People v. Parks

Order Michigan Supreme Court
Lansing, Michigan

June 5, 2009 Marilyn Kelly,
Chief Justice

126509 Michael F. Cavanagh
Elizabeth A. Weaver
PEOPLE OF THE STATE OF MICHIGAN, Maura D. Corrigan
Plaintiff-Appellee, Robert P. Young, Jr.
Stephen J. Markman
v SC: 126509 Diane M. Hathaway,
Justices
COA: 244553
Shiawassee CC: 02-007574-FC
RICKY ALLEN PARKS,
Defendant-Appellant.
_________________________________________/

On October 2, 2008, the Court heard oral argument on the application for leave to
appeal the May 18, 2004 judgment of the Court of Appeals. On order of the Court, the
application is again considered, and it is DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court.

YOUNG, J. (concurring).

I concur in the decision to deny leave to appeal and write to respond to what I
believe is Justice Markman’s artificially narrow definition of “conduct”—one that
ultimately and ironically would give rape victims fewer privacy interests than prostitutes
under the rape shield statute. I do not believe that the statute requires this result. I also
write to respond to Chief Justice Kelly’s constitutional argument.

I. Factual Background and Procedural History
Because the dissenting statements offered by Chief Justice Kelly and Justice
Markman contain significant gaps that fail to capture the ambulatory nature of the
defendant’s claims of error, I offer the following complete and chronological recitation of
the facts and the relevant procedural history of this case.

The complainant child, D.W., has experienced a troubled childhood. When she
was three or four years old, her step-grandfather allegedly sexually abused her by
fondling her and requiring her to perform fellatio on him. When she was five years old,
she moved to Michigan to live with her mother and stepfather (defendant Ricky Allen
Parks). There, she admitted to them that she had been sexually abused by her step-
grandfather. Defendant recalled:
 2

She had told us the stories about how her grandfather would have
her in his bed at night and how he would touch her vaginal areas and then
how he would make her touch his—what she called the weenie and how he
had . . . her put it in her mouth and talked about it getting sick on her belly
and giving her medicines . . . .

D.W.’s mother immediately contacted the Family Independence Agency (FIA)1 in
Owosso, which referred her to a physician. The physical examination conducted by the
physician did not rule out fondling. The FIA investigator concluded that D.W. “has
either been exposed to an extreme amount of sexual activity or that she has been abused
in the past, possibly with threats of physical harm were she to reveal what has taken
place.” No charges were ever brought against D.W.’s step-grandfather.

By November 2001, D.W. was 10 years old and living with defendant, his then-
girlfriend, and five other children.2 After D.W. exhibited age-inappropriate sexual
knowledge and behavior at school, the school’s social worker interviewed her. During
that interview, D.W. stated that defendant had touched her in her vaginal area. The social
worker then contacted Child Protective Services (CPS) regarding the allegations of
sexual abuse. Although defendant denied the allegations, CPS placed D.W. in foster
care. Further investigation led to additional details: D.W. claimed that defendant twice
followed her into the bathroom at their house and penetrated her, once with one of his
fingers into her vagina and the other time with his penis into her mouth. Pursuant to
MCL 750.520b, defendant was subsequently charged with two counts of first-degree
criminal sexual conduct (CSC-I).3

At a motion in limine hearing, the prosecution sought to exclude evidence of the
prior allegation that D.W. made against her step-grandfather. Defense counsel opposed
the prosecutor’s motion, but on narrow grounds—he sought to use the prior allegation
“solely for impeachment purposes.” He explained that he anticipated asking D.W.
1
The FIA is now known as the Department of Human Services.
2
Defendant had custody of three children, including D.W., while his then-girlfriend had
three other children of her own. As Justice Markman’s dissenting statement indicates,
D.W.’s mother had moved out of state and left her children with defendant after she was
apparently charged with drug offenses.
3
MCL 750.520b(1) provides: “A person is guilty of criminal sexual conduct in the first
degree if he or she engages in sexual penetration with another person . . . if . . . (a) [t]hat
other person is under 13 years of age.” MCL 750.520a(o) defines “sexual penetration” as
“sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,
however slight, of any part of a person’s body or of any object into the genital or anal
openings of another person’s body, but emission of semen is not required.”
 3

