United States District Court, E.D. Wisconsin
DECISION AND ORDER
WILLIAM E. DUFFIN U.S. Magistrate Judge.
Facts and Relevant Procedural History
15, 2010, a woman the parties refer to as I.N. was found in
the hallway of her apartment building, bloodied, naked from
the waist down, crying, and screaming she had been raped.
State v. Sarfraz, 2014 WI 78, ¶ 4, 356 Wis.2d
460, 465, 851 N.W.2d 235, 238. I.N.'s neck bore marks of
strangulation, she had a knife wound on her finger, and other
assaultive injuries on her body. Id., ¶¶
later stated that she had been in her apartment when someone
knocked on her door and identified himself as Jim. (ECF No.
14-3 at 60 (all pagination reflects ECF pagination).)
Believing it was her landlord, I.N. opened the door only to
find an unknown masked male. (ECF No. 14-3 at 60.) The masked
man pushed her into the bathroom, strangled her with his
hands, held a knife to her neck, and threatened to kill her.
(ECF No. 14-3 at 60-61.) I.N. continued to struggle and in
the process the attacker's mask came off. (ECF No. 14-3
at 61-62.) I.N. recognized her attacker as the petitioner,
Muhammed Sarfraz, a man with whom she and her father had
recently briefly lived when they first moved to Milwaukee
from Pakistan. (ECF No. 14-3 at 62.) I.N. and Sarfraz had
been friendly but never had a romantic relationship.
was able to grab the knife and cut Sarfraz on the cheek. (ECF
No. 14-3 at 63.) Fearing that Sarfraz was going to kill her,
I.N. continued to struggle and scream as the assault
continued throughout the apartment. (ECF No. 14-3 at 63-70.)
Believing she would not survive, I.N. started to scrawl
Sarfraz's name in blood on a newspaper and on a file
cabinet but each time was able to write only the first three
letters. (ECF No. 14-3 at 70); Sarfraz, 2014 WI 78,
¶ 20. The physical assault turned sexual and Sarfraz
eventually raped I.N.
arrested Sarfraz later that day and recovered a bloody knife
hidden under the front seat of the car he was driving.
Sarfraz, 2014 WI 78, ¶¶ 5, 21. When asked
about the cut on his face, Sarfraz told the police he had
been robbed by “two African American guys.” (ECF
No. 14-7 at 16.) Subsequent testing identified both
I.N.'s and Sarfraz's DNA on the knife. A medical
examination of I.N. identified vaginal injuries consistent
with blunt force and semen from her cervix and vagina.
Sarfraz, 2014 WI 78, ¶¶ 21-22. DNA from
the semen recovered from her vagina matched Sarfraz; the
semen recovered from her cervix was not tested for DNA. (ECF
No. 14-5 at 53-54.) Police also recovered a pornographic DVD
from I.N.'s DVD player. (ECF No. 14-4 at 46-47, 53-54.)
I.N. reported that Sarfraz brought the DVD with him and put
it on during the assault. (ECF No. 14-3 at 66.) Police never
found a mask.
was charged with second degree sexual assault with force or
violence by use of a dangerous weapon and the matter
proceeded to a jury trial. (ECF No. 10-1 at 2-3.) At trial
Sarfraz told a very different version of the events of May
15, 2010, and his relationship with I.N. According to
Sarfraz, after I.N. and her father came to live with Sarfraz,
his wife, and their three children, he and I.N. developed a
good friendship that turned romantic. (ECF No. 14-6 at 103.)
Flirtatious teasing became hugging and kissing over about a
month. (ECF No. 14-6 at 103-05.) Sarfraz began to discuss
marriage with I.N. (ECF No. 14-6 at 106) and I.N. agreed to
marry him (ECF No. 14-7 at 3). Sarfraz testified that he did
not intend to divorce his wife to be with I.N. because, in
his culture, he could have up to four wives. (ECF No. 14-6 at
106) The two also used to watch pornographic movies together.
