Repeated trial testimony and statements that an alleged sexual assault victim was a virgin before she was raped violated a state law intended to protect victims from having their sexual pasts and lifestyles used against them in court, according to an appeal filed in state court.
The testimony and statements by the prosecutor should prompt the state Court of Appeals to order a new trial for Colton Schneider, who was convicted of assaulting S.L., according a brief filed by his attorney, Assistant State Public Defender Catherine Malchow.
The rape shield law says that, with a few exceptions, "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..."
The law was adopted "in an effort to protect the victims of sexual assault from undue embarrassment and emotional trauma and, thereby encourage their cooperation in reporting and prosecuting sexual assault crimes," the U.S. Department of Justice said in a 1990 report.
The women's movement and "media exposure of the mistreatment often accorded rape complainants by the criminal justice system led to an erosion of support for the Victorian myth that an unchaste woman is more likely to engage in indiscriminate sexual activity than a chaste women," said the report, "Analysis of Current Wisconsin Laws Relating to Sexual Assault."
The state Supreme Court already has ruled that information about a lack of sexual activity also is protected under the law, Malchow wrote.
Schneider was convicted of third degree sexual assault, as a repeater, for allegedly assaulting S.L., whom he was seeing socially. He at first denied having sex with the 20-year-old woman, then said it was consensual and that she initiated it.
The girl's mother, Michelle, testified under questioning by Eau Claire County Assistant District Attorney Tiffany Winter that S.L. had not had many boyfriends and that S.L. had not told Michelle that S.L. was ready for sex, according to the brief.
"She's still waiting for Mr. Right," Michelle said.
Part of a police interview with Schneider was played for the jury as well. It included a statement from Schneider: “Considering that she is a virgin and this is her first boyfriend I was her first boyfriend..."
The prosecutor asked Schneider while he was on the stand, "She was a virgin?"
"Yes," Schneider responded.
And later Winter asked: “And it's your testimony that [S.L.] -- the quiet, shy virgin -- got on top of you?”
"Yes," Schneider said.
"In its closing remarks to the jury, the state argued that S.L.’s virginity made her version of events more plausible," the appellate brief said.
It quoted Winter: “You saw [S.L.] on the stand. You heard testimony about her from her friend and from her mother. She's a quiet, shy 20 year old. When she met [Mr. Schneider] she had never had a boyfriend. She was a virgin. There's one account that makes more sense than the other.”
Schneider's trial lawyer, Roger Hillestad, did not object to the evidence about S.L.'s virginity. He testified in a post-conviction hearing that he did not think it implicated the rape shield law.
Hillestad also said thought about objecting to a question put to S.L. about her virginity, but did not because he did not want to draw attention to it. However, the brief said, the record does not show any question about her virginity that was asked of S.L. Hillestad also said he thought about objecting to the state's closing argument but did not do so, also because he did not want to draw attention to it.
After the post-conviction hearing, Eau Claire County Circuit Judge Michael Schumacher said that “some of [the statements] individually and then in a totality circumstance [sic] that there would be a violation of the rape shield statute.”
He also found, however, that Schneider was not was not harmed by the evidence or argument or that he was not prejudiced by its admission.
Schneider, though, said that the violations of the rape shield law deprived him of a right to fair trial.
The state's closing argument "expressly told the jury that S.L.’s virginity made her account of the incident more plausible," the brief said. "It also references her mother’s testimony on S.L.’s virginity. Again, evidence of a complainant’s virginity is barred by rape shield and controlling caselaw (sic). Evidence of lack of sexual conduct is prohibited because it ‘is generally prejudicial and bears no logical correlation to the complainant’s credibility.’”
Both the violations of the rape shield law and Hilleman's ineffectiveness entitle Schneider to a new trial, the brief said.
The full brief in 23AP1377 is here.
Comments