State v. Ryan Hugh Mulhern

2022 WI 42SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1565-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Ryan Hugh Mulhern,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 394 Wis. 2d 839, 953 N.W.2d 102(2020 – unpublished)
OPINION FILED: June 21, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 9, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Pierce
JUDGE: Joseph D. Boles
JUSTICES:
ROGGENSACK, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, HAGEDORN, and KAROFSKY, JJ.,
joined. ZIEGLER, C.J., filed a concurring opinion, in which
REBECCA GRASSL BRADLEY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Sarah L. Burgundy, assistant attorney general, with
whom on the briefs was Joshua L. Kaul, attorney general. There
was an oral argument by Sarah L. Burgundy.
For the defendant-appellant, there was a brief filed by
Dennis Schertz and Schertz Lase Office, Hudson. There was an
oral argument by Dennis Schertz.
2022 WI 42NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1565-CR
(L.C. No. 2016CF255)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
v. JUN 21, 2022
Ryan Hugh Mulhern, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
ROGGENSACK, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, HAGEDORN, and KAROFSKY, JJ.,
joined. ZIEGLER, C.J., filed a concurring opinion, in which
REBECCA GRASSL BRADLEY, J., joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, J. We review the court of
appeals' decision1 reversing the circuit court's2 conviction of
Ryan Mulhern for one count of second-degree sexual assault and
one count of misdemeanor bail jumping. On appeal, the State
1State v. Mulhern, No. 2019AP1565-CR, unpublished slip op.
(Wis. Ct. App. Oct. 6, 2020) (per curiam).
2The Honorable Joseph D. Boles of Pierce County Circuit
Court presided.
No. 2019AP1565-CR
asks us to reverse the court of appeals, arguing that evidence
of the victim's lack of sexual intercourse is not prior "sexual
conduct" pursuant to Wis. Stat. § 972.11(2)(a)-(b) (2017-2018)3
(collectively referred to as the "rape shield" statute).
Further, the State argues that, even if the victim's testimony
was inadmissible, the error was harmless.
¶2 We conclude that the broad language used to define
"sexual conduct" in the rape shield statute's prohibition
includes evidence concerning the victim's lack of sexual
intercourse. Therefore, the victim's testimony in this case
regarding her lack of sexual intercourse in the week prior to
the sexual assault was improperly admitted. However, we also
conclude that, absent the rape shield evidence, a rational jury
would have found Ryan Mulhern guilty of second-degree sexual
assault beyond a reasonable doubt. Therefore, the circuit
court's error in admitting the victim's testimony was harmless.
I. BACKGROUND
¶3 This case arises out of a sexual assault committed by
Ryan Mulhern against his friend, "Lisa."4 The State charged
Mulhern with one count of second-degree sexual assault, one
count of strangulation and suffocation, and one count of
misdemeanor bail jumping. The case proceeded to trial, during
which, Lisa testified to the assault and the events that took
3 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
4 Consistent with the policy underlying Wis. Stat. § (Rule)
809.86, we refer to the victim using a pseudonym.
2
No. 2019AP1565-CR
place in its aftermath. She testified that in the late hours of
November 21, 2016, Mulhern texted her and asked to come over to
her house, claiming that he was having personal issues and
sounded "upset" and "frantic." Lisa agreed to let Mulhern come
over for the night, but told him that he would be sleeping on
the futon and that she "would be there for him as a friend, and
that would be all it was."
¶4 Mulhern arrived around midnight and, rather than speak
to Lisa about the personal issues going on in his life, he
continually turned the conversation to Lisa and her life. After
a while, Lisa told Mulhern that she needed to go to sleep
because she had an exam the next morning. She directed Mulhern
to the futon in the living room. Lisa went upstairs to her
bedroom, but Mulhern persisted.
¶5 Lisa got into bed and under the covers. Mulhern laid
on top of the covers and put his arm around her. While Lisa
tolerated this contact, she continued to try to make it
"abundantly clear that [she] needed to get to [sleep and that
she] was not interested in anything else."
¶6 Mulhern then began to kiss Lisa, who pushed him away,
told him to stop, and reminded him that he was in a
relationship. Mulhern relented and promised to leave if Lisa
would give him a single kiss. Lisa gave him a peck on the lips
and told him to leave. Instead, Mulhern became more aggressive.
He held Lisa's head and shoulders down as he kissed her mouth,
face, and neck. Mulhern got out of bed, removed his clothes,
and got under the covers with Lisa.
3
No. 2019AP1565-CR
¶7 Mulhern pressed his erect penis against her bottom and
began trying to put his hands up her shirt and down her pants.
When Lisa protested and tried to slap his hands away, Mulhern
grew angrier and more forceful. He pinned her against the wall
and removed her pants. Mulhern maneuvered between her legs and
Lisa felt his penis enter her. As he did this, Lisa struggled
to breathe. Mulhern pressed his forearm against her throat and
her head lay over the edge of the bed. She tried to yell for a
roommate, who was not home, but she "could barely get her name
out." As she tried to scream, Mulhern covered her mouth and
nose with his hand. She bit his hand and attempted to scream
again.
¶8 Lisa's next recollection was being curled up on the
bed and Mulhern standing at the end of the bed and looking
"apologetic and concerned." He asked Lisa why she was so upset
and offered to get her something to drink. He left only after
Lisa threatened to call the police. As soon as Mulhern left,
Lisa called a friend and told her what had happened with
Mulhern.
¶9 Later that morning, Lisa called a local sexual assault
resources team ("SART") and was told to meet them at the
hospital for an examination. At the hospital, Lisa was examined
by a SART nurse who testified that she had numerous injuries
consistent with an assault. These injuries included tenderness
and tightness on her neck, a sore throat, a semicircular wound
on her right shoulder, and tenderness on her right chest wall,
inner thighs, and inner calves. Additionally, the nurse
4
No. 2019AP1565-CR
detailed that Lisa had significant injuries to her genital area,
including tenderness on her inner and outer labia, a linear tear
to the left inner labia, an abrasion on her right vaginal wall,
and redness on the left vaginal wall.
¶10 Shortly after leaving the hospital, Lisa saw a friend
and told him about the assault. The friend later testified that
Lisa was distraught and cried when she told him about it. Lisa
further testified that the next day, she called the River Falls
Police Department, interviewed with an officer, and told the
officer what had occurred with Mulhern. Later that week, Lisa
went home for Thanksgiving and told her mother about the
assault.
¶11 Following Lisa's testimony, a DNA analyst from the
State Crime Lab testified that he used DNA taken from Lisa's
hospital visit and tested it for identification purposes. He
tested a sample of saliva-based DNA taken from Lisa's neck and
matched it to Mulhern. The analyst also tested a vaginal swab
and found the presence of male DNA, but concluded that there was
not a large enough sample to determine whose DNA it was. The
analyst further testified that a body's natural processes will
remove foreign DNA deposited into a vagina after a period of
five days following an assault.
¶12 Following this testimony, the State, over defense
counsel's objection, attempted to recall Lisa to the stand. It
did so to ask Lisa whether she had sexual intercourse in the
week prior to November 22, 2016. The circuit court allowed the
question because, after reviewing the definition of "sexual
5
No. 2019AP1565-CR
conduct" under the rape shield statute, it determined that Wis.
Stat. § 972.11(2)(a) was limited to affirmative acts and,
therefore, the proposed testimony regarding Lisa's lack of
sexual intercourse fell outside the rape shield statute. When
Lisa was asked whether she had sexual intercourse in the prior
week, she answered that she had not. Mulhern was not given the
opportunity to re-cross examine Lisa.
¶13 Finally, Mulhern took the stand and told his version
of the events of November 22. He testified that Lisa invited
him over that night and he went over to talk and catch up.
