Wisconsin Supreme Court hears arguments in case on allowing prior sexual assault as evidence

By: - September 13, 2023 4:41 pm

The Wisconsin Supreme Court chambers. (Henry Redman | Wisconsin Examiner)

The Wisconsin Supreme Court heard arguments in the first criminal case of its new term Wednesday, weighing if prior sexual assaults should be allowed to be used as evidence in sexual assault cases. 

The case, Wisconsin v. Seaton, involves a man accused of sexually assaulting his 17-year-old friend after she had been drinking. The man had also previously been accused of sexually assaulting a different 17-year-old girl after she had been drinking. 

The Waukesha County prosecutors in the case had filed a motion to have the prior assault admitted as “other acts evidence,” which allows previous actions by a criminal defendant to be admitted as evidence. The rules regarding other acts evidence are generally strict to avoid prejudicing juries against someone; with certain exceptions they generally limit the courts to consider only the evidence for the crime the defendant is charged with in that specific case. 

The Waukesha County judge trying the case denied the prosecution motion to admit the prior assault, which led prosecutors to file the appeal that the Supreme Court heard on Wednesday. The state is asking the Court to change the rules regarding the admissibility of other acts evidence and to allow incidents that would serve to bolster a victim’s credibility when there isn’t any physical evidence of the assault. 

Criminal appeals before the Court often result in unique coalitions among the justices, as the issues can’t be interpreted in ways that neatly align with their typical ideological alignments. Only six of the justices were present for the arguments, with Justice Janet Protasiewicz absent from the proceedings. 

A Protasiewicz staff member said he couldn’t comment on why she wasn’t at the arguments, but she was present for the arguments in the Court’s second case of the day, an appeal of a disciplinary decision against a lawyer. 

At the arguments, liberal-leaning Justice Rebecca Dallet asked the attorney for the state, Assistant Attorney General Sarah Burgundy, whether a ruling in favor of the prosecution would lead these types of prior incidents to frequently be admitted in a sexual assault case. 

“Is there ever an instance you wouldn’t be using an other act to bolster credibility?” she asked. 

Seaton’s attorney, Melinda Swartz, made a similar argument. 

“[The state is trying to] permit other acts evidence in nearly all sexual assault cases,” Swartz said. 

Burgundy said that might be the case, but only because that is how the Legislature expanded what prior acts are admissible in a 2014 law. 

“That’s what the Legislature decided,” she said. 

But liberal Justice Jill Karofsky — who often votes on the side of victim’s rights in criminal cases — questioned why the prior acts of Seaton wouldn’t be allowed. She noted the similarities between the two incidents and said that the admissibility of this type of evidence was expanded because courts have often ignored testimony from women and children. 

“Historically we don’t believe victims, especially women and children,” Karofsky said. “Look at the similarities. In the two situations, we’ve got two 17-year-old girls, they are both under the influence of alcohol, your client knows it, your client isolates them. They’re both acquaintances of your client from high school.” 

But conservative Justice Brian Hagedorn said that the question before the court wasn’t whether each individual justice would have allowed the evidence if they were the trial judge. The question, he said, was whether or not the trial judge acted reasonably when he ruled against admitting the evidence.


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Henry Redman
Henry Redman

Henry Redman is a staff reporter for the Wisconsin Examiner who focuses on covering Wisconsin's towns and rural areas. He previously covered crime and courts at the Daily Jefferson County Union. A lifelong Midwesterner, he was born in Cleveland, Ohio and graduated from Loyola University Chicago with a degree in journalism in May 2019.