A state appeals court reversed a decision by Waupaca County Circuit Court Judge Philip Kirk in a sexual assault case.
The case involves Donovan L. Lewis, who was 24 when the complaint was filed in September 2008, and a boy who was then age 14 and a co-worker at a Waupaca restaurant.
Kirk had barred testimony and suppressed statements from the alleged victim after the boy’s parents refused to allow the judge to review the boy’s counseling records.
In August 2008, the boy’s parents went to police and said that Lewis may have had sexual relations with their son. They reported finding incriminating messages on their son’s computer.
The boy later told police that he and Lewis had engaged in sex two times.
Lewis was charged with two counts of sexual assault of a child.
In January 2009, Lewis’ attorney, Julie Sawyer, filed a motion to suppress the boy’s statements. The motion asserted that the boy told co-workers that he was in counseling because his parents did not approve of his homosexuality. It also asserted that the boy’s mother had told the restaurant’s manager that her son was a “pathological liar” after she learned that he had told the manager that his parents gave him permission to work with Lewis.
According to Sawyer’s motion, the statements by co-workers demonstrated “a high probability that counseling records exist that discuss the ongoing struggle that [the boy] has had with his parents over [his] sexual orientation, which may be a motive for [him] to fabricate an intimate relationship with Mr. Lewis. [He] may feel that if he continues to tell his parents of new homosexual relationships, that they will eventually … accept him as being gay.”
Sawyer argued that the boy’s counseling records could shed light on his truthfulness and credibility.
During a motion hearing on Aug. 10, 2009, there was conflicting testimony from witnesses. Some co-workers testified that the boy told them he was in counseling because his parents did not like him being gay. The boy denied that he ever spoke to his co-workers about his counseling. His mother said the boy was in counseling in large part due to the sexual assaults.
Kirk noted conflicting testimony regarding whether the mother had called her son a liar. He also said that the mother testified that the boy was very confused and that confusion may possibly include “what may have happened previous[ly] and what [the boy’s] previous experiences were that impacted upon these things.”
Kirk concluded that the testimony established grounds for him to suppress the boy’s statements and testimony unless he could review the counseling records.
The parents refused to release the records and the district attorney’s office appealed Kirk’s decision.
The appeals court ruled that there was no factual basis demonstrating that the boy’s counseling records contain information relevant to whether Lewis is guilty or innocent of the charges. It found that such information is available from other testimony without a review of the counseling records.
The appeals court found no evidence presented at the motion hearing that the boy had fabricated a sexual relationship with Lewis or that his parents’ disapproval of homosexuality would have caused him to fabricate a story.
“As for his parents, the only evidence at the hearing on how they first learned of any relationship between Lewis and [the boy] was that they found explicit e-mails between Lewis and [the boy],” the appeals court noted in its decision. “This is not consistent with [the boy] fabricating a sexual relationship with Lewis for ‘his parents’ benefit.'”
The appeals court remanded the case back to Waupaca Circuit Court.