Criminal Sexual Conduct Defense - Can I Bring Up Her Past?

Criminal Sexual Conduct (CSC) charges can leave you feeling more like a victim than an accused man who is merely accrued and presumed to be innocent. As a Michigan Criminal Sexual Conduct Defense Attorney,I feel like these days, if someone points their finger at you for a Sex Crime charge, that's it - people assume you're guilty.

So here’s the question: If you’re innocent of CSC, and you don't have a bullet-proof alibi, video or something to prove your innocence, how the hell do you defend yourself?

Answer: In any way you possibly can, and with every single thing you’ve got, with the best legal advocate you can find to stand in your corner.

It shouldn’t surprise anyone that where an accusation involves Criminal Sexual Conduct, information critical to the defense of the accused often lies within the sexual history of the accuser. This might include even situations where the accuser has been the victim of Criminal Sexual Conduct, just not by the accused. There are numerous circumstances making it highly inconvenient or impossible for someone to name the true perpetrator, and they may project blame onto someone they or their family have a bias against. There are endless possibilities...

Obviously, in America, the accused has a right to put forth this critical evidence of his innocence...right?

Answer: Not always. The reason: special laws in Criminal Sexual Conduct cases referred to as "Rape Shield Laws,“ like Michigan's own MCL 750.520j. The Rape Shield statute prevents the accused from introducing evidence in his defense when the focus touches on some aspect of the accusers sexual history. While the Rape Shield laws do serve many honest and important purposes purposes, the unfortunate side-effect is that innocent people can be convicted of CSC and sent them to Prison, sometimes for LIFE in the case of First Degree CSC, or 15 years in the case of Second Degree CSC or Third Degree CSC, because they couldn't put forth their defense.

RELATED: click here for information on Fourth Degree CSC in Michigan.

So what exactly does the Rape Shield law allow to be introduced into evidence in Michigan CSC cases? What does it prevent? For exact language of the law, you can see our page on the Michigan Rape Shield law, MCL 750.520j. For this article, here is an overview in plain English:

  • Michigan's Rape Shield generally prohibits evidence of a specific instance of the accuser's sexual conduct.
  • It generally prohibits any witness from testifying about:
    • their opinion of the accuser's sexual conduct; or
    • the reputation of the accuser concerning their sexual conduct.
  • It allows the accused to offer evidence of his own past sexual experience with the accuser, if any, but only if the Judge finds:
    • that evidence to be material to the case; and
    • that it's value to the case is more significant that any prejudicial or inflammatory effect it may have on the accuser.
      • For example, offering evidence that the accuser had consensual sexual penetration with the accused in the past in order to aid in proving she consented this time, rather than being unlawfully raped by force or coercion.
  • It allows the accused to offer evidence of a specific instance of the accuser's sexual conduct to show the source of semen, pregnancy, or disease, but only if the Judge finds:
    • that evidence to be material to the case; and
    • that it's value to the case is more significant that any prejudicial or inflammatory effect it may have on the accuser.
  • It allows the accused to offer evidence to explain why a young person accusing them would have age-inappropriate sexual knowledge if the accused is innocent. In other words, if you are accused by a young child who testifies to sexual things that they should not know about, you may be allowed to introduce evidence of "sexual conduct" dot demonstrate that you are not the source of this knowledge. This is often revealed at the forensic interview, such as CARE House in Macomb and Oakland County, or Kids Talk in Wayne County. The Judge should consider the following 3 things after a special, closed hearing:
    • Whether the other sexual conduct is relevant to the Defendant's case;
    • Whether someone else has been convicted of CSC for the prior sexual conduct on the minor; and
    • Whether the current accusation and the other sexual conduct/conviction are "sufficiently similar."
  • It requires that the accused be allowed to offer evidence of the accuser's other sexual conduct where it shows their bias against the accused or their ulterior motive for making a false claim of Criminal Sexual Conduct against the accused. This is part of our Constitutional 6th Amendment Right of Confrontation. Again, the Judge should hold a special, closed hearing to determine admissibility after the CSC Defense Attorney files a Motion.
  • Finally, Rape Shield does not even apply where the accused wants to offer evidence that the accuser has made a prior false allegation of a rape or sexual assault. If this is the case, you have an absolute right to introduce this into evidence. However, your Defense Attorney still must file a Motion and a closed pretrial hearing must be held where evidence of the prior false allegation must be offered. Our Courts have not been specific as to exactly how much proof that the prior allegation was false is necessary, but case law suggests it only requires a "good faith belief," and certainly not "concrete proof," since no accuser is going to admit that they lied and falsely accused someone else.
The bottom-line: If you or someone you care about is accused of Criminal Sexual Conduct in Michigan, they need a CSC Defense Lawyer to evaluate whether any of these defenses may apply in your case.

The Honest truth: your average Criminal Defense Attorney has no idea about the Rape Shield laws, and time is of the essence - the Michigan Rape Shield law has deadlines and if certain action is not taken on-time, you'll lose the right to these defenses and could be convicted of CSC. Get a CSC Defense Lawyer who concentrates on CSC Defense, like Brian J. Prain of Prain Law, PLLC. You can reach Prain Law anytime at (248) 731-4543 or via e-mail using our Contact Form.
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