After he was confronted with his text messages to Lisa, he
acknowledged that his testimony was not accurate and that it was
he who had asked to come to Lisa's apartment because he was
"about to have a nervous breakdown." Next, Mulhern stated that
Lisa had never limited the interaction to just speaking "as
friends" or that she told him to sleep on the futon downstairs.
He was forced to also recant this testimony by his text messages
to Lisa.
¶14 Mulhern also testified that, after talking for a
while, they began to kiss consensually. He denied that Lisa
ever voiced any resistance or told him to stop. Then, they both
removed their own clothes and Mulhern began to kiss Lisa on her
breasts, neck, collarbones, and hips. When Mulhern was about to
insert his penis into Lisa's vagina, she suddenly yelled at him
to stop and he left her home. Mulhern testified that Lisa had
contacted him twice after the incident. The first time, she
asked whether Mulhern had ejaculated inside of her, to which he
6
No. 2019AP1565-CR
denied penetrating her. After asking that question, Lisa told
Mulhern never to contact her again.
¶15 Following testimony and closing arguments, in which
the State referenced the analyst's five-day time period as well
as Lisa's testimony regarding her lack of sexual intercourse in
the week preceding the assault, the jury convicted Mulhern of
second-degree assault. Based on the terms of a plea agreement,
because Mulhern was found guilty of the sexual assault charge,
he was also found guilty of the misdemeanor bail jumping charge.
However, the jury acquitted him of the strangulation charge.
Mulhern appealed his convictions.
¶16 The court of appeals reversed. State v. Mulhern,
No. 2019AP1565-CR, unpublished slip op., ¶34 (Wis. Ct. App. Oct.
6, 2020) (per curiam). At the court of appeals, the State
conceded that the circuit court erroneously exercised its
discretion by admitting the challenged portion of Lisa's
testimony, but asserted that the error was harmless. Id., ¶¶23-
24. The court of appeals disagreed and concluded that the State
had not met its burden to prove beyond a reasonable doubt that a
rational jury would have convicted Mulhern absent the circuit
court's error. Id., ¶¶27, 34. Specifically, the court of
appeals noted that the State relied heavily on Lisa's testimony
and the DNA analyst's five-day window to construct a factual
timeline that corroborated its theory of guilt in the case.
Id., ¶33. This timeline was highlighted in its closing
argument. Id. We granted the State's petition for review, and
now reverse the court of appeals.
7
No. 2019AP1565-CR
II. DISCUSSION
A. Standard of Review
¶17 This case involves questions of statutory
interpretation and application. Statutory interpretation and
application present questions of law that we independently
review, while benefitting from decisions of the circuit court
and the court of appeals. Marder v. Bd. of Regents of the Univ.
of Wis. Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110.
¶18 We determine whether the circuit court's decision to
admit evidence was an erroneous exercise of discretion. State
v. Sullivan, 216 Wis. 2d 768, 780, 576 N.W.2d 30 (1998). "A
circuit court erroneously exercises its discretion if it applies
an improper legal standard or makes a decision not reasonably
supported by the facts of record." Weborg v. Jenny, 2012 WI 67,
¶41, 341 Wis. 2d 668, 816 N.W.2d 191 (quoting Johnson v. Cintas
Corp. No. 2, 2012 WI 31, ¶22, 339 Wis. 2d 493, 811 N.W.2d 756).
A circuit court's erroneous exercise of discretion in admitting
evidence is subject to the harmless error rule. State v. Hunt,
2014 WI 102, ¶21, 360 Wis. 2d 576, 851 N.W.2d 434 (citing State
v. Harris, 2008 WI 15, ¶85, 307 Wis. 2d 555, 745 N.W.2d 397).
Whether the error was harmless presents a question of law that
we review independently. Hunt, 360 Wis. 2d 576, ¶21 (citing
State v. Jackson, 2014 WI 4, ¶44, 352 Wis. 2d 249, 841 N.W.2d
791).
8
No. 2019AP1565-CR
B. Wisconsin Stat. § 972.11(2)
¶19 The purpose of statutory interpretation is to
determine what the words of the statute mean so that they may be
given effect. State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,
2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. Therefore,
statutory interpretation must begin with the language of the
statute. If the meaning of the words are plain and unambiguous,
a court's inquiry ends and there is no need to consult extrinsic
sources of interpretation, such as legislative history. Id.,
¶¶45, 46. Statutory language is given its "common, ordinary,
and accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id., ¶45 (citing Bruno v. Milwaukee
Cnty., 2003 WI 28, ¶¶8, 20, 260 Wis. 2d 633, 660 N.W.2d 656).
¶20 In addition to the plain meaning of statutory words,
"[c]ontext is important to meaning. So, too, is the structure
of the statute in which the operative language appears." Kalal,
271 Wis. 2d 633, ¶46. Therefore, "statutory language is
interpreted in the context in which it is used; not in isolation
but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results . . . [and] read where
possible to give reasonable effect to every word, in order to
avoid surplusage." Id. When courts interpret a statute, they
are not at liberty to disregard "plain, clear words of the
statute." Id. Context also can include the factual setting in
9
No. 2019AP1565-CR
which the statute is interpreted. Seider v. O'Connell, 2000 WI
76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659.
¶21 Turning then to the statute at issue here, Wis. Stat.
§ 972.11(2) provides:
(a) In this subsection, "sexual conduct" means
any conduct or behavior relating to sexual activities
of the complaining witness, including but not limited
to prior experience of sexual intercourse or sexual
contact, use of contraceptives, living arrangement and
life-style.
(b) If the defendant is accused of a crime under
s. 940.225, 942.09, 948.02, 948.025, 948.05, 948.051,
948.06, 948.07, 948.08, 948.085, 948.09, or 948.095,
or under s. 940.302(2), if the court finds that the
crime was sexually motivated, as defined in
s. 980.01(5), any evidence concerning the complaining
witness's prior sexual conduct or opinions of the
witness's prior sexual conduct and reputation as to
prior sexual conduct shall not be admitted into
evidence during the course of the hearing or trial,
nor shall any reference to such conduct be made in the
presence of the jury, except the following, subject to
s. 971.31(11):
1. Evidence of the complaining witness's past
conduct with the defendant.
2. Evidence of specific instances of sexual
conduct showing the source or origin of semen,
pregnancy or disease, for use in determining the
degree of sexual assault or the extent of injury
suffered.
3. Evidence of prior untruthful allegations of
sexual assault made by the complaining witness.
§ 972.11(2)(a)-(b).
¶22 We examine the text of Wis. Stat. § 972.11(2)(a) and
(b) to determine whether para. (a)'s definition of "sexual
conduct" includes a lack of "sexual intercourse." If a lack of
10
No. 2019AP1565-CR
"sexual intercourse" is included within the statutory
definition, does evidence of a victim's lack of "sexual
intercourse" qualify for admission under one of para. (b)'s
exceptions. We address each of these questions in turn. In
doing so, it is helpful to begin with a reexamination of our
past decisions that have involved the question of whether the
rape shield statute's definition of "sexual conduct" includes a
lack of sexual conduct.
1. Rape shield decisions
¶23 Wisconsin's rape shield statute was enacted in 1976
and, apart from updated cross-references, the two relevant
paragraphs, Wis. Stat. § 972.11(2)(a)-(b), remain unchanged
today. Three years after its enactment, in State v. Clark, a
fifteen-year-old victim of sexual assault was allowed to testify
"that she never had intercourse with anyone before the incident
in question." State v. Clark, 87 Wis. 2d 804, 810, 275 N.W.2d
715 (1979). Following a postconviction motion, the circuit
court reviewed the rape shield statute and concluded it had
erred by allowing that testimony. Id. at 813. On appeal, one
question presented was whether "it was error to receive evidence
concerning [a victim's] chastity[.]"5 Id. However, in briefing,
the "state concede[d] that the trial court erred in admitting
[the victim's] testimony that she did not have intercourse
before the incident in question." Id. at 817. We accepted the
The appeal in State v. Clark, 87 Wis. 2d 804, 275 N.W.2d
5715 (1979), was filed before the court of appeals was part of
Wisconsin's appellate procedure.
