State v. Gavigan, 81-1735-CR

• Decision Date: 12 April 1983
• Docket Number: No. 81-1735-CR,81-1735-CR
• Citation: 330 N.W.2d 571,111 Wis.2d 150
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Michael John GAVIGAN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 571

330 N.W.2d 571

111 Wis.2d 150

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Michael John GAVIGAN, Defendant-Appellant.

No. 81-1735-CR.

Supreme Court of Wisconsin.

Argued Jan. 7, 1983.

Decided March 1, 1983.

Reconsideration Denied April 12, 1983.

Michael R. Klos, Asst. Atty. Gen. (argued), with whom on brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent-petitioner.

Donna L. Hintze, Asst. State Public Defender, for defendant-appellant.

CALLOW, Justice.

This review arises out of an unpublished decision of the court of appeals, which reversed a judgment of conviction for second-degree sexual assault and remanded the matter to the circuit court for a new trial. The judgment of conviction was entered by the circuit court for Milwaukee County, Judge Michael J. Skwierawski.

On August 31, 1980, S.E., an adult, reported to the police that she had been sexually assaulted in her apartment by a man named Mike. The next day a criminal complaint was filed charging Michael Gavigan with second-degree sexual assault in violation of sec. 940.225(2)(a), Stats. ¹ Following his arrest and a preliminary examination, Gavigan was bound over for trial on September 15, 1980.

S.E. indicated during the preliminary examination that she was a virgin before being sexually assaulted by Gavigan. Prior to trial the state advised the court that it planned to introduce evidence of S.E.'s virginity. Defense counsel objected to the admission of such evidence on the ground that it involved the victim's prior sexual conduct and, therefore, must be excluded under sec. 972.11, Stats. Defense counsel informed the court that, if the virginity evidence was admitted, he would seek to present evidence that S.E. had gonorrhea but that Gavigan did not. The gonorrhea evidence should be admitted, argued defense counsel, because it refutes S.E.'s claim of virginity.

The trial court ruled that evidence of S.E.'s virginity was relevant and would be admitted. In response to defense counsel's objection under sec. 972.11, Stats., the court agreed to instruct the jury that the virginity evidence was not an opinion as to the victim's prior sexual conduct but, rather, was offered to prove only S.E.'s physical condition and state of mind. The court refused to admit the gonorrhea evidence offered by the defendant on the ground that it involved S.E.'s prior sexual conduct and, therefore, must be excluded under sec. 972.11. The court also ruled that, although the gonorrhea evidence may have some probative value as to S.E.'s credibility, that value was outweighed by its prejudicial effect. Thus the gonorrhea evidence had to be excluded under sec. 904.03, Stats., as well.

Both S.E. and Gavigan testified at trial. Their accounts of the incident differ in several material respects. S.E. testified that at approximately 4 a.m. on August 31, 1980, she awoke to the sound of someone banging on a door down the hall. A short time later she heard the banging on her door and got up to investigate. She asked who it was, and the person responded that his name was Michael (Gavigan). After Gavigan explained that he had been locked out of his apartment and was unable to contact the manager, S.E. invited him to stay on her couch. Gavigan accepted. S.E. provided Gavigan with linens and then went to her bedroom. Shortly thereafter Gavigan came to her bedroom doorway, nude, and said he wanted to stay with her. Feeling threatened by the situation, S.E. told Gavigan that he should stay on the couch. Gavigan then stated that he wanted to have sexual intercourse with S.E. and began to remove her clothing.

Once she was nude, S.E. testified that she moved towards the window intending to scream. Before she reached the window, Gavigan grabbed her by the throat and told her that, if she screamed, he would really hurt her. S.E. agreed to touch Gavigan if he would not touch her. S.E. testified that Gavigan soon became impatient with her. A struggle ensued and S.E. landed on the floor with Gavigan on top of her. Gavigan picked her up and put her on the bed. Holding her down, Gavigan then had sexual intercourse with S.E. without her consent. She testified that the sexual intercourse was very painful.

Following the act of intercourse, Gavigan fell asleep. S.E. remained in her apartment with Gavigan waiting for her neighbor, Eugene Frank, to come home. When Frank arrived, she left the apartment and went to him for help. Frank removed Gavigan from S.E.'s apartment and took S.E. to the hospital. The police were called at 3 p.m. the same day.

