July 1, 2022 - The admission of testimony by a victim about her lack of sexual activity in the period preceding an alleged sexual assault did not warrant reversing a defendant’s sexual assault conviction, the Wisconsin Supreme Court has ruled.
In State. v. Mulhern, 2022 WI 42 (June 21, 2022), a supreme court majority held that the term “sexual conduct” as used in the rape shield law includes a lack of sexual conduct.
Evidence of such lack of conduct barred the circuit court from admitting the testimony but admitting the testimony was harmless error, a majority ruled.
Justice Patience Roggensack wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Dallet, Justice Brian Hagedorn, and Justice Jill Karofsky.
Chief Justice Annette Ziegler wrote a concurring opinion, joined by Justice Rebecca Grassl Bradley.
In November 2016, the Pierce County District Attorney charged Ryan Mulhern with one count of second-degree sexual assault, one count of strangulation and suffocation, and one count of misdemeanor bail jumping.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
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The charges arose out of an encounter between Mulhern and a female friend, “Lisa.” Lisa alleged that Mulhern sexually assaulted her at her residence on Nov. 21, 2016.
The next day, a nurse from a sexual assault resources team at a local hospital examined Lisa. The exam yielded two samples of DNA from Lisa’s body: a saliva-based sample from her neck and a vaginal swab sample.
At Mulhern’s trial, an analyst from the state crime lab testified that he’d matched the saliva-based DNA sample to Mulhern. The analyst testified that he detected male DNA on the vaginal swab but the sample was too small to allow him to make an identification.
Victim, Analyst Recalled
Mulhern testified that he didn’t have sex with Lisa and argued that the DNA from the vaginal swab must have come from another man.
The state recalled Lisa to the stand and asked her whether she’d had sexual intercourse prior to the week of Nov. 22, 2016; she testified that she had not.
The circuit court allowed the question because it concluded that the rape shield law only applied to bar testimony regarding affirmative acts.
The state then recalled the crime scene analyst, who testified that a woman’s body will remove foreign DNA deposited in the vagina five days after a sexual assault.
The jury convicted Mulhern on the sexual assault charge; under the terms of a plea bargain, that conviction required a finding that he was guilty on the misdemeanor bail jumping charge. The jury acquitted Mulhern of the strangulation charge.
Mulhern appealed the convictions and the Wisconsin Court of Appeals reversed them.
In her opinion for the majority, Justice Roggensack pointed out that “sexual conduct” was broadly defined by Wis. Stat. section 972.11(2)(a) to include “living arrangement[s]” and “life-style,” so long as either relates to a victim’s sexual activities.
Additionally, Roggensack noted, the legislature modified the word “conduct” in that statute with “any,” which the dictionary in part defines as “some without reference to quantity or extant.”
“Therefore, the plain meaning of ‘sexual conduct’ as defined in section 972.11(2)(a) includes a broad range of evidence to which para. (b) precludes admission except as specifically excepted in para. (b),” Justice Roggensack wrote.
Testimony Doesn’t Fit Exceptions
Lisa’s testimony that she did not engage in any sexual activity prior to the week of Nov. 22, 2016, did not fit within any of the three exceptions in section 972.11(2)(b)1.-3..
The second exception, Justice Roggensack pointed out, allows evidence of a victim’s specific instances of sexual conduct to be admitted to show “the source or origin of semen, pregnancy, or disease, for use in determining the degree of sexual assault or the extent of injury suffered.”
But the state didn’t use the vaginal swab evidence in Lisa’s case for that limited purpose, Roggensack explained.
“Rather, the State used it as proof that Lisa did not have sexual intercourse in the week prior to Mulhern’s assault,” Justice Roggensack explained.
Admission was Harmless Error
The admission of Lisa’s testimony about her lack of prior sexual activity was therefore barred by the rape shield law and its admission was erroneous, Justice Roggensack concluded.
But the overall strength of the state’s case warranted a conclusion that the admission of Lisa’s testimony about her prior lack of sexual activity was harmless error, Roggensack explained:
the nurse who examined Lisa testified that her injuries were consistent with sexual assault;
the DNA analysis of the saliva sample demonstrated that Mulhern had been in physical contact with Lisa; and
Lisa made a contemporaneous reports of her sexual assault.
Concurrence: Majority Opinion Hurts Victims
In her concurrence, Chief Justice Ziegler argued that the circuit court had not erred by admitting Lisa’s testimony about her prior lack of sexual activity.
Ziegler pointed out that the majority’s holding “protects the perpetrator of the assault from the inculpatory testimony of the victim.”
“The testimony, if believed, would be evidence that Mulhern was the source of DNA found on Lisa’s body,” Chief Justice Ziegler wrote. “The majority applies the rape shield statute in a manner that harms rather than shields the victim.”
Ziegler wrote that by arguing that another man was the source of the DNA on the vaginal swab, Mulhern had “‘opened the door’ to allowing Lisa to testify about the lack of an alternative source.”
Mulhern’s case was different from the types of cases that led to the enactment of rape shield laws, Chief Justice Ziegler explained.
Rather than testimony introduced by the defense to “embarrass or intimidate the victim,” Ziegler wrote, Lisa’s testimony that she did not engage in sexual activity before the week of Nov. 22, 2016, was introduced by the state to counter Mulhern’s defense that another man was the source of the DNA detected on the vaginal swab.
Chief Justice Ziegler explained that neither the dictionary nor the plain meaning definitions of “activity” include the lack of activity or lack of behavior.
“The plain text of Wisconsin’s rape shield statute does not protect criminal defendants from evidence of the victim’s lack of sexual activity,” Chief Justice Ziegler wrote.