Michigan’s “Rape Shield” Laws Explained

History of the Rape Shield Statute

A group known as the Michigan Women’s Task Force on Rape was mostly responsible for the creation and adoption of Michigan’s Rape Shield Statute in 1974. The group paid close attention to how the previous rape laws discouraged women from reporting crimes. Particularly important was the law referencing how judges had the discretion to determine when evidence of the alleged victim’s prior consensual sexual activity could be used to impeach his or her credibility. Because of this, women shied away from testifying since it meant that their sex lives would likely be questioned. Michigan’s Rape Shield Statute sought to prevent this from happening and created a first-of-its-kind protection for alleged victims. Under rape shield, alleged victims would be generally protected from facing questions about their sexual activity with anyone else. This approach has become the most common approach to rape shield laws in each state across the country, so much so that other states refer to this approach as the “Michigan approach.” There are exceptions to rape shield which do allow defense attorneys to cross-examine the alleged victim’s about prior specific accusations and other conduct. A judge has to agree that the defense has met their burden to be allowed an exception under rape shield before an alleged victim can be questioned. If you have specific questions about a sex offense case, then it is important that you speak directly to an experienced sex crimes attorney.

Rape Shield Law Explained

Michigan’s Rape Shield law can be found at MCL 750.520j. The law protects alleged victims from facing:

• Evidence of any specific instances of their prior sexual conduct,
• Opinion evidence from anyone relating to their prior sexual conduct, and
• Reputation evidence from anyone relating to their prior sexual conduct.

The only time that these protections do not apply is to the extent that a judge finds that the offered evidence is material to a fact in the case, and the ability of the evidence to prove something outweighs its inflammatory value. If the judge finds that the offered evidence should be admitted, then the judge can allow specific questioning.

Exceptions to Rape Shield

If the judge allows evidence in exception to rape shield, then the judge can allow the defense to ask questions relating to specific things. If a judge allows an exception to rape shield, it is only as far as the judge will allow it, and even the judge has limitations on what he or she can allow in a trial. If the judge allows a defense attorney to question an alleged victim about her conduct, the attorney will be limited to asking questions relating to:

• Evidence of the alleged victim’s past sexual activity with the accused, or
• Evidence of specific times the victim’s sexual activity can point to the source of semen, pregnancy, or disease.

If a defense attorney wishes to offer evidence in either of the instances listed above, then a written motion and offer of proof must be filed within 10 days of the arraignment on the information. The judge may order an in-camera hearing to help in deciding whether or not to grant the motion but is not required to do so. In many cases, a judge will avoid holding an in-camera hearing unless the proposed evidence is strong in the motion.

When Rape Shield Doesn’t Apply?

One major area where rape shield does not apply deals with the admissibility of prior allegedly false allegations of sexual misconduct made by the alleged victim. In People v. Hackett, the Michigan Supreme Court held that evidence of certain specific instances of an alleged victim’s sexual conduct is not only relevant in trial but may be required to preserve a defendant’s right to confrontation. These include where:

• An alleged victim has made false accusations of rape in the past;
• The evidence shows the alleged victim’s bias; or
• The evidence is probative of the alleged victim’s motivation for making a false charge.

If a motion is made before a judge offering evidence to show one of the above circumstances, then the judge may allow evidence as the reasons for the admission of the evidence points to the main reason why any evidence is admitted, for its probative value. If there is evidence that the alleged victim made a previous false accusation or has specific reasons why the alleged victim would fabricate a story, then that evidence may be heard on its examination of the truthfulness of the alleged victim. Judges are cautious with what is allowed in criminal sex offense cases, as they also will look to protect the alleged victim in most cases. If you have specific questions about a case, then call us at Grabel & Associates so we can help.

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At Grabel & Associates, we bring over 100 years of combined experience in the successful representation of individuals facing criminal charges across Michigan. Call us today for a free consultation at 1-800-883-2138 or contact us online.

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