(concurring).
¶ 56. The central question in this case concerns the scope of Jensen1 for purposes of Maday.2 I disagree with the majority's conclusion that the expert testimony at issue in this case is Jensen evidence. Jensen must be read in the context of its facts, in light of the type of evidence actually in dispute in that case.3 Alternatively, if the expert testimony at issue in this case, comes under the umbrella of Jensen, I would conclude that this particular type of Jensen evidence does not trigger a Maday request for a defense psychological examination of the victim.
¶ 57. Jensen involved the sexual assault of an 11-year-old girl by her stepfather. As in many sexual assault cases, especially those involving children, the victim did not report the abuse immediately. She ultimately disclosed it to her school guidance counselor, who met with her because of concerns about changes in her behavior, particularly a marked onset of sexually precocious "acting out" behavior. State v. Jensen, 147 Wis. 2d 240, 244-45, 432 N.W.2d 913 (1988).
¶ 58. The State presented the counselor as a fact and expert witness at trial, questioning him briefly *443about the phenomenon of delayed reporting in sexual assault cases, and in more detail about the significance of the victim's post-assault "acting out" behavior and its consistency with the behavior of sexual assault victims generally. On appeal, however, and significant to the application of Jensen after Maday, the defendant challenged only the latter category of the counselor's opinion testimony, as the following passage of the opinion makes clear:
On review the defendant challenges the admissibility of only one part of Mr. Bosman's [the counselor's] testimony, namely, Mr. Bosman's comparison of L.J.'s [the victim's] "acting out" behavior with the behavior of child sexual abuse victims. The defendant objects only to the circuit court's decision to admit the question, "In your opinion... are the kinds of acting out behavior that the teachers described to you that they were seeing in L— consistent with children, who were victims of sexual abuse?" and the witness's answer, ’Yes."
Jensen, 147 Wis. 2d at 248-49.
¶ 59. Jensen argued that this testimony amounted to an expert opinion that the victim was telling the truth, impermissible under State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984). Jensen, 147 Wis. 2d at 249. This court disagreed, concluding that an expert's opinion about the consistency of a sexual assault victim's behavior with that of other sexual assault victims is admissible if it helps the factfinder understand the evidence or decide a fact in issue. Id. at 256-57. The court emphasized, however, that the expert testimony may not be expressed as an opinion about the credibility of the victim, because Wisconsin law prohibits a witness from testifying" 'that *444another mentally and physically competent witness is telling the truth.'" Id. at 249 (quoting Haseltine, 120 Wis. 2d at 96).
¶ 60. The court then concluded that the guidance counselor's testimony about the significance of the victim's post-assault "acting out" behavior did not constitute an impermissible opinion about the victim's credibility but merely explained how the counselor's concerns precipitated his meeting with the victim during which she disclosed the abuse. Jensen, 147 Wis. 2d at 249. The court further concluded that the opinion evidence was admissible to rebut the defense theory that the victim had fabricated the assault. Id.
¶ 61. Understood in context, therefore, Jensen evidence is expert testimony about the consistency of a sexual assault victim's post-assault reactive changes in behavior — conduct separate from the facts of the assault and the manner in which the victim reported it — with that of sexual assault victims generally.4 Under State v. Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993),5 when the State intends to introduce this type of psychological opinion testimony through an expert who has conducted a personal examination of the victim, the defense may request a court-ordered psychological examination of the victim by an expert of the defendant's choosing. As the majority notes, Maday requests are evaluated according to a seven-factor analysis that balances the potentially traumatic effect *445of a court-ordered clinical psychological examination on the victim against the defendant's need for the evidence.6
¶ 62. Maday's "leveling-of-the-playing field"7 approach makes sense if Jensen evidence is understood as the type of evidence actually at issue in Jensen, that is, opinion testimony about the diagnostic significance of a victim's post-assault change in behavior. This type of evidence puts the victim's post-assault psychological condition at issue where it otherwise would not be. When the state seeks to introduce such evidence through a Maday-type expert — one who has conducted a personal examination of the victim for purposes of evaluating his or her post-assault change in behavior for consistency with that of other sexual assault victims — the state puts the defendant at an evidentiary disadvantage.8 In this situation, the notion that the defendant should be entitled to ask for a court-ordered psychological examination of the victim is understandable on fundamental fairness grounds.
¶ 63. But the threat of an inherently intrusive court-ordered psychological examination of a sexual assault victim should not be present where, as here, the State presents garden-variety, expert testimony about the common phenomenon of delayed reporting in sexual assault cases, even if that testimony comes in through a Maday-type expert who has personally examined the victim, and even if the expert draws a Jensen-type consistency comparison. This sort of expert testimony does not make the victim's psychological condition an issue, and therefore does not put the *446defense at an evidentiary disadvantage without its own psychological examination of the victim.
