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Criminal Sexual Conduct - Rape Shield Law and Injuries

Criminal Sexual Conduct cases in Michigan often involve the Michigan Rape Shield law. "Rape Shield" is the unofficial name for the Michigan law that limits the rights of a person accused of Criminal Sexual Conduct (CSC) to introduce evidence of his or her accuser's past specific instances of sexual conduct in their defense.

Officially, this Michigan Rape Shield law is MCL 750.520j, Evidence of Victim's Sexual Conduct. By it's express language, the Rape Shield law applies to all prosecutions under Section 520 of the Michigan Penal Code, including:

Note that as a Michigan Criminal Sexual Conduct Attorney, we at Prain Law, PLLC strongly object to the Legislature's use of the word "victim" in the title - since even a Michigan Supreme Court Opinion notes that there is no "victim" in any case unless and until a conviction is obtained, and because the Rape Shield law deals with the admissibility of evidence at trial, before any verdict of guilty, or of course, NOT GUILTY of Criminal Sexual Conduct is ever rendered by a Jury. In our view, this is a very poor and manipulative word choice, and it is simply legally incorrect if the Supreme Court means anything.

In this article, we will not be discussing everything related to the Michigan Rape Shield law, MCL 750.520j. You may wish to check out our main page about MCL 750.520j for a more complete overview of the Michigan Rape Shield law, and also read about its exceptions and exemptions, which include judicially-created exceptions:

  • Introducing evidence of the alleged victim's prior false allegations of Sexual Assault (Rape Shield does not apply to these, but the procedure for admission is similar);
  • Introducing evidence of the alleged victim's age-inappropriate sexual knowledge; and
  • Introducing evidence of the alleged victim's bias or ulterior motive for making a false allegation (protected by the Defendant's right to Confrontation).

The real purpose of this article is to deal with how Rape Shield comes into play in a case where it is necessary for the accused Defendant to introduce evidence of the alleged victim's past sexual conduct to show the source of injury that is being attributed to him or her alleged Sexual Assault. Let's take a practical example...

Suppose a man is charged with First Degree Criminal Sexual Conduct because a former sexual partner now alleges that she did not consent to the sex, but rather that he engaged in sexual penetration with her by "force or coercion" and that it caused "personal injury" which is one of the "multiple variables" a person can be charged with under the Michigan Criminal Sexual Conduct 1st Degree law, MCL 750.520b(1)(f). Let's also imagine that in support of the alleged victim's claim, the Prosecution intends to offer evidence of what they claim are physical injuries supposedly caused by the man's allegedly forced sexual penetration. Finally, imagine that the accused man has knowledge that the alleged victim had sexual intercourse with another person recently, and although the alleged victim denies it, it is possible that the alleged "injuries" were caused by someone else.

Obviously, we can see the need for the accused man to introduce evidence of this at trial in his defense. However, the express language (which is far from the full picture) of the Rape Shield law prohibits evidence of specific instances of the alleged victim's sexual conduct unless it is to show:

  • (a) Evidence of the victim's past sexual conduct with the actor; or
  • (b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.

We can easily see that part (a), above, would not apply to our example. Part (b) seems like it would help the accused if the issue had to do with something like the alleged victim having an STD and the issue of who she got it from could help to decide an important fact in the case.

But you ask: What about injury? Aren't there situations like the example above where the accused might need to show evidence of her prior sexual activity to show that someone else may have caused "injuries" that the Prosecution is attributing to him? Does the Michigan Rape Shield law prohibit evidence of the source of injury, or is it limited to "semen, pregnancy, or disease" like it specifically says?

The answer to this question calls for an understanding of the fact that in law, there are the words within the statutes themselves, like the Rape Shield, MCL 750.520j, which are chosen by the Legislature, but then, when our appellate Courts (the Michigan Court of Appeals and Supreme Court) are called upon to interpret those laws, their interpretations often have the apparent effect of adding to, subtracting from, or expanding the exact words enacted by the Legislature.

In-fact, the application of Rape Shield to our "injury" scenario above is one example of this. Although the statutory language only refers to "the source or origin of semen, pregnancy, or disease," the Michigan Court of Appeals has said that the source or origin of alleged "injury" is to be included in that group. The Court of Appeals has officially ruled that:

"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."

The point of this article is more broad than just the Rape Shield law - it stands for the idea that if you or someone you know is charged with Criminal Sexual Conduct in Michigan, it is not enough to just read the statutes, laws, and rules themselves and think that you're understanding the whole picture. There's a lot more to it than that, and that is why you must have a highly experienced Michigan Criminal Sexual Conduct Lawyer advocating vigorously for the Defense. Criminal Sexual Conduct in Michigan is a highly-specialized group of crimes, and there are many particularities. It is very easy for a general-practice Criminal Defense Lawyer who does not concentrate on CSC to miss these things and seriously weaken your defense.

At Prain Law, PLLC, we specifically concentrate on defending those accused of Michigan Criminal Sexual Conduct charges. You can reach Prain Law, PLLC at (248) 731-4543 or online using our Contact Form.

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Prain Law, PLLC is focused only on the types charges featured on our website. This helps us deliver the decisive, effective advocacy for which our clients know us. We only serve individuals currently under investigation or who have a current case pending in court. Our firm does not represent injury victims, defendants who have already taken a plea or have been sentenced, or those seeking to expunge a criminal record. We do not respond to anyone who is not involved in a pending investigation or who has a court case for a type of charge we do not handle, but we wish you the very best of luck.