Admissibility of Prior Sexual Contact – State v. Sarfraz

By Reddin & Singer


Wisconsin’s rape shield laws generally forbid the introduction of any evidence concerning the victim’s prior sexual conduct. Put another way, the rape shield statute prohibits any information or opinion regarding sexual conduct that is not part of the sexual activity in question. Sexual conduct is construed broadly and encompasses living arranges, lifestyle choices, and the use of contraceptives. Rape shield laws in Wisconsin are gender-neutral, meaning they apply equally to men and women.

In State v. Sarfraz, evidence of prior consensual contact between the defendant and the complainant was not admissible as an exception to the rape-shield law, since the defendant failed to demonstrate that the probative value of the evidence outweighed its inherent prejudice.

The facts of the case are as follows. The complainant alleged that Sarfraz knocked on her apartment door, pretending to be her landlord. When she opened the door, he came in holding a knife and forcibly had sexual intercourse with her. Sarfraz stated that he and the complainant had a romantic relationship that involved an ongoing, consensual sexual relationship. Sarfraz said that day involved consensual sex as well. The complainant denied having any prior romantic or sexual relationship with Sarfraz.

The trial judge did not allow evidence of prior sexual contact between Sarfraz and the complainant, due to Wisconsin rape-shield laws. The judge concluded that the prior sexual conduct was not relevant to a material fact in the case. Namely, prior sexual contact was not relevant to the question of forcible sexual intercourse.

The court of appeals reversed the defendant’s conviction and remanded the case, concluding that the trial court had erred when it excluded evidence of prior consensual sexual contact between the defendant and the complainant.

The case was eventually appealed to the Supreme Court of Wisconsin. The Supreme Court held that the evidence of prior consensual sexual contact was not admissible because the defendant failed to show that the probative value of the evidence did not outweigh the prejudicial effect on the complainant.

The court used a three-part test laid out in State v. Desantis. The first part requires sufficient proof that a prior sexual relationship existed, which was shown. The second part requires that the prior sexual contact must be relevant to a material fact in the current offense. This prong was satisfied as well because Sarfraz sought to introduce evidence to show, among other things, that the sexual contact was a normal progression in their relationship. The third part of the test requires showing that the probative value of the evidence outweighs the inherent prejudice. This is where Sarfraz failed to show that their previous sexual relationship was probative because the nature of that relationship was “remote in time and dissimilar in circumstances,” according to the court.

Rape shield laws can be complex, which is why it is important to consult a qualified Milwaukee criminal defense attorney to understand more about this area of the law. At Reddin & Singer, we have helped many clients who have been charged with sex crimes. Facing these types of charges can negatively affect every aspect of your life and reputation. We understand the challenges that come with criminal charges of this nature. For more information, contact us online or call us at (414) 271-6400.