Michigan Sex Crime Attorneys Blog
A Macomb County man charged with 12 counts of first-degree criminal sexual conduct and four counts of second-degree criminal sexual conduct spent years litigating a single evidentiary question before his trial could begin. The complainants are three sisters who began living with him when they were minors. He denies the allegations and is presumed innocent on every count.
The question was this. A 2010 police report described one of the sisters being sexually abused years earlier by another relative, abuse that allegedly included being forced to watch pornography. The defense argued the jury needed that history for a limited purpose: without it, jurors would assume the child could only describe such acts because the defendant committed them. The trial court excluded the evidence under Michigan’s rape-shield statute. The Court of Appeals affirmed, relying on a 1998 case that required a criminal conviction for the prior abuse before a jury could ever hear about it.
On July 14, 2025, the Michigan Supreme Court decided People v. Masi, affirming in part, vacating in part, and sending the case back to the Macomb Circuit Court under a new standard. The opinion was unanimous among the six participating justices, written by Justice Kyra Bolden. It is the most important rape-shield decision in Michigan in a generation, and anyone facing a criminal sexual conduct charge involving a child complainant needs to understand both halves of it.
What the Rape-Shield Law Blocks
Michigan’s rape-shield statute, MCL 750.520j, was enacted in 1974 alongside the criminal sexual conduct statutes themselves. In any CSC prosecution, it bars evidence of specific instances of the complainant’s sexual conduct, opinion evidence about that conduct, and reputation evidence. The default rule is strict: the complainant’s sexual history stays out.
The statute contains two written exceptions. A judge may admit evidence of the complainant’s past sexual conduct with the defendant, or evidence of specific sexual activity showing the source or origin of semen, pregnancy, or disease. Both exceptions carry a materiality screen, and a defendant proposing evidence under either one must file a written motion and offer of proof within 10 days after arraignment on the information. A motion grounded in the Constitution, the kind Masi involves, follows a different procedural path, though experienced counsel treats early filing as essential in either case.
The First Holding: Being Abused Counts as “Sexual Conduct”
Masi’s lawyers argued that the statute never applied in the first place. The rape-shield law protects a complainant’s “sexual conduct,” and a child who was abused did not engage in conduct. Something was done to her. On that reading, evidence of prior abuse would fall entirely outside the shield.
The Supreme Court rejected the argument. Justice Bolden’s opinion holds that “sexual conduct” in MCL 750.520j covers both voluntary and involuntary behavior, including a child forced to view pornography during abuse. The Legislature wrote no volition requirement into the statute and did not limit the shield to “consensual” activity, so the Court declined to read one in.
This half of the ruling favors the prosecution. Evidence that a complainant was previously abused by someone else is rape-shield evidence, and the defense cannot introduce it as though the statute did not exist.
One boundary from the same litigation survived untouched. The Court of Appeals had separately held that a complainant’s voluntary viewing of lawful pornography, on her own and apart from any abuse, is not “sexual conduct” under the statute at all. The Supreme Court noted that holding was not challenged and left it intact. For the defense, the distinction matters: evidence of a child’s independent exposure to pornography or other lawful sources of sexual knowledge may be analyzed under the ordinary rules of evidence rather than the rape-shield framework.
The Second Holding: The Constitution Sometimes Requires Admission
The rape-shield statute is a legislative rule of evidence. Since People v. Hackett in 1984, the Michigan Supreme Court has recognized that it must occasionally yield to a defendant’s constitutional rights: the Sixth Amendment right to confront witnesses and the right, rooted in due process and compulsory process, to present a defense.
Masi applies that principle directly to child cases. The Court wrote that “there are circumstances in which a minor’s sexual knowledge is so probative that the defendant’s right to confrontation or right to present a defense hinges on explaining why that knowledge exists.”
The Court’s concern tracks how these trials actually unfold. When a young child describes sexual acts in detail, jurors may naturally infer that the knowledge could only have come from the charged abuse. If the child in fact acquired that knowledge through earlier abuse by someone else, the inference rests on a false premise, and the defense has a constitutional stake in correcting it. The evidence is not offered to attack the complainant’s character. It is offered to explain where the knowledge came from.
Morse Partly Overruled: No Conviction Required
Since 1998, People v. Morse had controlled this issue in Michigan. Morse permitted evidence of a complainant’s prior sexual abuse in narrow circumstances, but only where the prior abuse resulted in a conviction and closely matched the charged conduct.
