*1 Wisconsin, STATE of Plaintiff-Appellant, VONESH, L. Anthony Defendant-Respondent.† Appeals

Court of September No. 86-0540-CR. Submitted on 1986.Decided briefs 18, 1986. December (Also reported 508.) in 400 N.W.2d denied. Petition to review † *2 plaintiff-appellant

For the the cause was submitted attorney general, Follette, on the briefs of Bronson C. La attorney general. Becker, and David J. assistant defendant-respondent For the cause was sub- Nancy on Tod 0. mitted the brief of Daniel and V. Welchof Janesville. Dykman, Sundby, Gartzke, P.J.,

Before JJ. Anthony charged SUNBY, J. L. is Vonesh with first-degree eleven-year-old daugh- sexual assault on his 940.225(l)(d), contrary ter to sec. Stats. The trial court rape denied the state’s motion based on Wisconsin’s 972.11(2), law, Stats., shield to exclude from evi- complainant. granted dence two notes written We petition appeal. the state’s for leave Because the prior conduct, *3 go 4. it Then for and it must be french you say “I 5. kiss it” After need you 6. If quit. like do not

Vonesh seeks to introduce the notes to show motive daughter charges of his to fabricate her and to show prior knowledge from sources other than the alleged by falsely assault. He claims she retaliated accus- ing going him when he told her he was to send the notes her mother. The trial court concluded that the notes they were admissible because were not evidence of “prior sexual conduct.”1 admissibility ques- presents of the notes two (1)

tions: Do the notes describe sexual conduct? (2) writing copying and Were the acts of the notes questions sexual conduct? To answer these we

1 disposition appeal unnecessary Our of it makes for us to deny consider Vonesh’s claim that admission of the notes would deprive rights. him his sixth fourteenth amendment by presented facts law to the rape shield

apply the to a a statute relation “The construction record. Clausen, State v. question of law. is a set of facts given (1982). Therefore, 231, 243, 313 N.W.2d 105 Wis.2d to the determinations special deference give need not we Co., 122 Ins. Wis. Tahtinen MSI court.” the circuit 673, (1985). Before con- 166, 158, 2d 972.11(2), Stats., must determine we struing ambiguous. the statute whether capable being con ambiguous if it is A statute reasonably ways by well- different two strued Adamany, Kollasch v. 104 Wis.2d persons. informed (1981). However, 561, 552, N.W.2d 47 we have parties obviously disagreed as recognized that have meaning involving whenever a case a statute’s State v. statutory reaches this court. construction Wittrock, 350 N.W.2d 647 119 Wis.2d Parts, Transp., (1984); Dept. Inc. v. Aero Auto 235, 238-39, There 253 N.W.2d 896 Wis.2d fore, language of the must examine the the court to determine whether well-informed statute itself Wittrock at have become confused. persons should Parts, 670; Inc. 238-39. When the lan Aero Auto at unambiguous, the is clear and guage of the statute plain interpreted on the basis of the must be statute v. Der at State (1981). meaning of its terms. Wittrock enne, 102Wis.2d *4 166-67,

Tahtinen, at 678. 2d at 361 N.W.2d Wis. “any conduct or is defined as “Sexual conduct” complaining relating to sexual activities behavior witness, prior experience limited to including but not contact, contracep- use of sexual intercourse or sexual tives, lifestyle.” Sec. living arrangement (2)(a), Usually, phrase 972.11 Stats. where a or word meaning statute, defined, in defined a its is as and no necessary. Transportation construction is Britton v. Department,

(Ct. 1985). App. by Here “sexual conduct” is defined other words—“conduct” and “behavior”—which on ambiguous. However, their face are in words com may usage varying meanings according mon have context used. which Lukaszewicz v. Concrete Research, Inc., 335, 342, 168 Wis. 2d Reasonably per That is true here. well-informed may sons differ as to whether written or verbal com expression having munication or a sexual basis or con may be, describes, notation or conduct or behavior relating to sexual activities.

THE KISSING LICENSE contemplated The conduct or behavior “license” is future conduct or behavior and is not ambiguous However, shielded the law. law reasonably persons may that well-informed differ as to copying writing whether the act of the “license” is prior sexual conduct.

