Unimpeachable: 7th Circuit Finds Evidence That Sauna Was Used as Place Of Prostitution Inadmissible Under Rape Shield Rule

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Like all states, Wisconsin has a rape shield rule. Under Wisconsin’s rule, WIS. STAT. Section 972.11(2)(b), in civil and criminal cases involving alleged sex crimes,

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….

The general purpose of rape shield rules is two-fold: (1) preventing a defendant from presenting evidence of an alleged victim’s sexual behavior/predisposition to prove her propensity to consent to sexual acts and her likely conformity with that propensity, and thus consent, at the time of the crime charge; and (2) preventing a defendant from using such evidence to prove that the alleged victim is a liar.

Rape shield rules, of course, are subject to exceptions, including an exception for when the exclusion of evidence would violate the Constitutional rights of the accused. As noted, a main purpose of rape shield rules is to prevent impeachment of alleged victims of sexual crimes. But what if the defendant wants to impeach a witness other than the alleged victim through evidence of the alleged victim’s sexual behavior? That was the unique question recently addressed by the Seventh Circuit in its recent opinion in Jardine v. Dittman, 2011 WL 4056677 (7th Cir. 2011).

In Dittman,  a Wisconsin jury convicted Jardine of sexually assaulting and attempting to kill Laurie Grandhagen, a masseuse at Kady’s Sauna. After he was convicted, Jardine combined his direct appeal with an unsuccessful motion for a new trial. After losing on appeal, Jardine petitioned the Supreme Court of Wisconsin for review. While this petition was pending, the trial court received a letter from a police detective who admitted doctoring the crime scene in some manner to hide evidence of prostitution at Kady’s. Jardine then filed another new-trial motion, but the trial court denied the motion, and the Supreme Court of Wisconsin ultimately denied review.

Jardine thereafter filed a petition in federal district court under 28 U.S.C. § 2254, claiming, inter alia, that evidence that Kady’s Sauna was used as a house of prostitution was material exculpatory information that was unconstitutionally suppressed pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The district court summarily dismissed the petition, leading to Jardine’s appeal to the Seventh Circuit.

According to the Seventh Circuit, one central problem with Jardine’s petition was that the suppressed evidence would have been inadmissible under Wisconsin’s rape shield rule if offered against Grandhagen. Moreover, the court found that the exclusion of such evidence would not have violated the Constitution because “evidence that a sexual-assault complainant often consented to sex with other men is archetypally prejudicial and not highly probative of consent in a particular case; precisely that concern underlies rape-shield statutes.”

That said, Jardine argued that the evidence alternatively could have been offered to impeach another witness for the prosecution. Denise McKay, another masseuse at Kady’s Sauna testified at trial and denied “generally that prostitution took place at the parlor and specifically that Jardine had once purchased her sexual services.”

The Seventh Circuit disagreed, finding that even if this evidence was not excluded under the rape shield rule, it was properly excluded because it would have run “afoul of the state’s rule against impeachment through extrinsic evidence of collateral acts.” Moreover, the court found that it was “hard to see how the Wisconsin courts would be unreasonable in concluding that Jardine had no constitutional right to impeach McKay rather than Grandhagen with evidence of prostitution—unless the Wisconsin courts were gravely mistaken in twice characterizing McKay’s role in the trial as inconsequential.”

-Colin Miller

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