6.2Rape-Shield Statute and Admitting or Excluding Evidence

The rape-shield statute, MCL 750.520j, “serves to limit the admissibility of evidence of a complainant’s sexual conduct[.]” People v Sharpe, 502 Mich 313, 325 (2018). “[The rape-shield statute] bars, with two narrow exceptions, evidence of all sexual activity by the complainant not incident to the alleged rape.” People v Adair, 452 Mich 473, 478 (1996) (quotation marks and citation omitted).

“The rape-shield statute ‘constitutes a legislative policy determination that sexual conduct or reputation regarding sexual conduct as evidence of character and for impeachment, while perhaps logically relevant, is not legally relevant.’” Sharpe, 502 Mich at 326, quoting People v Morse, 231 Mich App 424, 429-430 (1998). “[The] rape-shield statute reflect[s] the Legislature’s determination that, in the overwhelming majority of prosecutions, evidence of a rape victim’s sexual conduct with parties other than the defendant, as well as the victim’s sexual reputation, is neither an accurate measure of the victim’s veracity nor determinative of the likelihood of consensual sexual relations with the defendant.” People v Powell, 201 Mich App 516, 519 (1993). “The statute also reflects a belief that ‘inquiries into sex histories, even when minimally relevant, carry a danger of unfairly prejudicing and misleading the jury.’” Sharpe, 502 Mich at 326, quoting People v Arenda, 416 Mich 1, 10 (1982). “Finally, the statute protects the privacy of the alleged victim and, in so doing, removes an institutional discouragement from seeking prosecution.” Sharpe, 502 Mich at 326.

Specifically, the rape-shield statute, provides:

“(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under [MCL 750.520b to MCL 750.520g]^[1] unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:

(a) Evidence of the victim’s past sexual conduct^[2] with the actor.

(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.” MCL 750.520j (emphasis added).

A.Evidence of Subsequent Sexual Relations Between Victim and Defendant

“[D]eterminations of relevance, materiality, prejudicial nature, and the defendant’s constitutional right to use the proffered evidence, depend on the facts of the case.” People v Adair, 452 Mich 473, 476-477, 484-485 (1996) (defendant was charged with sexually assaulting his wife and sought to introduce evidence of specific incidences when he and his wife engaged in consensual sexual relations after the alleged assault). “[T]he rape-shield statute should not be interpreted to foreclose consideration of such issues [subsequent consensual sexual relations] arbitrarily.” Id. at 485.

To decide whether evidence of subsequent sexual relations should be admitted, the court should consider (1) the length of time between the alleged assault and the subsequent sexual relations, and (2) whether the complainant and the defendant had a personal relationship before the alleged assault. See Adair, 452 Mich at 486-487. “The rape-shield statute provides that the trial court should balance these considerations in determining whether the proposed evidence is material and whether its probative value is outweighed by its prejudicial nature.” Id. at 486.

“[T]he trial court appropriately should limit the scope of sexual conduct evidence where constitutionally possible.”Adair, 452 Mich at 487.

B.Admissibility of Statements Under the Rape-Shield Statute

Statements or references to statements that do not refer to specific instances of sexual conduct are not barred from admission by the rape-shield statute. People v Ivers, 459 Mich 320, 328-329 (1998) (complainant’s statement to her friend to “get her a guy” and an additional statement by complainant indicating that she would probably have sex in her freshman year at college, was not a statement referring to specific conduct and was not, therefore, barred by the rape-shield statute). The important distinction to be made is whether a statement does or does not amount to or reference a specific instance of conduct, not whether the evidence simply qualifies as a statement or as conduct. Id. at 329.

The statements made in Ivers were not precluded by MCL 750.520j because they did not constitute the type of evidence barred by the rape-shield statute. Ivers, 459 Mich at 328. That is, the statements were not “[e]vidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, [or] reputation evidence of the victim’s sexual conduct[.]” Id. at 328; MCL 750.520j(1).

C.Evidence of Semen, Disease, Pregnancy, or Abortion Under the Rape-Shield Statute

“[T]he Legislature has ipso facto made clear that semen, pregnancy, or disease, while perhaps related to sex, are not themselves the specific instances of sexual conduct envisioned by MCL 750.520j.” People v Sharpe, 502 Mich 313, 328 (2018) (evidence of pregnancy and abortion was not protected by the rape-shield statute and was otherwise admissible under MRE 402 and MRE 403). Although evidence of the complainant’s pregnancy and subsequent abortion “necessarily implies that sexual activity occurred that caused the pregnancy, the pregnancy and abortion are not evidence regarding a specific instance of sexual conduct.” Sharpe, 502 Mich at 328.

