¶ 47. (dissenting). I respectfully dissent in order to address two issues. First, although I agree with the majority opinion that Richard A.B evidence is admissible, it should be noted that *30its admissibility is premised on the unique nature of many sexual assault trials, and we should caution Wisconsin courts that the use of character profile evidence should not be extended to other situations. Second, I disagree with the majority's conclusion that the mere introduction of Richard A.P. evidence does not constitute a waiver of the right against self-incrimination. I respectfully dissent because I would affirm the court of appeals' conclusion that "a defendant who offers expert testimony to show he or she lacks the psychological profile of a sex offender puts his or her mental status at issue and thereby waives the right against self-incrimination." State v. Davis, 2001 WI App 210, ¶ 20, 247 Wis. 2d 917, 634 N.W.2d 922.
¶ 48. I reluctantly agree with the majority's conclusion that Richard A.R evidence is admissible at a trial on sexual assault charges. The majority's strongest argument for admission of the defendant's character profile evidence is that such evidence "maybe extremely important to the defense." Majority op. at ¶ 18. As the majority recognizes, at a trial on sexual assault charges there is often no neutral witness and seldom any physical evidence; thus, the focus becomes a credibility battle. Id. Due to this unique nature of many sexual assault cases, Richard A.R evidence may become extremely important for the defense, because it will help to bolster the defendant's credibility. Using Richard A.R evidence outside the scope of a sexual assault case, however, potentially emasculates the evidence code's rule that character evidence is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion. See Wis. Stat. § 904.04(1). New situations should be dealt with *31and examined on a case-by-case basis.1 Consistent with this reasoning, therefore, we should caution Wisconsin courts that the holding here does not amount to an endorsement of the use of character profile evidence outside of sexual assault cases. Accordingly, I agree with the majority's holding regarding the admissibility of Richard A P. evidence in sexual assault cases, but I would caution that Richard A.P. evidence is not admissible generally in all situations.
¶ 49. In Part III of the majority opinion, I respectfully disagree with the majority's characterization of Richard A.P. evidence, and the test created to determine whether such evidence constitutes a waiver of the defendant's right against self-incrimination. The majority concludes that the introduction of Richard A.P. evidence — expert testimony that the defendant lacks the characteristics of a sexual offender and is therefore unlikely to have committed the alleged sexual assault— does not amount to waiver of the defendant's right against self incrimination, because it is not introduced to support a particular defense related to the defendant's mental capacity. Majority op. at ¶ 37. Heeding the State's concern that the expert testimony may *32amount to surrogate testimony of the defendant's denial of the assault, however, the majority crafts a test to determine if proposed Richard A.P. evidence waives .the defendant's right against self-incrimination:
If this disclosure statement [describing the proposed Richard A.P. testimony] shows that the expert will either explicitly or implicitly provide testimony regarding relevant facts surrounding the alleged crime that amounts to the defendant's own denial of the crime, the court may then order the defendant to undergo a reciprocal examination from the [S]tate based on the fact that the defendant has waived his or her right against self-incrimination.
Id. at ¶ 40.
¶ 50. I disagree with the majority's test because it is unnecessary and premised on a narrow, and in my view, incorrect, characterization of Richard A.P. evidence. Furthermore, the test addresses only whether the expert's testimony amounts to surrogate statements on behalf of the defendant, and ignores the impact on the defendant's right against self incrimination of what I conclude is the core of Richard A.P. evidence, the character profile.
¶ 51. Narrowly interpreted, the majority correctly states that Richard A.P. evidence does not support a defense related to mental capacity. However, it is evidence that, at least implicitly, goes to the defendant's lack of mental infirmity and that it is unlikely that without such mental infirmity the defendant would have committed the alleged assault. Richard A.P. evidence, by definition, is expert testimony based on an examination of the defendant, concluding that the defendant lacks the personality characteristics of a sexual offender and is, therefore, unlikely to have committed the alleged sexual assault. This personality *33profile testimony goes directly to the defendant's sexual experiences, preferences, and attitudes, which puts a defendant's mental status at issue. While I agree with the majority that this character evidence is circumstantial evidence of the defendant's innocence, unlike the majority, I do not draw such a fine, and often difficult, line between mental capacity and mental infirmity. By its nature, therefore, I conclude that Richard A.P. evidence puts the defendant's mental status at issue, and use of such evidence thereby waives the defendant's right against self-incrimination.
