Court holds pre-assault behavior inadmissible.

• Date: 06 March 2002

Byline: David Ziemer

Even when the State presents evidence that a child sexual assault victim exhibited behavior, after the alleged assault, that is consistent with sexual assault, the defendant may not present evidence of other consistent behavior that occurred prior to the assault, the Wisconsin Supreme Court held on Feb. 27

Post-Assault Behaviors

Charles A. Dunlap was charged with first-degree sexual assault of a six-year-old child, based on allegations that, while babysitting the child, Jamie, he laid on top of her in bed and placed his hands inside her underwear and fondled her. During cross-examination of Jamie, defense counsel demonstrated numerous discrepancies between her testimony and prior statements.

To bolster Jamie's credibility, the State presented as expert testimony, social worker Theresa Hanson, who testified that, despite the discrepancies, Jamie's behavior was consistent with that of a six-year-old sexual assault victim.

Hanson testified, among other things, that during an interview, Jamie was fidgeting, kicking the table, putting her hands in her mouth, and did not want to talk about the assault. Hanson testified that all these behaviors were consistent with that of other sexual assault victims.

Defense counsel attempted, during cross-examination of Hanson, to elicit testimony regarding behavior by Jamie that was consistent with child sexual assault victims, and which occurred prior to the alleged assault. Specifically, the defense sought to admit evidence that Jamie would touch men in the genital area, "hump" the family dog, and frequently masturbate.

Walworth County Circuit Court Judge John R. Race precluded the questioning. Dunlap was convicted, and he appealed. The Court of Appeals reversed in a published decision, State v. Dunlap, 2000 WI App 251, 239 Wis.2d 423, 620 N.W.2d 398, concluding that Hanson's testimony had "opened the door" for Dunlap to cross-examine the witness about Jamie's behavior prior to the alleged assault.

The Supreme Court granted the State's petition for review, and reversed in a unanimous decision by Justice Jon P. Wilcox. Justice Diane S. Sykes wrote a concurring opinion.

Sexual Conduct

The court first determined that the rape shield law, sec. 972.11(2) is applicable to the evidence. Subsection (a) of the statute 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...