“[W]hether evidence falls within the purview of the rape-shield statute concerns whether the evidence ‘amount[s] to or reference[s] specific conduct,’ not whether the evidence constitutes a consequence of or relates to sexual activity generally.” Sharpe, 502 Mich at 328, quoting People v Ivers, 459 Mich 320, 329 (1998) (second and third alterations in original).

D.Evidence That a Minor Victim Watched Pornography On His or Her Own

Evidence that a victim viewed pornography on his or her own does not itself constitute “sexual conduct” for purposes of the rape-shield statute, MCL 750.520j. People v Masi, 346 Mich App 1, 27 (2023). Without more, such as evidence that the individual viewing pornography engaged in an act of sexual gratification, the rape-shield statute does not prohibit from admission at a defendant’s trial evidence that a victim watched pornography in the defendant’s absence. Id. at 27. However, the admission at trial of evidence that a victim watched pornography on his or her own remains subject to other applicable rules of evidence. Id. at 27 (directing the trial court to consider whether evidence that the victim viewed pornography was relevant to the defendant’s assertion that the victim’s age-inappropriate sexual knowledge was a result of having viewed pornography, rather than a result of any sexual misconduct by the defendant).

E.Evidence That a Minor Victim Had Been Sexually Abused Before Defendant Allegedly Abused the Minor

Evidence showing that a minor victim was sexually abused by an individual other than the defendant and that the sexual abuse by the other individual occurred before the defendant allegedly abused the minor victim is precluded under the rape-shield statute. People v Masi, 346 Mich App 1, 18, 20 (2023). Evidence of previous sexual abuse constitutes evidence of a specific instance of a victim’s previous sexual conduct for purposes of MCL 750.520j. Masi, 346 Mich App at 18. In Masi, the defendant attempted to overcome the rape-shield statute’s prohibition against the admission of evidence that the minor victim was sexually abused by a third party before the defendant allegedly sexually abused the minor victim. Id. at 19, 21. The trial court properly excluded evidence of the minor victim’s previous sexual abuse because the circumstances of the previous abuse were not “‘significantly similar’” to the circumstances present in the allegations against the defendant. Id. at 20. In addition, the trial court did not abuse its discretion by excluding evidence of the previous sexual abuse because the individual responsible for the minor’s previous abuse was not convicted of criminal sexual misconduct for what occurred. Id. at 20.

F.Notice Requirements of Intent to Offer Evidence Subject to the Rape-Shield Statute

A defendant must provide notice of an intent to offer evidence of the complainant’s prior sexual conduct with the defendant or evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease. MCL 750.520j(2). In MCL 750.520j(2), the rape-shield statute states:

“If the defendant proposes to offer evidence described in [MCL 750.520j(1)(a) or (b)], the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under [MCL 750.520j(1)]. If new information is discovered during the course of the trial that may make the evidence described in [MCL 750.520j(1)(a) or (b)] admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under [MCL 750.520j(1)].”

Preclusion of evidence of a past sexual relationship between a complainant and a defendant because the defendant failed to comply with the notice requirements in the rape-shield statute is not unconstitutional per se. Michigan v Lucas (Lucas I), 500 US 145, 152-153 (1991). The Supreme Court specifically stated:

“[T]he Michigan Court of Appeals erred in adopting a per se rule that Michigan’s notice-and-hearing requirement violates the Sixth Amendment in all cases where it is used to preclude evidence of past sexual conduct between a rape victim and a defendant. The Sixth Amendment is not so rigid. The notice-and-hearing requirement serves legitimate state interests in protecting against surprise, harassment, and undue delay. Failure to comply with this requirement may in some cases justify even the severe sanction of preclusion.” Lucas, 500 US at 152-153.

Violation of the notice provisions of the rape-shield statute may result in preclusion of the proffered evidence so long as preclusion does not infringe on the defendant’s Sixth Amendment rights. People v Lucas (On Remand) (Lucas II), 193 Mich App 298, 301-302 (1992). In Lucas II, the defendant was convicted after a bench trial of CSC-III against his former girlfriend. Id. 299, 300. The defendant did not, at any time before trial, file a written motion and offer of proof. Id. at 300. Rather, to support his defense of consent, the defendant orally moved at trial to introduce evidence of his past sexual relationship with the complainant. Id. On the sole basis that the defendant failed to comply with the notice requirements of the rape-shield statute, and without holding an in camera hearing, the trial court denied the defendant’s motion. Id.

The Michigan Court of Appeals concluded that the constitutionality of preclusion based on the statutory notice requirement must be determined on a case-by-case basis. Lucas II, 193 Mich App at 302. The Court, on another occasion, concluded that a trial court had improperly excluded evidence: “[T]he trial court erred by excluding the evidence solely on the basis of defendant’s failure to give notice, without exercising its discretion in light of the particular circumstances of the case.” People v McLaughlin, 258 Mich App 635, 655 (2003). To determine whether preclusion is proper, a court may consider the following:

(1) The statute’s 10-day notice period is intended to encourage victims to report assaults and to protect victims from surprise, harassment, unnecessary invasions of privacy, and undue delay. Lucas II, 193 Mich App at 302-303.

