For the defendant-appellant there was a brief and oral argument by Michael J. Devanie, LaCrosse. (Reversing and remanding 191 Wis.2d 205, 528 N.W.2d 63 (Ct.App. 1995).) SHIRLEY S. ABRAHAMSON, J.
A privilege holder waives the privilege only if he or she voluntarily discloses or consents to disclosure of any significant part of the records. State v. Speese, 191 Wis.2d 205, 217-18, 528 N.W.2d 63, 68 (Ct.App. 1995), rev'd on other grounds, 199 Wis.2d 599, 545 N.W.2d 510 (1996). The patient is not obligated to disclose privileged records just because the defendant has made a preliminary showing of relevancy.
¶ 29 As we have explained, the parties dispute whether the absence of reporting to authorities—of the possibility of sexual abuse committed by Lynch—by the mandatory-reporter providers who treated A.M. when she was a child makes it reasonably likely that those providers' treatment records will support a finding that, during contacts with those providers when A.M. was a child, she did not report that Lynch assaulted her. This dispute boils down to a more generally applicable question: Does the failure of a mandatory reporter, who has professional contact with a child, to report child abuse by a particular perpetrator make it reasonably likely that the provider's records will reflect that the child did not report abuse by that particular perpetrator? We conclude, as did the circuit court, that this question is, effectively, answered in State v. Speese, 191 Wis.2d 205, 528 N.W.2d 63 (Ct.App.1995) ( Speese I ), a decision the supreme court reversed on other grounds in State v. Speese, 199 Wis.2d 597, 545 N.W.2d 510 (1996) ( Speese II ). ¶ 30 We reasoned in Speese I that, when a child's treatment provider is required by law to report sexual abuse of the child, and that provider makes no report, this is sufficient reason to conclude for purposes of in camera review that the child did not disclose abuse to the provider.
Harold concedes on appeal that there is no case law which supports his request that the trial court order discovery of a nonparty witness's medical records in a civil action. Instead, Harold requests this court to extend our holdings in the criminal cases of State v. Shiffra, 175 Wis.2d 600, 499 N.W.2d 719 (Ct.App. 1993), and State v. Speese, 191 Wis.2d 205, 528 N.W.2d 63 (Ct.App. 1995), rev'd on other grounds, 199 Wis.2d 597, 545 N.W.2d 510 (1996). We decline to do so.
But that is insufficient under Green.¶ 42 Despite the clear standard set forth in Green, Giacomantonio argues that his request for an in camera review of the victim's mental health record is supported by State v. Speese, 191 Wis.2d 205, 224, 528 N.W.2d 63 (Ct.App.1995) (Speese I ), reversed on other grounds by 199 Wis.2d 597, 545 N.W.2d 510 (1996) (Speese II ). See also State v. Lynch, 2015 WI App 2, ¶¶ 31–32, 359 Wis.2d 482, 859 N.W.2d 125 ).
¶ 23 Nineteen years later, Shiffra is still the law in this state, although slightly modified by the supreme court in State v. Green, 2002 WI 68, 253 Wis.2d 356, 646 N.W.2d 298. Indeed, it is the majority's belief that Shiffra and Green compel the result it has reached. I agree with the majority that Johnson made the requisite preliminary showing required for in camera review, but that is because, contrary to what the State thinks, we are bound by State v. Speese, 191 Wis.2d 205, 528 N.W.2d 63 (Ct.App.1995). There is no essential difference between what Speese presented to the trial court and what Johnson presented. Speese was reversed by the supreme court on harmless error grounds; it was not “overruled.” State v. Speese, 199 Wis.2d 597, 545 N.W.2d 510 (1996).
The evidence was sufficient to convict Litsey of violating § 940.225(2)(a), STATS., on all seven occasions. The jury may find the force element of that section satisfied by evidence of prior threats or acts whose effect lingers on. SeeState v.Speese, 191 Wis.2d 205, 213, 528 N.W.2d 63, 66 (Ct.App. 1995), rev'd on other grounds, 199 Wis.2d 597, 545 N.W.2d 510 (1996). Even where the threats or acts are somewhat distant in time, the question remains whether, in context, the victim's fear remained reasonable.
"A privilege holder waives the privilege if he or she voluntarily discloses or consents to disclosure of any significant part of the matter or communication." State v. Speese, 191 Wis.2d 205, 217-18, 528 N.W.2d 63 (Ct.App. 1995), rev'd on other grounds, 199 Wis.2d 597, 545 N.W.2d 510 (1996).
¶41 Applying these standards, we reject Thompson-Jones's specific argument because this court has rejected the argument that jurors may not reasonably infer that a defendant's use of threats or violence, made at a significantly earlier time than a charged sexual assault, "lingered" in the mind of the victim and "caused the victim to submit out of fear." See State v. Speese, 191 Wis. 2d 205, 212-14, 528 N.W.2d 63 (Ct. App. 1995), reversed on other grounds by 199 Wis. 2d 597, 545 N.W.2d 510 (1996); State v. Jaworski, 135 Wis. 2d 235, 239-40, 400 N.W.2d 29 (Ct. App. 1986). Thompson-Jones attempts to distinguish Speese and Jaworski on the ground that here there is no evidence that he ever "threatened force or violence if [the victim] did not have sex with [him]."
The remedy for ineffective assistance of appellate counsel is a petition to this court for habeas corpus. SeeState v. Speese, 191 Wis. 2d 205, 227, 528 N.W.2d 63 (Ct.App. 1995), rev'd on other grounds, 199 Wis. 2d 597, 545 N.W.2d 510 (1996).