¶ 64. I recognize that the court's holding in Jensen is expressed in broad terms, extending its theory beyond its factual context.9 But applying the Jensen label to all éxpert testimony drawing consistency comparisons about victim behavior, regardless of its type, is conceptually problematic, and, more importantly, unnecessarily puts sexual assault victims at risk of being ordered to undergo the ordeal of an unwanted psychological examination under Maday.
¶ 65. Of course, a victim may refuse to submit to a court-ordered psychological examination, but then, according to Maday, the state must forego the use of the examining expert's testimony.10 This puts the victim in something of an untenable position if he or she wants the prosecution to put on its best case for conviction, as crime victims usually do.
*447¶ 66. It is important to note that Jensen relied heavily on certain explanatory language in Haseltine,11 as well as this court's earlier opinion in State v. Robinson, 146 Wis. 2d 315, 431 N.W.2d 165 (1988).12 Both Haseltine and Robinson held that expert testimony explaining a sexual assault victim's reporting behavior in the context of common reporting behaviors of sexual assault victims generally is admissible to rebut a defense suggestion that such behavior is inconsistent with a claim of having been sexually assaulted.13
For example, an incest victim may not immediately report the incest, or may recant accusations of incest. Jurors might reasonably regard such behavior as an indication that the victim was not telling the truth. An expert could explain that such behavior is common among incest victims as a result of guilt, confusion, and a reluctance to accuse a parent.
Haseltine, 120 Wis. 2d at 97. This kind of expert testimony (in Robinson it was an explanation of the victim's emotional "flatness" upon reporting the assault) "serves a particularly useful role by disabusing the jury of some widely held misconceptions about sexual assault victims." Robinson, 146 Wis. 2d at 335.
¶ 67. Considered against the backdrop of Hasel-tine and Robinson, therefore, the import of Jensen was twofold: 1) it legitimized the "consistency comparison" form of expert testimony (i.e., opinion testimony that the victim's behavior is "consistent with" that of other *448sexual assault victims); and 2) it extended the Robinson doctrine of admissibility, derived from the language in Haseltine, to expert explanations of other types of victim reactive behavior, specifically, post-assault changes in behavior separate and distinct from the manner in which the victim reports the assault. Jensen thus contained important developments in the law of evidence regarding both the form and the substance or type of permissible expert testimony in this area.
¶ 68. The difference in type (rather than form) of expert testimony authorized in Jensen from that previously authorized in Robinson and referenced in Hasel-tine becomes important for purposes of Maday.14 Robinson-type expert testimony about common victim reporting behavior, stated in the form of a Jensen-style consistency comparison has become relatively routine in sexual assault cases. Jensen-type expert testimony about the psychological significance of post-assault changes in a victim's behavior is more unusual, and *449tends to make the victim's psychological condition more central to the case. It also comes closer to being substantive (albeit circumstantial) evidence that the crime occurred, rather than merely rehabilitative evidence rebutting a defense attack on inconsistencies in the victim's manner of reporting the assault.
¶ 69. These distinctions may be difficult to draw, but they make an important difference under Maday. If the State seeks to buttress its case by emphasizing the victim's post-assault psychological condition through expert testimony about victim behavior that would otherwise not be part of the case, a court-ordered psychological examination of the victim may be justified under Maday.
¶ 70. But there is no justification for subjecting a sexual assault victim to the invasiveness of such an examination where the expert testimony concerns only a comparison of the way in which the victim reported the crime — which is an essential and unavoidable part of every sexual assault case — to the reporting behavior of sexual assault victims generally. In other words, there is no justification for including comparison testimony about victim reporting behavior under the umbrella of Jensen for purposes of Maday.
¶ 71. If indeed all expert testimony drawing any consistency comparison between a victim's behavior and that of other sexual assault victims constitutes Jensen evidence, then Maday requests should be limited to those cases in which the proffered Jensen evidence puts the victim's post-assault psychological condition at issue in a significant way. Only then does fundamental fairness require that the defense be given the same access to a clinical examination of the victim as the state, and only if the court, after analyzing the *450case under the seven-factor test in Maday, concludes that the defendant's interests outweigh the victim's.
¶ 72. The seven-factor Maday analysis, therefore, should be preceded by an evaluation of the type of. expert testimony the State seeks to introduce, the form the expert opinion will take, and the purposes for which it is offered. If the proposed expert testimony concerns the common reporting behaviors of sexual assault victims and is offered as educative evidence to disabuse the jury of misconceptions about victims or to rebut a defense attack on these issues, then Maday does not come into play.
