OSHKOSH, Wis. -- In a case that raises awkward legal issues, an Oshkosh man is standing trial this month on charges of sexually assaulting a 26-year-old acquaintance suffering from what has been diagnosed as multiple-personality disorder.
It is unclear whether any of the woman's personalities agreed to have sexual intercourse with Mark A. Peterson, 29.
But consent is not the issue, said the prosecutor. Rather, he is relying on a Wisconsin statute that says sexual intercourse with a mentally ill person is a crime if the accused knew of the victim's condition and if the illness made her "incapable of appraising the person's conduct."
At a hearing in August, the woman testified that she had told Mr. Peterson she had multiple personalities.
[The Associated Press reported Friday that Mr. Peterson maintained that the woman consented and that he was unaware she had a mental illness. He is free on a $5,000 signature bond.]
Judge Robert Hawley of Winnebago County Circuit Court required her to take an oath each time she changed identities during testimony. Lawyers introduced themselves to the different personalities. Each time, she behaved as if the testimony was just beginning.
Defense lawyer Edward Salzsieder said the key issue is whether the woman is mentally ill or just a "big show."
[On Thursday, Judge Hawley ruled that the defense could review the woman's medical records for the 12 months before the alleged rape, the Associated Press reported.
[The district attorney may be allowed to strike things from the records that he fears would invade the woman's privacy, pending a review in the judge's chambers.
[Judge Hawley denied a motion from Mr. Salzsieder that a psychiatrist for the defense be allowed to examine all of the woman's medical records and psychiatric examinations and that she be available for examination by the psychiatrist.
[Judge Hawley said a psychiatrist for the defense could talk to the woman's psychiatrist, listen to courtroom testimony and examine records already available.
[He added he would reconsider the motion, but the defense psychiatrist would have to testify as to the need to examine the woman.]
In any event, given that the alleged victim claims to have 2personalities, the trial is likely to provoke a host of disturbing questions.
Do the mentally ill have the ability to evaluate the decision to engage in sexual intercourse? How adept must an untrained person be at detecting symptoms of mental illness in others? Does a person with several different personalities have one sexual history or several?
And when the woman takes the witness stand, who exactly will be testifying?
Such questions seldom, if ever, have been raised in a courtroom.
John Parry, staff director of the American Bar Association's Commission on the Mentally Disabled and editor of the Mental and Physical Disability Law Reporter, said he could not recall a case in which someone has been prosecuted for assaulting a person with multiple-personality disorder.
Mr. Salzsieder said the district attorney's decision to prosecute the case was absurd.
"There is consent," he said. "Is it wrongful consent? Illegal consent? That is the whole crux of the case."
But prosecutor Joseph F. Paulus contends that under the statute he is applying to this case, "consent is not an issue."
"It is like statutory rape," he said. "Even if the woman agrees to have sex, a crime has been committed."
There are about 7,000 diagnosed cases of multiple-personality disorder in the country, said Dr. Frank Putnam, chief of the unit on dissociative disorders with the National Institute of Mental Health in Bethesda.
The woman in this case does not work. She is also unable to drive a car because, she said in an interview, one of the personalities is considered to be an irresponsible driver.
The criminal complaint, based largely on information given by the woman, offers the following account of what happened:
Mr. Peterson met the woman on June 9 while fishing with friends at Menominee Park in Oshkosh. Two days later he visited the woman ather home and invited her to go out for coffee.
While they were at a local restaurant, several of the woman's personalities appeared, including "Jennifer," whom the woman described as "a 20-year-old female who likes to dance and have fun."
After Mr. Peterson and the woman left the restaurant, he asked, "Can I love you, Jennifer?"
The complaint says the "Jennifer" personality indicated she did not know what this meant but indicated yes. Mr. Peterson then drove to a nearby park, where he had sexual intercourse with the woman in his car.
During intercourse, the personality of "Emily," a 6-year-old, kept emerging.
Shortly after Mr. Peterson drove the woman back to her home, she reported to the police that she had been sexually assaulted.
In explaining his decision to prosecute this case, Mr. Paulus cited his duty to protect "vulnerable individuals in the community, such as individuals with physical or mental disabilities."
The criminal complaint says Mr. Peterson told investigators he was aware the woman had a mental disorder.
Lawyers seem ill prepared to handle cases involving people -- plaintiffs or defendants -- with multiple personalities.
"A lot of times there is skepticism whether the disorder exists as a diagnostic condition," said Mr. Parry. "A minority of psychiatrists won't accept a diagnosis of multiple personality."
A few of these skeptical experts believe that a psychiatrist can actually induce such an illness by making a diagnosis of it.
One obstacle to prosecuting such cases is that the victim may not be able to provide sufficient or credible testimony, said John J. Regan, professor of health care law at Hofstra Law School.
"So often it's a question of the victim's word versus the defendant's that the prosecutor may not feel they have a strong enough case to go to trial," he said.
Despite his stated confidence in the case against Mr. Peterson, Mr. Paulus is unsure how certain aspects will be handled.
JTC One issue involves the admissibility of evidence on the woman's sexual history.
Wisconsin has a rape "shield" law that, in most instances, prohibits any references to a victim's prior sexual conduct during a trial.
In the case against Mr. Peterson, however, the prosecution asserts that at least one of the personalities had never engaged in sex before.
"Her sexual history has no bearing on the case under the law," Mr. Paulus said, but he added that the sexual history of the personalities might be introduced to demonstrate they were unable to "appraise the conduct" of the defendant.
By raising this question, however, Mr. Paulus is unsure whether the defense lawyer will be allowed to inquire into the sexual history of other personalities.
The woman, who often refers to herself as "we," said in an interview that she is seldom able to control when one of her personalities will emerge and which one will surface.
"The disorder is a curse," she said. "It lets me lead a half-life and nothing more. It fractures my time, and I'm often not allowed to enjoy myself when I'm out. They interrupt; they bump me out. They each have their own personality, their own likes, own dislikes.
"They often do things I don't agree with."