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A Better Partnership
March 27, 2017

Rape-Shield statute may not bar evidence of victim’s pregnancy, lack of prior sexual activity, and abortion in CSC case

In a case involving criminal sexual conduct, evidence of a victim’s pregnancy, lack of prior sexual activity, and abortion may be admissible, said the Michigan Court of Appeals in People v. Sharpe, Nos. 332879 and 333872. The Court held that such evidence is not necessarily barred by Michigan Rule of Evidence (MRE) 404(a) or MCL 750.520j, Michigan’s rape-shield statute.
The case involved allegations of criminal sexual conduct that defendant allegedly committed against the complainant (“DM”) when she was 13 or 14 years old. Defendant was previously in a relationship with the DM’s mother. The incidents at issue allegedly occurred in late 2013 or 2014. Doctors discovered DM was pregnant in October 2014. DM’s mother and defendant decided DM should get and abortion and defendant provided the money for the procedure. DM underwent the abortion in November 2014. She did not tell her mother about the alleged sexual abuse until April 2015 when DM’s mother and defendant ended their relationship. At the preliminary hearing, DM and her mother testified that DM did not have boyfriends and nobody else could have caused the pregnancy other than Defendant.
Defendant was charged with first, third, and fourth-degree criminal sexual conduct. The prosecution filed a motion, requesting that the trial court admit evidence that defendant was DM’s only sexual partner between the time of the alleged abuse and DM’s abortion. The prosecution argued that such evidence was admissible under the exceptions in MCL 750.520j and MRE 404(a)(3). MCL 750.520j, the rape-shield statute, allows for the admission of evidence of specific instances of the victim’s sexual conduct to the extent that the judge finds the evidence is material and its prejudicial nature does not outweigh its probative value. Under MRE 404(a), evidence of a person’s character or trait is not admissible for the purpose of proving action in conformity with that character on a particular occasion. However, MRE 404(a)(3) allows for the introduction of evidence regarding an alleged victim’s past sexual contact with a defendant as well of evidence of specific instances of sexual activity, showing the source or origin of semen, pregnancy, or disease. Defendant contended that the evidence at issue was extremely prejudicial and should be excluded. The trial court granted the prosecution’s motion in part, allowing admission of evidence concerning victim’s pregnancy but refusing to admit evidence regarding the victim’s abortion and lack of sexual partners. Both parties appealed.
The Court of Appeals held that the evidence regarding the alleged victim’s pregnancy, lack of sexual activity, and abortion was admissible. The Court reasoned that evidence regarding DM’s pregnancy was admissible and not precluded by MRE 404(a) because the prosecution did not seek to introduce evidence of DM’s pregnancy to show that DM had a particular character trait, in accordance with which she acted during the alleged sexual incidents. Therefore, DM’s pregnancy did not qualify as character evidence precluded by MRE 404(a). Further, the rape-shield statute, MCL 750.520j, did not prohibit introduction of the pregnancy evidence because such evidence was relevant to corroborate DM’s allegations of assault and qualified as admissible under the statutory exception for “evidence of the victim’s past sexual contact with the actor.” Additionally, defendant’s argument that the evidence was unduly prejudicial lacked merit because evidence of pregnancy was probative of DM’s claims.
The Court also held that evidence regarding DM’s lack of sexual activity should be admissible. The prosecution did not seek to introduce such evidence to prove that DM acted in conformity with that character when the alleged abuse occurred, such that the evidence would be barred by MRE 404(a). Rather, the prosecution sought to admit the evidence to substantiate DM’s claim by demonstrating, by process of elimination, that defendant assaulted and impregnated DM. In addition, MCL 750.520j did not prohibit such evidence because the evidence concerned a lack of specific instances of sexual conduct, and, in any event, the statute permits evidence of specific instances of sexual activity showing the origin of pregnancy. Therefore, it was reasonable to allow DM to testify that defendant was the person whose sexual activity was the “origin” of pregnancy, given that no other possible “origin” existed.
The Court of Appeals further determined that evidence of DM’s abortion could be presented. Such evidence did not constitute character evidence barred by MRE 404(a). While evidence of the abortion would qualify as evidence of specific instances of the victim’s sexual conduct prohibited under MCL 750.520j, the evidence fell within the exception regarding a victim’s past sexual conduct with the actor by providing objective evidence that DM was pregnant, which necessarily resulted from defendant’s alleged sexual assault. Moreover, evidence of the abortion was both relevant and probative of a material fact at issue—whether defendant engaged in an act of assault with DM.

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