State v. Dunlap

DIANE S. SYKES, J.

{concurring).

¶ 43. In Part II C of the majority opinion, the court concludes that because the child protective services investigator's expert testimony was Jensen1 evidence, it did not "open the door" under the curative admissibility doctrine to the admission of evidence that was otherwise barred by the rape shield statute. I write separately because, in my view, the inapplicability of the curative admissibility doctrine does not depend upon a conclusion that the investigator's expert testimony was Jensen evidence.

¶ 44. In the first place, no one argued that the investigator's expert testimony was inadmissible or improper in any way. As a result, there was nothing to "cure" under the curative admissibility doctrine.

¶ 45. Second, the investigator's testimony was relatively routine opinion evidence, typical of many child sexual assault cases, concerning the consistency of the six-year-old victim's behavior in reporting the sexual assault with the reporting behavior of child sexual assault victims generally. The evidence the defendant sought to introduce, on the other hand, concerned certain alleged incidents of unusual, sexually inappropriate behavior by the victim that pre-dated the defendant's assault.

¶ 46. The defendant has not articulated any link whatsoever between the evidence he sought to intro*492duce and that which was testified to by the protective services investigator. He has not demonstrated how the evidence, otherwise barred by the rape shield statute, would explain, cure, or correct the admission of the expert's testimony about common victim reporting behaviors, and there is no apparent connection between the two.

¶ 47. The suggestion seems to be (although this is mostly guesswork) that the allegations about the victim's earlier sexually inappropriate behavior shows that she had perhaps been sexually assaulted by someone else prior to the assault by the defendant. But this is pure speculation, and something more than conjecture or speculation is required before evidence barred for important policy reasons by the rape shield law will be admitted under the curative admissibility doctrine.

¶ 48. In any event, the investigator's expert testimony about the consistency of the victim's reporting behavior with that of other child sexual assault victims was not admitted as substantive circumstantial evidence that the assault by the defendant occurred, but, rather, as rehabilitative evidence to rebut the defense attack on inconsistencies in the victim's manner of reporting the assault. For reasons stated in greater detail in my concurrence in State v. Rizzo, 2002 WI 20, 250 Wis. 2d 407, 640 N.W.2d 93, also released today, I would conclude that this type of expert testimony is not, strictly speaking, Jensen evidence.

¶ 49. While the investigator's expert testimony was in part stated in the form of a Jensen-style consistency comparison, it was not similar in type to the expert testimony at issue in Jensen, which concerned a child sexual assault victim's post-assault sexually pre*493cocious "acting out" changes in behavior.2 Expert testimony, like that of the investigator here, that explains a victim's reporting behavior in the context of the common reporting behaviors of sexual assault victims generally is admissible under State v. Robinson, 146 Wis. 2d 315, 431 N.W.2d 165 (1988), a case which heavily influenced this court's decision in Jensen.3

¶ 50. Accordingly, it is not necessary to characterize the expert testimony at issue in this case as Jensen evidence in order to conclude that it did not "open the door" to the evidence the defendant sought to introduce. For the reasons stated in my concurrence in State v. Rizzo, 2002 WI 20, I would not do so, and therefore respectfully concur.

State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988).

Jensen, 147 Wis. 2d at 248-49.

Jensen, 147 Wis. 2d at 251-52.