In her deposition, S.L. stated that she objected when Sperr put ice down her shirt. Sperr then got in front of her and kissed her. She denied that it was a mutual embrace, or that she reciprocated in Sperr's kiss. S.L. explained that Sperr, an epileptic, had seizures at work and previously had told her he would have thoughts of sexual activities with S.L. during his seizures. After the kissing incident, S.L. asked the restaurant to schedule her so she would not have to work with Sperr.
Several factors support a finding of critical impact.
Further, the legislature's enactment of the rape-shield statute, and the supreme court's later promulgation of a substantively similar rule of evidence, recognize the highly prejudicial impact on the jury when it hears of a victim's previous sexual conduct. Finally, the state cannot appeal from a judgment of acquittal after a jury returns a verdict of not guilty. Minn. R. Crim. Thus, if the trial court allows testimony concerning clearly inadmissible evidence of a victim's prior sexual conduct and this evidence prejudices the jury, as the rape-shield law presumes it will, the state will not have another opportunity to correct the error and retry respondent. Under these circumstances, the state has demonstrated that the admission of evidence of S.L.'s prior sexual conduct will have a critical impact on the outcome of the trial.