RACINE — The state’s top prosecutors won’t file an appeal in a Racine County rape case in which the judge ruled a teenage girl may be questioned about other sexual partners she had at the time.
During a status conference Tuesday, Racine County Circuit Judge Charles Constantine said the Wisconsin Department of Justice has opted not to appeal a ruling he made last month in Douglas R. Kramer’s sexual assault case.
Kramer, 23, of Mount Pleasant, is charged with second-degree sexual assault. He is accused of having sex with a female in his home sometime overnight between Aug. 3 and 4, 2012, after one person’s parents kicked the group out of another house where they were attending a party, according to court records. Prosecutors charged Kramer because the female was too drunk to consent to have sex, and might have been unconscious at the time, Kramer’s criminal complaint stated.
Constantine ruled on March 19 that defense lawyers could question her about whether she was truthful with a nurse who examined her, as well as with an investigator. Constantine also ruled that Kramer’s defense attorney’s could question her about her motive for not being truthful with them. But Constantine’s ruling triggered an immediate objection from the prosecutor, who said the ruling should be appealed.
Assistant District Attorney Randy Schneider said last month that the Rape Shield law is designed to protect victims from that kind of questioning, and he believed this ruling violates that law.
According to it, evidence regarding an alleged victim’s prior sexual conduct, or opinions about the alleged victim’s prior sexual conduct, shall not be admitted into evidence during a trial, and any reference to such conduct shall not be made to the jury. But there are limited exceptions, such as evidence of prior untruthful
allegations of a sexual assault made by the alleged victim.
On Tuesday, Schneider said the state’s top prosecutors — while they may file appeals in a circuit court case — aren’t required to do so.
“What they said was the judge was not clearly wrong,” he explained. “We asked to do it, but they wouldn’t give us permission (to file the appeal).”
“The prosecution of Douglas Kramer remains active in Racine County Circuit Court, therefore I have no comment on this pending case,” state DOJ spokeswoman Dana Brueck stated Tuesday when contacted by The Journal Times.
Kramer’s defense attorneys want to question the female during Kramer’s trial about DNA evidence that three males had sexual contact with her within days of the alleged rape. But since she has denied having sex with them, Kramer’s attorneys want to question her about whether she lied to an investigator and nurse after the sexual assault was reported.
“She said she doesn’t know how the DNA got there and whose it is,” Schneider said during the hearing.
Constantine scheduled Kramer’s trial for Sept. 22 through Sept. 26. Another status conference is set for May 16.
Kramer remains free on bond.
During Tuesday’s hearing, defense attorney Mark Richards blasted Schneider for what he termed “interviewing” the female recently without a police officer present to document their talk. Richards said he also didn’t have some police records and evidence reports. Schneider said that’s because some reports will be written after a batch of evidence is tested.
“I expect there to be a (defense) motion to compel (release of those reports), and excuse Mr. Schneider (from serving as prosecutor) on the basis that he is a witness to the statement of a complaining witness,” Richards said.
A prosecutor technically could be called as a witness — if that prosecutor were the only witness to someone’s comments.
“In preparation for trial, I re-interviewed her,” Schneider said. “I realized no one had taken a statement from her about her denial” of knowing about the other males’ DNA, so he sent an investigator to take her recorded statement.