(2) Notice prevents surprise to the prosecution and allows time to investigate whether the alleged prior relationship existed. Id. at 302.

(3) The timing of the defendant’s offer to produce evidence may be relevant—evidence offered closer in time to the date of trial suggests willful misconduct in an effort to gain a tactical advantage. Id. at 303.

After remand to the trial court, the Court of Appeals agreed with the trial court’s determination that defense counsel was aware of the statutory notice requirements and had made a tactical decision to move for admission of the evidence on the date of trial. People v Lucas (After Remand) (Lucas III), 201 Mich App 717, 719 (1993).

G.In Camera Hearing

A court may hold an in camera hearing where the defendant seeks to admit evidence of the victim’s sexual conduct with the defendant or to show the source or origin of semen, pregnancy, or disease. MCL 750.520j(2). A court must hold an in camera hearing where the defendant offers relevant evidence of the victim’s past sexual conduct that falls outside the scope of MCL 750.520j, and that also implicates the defendant’s constitutional right of confrontation. People v Hackett, 421 Mich 338, 350-351 (1984).

The following information illustrates the process:

•Defendant must make an offer of proof and demonstrate the relevance of the proposed evidence as it relates to the purpose for which the defendant seeks admission of the evidence. If there is not a sufficient showing of relevance, the trial court should deny the defendant’s motion for admission. Hackett, 421 Mich at 350.

•If there is a sufficient offer of proof and the defendant’s constitutional right to confrontation is implicated—that is, the admission of evidence of past sexual conduct is not sought simply for its use as evidence of character or for impeachment—the trial court must order an in camera hearing to determine admissibility in light of the constitutional concerns. Hackett, 421 Mich at 350; see also People v Butler, ___ Mich ___, ___ (2024) (“Once a sufficient offer of proof is made, the in camera evidentiary hearing is not optional.”). The trial court must explicitly state its finding that the proffered evidence was sufficient to require the in camera hearing under Hackett. Butler, ___ Mich at ___. The Butler Court noted that, for an offer of proof of a complainant’s prior false sexual assault allegations to be sufficient to warrant an in camera hearing, “[t]here must be a showing of at least some apparently credible and potentially admissible evidence that the prior allegation was false.” Id. at ___ (vacating the trial court and Court of Appeals opinions and remanding the case to the Court of Appeals for further consideration as directed by the Michigan Supreme Court).³

•“At this hearing, the trial court has, as always, the responsibility to restrict the scope of cross-examination to prevent questions which would harass, annoy, or humiliate sexual assault victims and to guard against mere fishing expeditions.” Hackett, 421 Mich at 350-351.

•The trial court retains discretionary authority to exclude relevant evidence offered for any purpose when the risks of unfair prejudice, confusion of the issues, or misleading the jury substantially outweigh the probative value of the evidence. Hackett, 421 Mich at 351; see also Butler, ___ Mich at ___ (when determining the admissibility of a complainant’s prior false rape allegations, the court must “if necessary, make a preliminary determination as to whether, and the extent to which, the evidence is otherwise admissible under the rules of evidence”).

“[T]he trial court should rule against the admission of evidence of a complainant’s prior sexual conduct with third persons unless that ruling would unduly infringe on the defendant’s constitutional right to confrontation.” Hackett, 421 Mich at 351.

The in camera hearing must occur on the record, but outside the presence of the jury and the public. People v Byrne, 199 Mich App 674, 679 (1993).

H.Evidence Offered by Complainant

“Although the [rape-shield] statute was enacted in response to the practice of impeaching the complainant’s testimony with evidence of the complainant’s sexual conduct, the plain language of the statute does not condition the exclusion of such evidence upon whether the evidence is offered by the prosecutor or by the defendant.” People v Sharpe, 502 Mich 313, 327 (2018).

The rape-shield statute was not designed “to prevent a complainant’s disclosure of her own sexual history or its attendant consequences.” Sharpe, 502 Mich at 330-331. Accordingly, voluntarily offered “evidence of [a complainant’s] pregnancy, abortion, and lack of sexual history to bolster her allegations of criminal sexual conduct against defendant” may be admissible. Id. at 330. However, “[t]he admission of this type of evidence may open the door to the introduction of evidence whose admission may otherwise have been precluded by the rape-shield statute.” Id. at 331 n 10.