whether “she had ever made any reports of any other types of activity . . . .” He expected
“that [D.W.] would say no,” as she did at a preliminary hearing, and he would then call
other witnesses to testify that she had, in fact, previously made an allegation of sexual
abuse. Thus, the then-11-year-old complainant would be impeached. The trial court
agreed with the prosecution and excluded the evidence under the rape shield statute.4
Trial proceeded without evidence of D.W.’s previous abuse, and the jury convicted
defendant on both charged counts of CSC-I. He was subsequently sentenced to a term of
7 to 15 years’ imprisonment.

On appeal, defendant argued that he should have been allowed to question D.W. to
show that she had made similar false allegations in the past.5 The Court of Appeals, in an
unpublished opinion per curiam, issued May 18, 2004 (Docket No. 244553), affirmed
defendant’s convictions and held that defendant failed to make an offer of proof with
respect to the falsity of D.W.’s prior allegation, as required under MRE 103(a)(2).6
Undeterred by the defendant’s failure to offer proof at the appropriate time, this Court
accepted his argument and remanded to the Shiawassee Circuit Court for an evidentiary
hearing to determine whether D.W. had, in fact, made a false accusation of sexual abuse
against another person.7
4
MCL 750.520j provides, in pertinent part:
(1) Evidence of specific instances of the victim’s sexual conduct . . .
shall not be admitted under [MCL 750.520b to 750.520g] unless and only
to the extent that the judge finds that the following proposed evidence is
material to a fact at issue in the case and that its inflammatory or prejudicial
nature does not outweigh its probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the
source or origin of semen, pregnancy, or disease.
5
Under both the plain meaning of the statute and this Court’s precedent in People v
Jackson, 477 Mich 1019 (2007), the rape shield statute does not encompass false
allegations of sexual abuse made by a complainant, because false allegations of sexual
abuse are not “sexual conduct.”
6
MRE 103(a) provides, “Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected, and . . . (2) . . . the
substance of the evidence was made known to the court by offer or was apparent from the
context within which questions were asked.”
7
People v Parks, 478 Mich 910 (2007). I joined in Justice Corrigan’s dissenting
statement, which is worth repeating here, in pertinent part:
I respectfully dissent from the majority’s decision to remand this case to the
trial court for an evidentiary hearing, and to thereby give defendant a
 4

On remand, the trial court affirmed defendant’s convictions, ruling that there was
“absolutely no evidence, zero evidence[,] of any prior false accusations made by the
child. . . .” This finding was based on the FIA investigator’s determination,
contemporaneous with D.W.’s allegation of abuse against her step-grandfather, that the
young child “ha[d] either been exposed to an extreme amount of sexual activity
or . . . ha[d] been abused in the past.” Moreover, it was underscored by defendant’s own
testimony that he believed D.W.’s allegations against her step-grandfather to be true both
at the time they were made and presently.

Defendant has abandoned his prior argument and, hoping that his third theory
would be the charm, sought to introduce the evidence for yet another purpose: as an
alternative explanation for D.W.’s age-inappropriate sexual knowledge and behavior.
Under this theory, defendant now claims that he is entitled to present evidence of the
previous abuse D.W. suffered to show that she obtained her age-inappropriate sexual
knowledge and behavior from a source other than defendant.

Obviously, at the time of trial, defendant did not offer this third basis for the
admission of D.W.’s alleged prior sexual abuse. Accordingly, this issue is unpreserved.
Neither Justice Markman nor Chief Justice Kelly explains why the defendant should be
allowed to maintain a theory of innocence that was neither articulated at the time of trial
nor at the time of the defendant’s first appeal to this Court. Indeed, the tortuous
procedural history of this case—including the defendant’s seriatim efforts to introduce
the excluded evidence—is conspicuously absent from either of their dissenting
statements. The failure to preserve the appropriate claim of error is, by itself, a
sufficient—and my primary—basis for denial.