THE “DEAR SPENCER”NOTE2 Spencer” expressions The “Dear note contains you,” you “I “[I] desires: want wanted to fuck response argument In to Vonesh’s constitutional Spencer” “Dear note is relevant show the knowledge responds: of sexual conduct the state ‘Dear “[The Spencer’ ‘fuck,’ note does show that the knew the victim word but ”] activity it does not describe the that word denotes. It thus leaves *5 would sentence —“You contains the The note also me.” which, arguably, describes fock [sic] me” — nonexper- or, precisely, a sexual more experience to whether ambiguous as rape shield law ience. The sexual rela- to have expression of a desire written the writ- conduct and whether another is sexual tions with The law is is sexual conduct. sexual desires ing about writing the describing as to whether ambiguous also conduct. Reason- overture is sexual of a sexual rejection different conclu- persons could reach ably well-informed describes, note Spencer” the “Dear to whether sions as is, sexual conduct. SHIELD LAW OF RAPE CONSTRUCTION statutory is to principle of construction guiding Hemerley v. legislature. the intent of determine Co., Ins. American Fam. Mut. 1985). (Ct. ambiguity When an App. must determine the

statutory language present, we question victim knew what that word whether the unanswered accept only this statement as a knew the word.” We would meant or that, proof complainant’s the state without further concession knowledge, Spencer” constitute evidence of the “Dear note does not argument conduct were it not for the state’s strenuous in its briefs the note refers to the elsewhere position activity.” Apparently it is the of the “affirmative sexual complainant because the used a word—“fuck”—which state that activity, of sexual a sexual the note constitutes evidence describes meaning complainant did not know the conduct even if proceedings reject proposition. this Since below word. We meant, complainant parties knew what the word “fuck” assumed the knowledge, ruling in its assumed that we decide and the court appeal on that basis.

legislative language from intent the of the statute scope, history, subject context, to its relation matter and sought object accomplished. Adriansen, to be v. Stoll (Ct. App. 503, 511, 182, 122 Wis. 2d 1984). 362 187 N.W.2d ambiguous, reviewing a statute is When court may legislative resort to extrinsic to aids determine Stepniewski, State v. intent. 314 (1982). 98, 101 N.W.2d

(a) History Legislative judicial of most

“One valuable extrinsic aids of legislative history.” construction is Milwaukee Co. v. Comm,., 199, Labor & Ind. 204, Rev. 113 Wis. 335 2d (Ct. 1983). 972.11(2), App. 412, 415 Section part Stats., as was created of Wisconsin’s sexual assault law, 12, 184, 1975, 27, sec. ch. Laws of effective March history 1976. The of the law reveals that it was enacted for same reasons which led to the of wave reform purpose nationwide.3 The of such reform summarized Rape Summary Law Revision: A State Brief Legislative Action, Bureau, Reference Informational April p. 75-IB-l, 1975, 6,4 bulletin as follows: rape passed in The first state or federal shield was statute Rape Galvin, Shielding Michigan Victims in the State and in 1974. Decade, Proposal A Federal Courts: the Second L. Rev. Minn. for 763, (1986). states, forty-eight n. 3 Professor found Galvin government, military rape federal and the shield have laws some form. Legislative may as a The Reference Bureau be resorted to Pantry legislative history. White Hen to resource determine Buttke, Wis. 2d 177 n. The Legislative part legislature Bureau Reference is a of the and its maintaining drafting legislature duties include records of the provide questions intent, legislative information on 13.92(1) (a)3, Stats., reports providing prepare studies and mak- legislation is directed at part, this most

For the eliminating by obtain rape easier to ing convictions requirements corrobora- statutory for modifying or testimony victim’s testimony regarding the tive rape Proponents law reform prior sexual conduct. in the lead to an increase hope new laws will that the removing some of rape prosecutions number humiliation embarrassment potential for reporting crimes. victims from inhibits which long- objective reverse the reformers was to permitted standing a defen- law doctrine that common rape inquire into the dant accused *7 Shielding Rape unchastity.” Galvin, Vic- for “character Proposal A the Federal Courts: and tims in the State for 763, Decade, L. Rev. 765 70 Minn. Second (2)(b), Stats., makes inadmissible Section 972.11 complaining prosecution witness’s the assault a sexual (1) past except: prior of sexual conduct evidence (2) specific defendant; evidence of conduct with origin showing or the source of sexual conduct instances degree pregnancy disease, semen, to determine of (3) complain- injury; extent of evidence of assault or prior allegations In assault. of sexual untruthful ant’s Gavigan, 571 111 2d 330 N.W.2d State v. Wis. (1983), prior permitted sexual con- evidence of court exceptions in a to be admitted not within these duct prosecution.5 sexual assault legisla- subjects pertinent regarding of concern to the information ture, 13.92(l)(a)4. sec. to the defen majority statements held that immediately prior she was a during to the assault dant Gavigan, rape 111 Wis. 2d at virgin subject shield law. were merely these statements at 576. The dissent called rape place, shield law. The not within the of what took so evidence instructions, cautionary jury, under dissent would have allowed legislature Gavigan

