COA asks SCOW to clarify §904.04(2)(b) and the "greater latitude" rule

In light of the 2014 amendment of WIS. STAT. § 904.04(2)(b) (2019-20), codifying and expanding the “greater latitude” rule and the Wisconsin Supreme Court’s decision in State v. Dorsey, 2018 WI 10, ¶¶23-25, 379 Wis. 2d 386, 906 N.W.2d 158, interpreting and applying that amendment, are State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982), and State v. Cofield, 2000 WI App 196, 238 Wis. 2d 467, 618 N.W.2d 214, still controlling law as they relate to the admissibility of prior nonconsensual sexual wrongs in cases involving an adult victim of an alleged sexual assault where consent is the primary issue?

In 2019, the State charged Seaton with 3rd degree sexual assault of a 17 year old girl ("Anna") after an evening of drinking and camaraderie. Anna attended Brookfield East High School, which Seaton had previously attended. Before trial, the State moved to introduce evidence of a prior sexual assault by Seaton. That victim was also a 17 year old Brookfield East student who had been drinking and hanging out with Seaton just prior to the assault.

Generally, "other acts evidence" is not admissible to prove a defendant's character or propensity to commit a crime. Such evidence can be admitted if it satisfies the three prong test in State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). The first prong requires the proponent to establish that the evidence it is being offered for a permissible purpose such as motive, identity, plan, opportunity, modus operandi, or intent.

The circuit court, Hon. Jennifer Dorow presiding, denied the State's motion thereby excluding evidence of the prior assault primarily because it failed to satisfy Sullivan's first prong. But she did agree that the admission of the prior assault would satisfy Sullivan's second prong--i.e. it was "relevant" in that it could boost Anna's credibility.

Forty years ago, SCOW held that the fact that a defendant raped one woman does not prove that he had nonconsensual sex with another woman. Thus evidence of prior sexual assaults should be excluded from a rape trial as irrelevant. Alsteen, 108 Wis. 2d at 730-731.  There has long been an exception to this general rule for child sexual assault cases known as the "greater latitude rule."

In 2014, the legislature amended the greater latitude statute, §904.04(2)(b)1, to make it apply to a broader range of cases, such as domestic assault cases and various types of sexual assault cases, including the type Seaton was charged with. SCOW construed the amended statute in State v. Dorsey, 2018 WI 10, 379 Wis. 2d 386, 906 N.W.2d 158. See our post here.

Hopefully, that background helps clarify why the court of appeals wants SCOW to take this case. According to the certification:

Dorsey indicates that bolstering a current alleged victim’s credibility is a relevant use of prior acts evidence in he-said, she said type cases. The sexual assault case against Seaton, as in so many similar cases, boils down to he-said, she-said on the issue of whether the sexual intercourse with Anna was consensual. Alsteen, however, pointedly states that such prior acts evidence is not relevant and thus not admissible. So, the question is most ripe as to whether the amendment of WIS. STAT. § 904.04(2)(b)1. and our supreme court’s decision in Dorsey have effectively rendered Alsteen no longer controlling on the question of whether in a sexual assault case in which the core issue is consent in a he-said, she-said context—like the case now before us— evidence of a similar prior nonconsensual sexual wrong by the defendant is “relevant to an issue in the case,” Alsteen, 108 Wis. 2d at 731, and thus admissible. Certification at 14.

Note: If SCOW takes this case, and if Judge Dorow becomes Justice Dorow, she will have to recuse herself. The case would have to be decided by 6 justices, who could well split 3-3.