II. Analysis
A. Rape Shield Statute
Michigan’s rape shield statute,8 enacted in 1974 as part of a comprehensive reform
of Michigan’s criminal sexual assault statutes,9 is a broad exclusionary rule that prohibits

second chance to offer proof that the complainant made a prior false
accusation of sexual abuse against another person. The majority ignores
the fact that defendant already had an opportunity to offer proof of the
alleged falsity of the prior accusation, and that he failed to do so. Under the
plain language of MRE 103(a), error may not be predicated on the
exclusion of evidence where no offer of proof was made. Yet the majority,
for reasons that it wholly fails to explain, now gives defendant a second bite
at the apple, in contravention of MRE 103(a). [Id. at 912 (Corrigan, J.,
dissenting) (emphasis in original).]
8
MCL 750.520j.
 5

the introduction of evidence of a sexual assault victim’s previous sexual conduct, with
certain narrow exceptions. Before the rape shield statute was enacted, sexual assault
trials often focused on a victim’s sexual history rather than on the defendant’s alleged
actions.10 Thus, as this Court has previously explained, the enactment of rape shield laws
across the country was “a reflection of a nationwide concern about the prosecution of
sexual conduct cases.”11

The rape shield statute, MCL 750.520j, provides in part:

(1) Evidence of specific instances of the victim’s sexual conduct . . .
shall not be admitted under [MCL 750.520b to 750.520g] unless and only
to the extent that the judge finds that the following proposed evidence is
material to a fact at issue in the case and that its inflammatory or prejudicial
nature does not outweigh its probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the
source or origin of semen, pregnancy, or disease.
At issue in this case is whether prior involuntary sexual activity—the sexual abuse D.W.
allegedly suffered by her step-grandfather—constitutes “sexual conduct” for the purposes
of the statute’s exclusionary rule. If such involuntary sexual activity does constitute
“sexual conduct,” then the defendant is not entitled to question the complainant about
such conduct. This includes a complainant’s previous allegations of sexual abuse not
proven to be false.12

The Legislature did not specifically define the term “conduct.” Therefore, it is
appropriate to look to the dictionary definition to discern the term’s meaning.13

9
MCL 750.520a et seq.
10
See, e.g., People v McLean, 71 Mich 309, 312 (1888) (“Evidence that the prosecutrix is
a common prostitute, or that her character for chastity is bad, is admissible.”). The rape
shield statute was aimed at putting to rest the mindset expressed by Chief Justice Cooley
in another context, that “[t]he probability that a woman who conducts herself properly
will be frequently assaulted is very small . . . .” Derwin v Parsons, 52 Mich 425, 427
(1884).
11
People v Arenda, 416 Mich 1, 8 (1982).
12
See People v Jackson, 477 Mich at 1019.
13
People v Thompson, 477 Mich 146, 151-152 (2007).
 6

“Conduct” is relevantly defined, as one’s “personal behavior.”14 This definition is silent
about whether “conduct” encompasses only voluntary “personal behavior” or both
voluntary and involuntary “personal behavior.” The term’s plain meaning in the criminal
context, however, implies that both voluntary behavior and involuntary behavior are
“conduct.” Justice Markman’s understanding of the term “conduct” artificially restricts
the term to one’s voluntary behavior only. Instead, it encompasses all of one’s “personal
behavior.”15

