832 N.W.2d 346
Wis. Ct. App.2013Background
- Sarfraz was charged with second‑degree sexual assault by use of force against I.N. following events on May 15, 2010.
- I.N. and her father had lived with Sarfraz and his family in the U.S., creating a disputed history between them.
- Sarfraz sought to admit evidence of I.N.'s prior consensual sexual activity with him to support a consent defense; the trial court barred it under Wis. Stat. § 972.11(2)(b)1.
- An evidentiary hearing featured testimony from Sarfraz, I.N., Riffat Sarfraz, and Azmat Uddin; I.N. testified she never had a romantic or sexual relationship with Sarfraz.
- The trial court concluded the prior conduct was not material to the charged forcible intercourse and limited the scope of defense evidence at trial.
- Sarfraz was convicted as charged; on appeal, the court reversed and remanded for a new trial due to the erroneous evidentiary ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility under § 972.11(2)(b)1 and DeSantis test | Sarfraz should admit prior consensual conduct as material to consent. | Evidence relates to the defendant and complainant; it is probative and not overly prejudicial. | Evidence admissible as an exception; three‑prong DeSantis test satisfied. |
| Materiality of prior consensual conduct | Prior consensual acts are central to whether there was consent and to Sarfraz's defense. | Prior conduct may be irrelevant to force/consent elements. | Yes, material to consent in the context of the defense; satisfies prong two. |
| Probative value vs. prejudice (Third Prong) | Prior sexual conduct substantially supports defense theories and credibility. | Limited probative value; risk of prejudice is high. | Probative value outweighed prejudice; admissible. |
| Standard of review for rape shield evidentiary decision | Trial court properly applied DeSantis under § 971.31(11). | Trial court weighed properly; decision should be upheld. | Court properly applied DeSantis and balanced probative value; decision erroneous if misapplied. |
Key Cases Cited
- State v. DeSantis, 155 Wis.2d 774 (Wis. 1990) (rape shield tripartite test; relevance and prejudice balancing)
- State v. Jackson, 216 Wis.2d 646 (Wis. 1998) (applies DeSantis to § 972.11(2)(b)1; materiality must be shown)
- State v. Ringer, 326 Wis.2d 351 (Wis. 2010) (establishes rape shield framework)
- Milenkovic v. State, 86 Wis.2d 272 (Ct. App. 1978) (offer of proof standard for evidentiary hypotheses)
- State v. Edmunds, 308 Wis.2d 374 (Wis. Ct. App. 2008) (relevant to admissibility and jury consideration)
- Pulizzano v. State, 155 Wis.2d 633 (Wis. 1990) (limitations on admissibility under § 972.11)