, and “drug addicts,” in Daryl’s.

¶24…. Where, as here, a defense of consent is inextricably connected to a defendant’s conduct surrounding and including sexual contact, and where other-acts evidence is probative of a modus operandi rebutting that defense, Alsteen does not preclude an instruction advising the jury that it may consider the evidence on the issue of whether an alleged victim consented to the defendant’s conduct.6

¶25. We also acknowledge that the authorities are divided on this issue.7 And we recognize that, in this case, the trial court could have accurately instructed the jury without using the words “consent” or “non-consent.” Thus, we go on to explain why, even if we were troubled by a jury instruction that might seem inconsistent with Alsteen, we would conclude that any possible error was harmless.

6 Ironically, in the instant case, an important difference between the two assaults-the gender of the victims-further supports our decision. Mary, a woman, was confronted by Ziebart who sexually assaulted her and, in vigilante fashion, claimed to be ridding the streets of “crack whores,” and pretended to be a police officer. Evidence of Ziebart’s strikingly similar attack on Daryl, a man, was highly probative. Indeed, the “uniqueness” of non-consent would seem to recede as Ziebart maintained his modus operandi regardless of the gender of his victims.7 See Sheri B. Ross, Yes or No to Consent? Conforming Rule 404(B) to Society’s New Understanding of Acquaintance Rape, 48 U. Miami L. Rev. 343, 366-67 (1993) (“Corroborative evidence both reduces the possibility that the victim is lying and increases the probability that the defendant committed the crime…. Under this standard, the defendant’s prior conduct [of committing sexual assaults] says something about the victim’s present conduct-that she is not lying…. This inference does not imply that simply because one woman refused, this woman also refused. [Rather,] [i]t is [the defendant’s] prior conduct that makes it more likely that she[, the victim here,] did not consent to sexual intercourse.”). But see State v. Mitchell, 633 N.W.2d 295, 299-300 (Iowa 2001) (concluding that use of other-acts evidence from another victim of child sexual abuse cannot be used to bolster the complainant’s credibility and corroborate her testimony); accord State v. Glodgett, 749 A.2d 283, 693-96 (N.H. 2000).

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