¶ 52. I find further support for this conclusion in two cases the court of appeals relied on in drawing the same conclusion, United States v. Kessi, 868 F.2d 1097 (9th Cir. 1989), and United States v. White, 21 F. Supp. 2d 1197 (E.D. Cal. 1998). In Kessi, the court concluded that the government was properly allowed to introduce rebuttal expert witness psychiatric testimony to counter the defendant's psychiatric testimony, because the defendant had opened the door by raising the issue of mental status. 868 F.2d at 1108. Similarly, in White, the court concluded that it was proper to compel examination of the defendant by the government's expert witness, because the defendant injected the diminished capacity defense. 21 F. Supp. 2d at 1200. The court stated: "The Fifth Amendment does not bar the government's ability to access the same type of evidence, and a fair and effective criminal process requires that the government 'be able to follow where [the defendant] has led.'" Id. (quoting United States v. Byers, 740 F.2d 1104, 1114 (D.C. Cir. 1984)). I agree with the court of appeals' analogy to Kessi and White that when a defendant is asserting his or her innocence on the basis of a lack of mental infirmity, "he opens the door to [S]tate compelled evaluation by injecting evi*34dence of a character trait for sexual deviancy into the trial." Davis, 2001 WI App 210, ¶ 13. "It simply does not matter for Fifth Amendment purposes whether [the defendant] is using this evidence as part of an affirmative defense or attempting to persuade the jury as to an element of the offense upon which the government has the burden of proof." Id.
¶ 53. Furthermore, I agree with the court of appeals' application of State v. Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993), to this situation. Rather than allow the State to have its own examination, the majority opinion simply provides the results of the defense expert's tests to the State's expert. I respectfully disagree that cross-examination and rebuttal expert witness testimony based only on examination of test results is sufficient to counter the defendant's Richard A.P. evidence. Based on fundamental fairness, the State is entitled to reciprocal discovery, and applying Maday, I conclude that the only effective rebuttal of psychiatric or psychological opinion testimony is contradictory psychiatric or psychological opinion testimony. I agree with the majority and the court of appeals, however, that the State's use of its expert testimony regarding the defendant's mental status must be for the sole purpose of rebutting the Richard A.P. evidence. It should not be allowed in the State's case-in-chief.
¶ 54. Applied here, Davis has waived his right against self-incrimination by clearly stating the intent to introduce Dr. Levin's expert testimony. The proposed testimony is that Davis does not exhibit character traits consistent with a sexual disorder such as pedophilia, and because of his character profile, it would have been unlikely that he committed any sexual assault on his daughter. Davis is using Dr. Levin's testimony to claim *35innocence by lack of mental infirmity; thus, he puts his mental state at issue, and has, therefore, waived his right against self-incrimination. Consequently, the court, upon the State's motion, can compel Davis to submit to an examination by an expert for the State. As the court of appeals recognized, however, if Davis changes his mind and foregoes the Richard A.P. testimony by Dr. Levin, then the prosecution is barred from introducing any evidence from the compelled exam.
¶ 55. For the reasons stated, I respectfully dissent.
¶ 56. I am authorized to state that Justice DAVID T. PROSSER joins this opinion.I acknowledge that in King v. State, 75 Wis. 2d 26, 248 N.W.2d 458 (1977), which the majority relies on, the defendant introduced expert psychological testimony, in the form of character evidence, to show that the alleged criminal act, murder, was inconsistent with his nonaggressive personality. I note, however, that at issue in that case was not the admissibility of the expert testimony, but the rebuttal testimony of the State concerning specific prior violent acts of the defendant. Accordingly, I emphasize that new situations should be examined on a case-by-case basis because our holding here does not amount to an endorsement of the use of character profile evidence in all situations.