(ECF No. 14-7 at 10-11.)
and her father moved out of Sarfraz's apartment after
Sarfraz's wife saw I.N. and Sarfraz in the bedroom
together. (ECF No. 14-6 at 65.) Sarfraz's wife “got
really emotional” and “started throwing
[I.N.'s] belongings out of [the] apartment.” (ECF
No. 14-6 at 67.) She demanded that I.N. move out. I.N. and
her father did so a few days later. (ECF No. 14-6 at 67-68.)
the relationship between Sarfraz and I.N. continued, with
Sarfraz regularly going to I.N.'s new apartment. On May
15, 2010, he went over to her apartment, they watched
television, and their conversation progressed toward
marriage. (ECF No. 14-7 at 20.) I.N. no longer wanted to get
married unless Sarfraz left his wife and children instead of
having I.N. as a second wife. (ECF No. 14-7 at 20.) Sarfraz
refused to leave his family and “after that …
things got heated, ” according to Sarfraz. (ECF No.
14-7 at 21.) I.N. “got furiously mad, ” grabbed
Sarfraz by the collar, and began to hit him with her fist.
(ECF No. 14-7 at 22.)
Sarfraz went to use the bathroom, I.N. came in and cut him on
his face with a knife. (ECF No. 14-7 at 23-24.) A struggle
ensued during which Sarfraz grabbed I.N. around her neck and
was able to get the knife away from I.N. (ECF No. 14-7 at
25-26.) Sarfraz threatened to call the police, warning I.N.
that, if he did so, it might complicate her immigration
status. (ECF No. 14-7 at 26-27.)
became remorseful, began to cry, and tried to comfort
Sarfraz. She sat atop Sarfraz and started what Sarfraz
described as “love talk.” (ECF No. 14-7 at 28.)
Sarfraz's pants were still down after having been
attacked in the bathroom and I.N. took his penis in her hand,
told him that she loved him, and that she wanted to have sex
with him. (ECF No. 14-7 at 29.) Sarfraz asked I.N. to leave
him alone but she persisted, lifting up her shirt. (ECF No.
14-7 at 29.) I.N. continued with the “love talk”
and asked Sarfraz to forgive her. (ECF No. 14-7 at 31.) Their
intimate contact continued. Sarfraz was uncertain if they
actually had intercourse (ECF No. 14-7 at 43) but testified
he masturbated himself and ejaculated near her vagina. (ECF
No. 14-7 at 32-33).
wanted to tell the jury more but the court barred him from
doing so. Relying upon Wisconsin's rape shield statute,
the trial court barred Sarfraz from testifying that there
were prior instances when the kissing and hugging progressed
to Sarfraz touching I.N.'s breasts and I.N. rubbing
Sarfraz's penis until he ejaculated. (ECF No. 14-1 at
31.) This relationship continued after I.N. moved with her
father to their own apartment. (ECF No. 14-1 at 33-34.)
However, Sarfraz denied ever previously having sexual
intercourse with I.N. (ECF No. 14-1 at 30-31.) Sarfraz also
wanted the jury to hear more from his wife. Absent
Wisconsin's rape shield law she would have testified not
just that she found Sarfraz and I.N. in the bedroom together
but that she found them in bed together, with neither wearing
pants. (ECF No. 14-2 at 18-19).)
acknowledging that the past sexual contact was relevant
evidence, the trial court concluded that Wisconsin's rape
shield law barred its admission because the past sexual
contact was so different from the violent armed assault and
sexual intercourse alleged to have occurred on May 15, 2010.
(ECF No. 14-2 at 41-43.) Thus, it barred the admission of
evidence regarding any prior sexual contact between Sarfraz
and I.N. but permitted evidence of romantic contact such as
kissing and hugging. (ECF No. 14-2 at 44.)
jury found Sarfraz guilty and the court sentenced him to ten
years of initial confinement to be followed by five years of
extended supervision. (ECF No. 10-1 at 2.) Sarfraz appealed
and the Wisconsin Court of Appeals reversed, holding that the
trial court erred by excluding the evidence of the past
sexual contact between Sarfraz and I.N. State v.
Sarfraz, 2013 WI.App. 57, 348 Wis.2d 57, 832 N.W.2d 346.
The Wisconsin Supreme Court ...