EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, July 28, 2008

Sexual Assault By Any Other Name: Wisconsin Court Finds Trial Court Properly Excluded Prior False Sexual Abuse Allegations In Sexual Assault Trial

I'm skeptical of the recent opinion of the Court of Appeals of Wisconsin in State v. Sussman, 2008 WL 2833111 (Wis.App. IV Dist. 2008).  In Sussman, Gordon Sussman appealed a trial court judgment convicting him of two counts of repeated sexual assault of the same child and sixteen counts of possession of child pornography.  One of Sussman's claims on appeal was that he received the ineffective assistance of counsel because his trial attorney failed to file a pre-trial motion under Wis.Stat. Section 971.31(11).  In relevant part, Section 971.31(11) states that "evidence which is admissible under s. 972(11)(2) must be determined by the court upon pretrial motion to be material to a fact at issue in the case and of sufficient probative value to outweigh its inflammatory and prejudicial nature before it may be introduced at trial."

Wis.Stat. 971(11)(2) is Wisconsin's rape shield statute, which generally proscribes the admission of evidence of the alleged victim's prior sexual conduct in a rape or sexual assault case.  Wis.Stat. Section 97(11)(2)(b)3, however, allows for the admission of "[e]vidence of prior untruthful allegations of sexual assault made by the complaining witness," and this was the type of evidence that Sussman sought to introduce at trial:  testimony that the victim had falsely accused his father of sexual abuse in the past.  However, because his trial attorney failed to comply with the procedural requirements of Section 971.31(11), this testimony was inadmissible, prompting Sussman's appeal.

The Court of Appeals of Wisconsin thus had to determine whether the testimony that Sussman sought to admit would have been admissible under Wis.Stat. Section 97(11)(2)(b)3 if Sussman's trial attorney had complied with Section 971.31(11).  In making this determination, the court relied upon the previous opinion of the Supreme Court of Wisconsin in State v. DeSantis, 456 N.W.2d 600 (Wis. 1990), which said that courts faced with proposed "false accusation" evidence must find three elements:

     (1) that there is a sufficient factual basis for allowing the jury to hear the evidence that the complainant has made prior allegations of sexual assault that are untruthful;

     (2) that the evidence is material to a fact in issue; and

     (3) that the evidence of an untruthful allegation is of sufficient probative value to outweigh its inflammatory and prejudicial nature.

The Court of Appeals of Wisconsin then deferred to the trial court's determinations that the first and third elements did not exist.  With regard to the first element, it affirmed the trial court's ruling that:

     "Admissible evidence under Wis.Stat. Section 97(11)(2)(b)3 is specifically limited to '[e]vidence of prior untruthful allegations of sexual assault made by the complaining witness.' This language indicates that the purported allegations must bear at least some resemblance to a relevant definition of sexual assault and not merely be allegations with some sexual aspect. The language of the statute is particularly relevant in this case where defendant has provided material which could support a finding that the complaining witness alleged that his father made contact with his intimate parts. There has, however, been no material submitted which would support a finding that the complaining witness claimed his father had touched him for the purpose of sexual gratification or sexual degradation. There is no indication that the complaining witness alleged that the father was aroused by the contact, that the complaining witness was intentionally humiliated by the contact or that the complaining witness depicted the contact as assaultive. To infer that the complaining witness' allegations were allegations of sexual assault in this instance would, in the Court's opinion, either be entirely speculative and/or render a significant portion [of] the language of [the statute] surplusage." (emphasis added).

And my response to the Court of Appeals of Wisconsin is, "You cannot be serious!"  The "relevant definition of sexual assault" is found in Wis.Stat. Section 940.225, which requires "sexual contact," which it in turn defines as, inter alia, "intentional touching, whether direct of through clothing, if that intentional touching is either for the purposes of sexually degrading; or for the purpose of sexually humiliating the complaining or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery."

Unfortunately, the court did not provide the facts of the alleged victim's prior false allegations, but assuming that the son claimed that his father intentionally made contact with his intimate parts, how is it speculative to conclude that the son's allegation was that the purpose of the contact was to sexually humiliate him and/or to sexually arouse/gratify the father?  What other purpose would lead to allegations of sexual abuse?  I can't think of any, and, even if I could, I would imagine that those allegations would still have borne the required resemblance to the definition of sexual assault to allow for application of Wis.Stat. Section 97(11)(2)(b)3.

Furthermore, with regard to the third element, the appellate court affirmed the trial courts; ruling that:

     "the purported evidence would not have been admitted because its probative value is significantly, indeed grossly, outweighed by its prejudicial effect. The alleged false accusation by the complaining witness against his father was of a rather ambiguous nature, was temporally remote from the allegations against the defendant, especially considering the youth of the complaining witness, and contained vastly different surrounding circumstances. Thus, the probative value of the evidence would have been quite low. The potential for improper use and confusion by the jury, however, would have been unacceptably high. Extensive testimony regarding this alleged report of sexual abuse would likely have focused undue attention on the complaining witness' behavior in a situation quite unlike the one actually being tried."

Again, without the facts of the alleged victim's prior false allegations, it's difficult to determine the exact probative value of the evidence.  That said, the false allegations clearly had some probative value.  On the other hand, where is the unfair prejudice?  The unfair prejudice usually connected with prior false sexual assault allegations is that jurors will misuse them to draw the conclusion that the alleged victim likely consented to the earlier sexual act and thus likely consented to the act at issue.

In Sussman, however, as in the Ninth Circuit's opinion in LaJoie v. Thompson, 217 F.3d 663 (9th Cir. 2000), which also dealt with an alleged child victim, this fear of unfair prejudice was non-existent.  Why?  Well, as the court found in Thompson,

     "Admitting the excluded evidence in this case, however, would not create undue prejudice. The evidence is distinguishable from evidence of an adult or sexually-mature minor's sexual history which could be improperly used by the jury in deciding whether she was raped. Rather, the evidence in this case concerned non-consensual sexual abuse of a young child; thus, the jury was unlikely to draw an unfavorable and unwarranted impression of the alleged victim."

In other words, there was no fear that the jury in Sussman would have used the prior false allegation to conclude that the alleged victim consented to the sexual contact with his father.  Therefore, I don't see how the court could have found that the evidence was too prejudicial to be admissible.



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Good points. Additionally, see Circuit Judge Posner's opinion in Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001),granting habeas relief and roundly chastising the Wisconsin Court of Appeals for failing to properly balance the minimal prejudice of allowing testimony about the accuser's prior false allegations against the testimony's powerful probative value of exposing the "awful lie" of a false abuse allegation.

Posted by: Andrew Sussman | Aug 5, 2008 11:20:37 AM

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