11
No. 2019AP1565-CR
concession and did not interpret § 972.11(2)(a). Instead, we
proceeded directly to a harmless error analysis.
¶24 In Gavigan, we again accepted the State's concession
that the circuit court erred in admitting testimony of the
victim's virginity prior to being assaulted. State v. Gavigan,
111 Wis. 2d 150, 158, 330 N.W.2d 571 (1983). In accepting the
State's concession, we noted that:
Sec. 972.11(2)(b), Stats., precludes the admission of
"any evidence" pertaining to a complainant's prior
sexual conduct or reputation. Nothing in the statute
limits its applicability to prior affirmative acts.
Rather, the plain meaning of the words "prior sexual
conduct" includes the lack of sexual activity as well.
Accordingly, we conclude a statement that a woman is a
virgin is necessarily a comment on the woman's prior
sexual conduct. The two references in question do not
fall within any of the three exceptions listed in sec.
972.11(2)(b). Nor do they establish any fact
independent of the complainant's prior sexual conduct
which is relevant to an issue in the case. Therefore,
the virginity testimony was inadmissible under the
statute.
Id. at 158–59. However, despite this pronouncement that "the
plain meaning of the words 'prior sexual conduct' includes the
lack of sexual activity as well," id. at 159, we allowed
evidence of the victim's virginity in regard to proof of lack of
consent. Id. at 160.
¶25 We fashioned a test that would allow evidence to come
in "only if" the evidence met the following
conditions: (1) "[T]he evidence [] serve[d] to prove a fact
independent of the complainant's prior sexual conduct which is
relevant to an issue in the case." Id. at 157. (2) "[T]he
probative value of the evidence [] outweigh[ed] any prejudice
12
No. 2019AP1565-CR
caused by its relation to the complainant's prior sexual
conduct." Id. (3) "[T]he jury's consideration of the evidence
[] [was] limited to the purpose for which it was admitted." Id.
at 157-58.
¶26 Following Gavigan's court-made exception, the
legislature amended Wis. Stat. § 972.11(2) by adding para. (c).
It provides:
Notwithstanding s. 901.06, the limitation on the
admission of evidence of or reference to the prior
sexual conduct of the complaining witness in par. (b)
applies regardless of the purpose of the admission or
reference unless the admission is expressly permitted
under par. (b) 1., 2. or 3.
§ 972.11(2)(c). This amendment limited the court from expanding
the exceptions to § 972.11(2)(a) beyond those provided by the
legislature in § 972.11(2)(b).
¶27 Following the amendment that added para. (c), the
State has continued its practice of conceding that, for the
purposes of an appeal, evidence of a victim's lack of prior
sexual conduct is inadmissible under the rape shield statute and
has proceeded to argue for harmless error. See, e.g., State v.
Mitchell, 144 Wis. 2d 596, 600, 609, 424 N.W.2d 698 (1988) ("The
defendant and state agree that under our prior cases 'prior
sexual conduct' includes lack of prior sexual conduct, that is,
virginity.").
¶28 However, in the matter now before us, the State has
changed course and does not concede that Lisa's testimony
regarding her lack of sexual intercourse during the week before
the alleged sexual assault was admitted in error. Therefore, we
13
No. 2019AP1565-CR
have occasion to interpret the definition of "sexual conduct" in
Wis. Stat. § 972.11(2)(a).
¶29 We recently held in State v. Bell that "[p]rior sexual
conduct includes a lack of sexual conduct, meaning that evidence
that a complainant had never had sexual intercourse is
inadmissible." State v. Bell, 2018 WI 28, ¶63, 380 Wis. 2d 616,
909 N.W.2d 750. Seeking to escape from this statement, the
State asserts that this language should be ignored because its
"reasoning on that point was a reiteration of an adopted
concession in a case decided over three decades ago."6
2. Rape shield evidence
¶30 Wisconsin Stat. § 972.11(2)(a) defines "sexual
conduct" as "any conduct or behavior relating to sexual
activities of the complaining witness, including but not limited
to prior experience of sexual intercourse or sexual contact, use
of contraceptives, living arrangement and life-style."
§ 972.11(2)(a). We interpret and apply its provisions in regard
to Lisa's testimony that she did not have sexual intercourse in
the week preceding the assault.
¶31 First, we note that "sexual conduct" is linked in the
statutory definition to "any conduct or behavior relating to
sexual activities of the complaining witness." Wis. Stat.
§ 972.11(2)(a). "Sexual activities" are not required to include
prior sexual intercourse, although they may do so. Also,
"conduct" is an alternative to "behavior" ("conduct or
6 Pet. Br. at 11.
14
No. 2019AP1565-CR
behavior") so long as it relates to sexual activities of the
victim.
¶32 Second, "sexual conduct" is defined in Wis. Stat.
§ 972.11(2)(a) to include "living arrangement" and "life-style"
if they relate to sexual activities of the victim. Therefore,
para. (a) employs very broad terms in its definition of "sexual
conduct," so long as "living arrangement" and "life-style" have
a connection to the "sexual activities of the complaining
witness." § 972.11(2)(a).
¶33 Third, the legislature chose to modify "conduct" with
the word "any." "Any" is not defined in Wis. Stat. § 972.11(2).
A dictionary definition provides that "any" is "one, some, or
all indiscriminately of whatever quantity" or "some without
reference to quantity or extent."7 Therefore, the plain meaning
of "sexual conduct" as defined in § 972.11(2)(a) includes a
broad range of evidence to which para. (b) precludes admission
except as specifically excepted in para. (b).
¶34 Furthermore, "relating," the gerund form of "relate,"
which is defined as "to show or establish logical or causal
connection between,"8 indicates that the statutory definition
Any,
7 Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/any (last visited
Mar. 23, 2022); see also State v. Sample, 215 Wis. 2d 487, 499,
573 N.W.2d 187 (1998) ("For purposes of statutory interpretation
or construction, the common and approved usage of words may be
established by consulting dictionary definitions.").
Relate,
8 Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/relate (last visited
Mar. 23, 2022).
15
No. 2019AP1565-CR
does not narrowly limit the prohibition of evidence. Rather, it
seeks to identify any evidence that has a causal or logical
relationship to sexual conduct of a "complaining witness." The
complaining witness's lack of sexual intercourse the week before
the sexual assault at issue here bears a causal and logical
connection to whether she participated in sexual conduct.
Stated otherwise, Wis. Stat. § 972.11(2)(a)'s usage of "any" and
"relating to" sets broad application that extends beyond a
definition of evidence concerning affirmative acts. See Burbank
Grease Servs., LLC v. Sokolowski, 2006 WI 103, ¶22, 294 Wis. 2d
274, 717 N.W.2d 781 ("'Any' is a very broad term."); Kalal, 271
Wis. 2d 633, ¶44.
¶35 In addition, the interpretation and application of
statutory terms such as "life-style" and "living arrangement"
under the particular facts of a given case, may cause para. (a)
to be ambiguous. Seider, 236 Wis. 2d 211, ¶43 ("Permitting the
facts of a case to gauge ambiguity simply acknowledges that
reasonable minds can differ about a statute's application when
the text is a constant but the circumstances to which the text
may apply are kaleidoscopic."). That is, interpretations of
Wis. Stat. § 972.11(2)(a) by reasonably well-informed persons
may vary. Westmas v. Creekside Tree Serv., Inc., 2018 WI 12,
¶18, 379 Wis. 2d 471, 907 N.W.2d 68 (explaining that where a
statute is capable of being understood by reasonably well-
informed persons in two or more senses, the statute is
ambiguous). However, the facts presented herein involve
testimony concerning only sexual intercourse, not "life-style"
16
No. 2019AP1565-CR
or "living arrangement." Accordingly, we do not address life-
style or living arrangement and rely on a plain meaning
definition of sexual intercourse for our discussion and
decision.
