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Rape Shield Law – Prior Untruthful Allegation

State v. Christopher Walter Hurns, 2011AP857-CR, District 1, 5/8/12

court of appeals decision (not recommended for publication); for Hurns: Rex Anderegg; case activity

Hurns wasn’t entitled to adduce, as an exception to the rape shield law,¬†evidence of the complainant’s prior untruthful allegation of sexual assault; ¬ß 972.11(2)(b), as informed by 3-part test of¬†State v. DeSantis, 155 Wis. 2d 774, 456 N.W.2d 600 (1990), applied: even assuming that the prior accusation was false (Part 1), the court concludes that the evidence fails to satisfy the requirements of materiality (Part 2) or sufficient probative value (Part 3).

¶24      So too here, the evidence of S.J.’s prior report is of minimal materiality because:  (1) it is vague, remote and disputed; (2) no matter which witness is believed, the report consists of an undisputed assertion of a sexual assault; and (3) the prior report is substantially different from the charged crime.

¬∂25¬†¬†¬†¬†¬†¬†First, like in¬†DeSantis, the quality of the evidence of S.J.‚Äôs prior report was poor. …

¶26      Second, and most significantly, no matter who is believed, the testimony undisputedly establishes that S.J. was sexually assaulted by Kevin.  Sex between a twelve- or thirteen-year-old girl and a twenty-one-year-old male is a sexual assault under Wisconsin law.  See Wis. Stat. § 948.02(1)(e) and (2).  So, even if a reasonable jury believed that S.J. first said she was raped, and later said she had sex with Kevin willingly, there was no dispute that she was sexually assaulted.  Therefore, her report was not untruthful, and there is no basis to attack her credibility.

¶29      We conclude that the trial court correctly determined that evidence of the prior report was not of sufficient probative value to substantially outweigh its inflammatory and prejudicial nature.

Well and good: the prior accusation may not have been false with respect to the crucial aspect of sexual activity, but only with regard to the mere detail of whether it was unaccompanied by false, ¬∂18 n. 5. The facts aren’t exactly congenial to¬†Hurns’ argument. But what about more compelling examples of prior untruthful allegations of sexual conduct? Should they come within the rape shield rule at all? On this point, see¬†Redmond v. Kingston, 240 F.3d 590, 592 (7th Cir. 2001) (“And thus the court‚Äôs ruling, though ostensibly based on the rape-shield statute, derives no support from that statute. The statute protects complaining witnesses in rape cases (including statutory-rape cases) from being questioned about their sexual conduct, but a false charge of rape is not sexual conduct.”). Compare,¬†Sussman v. Jenkins,¬†636 F. 3d 329 (7th Cir. 2011) (narrower holding: “We are addressing evidence that exposes a motive to fabricate a specific kind of lie under a specific set of circumstances and, therefore, directly implicates Mr. Sussman‚Äôs rights under the Confrontation Clause.”).

Curative Instruction 

¬∂32¬†¬†¬†¬†¬†¬†Hurns argues on appeal that he was unfairly prejudiced by the jury knowing that he was on probation and that the detective‚Äôs answer suggested that he was hiding from his probation officer, which ‚Äúwas akin to prior bad act evidence that would tend to prompt the jury to conclude Hurns was a bad person and therefore guilty of the offense charged.‚ÄĚ …

¶33      We conclude that the record supports the trial court’s decision denying the motion for mistrial and affirm.  Any prejudice was slight and quickly corrected by the trial court’s instruction to disregard the statement, which we presume the jury followed.  We note that the trial court’s finding that there was no intentional misconduct by the witness is supported by the fact that it was Hurns’s lawyer’s questioning that elicited the reference to probation.[6]  We defer to the trial court’s assessment of the impact of the reference vis a vis the volume of trial testimony and affirm its decision.  See Schultz, 181 Wis. 2d at 657.  Accordingly, we affirm the trial court’s denial of the motion for mistrial.

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