What is Rape Shield Law and what are its Punishments in Wisconsin?
Rape, the most ghastly type of sexual assault, is defined as a violent criminal offense wherein the victims are subject to sexual intercourse or sexual penetration, without their consent and against their will, by use of physical force, coercion, abuse of authority or when the victim is in a state of inability to give consent i.e. victim is incapacitated/unconscious, suffering from temporary or persistent impairment of intellectual or adaptive functioning and/or below the prescribed age of legal consent. A huge majority of the victims suffer the crime as well as a traumatized aftermath of feeling damaged and unable to lead their normal lives.
Rape is viewed as a reprehensible act by society and the law stipulates serious punishment to the perpetrators and yet millions around the world fall prey to it, the worst hit being women. The United States is no exception, with 321,500 women getting raped in the U.S. every year. Women aged between 12-34 years of age are the most vulnerable to sexual assault. A survey suggests that by the year 1998, approximately 17.7 million American women were preyed upon and suffered rape or attempted rape.
Provision of relief to a complainant is an integral part of administering justice. One such relief to this effect is to diminish the aggravation of trauma of the complainant during a rape trial. To this end, it is prudent that the past sexual behavior of the alleged victim should not be misused to target her/his credibility as a witness. Additionally, probing into the past sexual conduct of the victim is a violation of her/his constitutional right to privacy.
Thus, Rape Shield Laws were enacted by various State Governments in the United States, starting with Michigan in 1974. Wisconsin enforced its own version of the Rape Shield Law, drafted and codified as WIS.STAT.972.11 in the year 1985. These rules were amended in 2010 as Rules of Evidence and practice in civil actions which are also applicable to judicial procedures of criminal law.
Similar to rape shield laws of other states, Wisconsin too does not admit opinion evidence or reputation evidence pertaining to prior sexual conduct of the complainant and deems it to be of no probative value for the trial barring a few exceptions. Unlike other rape shield laws, in addition to the stipulated rules, the Wisconsin Statute explicitly prohibits mention of such evidence in front of the jury unless permitted along with the exceptions.
Furthermore, the law also allows for the presentation of child witnesses in any room other than the courtroom, in the absence of the defendant, while the testimony is simultaneously televised live in the courtroom through closed-circuit audiovisual equipment.
The exceptions to the prohibitions mentioned in the aforesaid rules concede to the admission of evidence of prior sexual conduct of the complainant, if it directly involved the defendant, specific instances of sexual conduct that show the source of origin of semen, physical injury and/or pregnancy to be someone else other than the defendant, evidence of previous untruthful allegations made by the complainant and a very narrow window of admissibility of evidence regarding the manner of dress the alleged victim wore at the time when the crime took place if the defendant is accused of crimes under Sections 940.225, 948.02, 948.025, 948.05,948.06, 948.085, or 948.095.
These exceptions in the Rules serve the objective of preserving the sixth amendment rights of the defendant i.e. facing the accuser. Before admission of any such evidence, the Court is required to conduct a preliminary hearing in camera to afford an opportunity to be heard, to both parties, especially of the accuser. The probative value of the evidence in question must serve a more critical role during the trial that the possibility of creation of unfair prejudice in judge and jury against the alleged victim. 34 other States in the U.S. provide similar safeguards to the accused.
Upon being found guilty of rape during the trial, the accused may be sentenced to:
- Life Imprisonment for a First-Degree Sexual Assault, for Sexual contact or intercourse with a child under 13 years subject to being increased to a Class A felony if the incident causes physical injury to the child.
- Imprisonment of up to 60 years for a First-Degree Sexual Assault for:
- By use of threat or violence with a child aged 12-16 years.
- With a person under 16 by use or threat of force or violence, if the defendant is at least 18 when the contact occurs.
- Imprisonment of up to 40 years and a fine of up to $100,00 for a Second-Degree Sexual Assault
- Imprisonment of up to 12.5 years and a fine up to $25,000 for a failure to act when physically and emotionally able to prevent the rape of a minor