SCOW: Circuit court properly excluded evidence of prior sexual activity under rape shield law

State v. Muhammad Sarfraz, 2014 WI 78, 7/22/14, reversing a published court of appeals opinion; opinion by Justice Gableman; case activity

The supreme court holds the circuit court incorrectly concluded that evidence of prior sexual activity between Sarfraz and I.N., the complainant in his sexual assault prosecution, was not relevant to a material fact in the case, but correctly concluded that the probative value of the evidence did not outweigh the prejudice to the complainant. Thus, the evidence was properly excluded.

I.N. alleged that Sarfraz, wearing a mask and saying he was the landlord, knocked on the door of her apartment, came in when she opened the door, and, wielding a knife, forcibly engaged in sexual intercourse with her. (¶¶14-17). Sarfraz’s defense was that before the alleged assault he and I.N. had a romantic relationship that included consensual sexual contact short of intercourse and that the intercourse was consensual. (¶¶6-10, 24-31). Applying the three-part test for admissibility under § 972.11(2)(b)1., see State v. DeSantis, 155 Wis. 2d 774, 785, 456 N.W.2d 600 (1990), and State v. Jackson, 216 Wis. 2d 646, 658-59, 575 N.W.2d 475 (1998), the circuit court concluded the evidence satisfied the first step of the test—that a reasonable person could reasonably infer from the evidence Sarfraz would present that the prior sexual conduct occurred. However, it concluded the evidence failed both the second and third steps of test—whether the evidence of the prior consensual sexual conduct is relevant to a material fact in the case; and whether the probative nature of the evidence outweighs any prejudice to the complainant. (¶¶12, 41, 45, 53).

The court of appeals reversed after finding the evidence satisfied both the second and third steps. (¶33). The supreme court agrees with the court of appeals’ analysis of the second part of the test, but not the third, and thus reverses the court of appeals.

As to the second step of the DeSantis test, the court clarifies the standard for determining if the prior sexual conduct is relevant to a material fact in the case:

¶45  We agree with the court of appeals that the circuit court misapplied the second prong of the DeSantis test to the facts of this case and improperly found the proffered evidence was immaterial. The circuit court’s reasoning suggests that, in order for evidence of past sexual conduct between Sarfraz and I.N. to be admissible, it must be of a similar type and nature to that charged against the defendant.

¶46  This narrow interpretation of the second DeSantis prong is unsupported by the language of Wis. Stat. § 972.11(2)(b) and our case law. The exceptions to Wisconsin’s rape shield law do not require proffered evidence of past sexual conduct between the accuser and the defendant to be the same as the criminal conduct alleged against the defendant. If they did, the only evidence that could be admitted under one of the exceptions to the rape shield law for “past conduct with the defendant” would be other instances of forcible sex. Wis. Stat. § 972.11(2)(b)1. In fact, to the extent that the rape shield law exceptions are designed, at least in part, to guarantee a meaningful defense to the accused, the circuit court’s reading completely defeats such a purpose.

¶47  Nothing in the rape shield law indicates that it should be so narrowly construed.  On the contrary, the exception for past sexual conduct in subsection (b)1 has traditionally been applied to all types of sexual contact between the complainant and the defendant. …

The court holds the proper inquiry under the second prong of the DeSantis test is to consider whether the proffered evidence “relates to a fact or proposition that is of consequence to the determination of the action.” State v. Sullivan, 216 Wis. 2d 768, 772, 576 N.W.2d 30 (1998). The evidence Sarfraz sought to admit meets this test. His defense was that the sexual contact was consensual, and the prior sexual relationship evidence was offered to: (1) undercut I.N.’s testimony that Sarfraz gained entry to her apartment by pretending to be her landlord, thereby casting doubt on her credibility; (2) support Sarfraz’s version of events that I.N. was angry with him for refusing to leave his wife for her; and (3) bolster Sarfraz’s claim that the alleged sexual assault was consensual and merely represented a progression in their sexual relationship. (¶48).

As to the third part of the test, however, the court agrees with the circuit court. This third step in the analysis operates as an inverted balancing test that “initially weight[s] the balance in favor of a determination that the evidence is inherently prejudicial” due to “the legislature’s distrust of evidence of a victim’s prior sexual history.” Jackson, 216 Wis. 2d at 663. Thus, the starting assumption is that the evidence is prejudicial. Id. at 658. “Satisfying this burden is far more demanding than the showing required under the second step of DeSantis” (¶52), and Sarfraz’s evidence doesn’t make it:

¶53  …. We explained in DeSantis that when the proffered evidence of prior sexual conduct and the sexual conduct underlying the criminal charges at issue are “significantly different,” the probative value of the proffered evidence “on the issue of consent [is] minimal,” and “[t]he fact that the prior incident was remote in time and dissimilar in circumstances further diminishes the value of comparing the two incidents and drawing conclusions regarding the complainant’s credibility or her consent.” Id. at 791. Indeed, mutual masturbation——which is the evidence Sarfraz argues was improperly excluded from trial——is profoundly dissimilar in circumstance from non-consensual vaginal intercourse following a knife fight.

¶54  Sarfraz’s theory of defense was that the intercourse was consensual, and he maintains that the past sexual conduct supports this argument. However, his proffered testimony regarding the past sexual conduct provides little probative value to support this proposition. The past conduct Sarfraz alleged did not go beyond consensual masturbation. Sarfraz explained that he and I.N. had not had intercourse in the past because in their culture one did not have intercourse outside of marriage. That they refrained from intercourse in the past, far from suggesting consent, strongly suggests that I.N. would not have consented to sexual intercourse ….