State v. Ryan Hugh Mulhern, 2022 WI 42

Victim (pseudonym "Lisa") testified that Ryan Mulhern forced sexual intercourse on Nov. 21–22, 2016, causing physical and genital injuries corroborated by a SART nurse.
DNA testing matched Mulhern to saliva on Lisa’s neck; male DNA was found on a vaginal swab but was too limited to identify its source; the analyst testified foreign vaginal DNA typically dissipates after five days.
At trial the State recalled Lisa over defense objection and elicited that she had not had sexual intercourse in the week before the assault; the circuit court allowed the testimony after construing Wis. Stat. § 972.11(2).
The jury convicted Mulhern of second-degree sexual assault and misdemeanor bail jumping but acquitted him of strangulation; defense appealed arguing the recalled testimony violated the rape‑shield statute.
The court of appeals reversed the conviction as not harmless; the State petitioned for review. The Wisconsin Supreme Court held the rape‑shield statute’s definition of "sexual conduct" includes lack of recent sexual intercourse (so the testimony was erroneously admitted) but ruled the error harmless and reinstated the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether testimony that the victim had not had sexual intercourse in the week before the assault is "sexual conduct" under Wis. Stat. § 972.11(2)(a) and thus generally inadmissible under § 972.11(2)(b)	The statute’s broad language ("any conduct relating to sexual activities") encompasses evidence of a lack of sexual intercourse; precedents support treating lack of prior sexual conduct as covered	Lack of sexual activity is not a form of sexual "conduct" or "activity"; the victim’s testimony responded directly to the defense theory and should be admissible	The Court held the statutory definition is broad enough to include lack of sexual intercourse; the testimony was therefore erroneously admitted
Whether the erroneous admission of that testimony was harmless beyond a reasonable doubt	Even without the challenged testimony, the State’s case (physical injuries, contemporaneous reports, DNA on the victim’s neck, and Mulhern’s inconsistent testimony) was strong enough that a rational jury would convict	Admission prejudiced Mulhern because the State used the testimony to tie the five‑day DNA window to Mulhern and rebut alternative source theories	The Court held the error harmless: a rational jury would have convicted absent the testimony, so the conviction stands

State v. Clark, 87 Wis. 2d 804, 275 N.W.2d 715 (1979) (early case addressing admission of testimony that complainant never had intercourse)
State v. Gavigan, 111 Wis. 2d 150, 330 N.W.2d 571 (1983) (recognized that "prior sexual conduct" includes lack of sexual activity and formulated a limited test for admissibility)
State v. Bell, 380 Wis. 2d 616, 909 N.W.2d 750 (2018) (stated that evidence a complainant never had intercourse is inadmissible under the rape‑shield statute)
State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 271 Wis. 2d 633, 681 N.W.2d 110 (2004) (principles of statutory interpretation: start with plain meaning and read statute in context)
State v. Hunt, 360 Wis. 2d 576, 851 N.W.2d 434 (2014) (harmless‑error standard: state must prove beyond a reasonable doubt that a rational jury would have convicted absent the error)
State v. Fishnick, 127 Wis. 2d 247, 378 N.W.2d 272 (1985) (illustrative precedent upholding conviction despite erroneous admission under harmless‑error analysis)