The Wisconsin reacted to promptly pointedly by enacting 1983 Wis. Act 972.11(2)(c), Stats., creating to read: 901.06,

Notwithstanding s. the limitation on the prior admission evidence of or reference to the complaining par. (b) sexual conduct of the witness in applies regardless purpose of the of the admission or permitted reference unless expressly the admission is (b)l, par. under or 3.

The Legislative Reference analysis Bureau’s of the Act7 contains the following: Gavigan, (1983),

In State 111 Wis.2d 150 supreme Wisconsin court authorized the admission the victim’s if conduct the evi- prove independent serves to a dence fact conduct, probative if the value the evidence weigh complainant’s consent, solely statements on the issue of attempted advancing show she had deter the attack a reason— might whether true or not —which she believed Id. have that effect. (Heffernan, J., dissenting). at at legislative reaction, As to this Prof. Galvin states: represents single This recent amendment instance in which a legislature interpretation Michigan-type has overridden broad of a interesting statute.... It will be to see how the Wisconsin courts will *8 with deal cases which the accused seeks elicit to sexual conduct bias, supportive example, of a claim of for because such proof specifically excepted is not under the statute.... Such cases undoubtedly will leave the Wisconsin courts with no recourse but to hold the statute unconstitutional. Galvin, supra at 875 n. 532. drafting Legislative The section of the is Reference Bureau required prepare plain analysis original language to mea each sure, printed be to with the measure when it introduced. Section 13.92(l)(b)2, analysis printed Stats. The with bill was when it was introduced. jury’s and if the con-

outweighs prejudicial effect its purposes. is for limited of the evidence sideration statutorily recog- provides that the 3 This bill gen- only exceptions to the exceptions are the nized admissibility prior prohibiting rule eral A court alleged an sexual assault victim. conduct pur- exceptions regardless of the may allow other consideration. pose for the Act was 1983 Wis. The bill which became A Council Staff. Legislative the Wisconsin drafted the bill reflects accompanying memorandum Gavigan. Wiscon- change the effect of intent author’s (July Coucil Staff Memorandum Legislative sin 1983).8 that to deal with suggested The memorandum “in the statute Gavigan legislature should amend Legislature are way such a that courts aware limit the variances the statute clearly means to the introduction exceptions prevent and to enumerated purposes.” for other sexual conduct of evidence 4. Id. at

(b) Intent Legislative acted makes alacrity legislature with which the Gavi- disagreed with the quite legislature clear that conduct gan that evidence of majority independent of the conduct. prove a fact admissible Haese, Estate See In re (1977) (a interpretation court of a statute Legislative part legislature. Council is The Wisconsin secretary 13.81, The executive of the Council heads Section Stats. “Legislative Staff.” Section 13.91. Council the bureau known as requests on from members of the The bureau receives and acts legislature legislature research matters of concern to the and to Legislative legislation. Id. Act 449 resulted from a draft 1983 Wis. accompanied the staff bill draft which memorandum. Council Staff *9 duty legisla- part statute; of the it is the of that becomes disagrees). if act it ture to legislature militancy of the Wisconsin

While shielding militancy obvious, has been confined that tending nature of the show the extent or evidence complainant’s experiences. We have not

actual legislature construe “sexual admonished been activity broadly or condi- as to include all so conduct” e.g. writing reading, having connotation, a sexual tions observing talking desires, or about sex and sexual and describing impor- activity others. More the sexual legislative tantly, assume, extent the must to the we history legislature permits, “sex- used the term that the way, State ex rel. see a constitutional ual conduct” Court, 354, 367, 212 N.W.2d v. Circuit Chobot (words upon (1973) dependent statutes elastic). must be constitution (c) Giving Rape Law Shield Effect legislative Having must intent we ascertained the Boynton give Neubeck, 237 Wis. Cab Co. v. effect to it. (1941). given However, 249, 257, 296 N.W. possible interpretations statute, we must of a choice of constitutionality that results select the construction Lynch invalidity. Conta, rel. State ex than rather (1976). It is the Wis. 2d statutory principle save and construction to cardinal Cooperative, Dairyland destroy. Power State v. 45, 51, 187 878, 881 Wis. 2d history legislative Nonetheless, in view of the rape law, construe the we cannot shield Wisconsin’s having rele- of evidence to allow the admission statute significant probative value, if value, even vance and complain- conduct of the evidence includes only may approve if *10 they of, are satisfied that do contain evidence nor do they prepared constitute, conduct, unless we are rape to hold that the law is in shield unconstitutional its application to the facts of this case. We are faced with construing rape of the delicate task shield law to constitutionality, doing can, its if save we without vio- legislature’s lence intent.9 We first examine the construing phrase in statute for assistance “sexual conduct.” (d) Meaning Construction “Sexual Conduct” From of

