State v. Herndon
426 N.W.2d 347 (1988)
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Rule of Law:
A state's rape shield law that imposes an absolute prohibition on admitting evidence of a complaining witness's prior sexual conduct violates a defendant's Sixth Amendment rights when the proffered evidence is highly probative of the witness's bias or motive to fabricate the charge.
Facts:
- Prior to the incident in question, M.L.P., a juvenile, had been arrested on two separate occasions for prostitution.
- M.L.P.'s mother, C.P., was aware of her daughter's prior prostitution arrests and strongly disapproved of this activity.
- On March 24, 1986, at approximately 2:00 a.m., Leonard Herndon encountered M.L.P. in a neighborhood known for prostitution.
- Herndon and M.L.P. went to a different location where they engaged in multiple acts of oral and vaginal intercourse.
- Herndon claimed M.L.P. solicited him, the sex was a consensual act of prostitution, and he slapped her after she attacked and bit him.
- M.L.P. claimed Herndon forced her into his car, sexually assaulted her, and struck her, causing bruising to her eye.
- After the encounter, M.L.P. went to her mother's home and reported that she had been raped.
Procedural Posture:
- The State of Wisconsin charged Leonard Herndon with sexual assault in the state trial court.
- Following a preliminary hearing, the court found probable cause and bound Herndon over for trial.
- Herndon filed a pretrial motion to admit evidence of the complaining witness's prior arrests for prostitution and to declare Wisconsin's rape shield law, sec. 972.11(2), unconstitutional.
- The trial court denied the motion, ruling that the rape shield law absolutely foreclosed admission of the proffered evidence.
- Herndon waived his right to a jury trial, and the court found him guilty based on the preliminary hearing transcript.
- Herndon (appellant) appealed his conviction to the Court of Appeals of Wisconsin (the intermediate appellate court).
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Issue:
Does a state's rape shield law, which absolutely prohibits the admission of a complainant's prior sexual conduct, violate a defendant's Sixth Amendment rights to confrontation and to present a defense when the excluded evidence is offered to show the complainant's specific motive to fabricate the charge?
Opinions:
Majority - Moser, P.J.
Yes, a state's rape shield law that absolutely prohibits the admission of a complainant's prior sexual conduct violates a defendant's Sixth Amendment rights when the evidence is critical to showing a motive to fabricate. While rape shield laws serve the important state interest of protecting complainants from harassment and encouraging the reporting of sexual assaults, this interest must be balanced against a defendant's fundamental constitutional rights to confront witnesses and present a defense. Citing the balancing test from Davis v. Alaska, the court determined that evidence of a complainant’s prior acts of prostitution is not merely a general attack on character but can be highly probative of a specific motive to fabricate, especially when coupled with other facts, such as the mother's strong disapproval. In this case, Herndon’s theory was that M.L.P. fabricated the rape allegation to explain her facial bruises to her mother and avoid punishment for engaging in prostitution again. Because the Wisconsin statute, sec. 972.11(2)(c), provided an absolute bar to this evidence without allowing for judicial balancing, it was unconstitutional as applied. The court concluded that Herndon's right to present his defense theory to the jury outweighed the potential embarrassment to the complaining witness.
Analysis:
This decision establishes that a rape shield statute cannot operate as an absolute, per se rule of evidence exclusion when it conflicts with a defendant's Sixth Amendment confrontation rights. The court reinforces the principle from Davis v. Alaska, requiring a case-by-case balancing test to weigh the state's interest in protecting victims against the defendant's right to introduce evidence probative of bias or motive to fabricate. By striking down the absolute prohibition in the Wisconsin statute, the ruling mandates that trial courts must consider the specific defense theory and the relevance of the proffered evidence. This creates a constitutionally required exception to the rape shield law for evidence that goes beyond general character impeachment and is central to establishing a specific defense.