¶36 As a means of disputing the conclusion that Lisa's
lack of sexual intercourse in the week prior to the assault is
sexual conduct to which Wis. Stat. § 972.11(2)(b) prohibits
admission, the State cites People v. Sharpe, 918 N.W.2d 504(Mich. 2018). Sharpe interprets a similar, but not identical
rape shield statute, which the State argues is entitled to our
consideration as interpretive of § 972.11(2). Under Michigan's
rape shield statute, "[e]vidence of specific instances of the
victim's sexual conduct, opinion evidence of the victim's sexual
conduct, and reputation evidence of the victim's sexual conduct
shall not be admitted . . . ." Mich. Comp. Laws § 750.520j
(2017-18).9
¶37 In Sharpe, the Michigan Supreme Court concluded that
evidence that the victim "did not engage in other sexual
intercourse in 2014 does not fall within the plain language of
the rape-shield statute." Id at 513. It concluded that this
"evidence demonstrate[d] an absence of conduct, not a 'specific
9 As with the Wisconsin rape shield statute, Michigan's rape
shield statute allows for evidence to be admitted under
delineated exceptions if "the judge finds that
the . . . proposed evidence is material to a fact at issue in
the case and that its inflammatory or prejudicial nature does
not outweigh its probative value." Mich. Comp. Laws § 750.520j
(2017-18). Neither of those exceptions was applicable to the
analysis at hand.
17
No. 2019AP1565-CR
instance' of sexual conduct. [And that to exclude] evidence of
a lack of sexual partners under the rape-shield statute would
render the phrase 'specific instances' meaningless." Id.¶38 Importantly, in coming to this conclusion, the court
distinguished words of the Michigan rape shield statute, which
prohibit "specific instances" of a victim's prior sexual conduct
from Wisconsin's rape shield statute, which prohibits "any
evidence" of the victim's prior sexual conduct. Id. at 513 n.9
(comparing textual differences in state rape shield statutes).
¶39 The State, in disagreement with the Michigan Supreme
Court, asserts that these are "distinctions [] without [a]
difference."10 We agree with the Michigan Supreme Court that
these are dissimilar statutes, and therefore, whether evidence
of a victim's lack of sexual intercourse is included in the
plain meaning of Wis. Stat. § 972.11(2)(a)'s definition of
"sexual conduct" is not assisted by Sharpe or the Michigan
statute.
¶40 Next, we examine Wis. Stat. § 972.11(2)(b). It begins
with a prohibition on the admittance of "any evidence"
"concerning the complaining witness's prior sexual conduct or
opinions of the witness's prior sexual conduct and reputation as
to prior sexual conduct" that is stated differently than simply
repeating the definition of "sexual conduct" expressed in
para. (a). This case does not involve the opinions of others or
10 Pet. Br. 23.
18
No. 2019AP1565-CR
Lisa's reputation as to prior sexual conduct. Therefore, we do
not address those provisions.
¶41 Instead, we move from Wis. Stat. § 972.11(2)(b)'s
initial prohibition of the admission of evidence, to its three
legislative exceptions, § 972.11(2)(b)1., 2. and 3. We do so to
determine whether evidence of a victim's lack of sexual
intercourse in the week prior to the sexual assault fits within
a statutory exception to admission of evidence under the rape
shield statute. Although para. (b) includes a prohibition of
evidence of "sexual conduct" as defined in para. (a), the
following evidence may be admissible:
1. Evidence of the complaining witness's past
conduct with the defendant.
2. Evidence of specific instances of sexual
conduct showing the source or origin of semen,
pregnancy or disease, for use in determining the
degree of sexual assault or the extent of injury
suffered.
3. Evidence of prior untruthful allegations of
sexual assault made by the complaining witness.
§ 972.11(2)(b).
¶42 After examination of testimony at issue in this case,
we conclude that none of these exceptions is applicable to
Lisa's testimony regarding her lack of sexual intercourse in the
week prior to the assault because the State did not use this
evidence for a statutory purpose: i.e., to determine "the
degree of sexual assault or the extent of injury suffered."
Wis. Stat. § 972.11(2)(b)2. Subsection (2) allows the use of
"sexual conduct" evidence to discern the origin of semen,
19
No. 2019AP1565-CR
pregnancy, or disease for purposes limited by statute. However,
the State did not use the evidence obtained by vaginal swab for
a listed statutory purpose. Rather, the State used it as proof
that Lisa did not have sexual intercourse in the week prior to
Mulhern's assault. Therefore, subsec. (2) cannot be a basis for
the lawful introduction of Lisa's testimony.11 Consequently, we
conclude that Lisa's testimony, that she did not have sexual
intercourse with anyone during the week preceding the assault,
is barred by the broad language of the rape shield statute and,
therefore, was erroneously admitted by the circuit court.
C. Harmless Error
¶43 Because Lisa's testimony was admitted in error, we
consider whether the circuit court's admission of that testimony
was harmless. The erroneous admission of evidence is subject to
the harmless error rule. See State v. Fishnick, 127 Wis. 2d
247, 267, 378 N.W.2d 272 (1985) (concluding that testimony was
erroneously admitted but affirming conviction on harmless error
grounds). Harmless error requires us to examine the error's
effect on the jury. Hunt, 360 Wis. 2d 576, ¶26. For an error
to be harmless, the party that benefitted from the erroneous
admission (in this case, the State), must prove beyond a
reasonable doubt that "a rational jury would have found the
11 We conclude that neither of the other exceptions in Wis.
Stat. § 972.11(2)(b) is applicable to the facts presented
herein. Additionally, we decline to create or recognize any
other exceptions not already stated in the text according to the
legislature's most recent amendment to § 972.11(2). Cf. Wis.
Stat. § 972.11(2)(c).
20
No. 2019AP1565-CR
defendant guilty absent the error." Id. (quoting State v.
Harvey, 2002 WI 93, ¶49, 254 Wis. 2d 442, 647 N.W.2d 189). We
previously have articulated several factors to assist in a
harmless error analysis, including but not limited to: "the
importance of the erroneously admitted or excluded evidence; the
presence or absence of evidence corroborating or contradicting
the erroneously admitted or excluded evidence; the nature of the
defense; the nature of the State's case; and the overall
strength of the State's case." Hunt, 360 Wis. 2d 576, ¶27.
¶44 Here, the State asserts that, even without the
erroneous admission of Lisa's testimony, there is still
overwhelming evidence that proves beyond a reasonable doubt that
a rational jury would have found Mulhern guilty of second-degree
sexual assault. Although we acknowledge that Mulhern was denied
the opportunity to re-cross examine Lisa and that the State
relied on Lisa's inadmissible testimony in its closing
arguments; we nonetheless recognize the overall strength of the
State's case and conclude that the circuit court's error was
harmless.
¶45 The SART nurse's testimony was crucial evidence
presented to the jury. She testified about her physical
examination of Lisa and the injuries that Lisa's body evidenced.
She testified that Lisa had numerous physical injuries,
including significant injuries to her genital area. She said
that Lisa suffered a linear tear to her left inner labia,
tenderness on her inner and outer labia, an abrasion on her
right vaginal wall, and redness on the left vaginal wall. She
21
No. 2019AP1565-CR
also testified that Lisa had tenderness and tightness on her
neck, a sore throat, a semicircular wound on her right shoulder,
and tenderness on her right chest wall, inner thighs, and inner
calves. The nurse confirmed that Lisa's injuries were
consistent with sexual assault and Lisa's recounting of what had
happened to her. In essence, Lisa's injuries provided physical
evidence that corroborated her description of Mulhern's assault,
and they also contradicted Mulhern's version of his interaction
with Lisa.