Statutory Language meaning expres-

“[T]he of a word takes color and purport phrase sion from the entire of which it is part-” Realty Lewis v. E. Wisconsin R. Brokers’ Board, 238, 94 N.W.2d meaning gains pre- Thus, the of “sexual conduct” more examples cision when considered with the of sexual con- definition, i.e., duct in contained sexual intercourse contraceptives, living arrange- contact, or sexual use life-style. examples ment and directly These associated all relate physical experiences and activities sexual in permit nature or which inferences to be drawn as to the person’s physical exper- nature and extent of a iences or activities. exception Gauigan,

With the neither the Wiscon- Supreme dispute sin Court nor this court has resolved a as to whether the conduct or behavior involved a case 972.11(2), was sexual conduct under sec. Stats. Since every It been has stated that Constitution creates stat excluding ute process exception and rule evidence an unwritten due permitting the admission of excluded evidence that is constitution ally required Comment, Rape Shield Statutes: Con to be admitted. Despite Evidence, stitutional Unconstitutional Exclusions 1219, 1270. Wis. L. Rev. rape our is patterned shield law after Michi- gan’s,10 Michigan decisions of the court are entitled to Shopko Stores, Inc., Hainz v. 168, weight. Wis. 2d (Ct. 1984) App. 359 N.W.2d (judicial inter- pretation may of similar statutes other states be used construction). aid to as extrinsic Two decisions have considered whether the conduct involved was sexual People Arenda, Michigan’s conduct under statute. In (Mich. 1982), the Michigan court *11 the following stated that activities were not subject to book, reading movie, the statute: a seeing conversing others, with schoolwork or witnessing engaged others People Hackett, v. activity. 120, In sexual 365 N.W.2d (Mich. 1984), complainant’s 128 her statement of sexual dissatisfaction at home was held to not fall rape within the shield law. jurisdictions

Other have construed “conduct” or rape making “behavior” under shield laws Smith, inadmissible. State v. sexual conduct 263 S.E.2d 371, (N.C. 1980) (discussions App. concerning Ct. problems complainant the sexual and the defen behavior); State v. Dur dant’s brother were not sexual ham, (N.C. 1985) (child’s App. S.E.2d 920 Ct. his Snider admissible); tory of nightmares of sexual assaults State, (Ind. 1980) (complainant’s N.E.2d 230 bet arguably that she could “take her father to bed” admis rape prohibiting sible under shield law references to vic State, Bobo v. conduct); past tim’s 589 S.W.2d Zaehringer, State v. (Ark. 1979); (la. 1979) photograph in the nude for a (posing law). rape within the shield Revision, Rape supra, p. supra, 4; Galvin, Appen Law at

dix, Table 1. observing

Books, movies, conversations, or others engaged activity in sexual are said to be sources of infor- personal expe- mation as to sexual matters “other than supra, rience,” Galvin, and not sexual conduct. at 868. writing We conclude that the act about sexual desires or activities not itself sexual conduct. complainant Cross-examination of as to whether she composed copied or the notes would not constitute an inquiry into the “character for unchas- tity.” eleven-year-old may girl An suffer embarrassment through admitting publicly copied that she authored or writings nature, but that is not the kind of activity the law intended to shield. We conclude that composing copying the acts of the notes are not sexual conduct. expressions

