AB598: Bill Text

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1995 - 1996 LEGISLATURE

1995 Assembly BILL 598

October 2, 1995 - Introduced by Representatives Bell, Plache, Robson, Albers, Plombon, Notestein, Carpenter, Black, Krug, La Fave, Wilder, Wasserman, Boyle and Bock, cosponsored by Senators Rosenzweig, Burke, Buettner and Panzer. Referred to Committee on Judiciary.

AB598,1,4 An Act to amend 901.04 (1), 904.04 (1) (b), 904.06 (1) and 906.08 (1) and (2); and to create 901.04 (3) (cg) and 904.15 of the statutes; relating to: admissibility of evidence of sexual conduct in civil actions involving incest or sexual assault or exploitation.

Analysis by the Legislative Reference Bureau

Under current law, in criminal cases involving sexual assault or incest, evidence of the sexual conduct of the complaining witness that is not related to the defendant is not admissible. This bill provides that, in a civil action to recover damages for injuries resulting from sexual exploitation, sexual assault or incest, evidence of the sexual conduct of the plaintiff that is not related to the defendant is not admissible.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB598, s. 1 Section 1. 901.04 (1) of the statutes is amended to read:

AB598,1,11 901.04 (1) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the judge, subject to sub. (2) and ss. 904.15, 971.31 (11) and 972.11 (2). In making the determination the judge is bound by the rules of evidence only with respect to privileges and as provided in s. 901.05.

AB598, s. 2 Section 2. 901.04 (3) (cg) of the statutes is created to read:

AB598,2,6 901.04 (3) (cg) In a civil action to recover damages for injuries under s. 895.70, or for injuries caused by a violation of s. 940.22 (2), 940.225, 948.02, 948.05 or 948.06, admissibility of any evidence concerning the plaintiff's prior sexual conduct or opinions of the plaintiff's prior sexual conduct and reputation as to prior sexual conduct.

AB598, s. 3 Section 3. 904.04 (1) (b) of the statutes is amended to read:

AB598,2,12 904.04 (1) (b) Character of victim. Except as provided in s. ss. 904.15 and 972.11 (2), evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

AB598, s. 4 Section 4. 904.06 (1) of the statutes is amended to read:

AB598,2,18 904.06 (1) Admissibility. Except as provided in s. ss. 904.15 and 972.11 (2), evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

AB598, s. 5 Section 5. 904.15 of the statutes is created to read:

AB598,2,20 904.15 Information concerning sexual conduct. (1) In this section:

AB598,2,22 (a) "Plaintiff" means a person seeking damages for injuries sustained as a result of sexual assault, sexual exploitation or incest.

AB598,2,25 (b) "Sexual conduct" means any conduct or behavior relating to sexual activities of the plaintiff, including but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangement and life-style.

AB598,3,7 (2) (a) In a civil action to recover damages for injuries under s. 895.70, or for injuries caused by a violation of s. 940.22 (2), 940.225, 948.02, 948.05 or 948.06, any evidence concerning the plaintiff's prior sexual conduct or opinions of the plaintiff'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, except the following, subject to s. 971.31 (11):

AB598,3,8 1. Evidence of the plaintiff's past conduct with the defendant.

AB598,3,10 2. Evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, for use in determining the extent of injury suffered.

AB598,3,12 3. Evidence of prior untruthful allegations of sexual assault, sexual exploitation or incest made by the plaintiff.

AB598,3,16 (b) Notwithstanding s. 901.06, the limitation on the admission of evidence of or reference to the prior sexual conduct of the plaintiff in par. (a) applies regardless of the purpose of the admission or reference unless the admission is expressly permitted under par. (a) 1., 2. or 3.

AB598, s. 6 Section 6. 906.08 (1) and (2) of the statutes are amended to read:

AB598,3,25 906.08 (1) Opinion and reputation evidence of character. Except as provided in s. ss. 904.15 and 972.11 (2), the credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion, but subject to these limitations: a) the evidence may refer only to character for truthfulness or untruthfulness, and b), except with respect to an accused who testifies in his or her own behalf, evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

AB598,4,7 (2) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than conviction of crimes as provided in s. 906.09, may not be proved by extrinsic evidence. They may, however, subject to s. ss. 904.15 and 972.11 (2), if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to his or her character for truthfulness or untruthfulness.

AB598, s. 7 Section 7. Initial applicability.

AB598,4,10 (1) This act first applies to evidence offered for admission on the effective date of this subsection.

AB598,4,11 (End)