Gavigan testified that early in the morning on August 31, 1980, he went to his ex-wife's apartment and knocked on the door. As he knocked he observed a woman (S.E.) down the hall looking out from her apartment. Getting no response, he went down to S.E.'s apartment and knocked on her door. When S.E. answered, Gavigan gave his name and explained that he had been unable to rouse his friends who lived down the hall. He then asked if he could use her telephone. She said that it was quite late to awaken his friends and suggested instead that he spend the night on her couch.

S.E. got some linens for Gavigan and then returned to her bedroom. Shortly thereafter, S.E. told Gavigan that he did not have to stay on the couch. He then entered her bedroom and they began kissing. He removed her clothing and his underwear. Gavigan testified that he did not threaten S.E. and she did not resist. According to Gavigan, S.E. voluntarily engaged in sexual acts leading up to and including sexual intercourse. Gavigan stated that in response to S.E.'s request he gave her two hickeys on her neck. Gavigan denied that he choked S.E. and stated that she gave no indication the intercourse was painful. When the sexual acts were completed, they kissed and went to sleep.

The next thing Gavigan knew Eugene Frank awakened him and accused him of raping S.E. Gavigan denied the charge. Frank then called a cab for Gavigan and Gavigan left.

Dr. Nathan Hilrich, the doctor who initially examined S.E. after the incident, testified that he observed a small tear in S.E.'s hymen, broken blood vessels, clots of blood, and that the labia of S.E.'s vagina was swollen and red. Dr. Hilrich further testified that the tear in the hymen had occurred within the previous twelve hours, there had been a forcible entry into S.E.'s vagina by a penis, and that S.E. would have experienced severe pain when the penetration occurred. Dr. Hilrich opined that S.E. was a virgin prior to the incident and that the red marks on her neck were not hickeys but, rather, were bruises caused by the pressure of soft tissue against a hard object. S.E. had also testified earlier that she was a virgin prior to the sexual assault.

On May 21, 1981, the jury found Gavigan guilty of second-degree sexual assault. Gavigan was sentenced on June 8, 1981, to five years in prison. A notice of appeal was filed by Gavigan on September 9, 1981.

On appeal Gavigan argued that the trial court erred in admitting evidence of S.E.'s virginity and excluding evidence of gonorrhea. The state conceded that admission of the virginity evidence violated sec. 972.11(2)(b), Stats., but argued that the error was harmless. The court of appeals recognized that consent was a critical issue in the case and noted that the jury may well have inferred that, because S.E. was a virgin, she was unlikely to consent to sexual intercourse. Thus the court held that the error was not harmless and reversed the judgment of conviction. The state sought and we granted review of the decision of the court of appeals.

The issue presented on this review is whether the trial court's admission of testimony by S.E. and Dr. Hilrich relating to S.E.'s virginity was error and, if so, whether the error was harmless.

Historically, evidence of a victim's reputation for chastity and prior sexual conduct was held admissible in a sexual assault case on the grounds that it was relevant to her credibility and to the likelihood of her consent. This conclusion was based on the notion "that a woman of previous unchaste character is more likely to consent to an act of sexual intercourse than is a woman who is strictly virtuous." Kaczmarzyk v. State, 228 Wis. 247, 249, 280 N.W. 362 (1938). State v. Muhammad, 41 Wis.2d 12, 20, 162 N.W.2d 567 (1968).

In recent years, however, this reasoning has been largely abandoned. Many courts and state legislatures have recognized that a complainant's consent or lack of consent to sexual intercourse with third parties on other occasions is not a reliable indicator as to whether she consented to have intercourse with the defendant. Furthermore, evidence of a complainant's prior sexual conduct is generally prejudicial and bears no logical correlation to the complainant's credibility. Therefore, such evidence should ordinarily be excluded at trial.

In order to preclude the admission of prior sexual conduct evidence, several states, including Wisconsin, have enacted what are commonly known as rape shield laws. Wisconsin's rape shield law is found in sec. 972.11(2)(b), Stats., and provides:

"If the defendant is accused of a crime under s. 940.225, any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to s. 971.31(11):

"1. Evidence of the complaining witness's past conduct with the defendant.

"2. Evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered.

"3. Evidence of prior untruthful allegations of sexual assault made by the complaining witness."

The fact that evidence may not be admitted to...