¶46 A DNA analyst from the State Crime Laboratory used DNA
taken from Lisa's hospital visit and tested it for
identification purposes. He tested a sample of saliva-based DNA
taken from Lisa's neck and matched it to Mulhern. This placed
him in physical contact with Lisa. The analyst also tested a
vaginal swab and found the presence of male DNA; however, there
was not a large enough sample to determine whose DNA it was.
¶47 Lisa also made contemporaneous reports of the sexual
assault. Although we recognize that contemporaneous reporting
may not always be indicative of the veracity of an allegation,
we observe that immediately after it happened, Lisa called her
roommate to let her know. Later that same day, she reported the
assault to the SART nurse and met her at a hospital for an
examination. After leaving the hospital, Lisa told a friend
about the assault. The friend testified that Lisa was
distraught and crying. The next day, Lisa called the River
Falls Police Department, interviewed with an officer, and told
the officer what had occurred with Mulhern. Later that same
22
No. 2019AP1565-CR
week, Lisa told her mother about the assault while home for
Thanksgiving.
¶48 Finally, Mulhern's own testimony, and his repeated
retractions that were forced by his prior text messages, also
support the jury's concluding beyond a reasonable doubt that he
was guilty of sexual assault. For example, Mulhern was required
to retract his assertions that Lisa had been the one to invite
him over, that she had never limited the interaction to just
speaking "as friends," and that she told him to sleep on the
futon downstairs. Each of Mulhern's retractions made him less
credible in the eyes of the jury and supported Lisa's report
that he sexually assaulted her.
¶49 Attempting to discount the strength of the State's
case and witness testimony, Mulhern argues that the jury's
decision not to convict him of strangulation and suffocation
casts doubt on Lisa's testimony as a whole. The court of
appeals agreed saying that the acquittal "suggests that the jury
had a reasonable doubt as to whether [Lisa's] testimony fully
and accurately described Mulhern's actions."12 However, the
different outcomes on the sexual assault and strangulation
charges are more reasonably explained by the difference in
elements needed to prove each crime.
¶50 To convict Mulhern of strangulation and suffocation,
the State was required to prove that Mulhern (1) intentionally
(2) impeded Lisa's normal breathing or circulation of blood;
12 Mulhern, No. 2019AP1565-CR, at ¶31.
23
No. 2019AP1565-CR
(3) by applying pressure on the throat or neck or by blocking
the nose or mouth. Wis. Stat. § 940.235(1).13 By contrast, to
convict Mulhern of second-degree sexual assault, the State was
required to prove that Mulhern (1) had sexual intercourse
(2) with Lisa (3) without consent (4) by use or threat of force
or violence.14
¶51 Based on the required elements for each crime, it is
reasonable that the jury concluded that there was enough
evidence to convict Mulhern on the sexual assault charge and not
on the strangulation charge. This is so because strangulation
requires that the State prove that Mulhern acted with the
"mental purpose to impede normal breathing or circulation of
blood or was aware that [the] conduct was practically certain to
cause that result." State v. Christel, Nos. 2020AP1127-CR &
2020AP1128-CR, unpublished slip op., ¶45 n.7, (Wis. Ct. App.
Dec. 8, 2021) (quoting Wis JI——Criminal 1255 (2014)). The jury
could have concluded that Mulhern used force to assault Lisa,
but did not intend to stop her from breathing; rather, his
covering her mouth was to limit her screams. The elements of
In full, Wis. Stat. § 940.235(1) provides that "[w]hoever
13
intentionally impedes the normal breathing or circulation of
blood by applying pressure on the throat or neck or by blocking
the nose or mouth of another person is guilty of a Class H
felony."
In full, Wis. Stat. § 940.225(2)(a) provides that whoever
14
"[h]as sexual contact or sexual intercourse with another person
without consent of that person by use or threat of force or
violence" is guilty of a Class B Felony.
24
No. 2019AP1565-CR
the two crimes are distinct; they do not overlap in regard to
the facts needed to prove each crime.
¶52 Additionally, if we were to agree with Mulhern and the
court of appeals that the jury may have doubted Lisa's testimony
regarding strangulation, it does not follow that it would then
simultaneously doubt her testimony regarding the sexual assault.
This case was not simply a straightforward assessment of both
parties' credibility. Instead, the inconsistencies inherent in
Mulhern's testimony, combined with the consistency between
Lisa's testimony and the physical evidence of bodily injury that
Lisa suffered, prove beyond a reasonable doubt that a rational
jury would have found Mulhern guilty of second-degree sexual
assault without Lisa's testimony that she did not have sexual
intercourse in the week before the assault. Therefore, we
conclude that the circuit court's error in admitting that
testimony was harmless.
25
No. 2019AP1565-CR
III. CONCLUSION
¶53 We conclude that the broad language used to define
"sexual conduct" in the rape shield statute's prohibition
includes evidence concerning the victim's lack of sexual
intercourse. Therefore, the victim's testimony in this case
regarding her lack of sexual intercourse in the week prior to
the sexual assault was improperly admitted. However, we also
conclude that, absent the rape shield evidence, a rational jury
would have found Ryan Mulhern guilty of second-degree sexual
assault beyond a reasonable doubt. Therefore, the circuit
court's error in admitting the victim's testimony was harmless.
By the Court.—The decision of the court of appeals
reversed.
26
No. 2019AP1565.akz
¶54 ANNETTE KINGSLAND ZIEGLER, C.J. (concurring). Ryan
Mulhern was convicted of second-degree sexual assault. He now
appeals claiming that because of the rape shield law, it was
error for the victim, Lisa, to testify that she did not have
intercourse with another individual the week prior to the
assault. The majority agrees with Mulhern that admission of
that testimony was in error, but the majority concludes that the
error was harmless. I concur because the lack of sexual conduct
is not sexual conduct, and the rape shield statute does not
apply to Lisa's testimony. Lisa's testimony directly related to
the defense asserted and the DNA expert's testimony. At a
minimum, that testimony "opened the door" to the response she
wished to offer. It was not error for the circuit court to
admit Lisa's testimony into evidence.
¶55 Lisa testified that Mulhern sexually assaulted her on
November 21, 2016. She reported the sexual assault shortly
after it occurred, and physical evidence was collected soon
thereafter. Mulhern's DNA was found on Lisa's neck. In
addition, male DNA was found in her vagina, but the sample was
not large enough to determine whose DNA it was.
¶56 At trial, Mulhern defended himself and asserted that
Lisa was not telling the truth. He denied having sexual
intercourse with Lisa. According to Mulhern, Lisa and he kissed
and took off their clothes, but before they were about to have
sex Lisa emotionally and without any warning yelled and demanded
that he leave. Mulhern asserted that any male DNA found inside
her vagina was not his, and therefore the DNA must have come
1
No. 2019AP1565.akz
from someone else. Mulhern argued to the jury that "the only
place they found DNA that they can attribute to [him] is on the
back of her neck," and the accusations from "the State and
[Lisa]" that accuse Mulhern "of having sexual
intercourse . . . did not occur." In cross-examination of Lisa,
Mulhern's counsel asked Lisa if she was "always completely
truthful." Defense counsel then cross-examined the State's DNA
expert and pointed out that, other than the DNA on Lisa's neck,
there was "nothing else that [the DNA report] can attribute to
Ryan Mulhern." Mulhern's counsel emphasized during the cross-
examination that the DNA samples do not prove Mulhern's guilt.
Specifically, Mulhern's counsel stated that "the samples [taken
from Lisa's vagina] had a male contribute" but the expert "[did
not] know whether it's Ryan or not." In other words, Mulhern's
defense was that while they had certain contact, Lisa must have
had intercourse with someone else.