We conclude written of sexual desires Spencer” are not conduct or In behavior. the “Dear note you,” you the statements “I want “[I] wanted expressions me,” fuck are of sexual desires. The statute expressions. does not shield such *12 Spencer” The sentence in the “Dear note—“You may would fock [sic] not describe an encounter me”— complainant Spencer between the and in which her request Spencer of to have sexual intercourse was arguably, does, declined. If it the sentence would be evi- prior dence sexual conduct and would be inadmissible rape may under the However, shield law. the sentence complainant’s subjective describe the conclusion that Spencer would not have sexual intercourse with her young. because she construed, was too So the sentence prior would not describe sexual conduct. The state did point not make a record on this which we can position apparent the con- The that review.11 state’s Spencer” note are sexual con- of the “Dear tents regardless the note was intended to of whether duct Spencer encounter between and the describe an actual complainant. disagree. nothing There the lan- We rape compels guage which con- the shield statute the urges. anything in Nor is there the state clusion legislative history suggests which that to further the legislature adopt sug- we should the state’s intent gested Therefore, our construction. consistent with 972.11(2), responsibility Stats., to save to construe applied constitutionality herein, as to the facts we its Spencer” does describe conclude that the “Dear note not complainant is admissi- conduct of the ble.

By the affirmed. Court.—Order (concurring). GARTZKE, I that the P.J. conclude properly notes relevant held that are trial court they complainant show had tend to because falsify she had show motive to her accusation disagree knowledge I the hold- matters. with majority ings *13 particular right case, in tation and that this that over- policy Consequently, rides state’s exclusion. application is 972.11 unconstitutional its agree admitting I defendant. therefore that the order *14 (1978); 370, State, 337, Penister v. 267 N.W.2d 343 94, 102-03, 115, 120 prior Accordingly, is rel sexual conduct evidence complainant that has if it tends to show a evant falsely a defendant to accuse of a sexual assault. motive (Mass. Joyce, See v. Commonwealth N.E.2d (defendant 1981) complainant entitled to show that had prostitution charged previously with and that her been raped her was motivated a to avoid claim he desire prosecution); Black, Commonwealth v. 487 A.2d further 1985) (father (Pa. Sup. Ct. show entitled to his thirteen-year-old daughter punish wanted him relationship her sexual with her he terminated because brother); (Cr. App. 1359,1360 Jalo, v. 557 P.2d Ct. State (defendant testify 1976) ten-year-old entitled to falsely him because he had learned of her sexual accused told her inform with others and had he would conduct Shielding Rape parent). Galvin, also Victims in her See Proposal Courts: A to a Second the State and Federal (1986) (evidence com Decade, plainant’s L. 70 Minn. Rev. prior provides conduct which motive sexual complain charge probative” “highly as to to fabricate Rape veracity); Comment, Shield Statutes: and ant’s Despite Unconstitutional Exclusions Constitutional (evidence (1985) 1219,1244 Evidence, L. 85 Wis. Rev. exposes if it conduct relevant sexual assault). falsely accuse defendant sexual motive may of a conduct be Evidence child’s knowledge sexual contact relevant to the child’s about question whether contact therefore a natural infer- occurred. The evidence tends counter charged assault occurred because child ence that complainant expected to is not know about L. n. 55. The 85 Wis. at and cases at matters. Rev. See, e.g., questioned. such has value of been Arenda, People v. (Mich. 1982) (evidence probative except has low value for young and inexperienced suffice); child other evidence may Black, Commonwealth 487 A.2d at 400-401 n. 10 (evidence may circumstances). be relevant under limited *15 relevant, the *16 any conduct” means conduct or behavior

“[S]exual relating complaining to sexual activities of the wit- ness, including prior experience but not limited to of contact, sexual intercourse or sexual use of contra- ceptives, living arrangement life-style. and (1) The elements of “sexual conduct” so defined are (2) (3) conduct or relating behavior sexual activities (4) complaining of the witness.1

1 upon by majority None of the cases relied is useful. None jurisdictions of the cases were which those decided has a defini 972.11(2)(a), tion of “sexual similar to that in sec. conduct” Stats. Arenda, (Mich. 1982), People People v. Neither 330 N.W.2d 814 nor Hackett, (Mich. 1984), us, v. 128 365 N.W.2d assists since the 28.788(1) seq., statute, et excludes Michigan 188. Sec. sec. MSA defining the term. without "sexual conduct" of the victim's 495 It is easier to work from the elements ignoring their sequence. numerical There is no disputing the fact that the fourth daughter element is met: defendant’s wrote the notes she is the complaining witness. fixing

When of meaning remaining statutory conduct,” elements “sexual be to give care must taken effect, if possible, Niagara Paper Wis. every word. DNR, Corp. v. 268 N.W.2d (1978). The meaning “conduct or behavior” must are, from activity.” therefore differ that “sexual We course, give ordinary the words their and common we meaning, and use a recognized dictionary for that Id. purpose. statutory

