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NCJ Number: 97899 Add to Shopping cart Find in a Library
Title: Evidence - Sexual Assault Victim's Prior Sexual Conduct Admissible if Three Conditions Met - State v Gavigan, 111 Wis 2d 150, 330 NW2d 571 (1983)
Journal: Marquette Law Review  Volume:67  Issue:2  Dated:(Winter 1984)  Pages:396-413
Author(s): M J Fitzgerald
Date Published: 1984
Page Count: 18
Sponsoring Agency: National Institute of Justice/
Rockville, MD 20849
NCJRS Photocopy Services
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Sale Source: National Institute of Justice/
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NCJRS Photocopy Services
Box 6000
Rockville, MD 20849-6000
United States of America
Language: English
Country: United States of America
Annotation: This paper discusses rape shield laws and reviews the Wisconsin Supreme Court's opinion in Wisconsin v. Gavigan.
Abstract: In August 1980, Michael Gavigan was charged with second-degree sexual assault. Gavigan contended that S.E. voluntarily engaged in sexual acts including intercourse; S.E. testified that Gavigan threatened her with physical violence and forced her to have sex. The prosecution introduced evidence that S.E. was a virgin prior to the incident, and Gavigan was found guilty. The Wisconsin Court of Appeals remanded the case for a new trial because the trial court erred in admitting evidence of S.E.'s prior sexual conduct. The Wisconsin Supreme Court reversed, adopting a new test for evidence of a rape victim's prior sexual conduct. Forty-seven States have statutes governing the admissibility of testimony regarding a rape victim's sexual history; these laws vary in scope and procedural details. Some States, like Wisconsin, have statutes that generally prohibit the introduction of sexual history evidence except in a few narrowly defined circumstances. A few courts have circumvented the more narrow rape shield laws and admitted evidence of a rape victim's prior sexual conduct. However, none have done so on the issue of consent, as the Wisconsin Supreme Court did in State v. Gavigan. The court used section 971.31(11) as the basis of the Gavigan test and thus erroneously read the statute as applicable to all proferred sexual history evidence. This decision 'opens the evidentiary door' for the revelation of a complainant's prior sexual conduct in rape cases. Included are 115 notes.
Index Term(s): Rape victim shield laws; Sexual assault; State laws; Wisconsin
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