Facts
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M.L.P., a juvenile, accused Leonard Herndon of sexual assault.
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At a preliminary hearing, M.L.P. testified that on March 24, 1986, around 2:00 a.m. in Milwaukee, Herndon forced her into his car, drove to a nearby parking lot, struck her in the eye, and forced oral and vaginal intercourse before letting her out elsewhere.
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Herndon did not deny that sexual acts occurred, but asserted they were consensual and part of a prostitution transaction.
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Herndon claimed M.L.P. flagged him down, told him she “was working,” asked if he had money, and that he believed she was offering sex for money.
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To support consent and to attack credibility, Herndon sought to introduce evidence that:
- M.L.P. had two prior arrests for prostitution;
- the arresting officers could describe a method of soliciting men consistent with Herndon’s account; and
- M.L.P.’s mother knew about and was angry about M.L.P.’s prostitution, supporting a theory that M.L.P. falsely accused rape to avoid punishment at home.
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The trial court relied on Wisconsin’s rape-shield statute, Wis. Stat. § 972.11(2), to bar any reference to M.L.P.’s prior sexual conduct, including the prostitution-related evidence.
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Herndon was convicted of third-degree sexual assault under Wis. Stat. § 940.225(3). The conviction was based on the preliminary-hearing transcript rather than live testimony at trial.
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Herndon appealed, arguing that the statute was unconstitutional as applied because the exclusions prevented effective cross-examination and blocked defense witness testimony.
Issues
- Whether the trial court’s use of Wis. Stat. § 972.11(2) to exclude all prostitution-related evidence (prior arrests and related testimony) denied Herndon his constitutional right to confront the complaining witness and his right to present witnesses in his own behalf.
Decision
- The Wisconsin Court of Appeals reversed the judgment of conviction.
- The court held that, as applied here, the rape-shield statute was used in a way that violated Herndon’s confrontation rights and his right to present defense witnesses and evidence.
- The case was remanded for further proceedings consistent with the appellate decision.
Legal Principles
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Rape-shield statutes that limit evidence of a complainant’s prior sexual conduct are generally valid, but they remain subject to constitutional limits.
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The Sixth Amendment and Article I, § 7 of the Wisconsin Constitution protect meaningful cross-examination, including inquiry aimed at testing credibility, bias, and motive to lie.
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The accused has a constitutional right to present witnesses and evidence when that evidence is necessary to support a recognized defense theory and to test the reliability of the prosecution’s account.
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Evidence touching on prior sexual conduct may be constitutionally required when it is offered for a non-character purpose such as:
- showing a specific motive to fabricate an accusation,
- showing bias or a reason to misstate events, or
- showing a distinctive pattern of conduct that closely matches the defendant’s account of consent.
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Courts must weigh the state’s interests served by rape-shield protections (reducing harassment, avoiding unfair embarrassment, and keeping trials focused) against the defendant’s need for the evidence to contest guilt; a categorical exclusion that blocks the defense theory can violate the Constitution.
Conclusion
The Court of Appeals reversed Herndon’s conviction because the trial court treated the rape-shield statute as a total bar and excluded prostitution-arrest and related testimony that directly supported Herndon’s consent theory and his claim that M.L.P. had a reason to fabricate the allegation, thereby denying effective confrontation and the ability to present a defense.