¶57 With Mulhern arguing unambiguously that he did not
have sex with Lisa and thereby any male DNA must have come from
a different source, the prosecution called Lisa back to the
stand. Lisa testified that she had not had sex with any other
person in the week prior to the assault. After receiving this
testimony, the State called back its DNA expert, who testified
that the male DNA would generally remain in the vagina only five
days after sexual contact. After hearing all the available
2
No. 2019AP1565.akz
evidence, Mulhern was convicted of second-degree sexual assault.1
Wis. Stat. § 940.225(2)(a) (stating that it is a Class C felony
for anyone who has "sexual contact or sexual intercourse with
another person without consent of that person by use or threat
of force or violence").
¶58 The majority here errs in concluding that Lisa's
testimony concerning the lack of sexual activity the week before
the attack is barred under Wisconsin's rape shield statute, Wis.
Stat. § 972.11. See majority op., ¶42. Specifically, the
majority errs in concluding that it is Mulhern who is protected
under the rape shield statute. According to the majority's
reading of the rape shield statute, the statute 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. The
majority applies the rape shield statute in a manner that harms
rather than shields the victim. At a minimum, the defense that
was offered "opened the door" to allowing Lisa to testify about
the lack of an alternative source.
¶59 Quite often in sexual assault cases, juries have to
weigh and consider competing versions of events and determine,
in their search for the truth, which portion of the testimony
they find more appealing to their good judgment and common
sense. In other words, they have to decide who they believe.
As part of the same criminal complaint, Mulhern was
1
acquitted of a charge of strangulation, Wis. Stat. § 940.235(1),
and was found guilty to misdemeanor bail jumping, Wis. Stat.
§ 946.49(1)(a).
3
No. 2019AP1565.akz
Given the intimate nature of these offenses, victims of rape and
sexual assault often provide very personal evidence to the
police and assist in the prosecution of their assailants. Many
times, sexual assault victims know their assailant and in fact
may have had prior sexual relations.2 See The Centers for
Disease Control and Prevention, The National Intimate Partner
and Sexual Violence Survey 22-23 (2011) (reporting that between
14% and 15% of rape victims were assaulted by a stranger and
upward toward 50% of rapes are committed by friends and intimate
2The vast majority of rapes and sexual assaults are not
reported. See U.S. Department of Justice, Criminal
Victimization, 2018 8 (Sept. 2019) (stating that in 2017 and
2018 between 25% to 40% of sexual assaults and rapes were
reported to police); National Sexual Violence Resource Center,
Statistics About Sexual Violence 2 (2015) ("Rape is the most
under-reported crime; 63% of sexual assaults are not reported to
police."). Victims often do not want to make known details of
how they were violated and publicly recount the extraordinarily
traumatic events in their lives. Even when sexual assaults and
rapes are reported, a minority lead to arrests. E.g., compare
U.S. Department of Justice, supra 4, 8 (stating that there were
183,000 reported sexual assaults or rapes in 2018), with Federal
Bureau of Investigation, Crime in the United States: 2018,
https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-
2018/tables/table-29 (last visited June 6, 2022) (explaining
that there were 72,142 arrests for sexual assault and rape in
the United States in 2018); Rape, Abuse, & Incest National
Network, The Criminal Justice System: Statistics,
https://www.rainn.org/statistics/criminal-justice-system (last
visited June 6, 2022) (stating that out of 1,000 sexual
assaults, 310 are reported to police and 50 reports lead to an
arrest). Even when a victim reports a sexual assault or rape,
and even when the State proceeds with prosecution, conviction
rates are low. See U.S. Department of Justice, Felony
Defendants in Large Urban Counties 22 (2013) (finding that
"[t]he probability that a defendant would eventually be
convicted of the original felony charge" was the
"lowest . . . for charged with rape (35%) and assault (33%)");
Rape, Abuse, & Incest National Network, supra (stating that 2.8%
of sexual assaults or rapes lead to a conviction).
4
No. 2019AP1565.akz
partners). Often times, cases come down to a credibility
determination between the victim and the defendant. See State
v. Hurley, 2015 WI 35, ¶81, 361 Wis. 2d 529, 861 N.W.2d 174(explaining in the context of a child sexual assault that many
cases "boiled down to a credibility determination" in which the
prosecution relies "on a single witness . . . frequently
unsupported by physical evidence").
¶60 Before rape shield legislation, defendants in sexual
assault cases would use a victim's sexual history to attack the
credibility of the victim and the victim's story. Rape shield
legislation was written to stop the practice. See State v.
Vonesh, 135 Wis. 2d 477, 484, 401 N.W.2d 170 (Ct. App. 1986)
(reasoning that the "objective of the [rape shield] reformers
was to reverse the long-standing common law doctrine that
permitted a defendant accused of rape to inquire into the
complainant's 'character for unchastity,'" and was designed to
"increase . . . the number of rape prosecutions by removing some
of the potential for embarrassment or humiliation which inhibits
victims from reporting crimes" (quoting Rape Law Review: A Brief
Summary of State Action, Legislative Reference Bureau,
Informational Bulletin 75-1B-1, at 6 (1975)); Wright & Miller,
Federal Practice and Procedure, § 5372 (2d ed. 2022) (explaining
that prior to rape shield legislation in the United States, "the
defense in a rape case operated under few constraints" with
respect to "evidence concerning the character of a rape victim
and her prior sexual conduct," which made it "difficult to
obtain convictions of rapists"); Sandoval v. Acevedo, 996
5
No. 2019AP1565.akz
F.2d 145, 149 (7th Cir. 1993) (stating the origins of the rape
shield laws, explaining that many rape and sexual assault
victims had engaged in sex in the past, and "allowing defense
counsel to spread the details of a woman's sex life on the
public record not only causes embarrassment to the woman but by
doing so makes it less likely that victims of rape will press
charges").
¶61 Before the rape shield statute, a common argument was
that "a woman of previous unchaste character is more likely to
consent to an act of sexual intercourse than is a woman who is
strictly virtuous." Kaczmarzky v. State, 228 Wis. 247, 249, 280
N.W. 362 (1938). A classic example of this defense tactic was
addressed by the Indiana Supreme Court in Williams v. State, 681
N.E.2d 195 (Ind. 1997). In that case, the defendant, with the
help of an accomplice, pulled the victim into a car, pointed a
gun at the victim, and demanded the victim have sex with the
defendant. Id. at 198. The victim escaped by grabbing the gun
and opening the car door. Id. The defendant was convicted of
attempted deviate conduct and criminal confinement. Id. On
appeal, the defendant argued that the trial court wrongfully
excluded evidence that "on prior occasions the victim had
committed acts of prostitution in exchange for money or
cocaine." Id. at 200. The defendant claimed this evidence
"support[ed] his defense that the victim consented and
accompanied the men because they had promised to obtain drugs
for her." Id. The Indiana Supreme Court correctly concluded
that this defense was barred by the rape shield law, reasoning
6
No. 2019AP1565.akz
that "purported incidents with other men at other times [are]
offered simply to show that the victim had consented in the past
in the hope the inference will be drawn that she consented
here." Id.
¶62 Here, the evidence produced is not that from a
defendant who seeks to prove that Lisa's prior sexual acts or
reputation are a form of propensity evidence. That would be
protected by the rape shield law. In fact, the defendant is not
introducing the evidence at issue, whether to embarrass or
intimidate the victim or for any other reason. Instead, the
State is introducing the victim's testimony in order to answer
the defense that the DNA in the victim's vagina was from someone
other than the defendant. Lisa reported her assault, assisted
the police and prosecution, and testified in a public trial
against her assailant. No testimony was elicited as to her
reputation, character, or her predisposition to engage in sexual
activity; it was offered in answer to the defense. The evidence
provided was tailored in time and content, was highly relevant,
and was fundamentally legitimate. If the jury instead concluded
that the State had not proven that Mulhern had sexually
assaulted Lisa, her responsive testimony was of no consequence.
¶63 Stated differently, non-conclusive DNA evidence was
found in Lisa's vagina. Mulhern contends it is not his and must
be someone else's because he did not have intercourse with her.