The second element is “sexual activities.” range “Activities” a broad describes of human functions. Merriam-Webster’s Third Dictionary International (1976) only “activity” defines not as “physical motion (as or exercise of force” but also a “process as searching, desiring, learning writing) actually or potentially Smith, (N.C. 1980), App. State v. S.E.2d involves North 412(a), Carolina Rule defines which “sexual behavior” as “sexual activity complainant other the sexual act than which at distinguish issue in the indictment on trial” does not between hand, “conduct or behavior” on the one and “sexual activities” on Durham, 1985), (N.C. App. the other. State v. 327 S.E.2d 920 State, (Ind. unhelpful for same v. reason. Snider N.E.2d 1980), (Burns Repl.), rests on Ind. Code sec. 35-1-32.5-1 where past victim’s is inadmissible conduct but defined. Bobo v. State, (Ark. 1979), 589 S.W.2d 5 relies on Ark. Crim. sec. 41- Code “ 1810.3, stating activity, ‘sexual conduct’ means deviate sexual sex contact, narrowly ual or sexual intercourse.” Section 41-1801 defines (Iowa Zaehringer, each of these terms. State *17 1979), applied 412(d), “past Iowa Rule of Evidence which defines sexual behavior” as “sexual behavior than other sexual behavior with respect alleged.” to which sexual abuse is every- involves mental function.” This is consistent with day speech. People commonly “physical refer to activi- only and ties” “mental activities.” The modification or 972.11(2) (a), Stats., limitation on “activities” in sec. they dictionary necessary sexual, must be and no I to understand that word. find irresistible the conclu- 972.11(2) (a) sion that “sexual activities” in as used activity, includes an individual’s sexual mental such as fantasy, physical sexual desire or as well as acts or touching motions such as or sexual intercourse. I next to the turn first element of the definition: According Merriam-Webster, “conduct or behavior.” pertinent, partic- so far as is “conduct” is “behavior specified ular situation relation or on a occasion.” According authority, to the same “behavior” has various including “anything organism definitions, that an does (2): response that involves action and to stimulation response range of an individual... to the whole of fac- constituting tors its environment.” “relating element,

The second to” is far broader usually equivalence. than “is” which an connotes According to Merriam-Webster’s Third International Dictionary, pertinent the verb “relate” its sense ” relationship: means “to be have reference .... Use of the verb “relate” is another indication that “conduct or behavior” is different from “sexual activities.” distinguishes

Since the statute between “conduct or activity” requires behavior” and “sexual the former only latter, to “relate” to I conclude that “conduct or purposes behavior,” definition, for of the need not be Writing, speaking, describing sexual. are therefore meaning behavior, forms of conduct or within the statute. if Such conduct or behavior is sexual conduct it including activities, relates to sexual sexual desires or *18 Again, fantasies. the or may conduct behavior be soli- tary well as persons. as that between two

I conduct,” therefore conclude that pur- “sexual for 972.11(2) poses (a), Stats., sec. complain- of includes a statements, oral, ant’s describing expres- written or sing the sexual desires or fantasies. I reach this on conclusion the usual basis the ordinary 972.11(2) meaning (a), words used in sec. reason, Stats. For that I have not employed the rules of construction, statutory those are applied only to be State ambiguous statutes and not to ambiguities. create County WCCJ, ex rel. Milwaukee 237, 241, (1976). Hence, rule of construc requires tion us which to avoid a objec constitutional State v. tion, Fry, Wis. 2d (1986), inapplicable.

I return to the notes at issue my and summarize daughter, conclusions. Defendant’s complainant, expresses wrote the notes. Each note a sexual desire or A fantasy. sexual desire or fantasy is a sexual I activity. conclude that each note is evidence “con- duct or relating behavior activities of com- plainant” meaning 972.11(2) (a), within the sec. Stats. note Each therefore constitutes of “prior evidence sex- ual conduct” of complainant. Because neither note exception exclusion, comes within an general each is inadmissible in by 972.11(2) virtue (b).

An constitutionality examination of the stat- utory evidence, exclusion from applied partic- as to this defendant, ular necessary.