The conviction requirement decided cases by itself. In Masi, the 2010 police report was excluded largely because the other relative was never convicted. The Supreme Court overruled Morse on that point, calling the requirement unduly burdensome and noting that the out-of-state decisions Morse relied on never imposed it. What remains is the substance of the inquiry, now organized into a formal test.
The Five-Factor Test
When the defense makes a sufficient offer of proof, the trial court must hold an in camera evidentiary hearing, on the record but closed to the public and the jury, and determine:
- Whether the prior act occurred
- Whether the act closely resembled the conduct at issue
- Whether the act is relevant to a material issue
- Whether the evidence is necessary to the defendant’s case
- Whether its probative value outweighs its prejudicial effect
Two features of the test matter in practice. First, the offer of proof only opens the door to the hearing. Inside the hearing, the defense still has to establish that the prior act occurred, and the opinion does not fix a precise burden of proof for that finding, an open question trial courts will now confront. Second, clearing the five factors is not the end. The Supreme Court directed the trial court on remand to make a preliminary determination whether, and to what extent, the evidence is otherwise admissible under the Michigan Rules of Evidence. Hearsay, privilege, and authentication problems do not disappear because the constitutional analysis comes out in the defendant’s favor.
What Masi Means for the Defense
The stakes in these cases are as high as Michigan law goes. First-degree criminal sexual conduct under MCL 750.520b is punishable by life or any term of years; a conviction involving a victim under 13 and a defendant 17 or older carries a mandatory minimum of 25 years, and a CSC-1 conviction also brings lifetime electronic monitoring. Against that backdrop, Masi changes defense practice in several concrete ways.
The investigation reaches further back. Police reports, prior forensic interviews, CPS findings, and medical records documenting earlier abuse are now potentially usable even though no one was ever charged or convicted. Getting those records is its own fight. Many are confidential or privileged, and under People v. Stanaway, the defense must show a good-faith belief, grounded in articulable facts, that there is a reasonable probability that the records contain information necessary to the defense before a court will review them in camera.
The offer of proof has to be specific. A generalized claim that the complainant was abused before will not satisfy the test. The prior act must closely resemble the charged conduct in a way that accounts for the complainant’s particular knowledge, which means counsel must map the details of the earlier incident against the details of the current allegations.
The record has to be built for appeal. The hearing occurs outside public view, so the defense should ask for findings on each factor separately and a sealed record an appellate court can review. Evidentiary rulings are reviewed for an abuse of discretion, but the underlying legal questions, including whether the statute bars the evidence, are reviewed de novo.
What Masi Does Not Change
Masi is not an invitation to put a complainant’s sexual history on trial. Reputation and opinion evidence remain barred. Evidence of prior sexual activity with third parties remains presumptively excluded, subject to the statute’s two exceptions and the constitutional routes Hackett has long recognized for matters such as bias or ulterior motive. A judge who finds the prior act unproven, dissimilar, or unnecessary to the defense will exclude the evidence. The shield stands. Masi holds only that a documented history of prior abuse cannot be kept out of the analysis simply because no one was ever convicted.
Frequently Asked Questions
Can the defense raise the complainant’s sexual history in a Michigan CSC case?
Generally no. MCL 750.520j bars it, with two exceptions: prior sexual conduct with the defendant, and evidence explaining the source of semen, pregnancy, or disease. After Masi, evidence that a minor complainant was previously abused by someone else may also be admitted, but only through a closed hearing and the five-factor test.
Does the prior abuser need to have been convicted?
No. Masi overruled that requirement in July 2025. A documented allegation, such as a police report or CPS record, can support the offer of proof, but the judge must still find at the hearing that the prior act occurred.
Does the jury hear the rape-shield hearing?
No. The five-factor determination happens in camera, before the judge alone. The jury hears the evidence only if the court rules it admissible.
Facing CSC Charges in Michigan
Decisions like Masi get litigated well before trial, and the outcome of that pretrial fight often decides the case. Grabel & Associates defends criminal sexual conduct charges in every county in Michigan and has spent decades litigating the evidentiary battles these prosecutions turn on. If you or someone you love is under investigation or has been charged, the time to involve a defense team is now.
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This article is legal information, not legal advice. Every case is different, and reading this post does not create an attorney-client relationship. Talk to a lawyer about the facts of your own case.