An examination of the statutory scheme as a whole underscores why Justice
Markman’s construction of “conduct” is too limited. MCL 750.520a provides definitions
for Chapter LXXVI of the Michigan Penal Code, which encompasses the rape shield
statute (MCL 750.520j). Although the section does not define the word “conduct,” it
does define both “actor” and “victim” with reference to their “conduct.” An “actor” is
someone “accused of criminal sexual conduct,” MCL 750.520a(a), while a “victim” is
someone “subjected to criminal sexual conduct,” MCL 750.520a(p). By including these
definitions, the Legislature expressed its understanding that “sexual conduct” is
something that both “actors” and “victims” take part in—“actors” voluntarily and
“victims” involuntarily. The protections of the rape shield statute, therefore, do not
distinguish involuntary “sexual conduct” experienced as a victim of sexual abuse from
14
Random House Webster’s College Dictionary (1997). This is the longstanding
definition of the term. See Webster, A Compendious Dictionary of the English Language
(New York, NY: Crown Publishers, 1970 facsimile of 1806 edition), p 61 (“behavior”).
15
The criminal defense of duress aptly illustrates why Justice Markman’s construction is
underinclusive. Someone who maintains a duress defense admits that otherwise criminal
acts are part of his “conduct,” but seeks to excuse it as involuntary. Thus, though
involuntary, the act remains a person’s conduct. People v Merhige, 212 Mich 601, 610-
611 (1920), states the rule of duress: “An act which would otherwise constitute a crime
may also be excused on the ground that it was done under compulsion or duress. The
compulsion which will excuse a criminal act, however, must be present, imminent and
impending, and of such a nature as to induce a well-grounded apprehension of death or
serious bodily harm if the act is not done.” (Quotation marks and citation omitted.)
Particularly telling is the Court’s subsequent discussion: “Whether the defendant was
responsible for his conduct on September 19th and whether his actions on that occasion
were voluntary, would be a fair question for a jury under all the circumstances of the
case.” Id. at 611 (emphasis added). Rather than being “a single, stray reference to
[conduct],” as Justice Markman indicates, post at 26, this understanding of “conduct” as
encompassing all of one’s “personal behavior,” not just volitional behavior, illustrates a
foundation of our criminal law. Moreover, the alleged criminal sexual conduct that took
place between D.W. and her step-grandfather—fondling and fellatio—requires (at least)
two participants. The fact that, with respect to D.W., this alleged sexual conduct was
forced is not relevant to whether it was “conduct” within the meaning of the statute.
 7

voluntary “sexual conduct” engaged in as a consenting adult. To hold otherwise would
presume that the Legislature intended to give prostitutes more protection than rape
victims. I do not think the plain meaning of the term “conduct” within the context of the
statute conveys that particular legislative intent.

Moreover, a discarded draft of this provision supports this natural construction of
the phrase “sexual conduct.” “[B]y comparing alternate legislative drafts, a court may be
able to discern the intended meaning for the language actually enacted.”16 The bill, as
introduced in the Senate on February 28, 1974, originally provided that “[p]rior
consensual sexual activity between the victim and any person other than the actor shall
not be admitted into evidence in prosecutions under sections 520B to 520I.”17 The House
subsequently amended the bill and passed a substitute bill that deleted the word
“consensual.”18 It is that House substitute bill that was enacted into law instead of the
bill that was initially proposed.19 Therefore, the fact that the Legislature specifically
deleted the word “consensual” provides additional support for the conclusion that the
rape shield statute applies to both consensual and nonconsensual sexual conduct.20
16
In re Certified Question (Kenneth Henes Special Projects v Continental Biomass
Industries, Inc), 468 Mich 109, 115 n 5 (2003).
17
SB 1207, § 520J(2). (Emphasis added.)
18
1974 Journal of the House 4356-4363.
19
1974 Journal of the Senate 1495-1499. See also 1974 PA 266.
20
Justice Markman correctly states that the enacted version of the bill replaced the phrase
“consensual sexual activity” with the phrase “sexual conduct.” Nevertheless, his
argument that the two terms are identical does not take into account the fact that
amendments of the definitional provisions in the statute provide additional support for a
distinction between “consensual sexual activity” and “sexual conduct.” The enacted
version of the definitional provisions relating to criminal sexual conduct defined “actor”
and “victim” as participants in “sexual conduct.” In the original SB 1207, however, the
provisions defined “actor” and “victim” without reference to their “sexual conduct.”
“Actor” was defined as “a person accused of sexual assault,” SB 1207, § 520A(A), while
“victim” was defined as “the person alleging to have been sexually assaulted,” § 520A(J).
When the word “consensual” was deleted from the statute, those definitions were
amended to reference the parties’ participation in “sexual conduct,” the “actor” as
someone “accused of criminal sexual conduct,” MCL 750.520a(a), and the “victim” as
someone “subjected to criminal sexual conduct,” MCL 750.520a(p). Thus, even if
Justice Markman’s distinction between “conduct” and “activity” were valid, the
amendment of the definitional provision that contemplates an expansive understanding of
“sexual conduct” puts his distinction to rest and incorporates both consensual sexual
conduct and nonconsensual sexual conduct.
 8