Lisa answers that defense by stating that there can be no
alternate sources because she did not have intercourse in the
prior week. The DNA expert testified that DNA evidence of this
7
No. 2019AP1565.akz
type does not last longer than five days. If the jury believed
Mulhern's defense, her testimony would have been of no
consequence. The jury believed Lisa, and Mulhern was convicted.
¶64 The plain text of Wisconsin's rape shield statute does
not protect criminal defendants from evidence of the victim's
lack of sexual activity. In sex crime prosecutions, "any
evidence concerning the complaining witness's prior sexual
conduct or opinions of the witness's prior sexual conduct and
reputation as to prior sexual conduct shall not be admitted into
evidence." Wis. Stat. § 972.11(2)(b). "Sexual conduct" is
defined as "conduct or behavior relating to sexual activities of
the complaining witness, including but not limited to prior
experience of sexual intercourse or sexual contact, use of
contraceptives, living arrangement and life-style."
§ 972.11(2)(a). This statute is well in line with rape shield
statutes throughout the country, which prohibit introduction of
the victim's prior sexual acts and the victim's sexual
reputation and predispositions. See, e.g., Fed. R. Evid. 412(a)
(prohibiting evidence "that a victim engaged in other sexual
behavior" and evidence of "a victim's sexual predisposition");
Fed. R. Evid. 404(a)(2) (allowing criminal defendants to
introduce character evidence showing "the victim's pertinent
trait," but subjecting that provision to "the limitations in
Rule 412 [the federal rape shield]"); Ohio Rev. Code
§ 2907.02(D) ("Evidence of specific instances of the victim's
sexual activity, opinion evidence of the victim's sexual
8
No. 2019AP1565.akz
activity, and reputation evidence of the victim's sexual
activity shall not be admitted under this section . . . .").
¶65 "Conduct" is defined as the "[m]anner of conducting
oneself or one's life; behaviour; usually with more or less
reference to its moral quality (good or bad)." Conduct, Oxford
English Dictionary (2021). The definition includes how one
behaves or acts; it does not include behavior or activity not
attributed to the individual. Thus, "sexual conduct" cannot
include conduct that is not sexual. Under the majority's
reading, not engaging in sexual conduct is sexual conduct.
¶66 The statutory explanation of "sexual conduct" further
supports this conclusion. Wisconsin Stat. § 972.11(2)(a) states
that sexual conduct includes "conduct or behavior relating to
sexual activities." "Sexual activities" makes it even clearer
that the statute is referring to actions of the victim that are
sexual in nature. "Activity" is defined as "[t]he state of
being active; the quality or condition of being an agent or of
performing an action or operation; the exertion of energy,
force, or influence." Activity, Oxford English Dictionary
(2021). Thus, "sexual activity" is the state of a being active
and engaging in sex or sexual behavior. The definition and
plain meaning of sexual activity does not encompass the lack of
action or behavior. It is commonly understood that sexual
"activity" and sexual "acts" involve engaging in sexual
behavior, not abstaining or engaging in non-sexual behavior.
See, e.g., Sexual Activity and Satisfaction in Healthy
Community-dwelling Older Women, U.S. National Library of
9
No. 2019AP1565.akz
Medicine, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3246190/
(study testing the existence of "sexual activity" by asking
whether the subjects engaged in sexual acts or intercourse);
Trends in Frequency of Sexual Activity and Number of Sexual
Partners Among Adults Aged 18 to 44 Years in the US, 2000-2018,
JAMA Network, https://jamanetwork.com/journals/jamanetworkopen/
fullarticle/2767066 (measuring "sexual activity" in the United
States by inquiring into "sexual frequency and number of sexual
partners"); see also Sexually Active, Merriam-Webster (2021)
("[E]ngaging in sexual relations." (Emphasis added.)). When a
doctor asks whether a patient has been sexually active, no
rational patient would answer "yes" when the patient has
abstained from sex.
¶67 The statutory context of Wisconsin's rape shield law
supports this meaning. State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110("[S]tatutory language is interpreted in the context in which it
is used."). Wisconsin's rape shield statute includes three
exceptions. In conformity with the plain meaning of sexual
conduct and activities, all three exceptions involve some form
of sexual behavior or activity. Evidence of sexual activity can
be admitted to show "complaining witness's past conduct with the
defendant"; "specific instances of sexual conduct showing the
source or origin of semen, pregnancy or disease, for use in
determining the degree of sexual assault or the extent of injury
suffered"; and "prior untruthful allegations of sexual assault
made by the complaining witness." Wis. Stat. § 972.11(2)(b)1.-
10
No. 2019AP1565.akz
3. The first exception applies only if there is sexual conduct
with the defendant to introduce; evidence that the victim never
met the defendant is not included in the first exception. The
second exception involves sexual conduct where there is a
dispute over the origin of physical evidence. This exception
facially would have no relevance if the victim did not engage in
sexual activities or behaviors. Finally, the third exception
includes accusations of sexual conduct the victim made in the
past. The exception does not cover victim allegations that no
sexual activity occurred. Therefore, the plain text of
§ 972.11(2) supports the conclusion that Lisa's testimony that
she did not engage in sexual activities in the week prior to
Mulhern's assault was admissible and proper.
¶68 But is it practicable to have a rule whereby the lack
of sexual conduct is admissible under the rape shield statute?
Absolutely, in particular when the victim wishes to introduce it
as an answer to a defense. While a victim need not so testify,
it could be offered to complete the facts for the jury.
¶69 Other states have adopted that position, some for many
years. See, e.g., Forrester v. State, 440 N.E.2d 475, 479 (Ind.
1982) (holding that evidence of the victim's virginity in
proving the victim's hymen was recently torn was not barred by
the rape shield statute, reasoning that "[i]t is the victim, not
the accused, that the statute was designed to shield"); People
v. Johnson, 671 P.2d 1017, 1020 (Colo. App. 1983) (explaining
that the rape shield statute "protect[s] rape and sexual assault
victims from humiliating public fishing expeditions into their
11
No. 2019AP1565.akz
past sexual conduct," but it does not prohibit "the victim from
testifying as to the lack of prior sexual activity"); People v.
Sharpe, 918 N.W.2d 504, 513 (Mich. 2018) (holding that evidence
that the victim did not engage in sex with a man other than the
defendant during the relevant period, in conjunction with
evidence of pregnancy, was not barred by the rape shield
statute, explaining that the statute did not apply where the
victim "has voluntarily offered evidence of her pregnancy,
abortion, and lack of sexual history to bolster her allegations
of criminal sexual conduct"); see also State v. Boggs, 588
N.E.2d 813, 816-17 (Ohio 1992) (distinguishing false statements
of a victim where no sexual activity was involved, thus falling
outside the rape shield, from those statements where sexual
conduct did in fact take place, which would be covered by the
rape shield).
¶70 The majority states that rape shield statutes from
other states like Michigan have different meanings because they
include the words "specific instances." See majority op., ¶¶37-
39. The Michigan rape shield statute prohibits evidence of
"specific instances of the victim's sexual conduct." Mich.
Comp. Laws § 750.520j(1). But the addition of "specific
instances" only emphasizes the plain meaning of "sexual
conduct." If, as the majority holds, "sexual conduct" includes
the lack of sexual conduct, why would that meaning change if the
words "specific instances" are included before it? The
inclusion of "specific instances" does not materially change the
meaning of "sexual conduct."
12
No. 2019AP1565.akz
¶71 Sexual activity does not include the lack of sexual
activity. And the lack of sexual behavior does not become
sexual behavior simply because the scope of consideration is
widened from a specific instance to a longer period of time.
The inclusion of the words "specific instances" brings to the
fore just how detached non-sexual activity is from sexual
activity. This analysis lends weight to the conclusion that the
lack of sexual activity is not covered by the rape shield law.