¶ 73. This is (or should be) so even if the testimony comes from a Maday-type examining expert in the form of a Jensen-style consistency comparison, because this sort of testimony simply cannot be said to place the victim's psychological condition in issue, and, therefore, does not give rise to any of Maday's fundamental fairness concerns. Under these circumstances, the victim's privacy interests will always outweigh the defendant's discovery interests.
¶ 74. If, on the other hand, the proposed testimony is an opinion by an examining expert about the psychological significance of a victim's post-assault change in behavior, is stated in the form of a consistency comparison, and is offered in whole or in part as circumstantial evidence that the alleged assault occurred, then Maday is triggered and the seven-factor analysis should be undertaken. Under these circumstances, the Maday concerns about a "level playing field" may indeed be present.
¶ 75. The disputed evidence in this case consists of the State's expert's explanation of the 14-year-old victim's delay in reporting the defendant's sexual abuse in the context of the phenomenon of delayed reporting *451in sexual assault cases generally. This evidence is not similar to the type of expert testimony at issue in Jensen and did not put the victim's post-assault psychological condition at issue in any significant way, so the fundamental fairness considerations of Maday are plainly not present.15
¶ 76. Accordingly, while I concur with the majority's decision to reverse the court of appeals, I disagree with its analysis of the scope of Jensen for purposes of Maday. I would hold that the disputed expert testimony in this case was not Jensen evidence. Alternatively, if it was Jensen evidence, then it was not the type of Jensen evidence that triggers a Maday request for a defense psychological examination of the victim. The admission of the evidence in the absence of a Maday determination was not error. I would reverse the court of appeals without remanding for application of Maday.
State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988).
State v. Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993).
See Jensen, 147 Wis. 2d at 248-49.
Jensen did not involve "rape trauma syndrome" testimony, that is, opinion evidence that the victim manifested psychological symptoms shared by all rape victims, offered to prove that the victim was in fact sexually assaulted. Jensen, 147 Wis. 2d at 245-46 n.l.
Maday, 179 Wis. 2d at 359-60.
Maday, 179 Wis. 2d at 360-61; majority op. at ¶ 16.
Maday, 179 Wis. 2d at 357.
Maday, 179 Wis. 2d at 357.
In a separate case also announced today, State v. Dunlap, 2002 WI19, — Wis. 2d —, 640 N.W.2d 112, this court concludes that expert testimony comparing a child sexual assault victim's reporting behavior to the common reporting behavior of child sexual assault victims — e.g., delayed and progressive disclosure, confusion about the timing and physical details of the assault — is admissible under Jensen. Other cases have also applied Jensen broadly, without recognizing any distinction in the type of expert testimony at issue. See State v. Huntington, 216 Wis. 2d 671, 697-98, 575 N.W.2d 268 (1998); State v. DeSantis, 155 Wis. 2d 774, 794-95, 456 N.W.2d 600 (1990); State v. Vinson, 183 Wis. 2d 297, 309-12, 515 N.W.2d 314 (Ct. App. 1994).
Maday, 179 Wis. 2d 361-62.
State v. Haseltine, 120 Wis. 2d 92, 97, 352 N.W.2d 673 (Ct. App. 1984).
State v. Robinson, 146 Wis. 2d 315, 431 N.W.2d 165 (1988).
Robinson, 146 Wis. 2d at 334-35; Haseltine, 120 Wis. 2d at 96-97.
The majority focuses only on the form of the expert testimony to determine whether it fits within the ambit of Jensen for purposes of Maday. I agree with the majority's conclusion that Dr. Pucci, the State's expert, essentially expressed her opinion in the form of a Jensen-style consistency comparison even though she did not use the phrase "consistent with" or similar "magic words" in stating her opinion. In authorizing the admissibility of the consistency comparison form of opinion testimony in this area, Jensen suggested that there is no "legally significant" distinction between an explicit consistency comparison and expert testimony that is merely descriptive of the victim's behavior as against that of other sexual assault victims. Jensen, 147 Wis. 2d at 253. But the majority here does not look beyond the form of the expert testimony to consider its substance or type, which is important to the determination of whether the evidence fits within Jensen for purposes of Maday.
I agree, however, with the majority's conclusion that Dr. Pucci was an expert who personally examined the victim within the meaning of Maday. The fact that she was the victim's treating psychologist retained by the victim's family rather than a litigation expert retained by the State is not relevant to the fundamental fairness analysis under Maday.