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  • WisBar News
    August 18, 2014

    Evidence of Prior Sexual Conduct with Sexual Assault Victim Not Allowed

    Aug. 18, 2014 – A unanimous Wisconsin Supreme Court has ruled that the state’s rape shield law barred a defendant from introducing evidence of prior sexual conduct with the complainant he was accused of sexually assaulting, reversing the lower appeals court.

    “We hold that the circuit court’s refusal to admit the proffered evidence of the prior sexual relationship was proper under Wisconsin’s rape shield law,” wrote Justice Michael Gableman wrote in State v. Sarfraz, 2014 WI 78 (July 22, 2014).

    Sarfraz, the majority explained, failed to satisfy a requirement that the “probative value of the evidence outweighed its inherent prejudice” toward the complainant, who emigrated to the U.S. from Pakistan. She and her father stayed with Sarfraz for a time.

    In 2010, the victim accused Sarfraz of coming to her apartment and raping her at knife point. Sarfraz said the sexual contact was consensual. A neighbor had found the complainant partially clothed in her apartment hallway, bloodied from knife wounds.

    Prior to his trial for second-degree sexual assault with force or use of a dangerous weapon, Sarfraz moved to admit evidence of prior sexual conduct between Sarfraz and the complainant. He said they previously had sexual contact on numerous occasions.

    Sarfraz’s wife testified that she found the defendant in bed with the complainant on one occasion, and observed them flirting other times. The wife testified that she pressured Sarfraz to make the complainant and her father move out because of these events.

    The complainant denied ever having a sexual relationship with Sarfraz. The circuit court determined that evidence of a prior relationship was not material because the type of sexual contact Sarfraz alleged with her was different than the forcible rape at issue.

    The state brought forth other evidence against Sarfraz. Police had found a bloody knife in the taxicab he drove for work. Vaginal semen swabs revealed Sarfraz’s DNA. The complainant also had injuries consistent with strangulation and cuts and bruises.

    Sarfraz testified that the complainant attacked him with a knife after he told her he would not leave his wife and children for her. After the attack, he said things cooled down and they engaged in sexual activity but he told her they could not have sex.

    Despite the conflicting stories, a jury returned a guilty verdict and Sarfraz was sentenced to 10 years in prison with five years of extended supervision.

    The court of appeals reversed and remanded for a new trial. First, it said prior sexual conduct could be material if not the same type of sexual conduct that serves the basis of the crime, and the probative value outweighed any prejudice to the complainant.

    Prior Sexual Conduct Excluded

    The supreme court reversed, concluding that Sarfraz’s constitutional right to present a defense was not violated when the court excluded evidence of prior sexual conduct.

    It noted that Wisconsin’s rape shield law, Wis. Stat. section 972.11, disallows any evidence of a complainant’s sexual history because of its prejudicial effect.

    However, prior sexual history may be introduced in certain circumstances. One exception involves evidence of the victim’s prior sexual conduct with the defendant. Even this type of evidence is subject to safeguards before it may be introduced.

    As the supreme court explains, the evidence must relate only to sexual activity between the complainant and the defendant, it must be material, and the probative value of the evidence must outweigh the prejudicial nature of such evidence.

    In this case, the supreme court ruled that Sarfraz satisfied the first two prongs: the evidence showed sexual conduct between Sarfraz and the complainant and it was material, regardless of whether it was of the same type now alleged as a crime.

    “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,” Justice Gableman wrote.

    But Sarfraz could not satisfy the third prong, the court ruled. “Sarfraz’s theory of defense was that the intercourse was consensual, and he maintains that the past sexual conduct supports his argument. However, his proffered testimony regarding the past sexual conduct provides little probative value to support his proposition,” Gableman wrote.

    Sarfraz had noted that prior sexual conduct did not go beyond sexual masturbation, which “strongly suggests” that she would not have consented to sexual intercourse, the court explained. Thus, its probative value could not outweigh the prejudicial effect.

    Justice Annette Ziegler concurred, joined by Justice Patience Roggensack. Justice Ziegler agreed that evidence of prior sexual conduct was properly excluded. But she disagreed with the majority’s conclusion that past sexual conduct was material.

    “Sarfraz basically argues that because the victim had previously engaged in consensual masturbation with Sarfraz, she therefore must have consented to the violent, vaginal intercourse at knifepoint with Sarfraz on May 15,” Justice Ziegler wrote.

    “Sarfraz’s argument undermines the fundamental purpose behind the rape shield law: protection of a victim who is improperly attacked regarding prior sexual activity.” 

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