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SCOW reaffirms that rape shield law excludes evidence of lack of sexual conduct

State v. Ryan Hugh Mulhern, 2022 WI 42, 6/21/22, reversing a per curiam court of appeals decision, 2019AP1565, case activity (including briefs)

When we posted on SCOW’s grant of review of the non-citable court of appeals decision in this case, we imagined the court might accept the state’s invitation to change the scope of the rape shield law and hold the evidence at issue here–testimony proffered by the state that a complaining witness had not engaged in sexual intercourse–admissible. Instead, the court repeats what it has said in prior cases: that such evidence falls within the rape-shield prohibition. But it says the erroneous introduction of the evidence was harmless in this case, so it reverses the court of appeals’ grant of a new trial.

A sketch of the facts, from that prior post:

At Mulhern’s trial on sexual assault and suffocation charges, the state—over Mulhern’s objection—elicited from the complainant the fact that she had no sexual activity with anyone else during the week before the alleged assault. Tests of the vaginal swabs of the complainant swabs showed male DNA, but not enough to specifically identify Mulhern, and the state DNA analyst testified there would probably be no male DNA in the vagina after five days. Because the complainant testified she did not have sex with anyone else in the week before the assault, the state argued to the jury that the DNA must have been Mulhern’s and that the DNA evidence therefore refuted Mulhern’s testimony that he did not have intercourse with the complainant.

In the court of appeals, the state conceded that this testimony was barred by the rape shield law as interpreted in State v. Bell, 2018 WI 28, ¶63, 909 N.W.2d 750, 380 Wis.2d 616, and State v. Gavigan, 111 Wis. 2d 150, 156, 159, 330 N.W.2d 571 (1983). But the state changed its tune after it lost there, saying evidence of lack of sexual conduct shouldn’t be barred when it “doesn’t implicate the concerns addressed by the statute.”

As you’ll no doubt have guessed, in the state’s view, such evidence “doesn’t implicate the concerns addressed by the statute” when, inter alia, the state wants it in. Special pleading aside, the state’s argument runs into the problem that the legislature has made it rather clear that it’s not for the courts to decide whether the “concerns” addressed by the rape shield law are present in a given case: they’re just supposed to exclude any covered evidence unless it falls within one of the three statutory exceptions.  See State v. Mitchell, 144 Wis. 2d 596, 612, 424 N.W.2d 698 (1988). And the state doesn’t argue the evidence here–again, evidence that the complaining witness hadn’t had sexual intercourse the week prior to the alleged assault–falls within one of the exceptions.

But is it “covered”–that is, does it constitute “sexual conduct” as the statute defines it? The majority looks at the statutory definition and finds that its language suggests breadth: sexual conduct is “any conduct or behavior relating to sexual activities of the complaining witness.” (¶¶30-35). It thus reaffirms its prior statements, and holds the evidence inadmissible, leaving the substantive law of the state untouched.

It still reverses the court of appeals though. It concludes that in light of the evidence against Mulhern–the complaining witness’s immediate description of the alleged assault to several people, the physical injuries she displayed, the presence of Mulhern’s saliva-derived DNA on her neck, and the deep credibility problems of Mulhern’s testimony–the erroneously-admitted evidence did not make a difference.

Chief Justice Ziegler, joined by Justice R.G. Bradley, concurs. She agrees any error was harmless, but does not agree there was any error. She argues that the plain meaning of “sexual activity” does not encompass the lack of sexual activity, and largely follows the state in implying that the rape shield statute cuts one way only: that despite its neutral terms, it ought to benefit the state and not the defendant.

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