Just as in Michigan, the Wisconsin rape shield law does not
prohibit a victim from "voluntarily offer[ing] evidence of
her . . . lack of sexual history to bolster her allegations of
criminal sexual conduct against defendant." Sharpe, 918 N.W.2d
at 513.3
Under the majority's reasoning, the term "specific
3
instances" supports the conclusion that the lack of sexual
conduct is excluded from the definition. See majority op.,
¶¶38-39 (stating, "[w]e agree" that the inclusion of the words
"specific instances" is a distinguishing feature of the Michigan
rape shield statute). If that is true, the second exception to
the rape shield statute unambiguously does not apply to the lack
of sexual activity. Wis. Stat. § 972.11(2)(b)2. (stating that
"[e]vidence of specific instances of sexual conduct showing the
source or origin of semen, pregnancy or disease" may be used to
determine "the degree of sexual assault or the extent of injury
suffered" (emphasis added)). Therefore, if the DNA found in
Lisa's vagina were derived from semen, under the statute,
Mulhern would be able to introduce evidence showing that the
source of the semen was from another man with whom Lisa had sex
(which in this case did not exist). Because the majority holds
that the lack of sexual conduct is covered under the rape shield
statute and reasons that the words "specific instances"
incorporate conduct alone, Lisa and the prosecution would not be
able to introduce evidence that she did not engage in sex with
another man.
13
No. 2019AP1565.akz
¶72 Would permitting the victim to present evidence on the
lack of sexual history unjustifiably prejudice the defendant?
No. It provides an answer to the defense presented in this
case. The defense here was responded to by Lisa offering to
testify about her lack of sexual activity in the relevant
timeframe for this assault.
¶73 All testimony admitted into evidence must be relevant
and cannot be unduly prejudicial. See Wis. Stat. §§ 904.02,
904.03. No party contends that Lisa's testimony here was
irrelevant, unfairly prejudicial, or duplicative. In fact, the
testimony was immensely relevant to a central issue in the
case: whether the DNA evidence was derived from Mulhern or
another man. Furthermore, Lisa's testimony only had weight to
the extent that the jury found her credible. Lisa's testimony
merely supplemented expert testimony that male DNA would not
remain in the vagina longer than five days. Regardless of
Lisa's testimony, the jury could have concluded that the male
DNA was derived from someone other than Mulhern.
¶74 No one argues that the admission of this evidence
prevented Mulhern from presenting a full defense. Further, the
rape shield statute has an exception that allows defendants such
as Mulhern to introduce evidence of prior sexual history to
prove the "source or origin of semen, pregnancy or disease."
Wis. Stat. § 972.11(2)(b)2.; see also Sandoval, 996 F.2d at 149
("[A] rape shield statute cannot constitutionally be employed to
deny the defendant an opportunity to introduce vital
evidence."); Gagne v. Booker, 680 F.3d 493, 514 (6th Cir. 2012)
14
No. 2019AP1565.akz
(explaining under established United States Supreme Court
precedent, "the Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense——such that
the court may not exclude competent, reliable evidence central
to the defendant's claim of innocence, in the absence of any
valid state justification" (cleaned up)); Sharpe, 918 N.W.2d at
513 n.10 ("[Under the Constitution] [t]he admission of [the lack
of sexual conduct] may open the door to the introduction of
evidence whose admission may otherwise have been precluded by
the rape-shield statute.").
¶75 Under existing law, Mulhern already had the right to
introduce evidence proving that physical evidence of the crime
came from another individual. The unfortunate result of the
majority's holding is that sexual assault victims are prohibited
from fully contesting that defense even if they wish to so
testify.
¶76 Wisconsin rape shield caselaw has stated that victims
are barred from presenting testimony on the lack of their sexual
history. See State v. Clark, 87 Wis. 2d 804, 810, 275
N.W.2d 715 (1979); State v. Gavigan, 111 Wis. 2d 150, 159, 330
N.W.2d 571 (1983); State v. Mitchell, 144 Wis. 2d 596, 600, 609,
424 N.W.2d 698 (1988); State v. Bell, 2018 WI 28, ¶63, 380
Wis. 2d 616, 909 N.W.2d 750. However, this conclusion was based
on the State's concessions. Instead of precedent based on
concessions, we should rely on the existence of strong
adversarial briefing and litigation. See State ex rel. First
Nat'l Bank of Wis. Rapids v. M&I Peoples Bank of Coloma, 95
15
No. 2019AP1565.akz
Wis. 2d 303, 309, 290 N.W.2d 321 (1980) (reasoning that the
whole premise of standing in court is to "insure that the
dispute sought to be adjudicated will be presented in an
adversary context and in a form historically viewed as capable
of judicial resolution"). Because the State conceded these
points in prior cases, the Wisconsin Supreme Court did not
provide detailed or thorough analysis. See Clark, 87 Wis. 2d at
810; Gavigan, 111 Wis. 2d at 159; Mitchell, 144 Wis. 2d at 600,
609; Bell, 380 Wis. 2d 616, ¶63. Prosecutors have an obligation
to fully and zealously represent the interests of the State,
just as defense attorneys must fully represent their clients.
See In re Disciplinary Proceedings Against Kraemer, 200
Wis. 2d 547, 557, 547 N.W.2d 186 (1996) ("The attorney-client
relationship is grounded in trust: the client's justifiable
expectation that the lawyer retained will act in the client's
best interests."). While the State's newly asserted legal
arguments are correct, for a majority of this court the State's
positions are too little, too late. The State's concessions of
the past should not impact our full analysis of the statutory
language at issue.
¶77 We should not be bound by our prior precedents, which
were the product of party concessions and did not involve
thorough vetting and analysis. Compare State v. Roberson, 2019
WI 102, ¶¶51-57, 389 Wis. 2d 190, 935 N.W.2d 813 (overturning a
decision from this court when it was not legally supported by
United States Supreme Court precedent upon which the decision
was based), with Hennessy v. Wells Fargo Bank, 2022 WI 2, ¶32,
16
No. 2019AP1565.akz
400 Wis. 2d 50, 968 N.W.2d 684 ("There is no indication that the
prior decisions were wrongly decided, unsound in principle, or
subject to change due to newly ascertained facts."); see also
State v. Jackson, 2011 WI App 63, ¶14, 333 Wis. 2d 665, 799
N.W.2d 461 (agreeing that "a concession for the sake of
argument, which is adopted by the supreme court and is not
thereafter the subject of studied discussion, cannot be
considered as a holding worthy of precedential value").
¶78 Instead, the majority should apply the plain language
of Wis. Stat. § 972.11 and conclude here that the lack of sexual
conduct is not sexual conduct when the victim wishes to counter
a defense such as the one here. The rape shield statute
protects victims from harassment and intimidation. Vonesh, 135
Wis. 2d at 484; Wright & Miller, supra ¶60 § 5372; Sandoval,
996 F.2d at 149; see Kaczmarzky 228 Wis. at 249; Williams, 681
N.E.2d at 200. It should not protect sexual assailants from
having their victims provide relevant testimony against them.
¶79 Of course, it is within the province of the
Legislature to consider whether Wis. Stat. § 972.11 should be
amended so that victims can provide willing and relevant
evidence at sexual assault trials. The rape shield statute
should not hinder victims' ability to assist in the prosecution
of their assailants. It is written to be a shield for the
victim, not a sword used by the defense.
¶80 I agree with the majority that the evidence in this
case is overwhelming. I disagree that there was error. As the
majority correctly concludes, the exclusion of Lisa's testimony
17
No. 2019AP1565.akz
as to the lack of her sexual conduct was in this case harmless.
Majority op., ¶¶43-52. That will not always be the case. And
under the majority's reading of the rape shield law, the
prosecution and victim will be prohibited from fully contesting
the defense. In the process, truth will be a casualty, and
justice with it.
¶81 Because the rape shield statute does not always
prohibit victims from testifying against their assailants
regarding the lack of sexual conduct, I respectfully concur.
¶82 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
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No. 2019AP1565.akz
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