Every right defendant has a sixth amendment “to be confronted against with witnesses him.” The applicable sixth amendment is Davis v. to the states. Alaska, 415 U.S. primary right secured the confrontation opportunity testimony

clause is the to test the truth of *19 by Davis, cross-examination. 415 U.S. at 316. This possi- revealing includes cross-examination “directed to prejudices, biases, ble or ulterior motives of the witness they may directly personalities as relate to issues or in right must, the case at hand.” Id. The of confrontation against however, be balanced state’s interest prohibiting purposes the use of evidence for of cross- paramount examination. If confrontation policy, prohibiting state’s then a statute the use of the evidence is unconstitutional. Id. at 320. right involved,

Because a constitutional the court appeals should determine whether the state’s interest paramount right rule its of evidence is to defendant’s to confront the witness with the notes. The historical undisputed. facts are appellate Under such circumstances an duty court has a to determine whether a “con- e.g., Woods, stitutional fact” exists. See State v. 117Wis. (1984) (if 701, 715-16, 2d the his- undisputed, torical facts are independently voluntariness of confession court), by appellate

reviewed habeas granted corpus grounds, Clusen, on other Woods v. (E.D. 1985), (7th Supp. F. aff’d, Wis. 794 F.2d 293 1986). Although Cir. the task before us involves a bal- ancing, policies involving conflicting rights. it is one and appellate perform ought An court to be able to court, if, here, function as well as a as trial the facts are established. right daughter

Defendant’s to use the notes his “prior outweighs made far the state’s interest its sex- evidentiary ual conduct” rule. Defendant is accused first-degree assault, three counts of 940.225(1), felony punishable by Stats., B Class imprisonment exceeding twenty years on each probative force, The count. evidence has substantial “highly probative” supra. jury Galvin, even force. The reasonably daughter, infer could eleven-year-old girl, that defendant’s an fear

could that her mother be would distraught angry likely and to take corrective and punitive possibly learning on measures her child wrote jury reasonably the notes. could infer that defen- daughter strongly dant’s would be motivated to distract perhaps pun- her mother’s concern from correction and sympathy, might outrageous ishment invent an sympathy.2 wrong to create that Consequently, unless some other method exists probative which the forcefulness of the value brought jury notes could be through to the attention of the *20 exclusionary evidence, some substituted the 972.11(2), rule Stats., embraced sec. is unconstitu- applied defendant, tional as to this because it violates right his to her confront with the evidence.

My regarding constitutionality conclusion the 972.11(2), application Stats., to limited its 972.11(2) I defendant. do not conclude that sec. unconstitutional on its face all under circumstances.3 jury That the in the first trial could not reach a unanimous supports possibility conclusion jurors at that least some were influenced the notes. necessary Nor have I it Rape found to narrow Wisconsin’s constitutionality. legislature Shield Statute save adopted its The extraordinarily an declaring broad When statute. that all evidence complainant’s (with exceptions) sexual conduct three is never probative, legislature assumed the risk of the statute’s unconsti application tutional under some circumstances. At one least other jurisdiction See Fed. remedy problem. has found a for the Rule Other courts have reached conclusions similar to Oregon Appeals mine. The Court of held the state’s policy protect complainant a sex crime must be sub- right ordinated to a defendant’s constitutional to con- (Or. Jalo, frontation. State v. App. 557 P.2d Ct. 1976). Joyce, In Commonwealth v. 415 N.E.2d (Mass. 1981), supreme judi- 187-88 Massachusetts rape cial court concluded the state’s shield statute exclu- sionary give way constitutionally-based rule must right to effective cross-examination. The case was specific remanded for the trial court to exclude possi- of a sexual conduct insofar as was infringing right ble without the defendant’s to show (Pa. Black, In bias. Commonwealth v. 487 A.2d 1985), Super. Ct. the court reversed and remanded for a hearing probative on whether the value of the evidence outweighed prejudicial its effect and whether alternative proving challenge means existed for bias or motive or to credibility.4 Pennsylvania Supreme Court con- rape cluded that the state’s shield law was unconstitu- prohibited tional to the extent it the admission of evi- properly attacking credibility dence thirteen-year-old daughter. defendant’s join opinion only majority I therefore as to the admissibility result it reaches on the of the evidence at respectfully emphatically disagree I issue. but with the 412(b)(1) (evidence past Evid. Rule of a victim’s sexual behavior is admitted.”) constitutionally required inadmissible unless it “is to be *21 jurisdictions Rape partial Other have saved Shield Statutes from imposed by majority. They destruction I this did so as would: finding only application par- the statutes unconstitutional as to a ticular defendant. 4 Because it is the nature of the notes which makes them admis sible, finding. I would not remand for such