I.Caselaw Involving the Rape-Shield Statute

1.Origin of Semen, Pregnancy, or Disease

“The rape-shield law does not prohibit defense counsel from introducing ‘specific instances of sexual activity . . . to show the origin of a physical condition when evidence of that condition is offered by the prosecution to prove one of the elements of the crime charged provided the inflammatory or prejudicial nature of the rebuttal evidence does not outweigh its probative value.’” People v Shaw, 315 Mich App 668, 680 (2016), quoting People v Mikula, 84 Mich App 108, 115 (1978). In Shaw, defense counsel was ineffective for failing to present the testimony of the complainant’s former live-in boyfriend concerning the couple’s sexual relationship. Shaw, 315 Mich App at 681. According to the Court, “the testimony would likely have been very significant given that, without it, there was no likely explanation, other than defendant’s guilt, to explain the extensive hymenal changes and the chronic anal fissure.” Id.

Where evidence of the complainant’s abortion was not barred by the rape-shield statute, the trial court had to determine whether the evidence qualified for admission under the Michigan Rules of Evidence. People v Sharpe, 502 Mich 313, 331 (2018). According to the Sharpe Court, the trial court abused its discretion when it determined that evidence of the complainant’s abortion was inadmissible as improper character evidence, because the prosecutor had identified a valid nonpropensity explanation for its admission. Id. at 332 n 11. Evidence of the complainant’s pregnancy and abortion “definitively demonstrate[d] that sexual penetration occurred” and also “explain[ed] why the prosecutor [was] unable to offer DNA evidence to prove the identity of the man who impregnated [the complainant].” Id. at 333, 334.

2.Lack of Sexual Activity

“[E]vidence that [the complainant] did not engage in other sexual intercourse [during the year relevant to the charged offense] does not fall within the plain language of the rape-shield statute.” People v Sharpe, 502 Mich 313, 330 (2018). Evidence of the complainant’s lack of sexual partners “demonstrates an absence of conduct, not a ‘specific instance’ of sexual conduct.” Id.

3.Prostitution or Topless Dancing

“A victim’s employment as a topless dancer does not render her a prostitute.” People v Powell, 201 Mich App 516, 520 (1993). Offering evidence of the victim’s employment as a topless dancer “constitute[d] nothing more than an attempt to place before the jury the victim’s ‘questionable’ sexual character.” Id. This type of evidence is clearly the type of evidence subject to the rape-shield statute. Id.

In Powell, the defendant claimed that he was falsely accused of CSC-I after he engaged in a consensual act of prostitution for which he failed to pay. Powell, 201 Mich App at 518. The defendant sought to introduce third-party testimony that the complainant was seen walking with alleged prostitutes before the incident, and that the complainant was seen dancing topless at a local topless club after the incident. Id. at 520. The Powell Court concluded that the proposed evidence of the complainant’s topless dancing was “not material to his claim that the victim was a prostitute from whom he solicited services on the date in question” and was inadmissible. Id.

4.Public Sexual Conduct

The complainant’s exposure of her breasts to two men in a bar, and her permitting one of the men to touch her breasts following the exposure, amounted to “sexual conduct” for purposes of the rape-shield statute. People v Wilhelm (On Rehearing), 190 Mich App 574, 585 (1991). The rape-shield statute makes no distinction between public and private sexual conduct in its application. Id. at 584. Therefore, the “public nature” of the complainant’s actions did not “remove them from the protection of the rape-shield statute.” Id.

5.Consensual Sexual Conduct With Defendant

“Where the proposed evidence concerns consensual sexual conduct with third parties, the Legislature has determined that, with very limited exceptions, the balance overwhelmingly tips in favor of exclusion as a matter of law. However, where the proposed evidence concerns consensual sexual conduct with the defendant, the Legislature has left the determination of admissibility to a case-by-case evaluation.” People v Adair, 452 Mich 473, 483 (1996).

“When applying the rape-shield statute, trial courts must balance the rights of the victim and the defendant in each case.” People v Benton, 294 Mich App 191, 198 (2011). “When a trial court exercises its discretion to determine whether evidence of a complainant’s sexual conduct not within the statutory exceptions should be admitted, the court ‘should be mindful of the significant legislative purposes underlying the rape-shield statute and should always favor exclusion of evidence of a complainant’s sexual conduct where its exclusion would not unconstitutionally abridge the defendant’s right to confrontation.’” Id. at 197-198, quoting People v Hackett, 421 Mich 338, 349 (1984).

6.Sexual Conduct Between Minor Siblings

“[E]vidence of sexual conduct between [two minor sisters] falls squarely within the rape-shield statute’s exclusion for evidence of ‘specific instances of the victim’s sexual conduct . . . .’” People v Masi, 346 Mich App 1, 21-22 (2023), quoting MCL 750.520j(1).

J.Evidence Outside the Rape-Shield Statute

Evidence not within the purview of the rape-shield statute, MCL 750.520j, must satisfy the requirements of MRE 402 and MRE 403 before admission. People v Sharpe, 502 Mich 313, 331 (2018).