majority’s reasoning precedent and the it establishes, my unnecessarily which, view, disastrously scope Rape affects the of Wisconsin’s Shield Statute. notes not do describe do they conduct, constitute we conclude are admissible. We affirm. rape provides: Wisconsin’s “If shield law the defen- any 940.255, dant accused of a crime under s. concerning complaining witness’s sexual con- during ... duct shall not be admitted into evidence trial_” hearing 972.11(2)(b), course of the Section Stats. Spiencer The first note “Dear [sic], reads: I love you. only [sic] You would not fock me. The I reason said you you go I I was twelve is I because want and want you with me. And I wanted to fuck me.” The second “Kissing note License” which reads: boy that reads this must follow these rules that very day he same reads it. Rules up 1. Walk owner of this license your 2. arms around Put her say you 3. I must kiss Then now

notes we admission ant. We

notes court and the trial meaning sexual conduct within the are not evidence of 972.11(2)(a), I such the notes are of sec. Stats. conclude would from evidence and to exclude them right deprive of confron- of his constitutional defendant relied facts on which it to show the state had the burden Regents, 2d v. Board 29 Wis. exclude the note. See Loeb (1965) (a seeking judicial process to party chose, perhaps position proof). It his carries burden advance meaning reasons, produce evidence as to the tactical for sound knowledge of the Spencer” or the of the “Dear note terms used therein.

notes evidence should be affirmed. ruling relevancy Our review of a trial court’s on is to limited whether the trial court has abused its discre- Pharr, tion. State v. 2dWis. 340 N.W.2d (1983). 498, 503 Defendant offers the notes for two rea- First, sons. he contends that the notes are admissible to daughter alleged show that has his fabricated three threatening assaults to retaliate for his to disclose her Second, mother the fact that she had written them. he contends that the notes are admissible to show that his eleven-year-old daughter knowledgeable was about sex- ual matters. The trial court held that the notes were admissible upon. argues for the reasons defendant relies The state 972.11(2), that the notes are inadmissible under sec. Stats., but makes no contention that the notes are irrel- emphasize well, however, It evant. is we the rele- vancy why view the reasons defendant wants the jury to read them. tending complaining Evidence a show witness falsify charge has a motive to a of sexual assault credibility always relevant. The of a witness is relevant dispute. when the facts are in A criminal defendant on right bring cross-examination has the out the motives Lenarchick, state’s witnesses. State v. Wis. 2d 425, 446-48, 92-93 Evidence that a witness admissible, has motive to lie therefore subject imposed to limitations on its use and the discre- tion of the Williamson, trial court. State v.

Since notes are question the is they whether are inadmissible under Wisconsin’s Rape statute, 972.11, Shield sec. Stats. applies That statute because defendant is accused of a crime under sec. Stats., 940.225, sexual assault. 972.11(2)(b), Section Stats., provides in relevant part: If the is of defendant accused a crime under s. 940.225, any concerning complaining evidence the prior opinions witness’s sexual conduct or of the wit- prior reputation prior ness’s sexual conduct and as to sexual conduct shall not be admitted into evidence during hearing trial, of the the or course nor shall any pres- reference in to such conduct be made the jury, except of following, ence the the subject to s. 971.31(11): 1. complaining past Evidence of witness’s with conduct the defendant. specific 2. Evidence of of con- instances sexual showing origin semen, preg- duct the source or nancy disease, or for in determining degree use injury assault or the extent suffered. 3. allegations Evidence of untruthful complaining sexual assault made witness. (c) Notwithstanding [pertaining s. 901.06 admissibility], limited the limitation on the admis- sion of or evidence of reference to the (b) complaining par. conduct in . witness applies regardless purpose of the admission reference expressly permitted unless the admission is (b)l, par. under 2 or 3. note, The first beginning Spiencer,” “Dear is an explicit past statement of a desire for sexual intercourse. note, license,” The second the “kissing is at least a sex- ual fantasy and perhaps proposal for a sexual encoun- ter short of intercourse. Each note fails to qualify any under of the three exceptions 972.11(2)(b)l, listed sec. 2 and Stats. Neither note is evidence of the daughter’s past conduct defendant, with the proposed neither to be used determining degree of sexual assault or the extent of injuries suffered, and proposed neither evidence of prior untruthful allegations of sexual assault. question is then whether these notes constitute concerning daughter’s “prior sexual con- duct.” The answer turns on the definition of “sexual 972.11(2)(a), Stats., conduct” provides: which