This is consistent with our caselaw applying the rape shield statute to victims of
prior sexual abuse. In Arenda, this Court prohibited the admission, under the rape shield
statute, of “any evidence of sexual conduct between the victim [an eight-year-old boy]
and any person other than defendant.”21 Likewise, People v Morse articulated a specific
test for admitting evidence of a complainant’s prior sexual abuse notwithstanding the
applicability of the rape shield statute.22

While not controlling the interpretation of this state’s statute, it is nevertheless reassuring
that nearly all states ruling on this question have read their rape shield protections as
encompassing both voluntary sexual conduct and involuntary sexual conduct. Twenty
other states specifically hold that sexual abuse falls under rape shield protections.23 Only
21
Arenda, 416 Mich at 6 (emphasis added). While Justice Markman correctly notes that
Arenda primarily dealt with the constitutionality of the rape shield statute, its application
of the rape shield statute is very relevant to this case. The victim in that case was an
eight-year-old boy, and the defendant sought to cross-examine the victim regarding
whether he had engaged in any previous sexual activity. Moreover, the defendant sought
to introduce the evidence to explain an alternative basis for the victim’s age-inappropriate
sexual knowledge. The Court excluded evidence of all instances of sexual conduct
between the eight-year-old victim and any person other than the defendant. The Court
did not make any distinction between voluntary sexual conduct and involuntary sexual
conduct.
22
231 Mich App 424 (1998). The Morse panel specifically discussed the applicability of
the statute: “In Michigan, as in our sister states, rape-shield statutes are typically invoked
where the victim is an adult. However, our courts and others have ruled on the
applicability of rape-shield statutes in cases of child sexual abuse.” Id. at 430, citing
Arenda, 416 Mich at 6.
23
See State v Townsend, 366 Ark 152, 160 (2006) (“[E]vidence of the prior sexual abuse of a
minor is within the ambit of the rape-shield statute.”); People v Aldrich, 849 P2d 821, 824 (Colo
App, 1992) (“[T]he rape shield statute encompasses involuntary acts within the meaning of prior
sexual conduct . . . .”); Baughman v State, 528 NE2d 78, 79 (Ind, 1988) (“Appellant contends
that the trial court erred by preventing him from presenting evidence that [the victim] had been
sexually molested by her step-father . . . . The evidence sought to be introduced was of the type
which the legislature deemed should be excluded in a case of this nature. It falls clearly within
the parameters of the statute . . . .”); State v Jones, 490 NW2d 787, 790 (Iowa, 1992) (“We think
the term [‘]past sexual behavior[’] as it is used in the rule clearly encompasses prior sexual abuse
perpetrated upon the victim.”); State v Michel, 633 So 2d 941, 944 (La App, 1994)
(“[Louisiana’s rape shield law] was correctly applied in this case to prevent any exploration of a
possible sexual molestation of the victim in 1988.”); State v Jacques, 558 A2d 706, 708 n 2 (Me,
1989) (“We reject, as providing insufficient protection to victims, the defendant’s proposed
interpretation of ‘sexual behavior’ to apply only to a victim’s ‘volitional sexual behavior.’”);
Commonwealth v Hynes, 40 Mass App 927, 929 (1998) (“Evidence of sexual abuse by a third
 9

party is generally excluded under the rape-shield statute.”); State v Carpenter, 459 NW2d 121,
125-126 (Minn, 1990) (“The excluded evidence at issue here [is] the alleged prior digital
penetration of [the victim] . . . . We find, as did the trial court, the evidence of previous sexual
conduct defense counsel sought to introduce to be inadmissible under [Minnesota’s rape shield
law].”); Peterson v State, 671 So 2d 647, 657 (Miss 1996) (“[Mississippi’s rape shield law]
prohibits the introduction of evidence of a victim’s past sexual behavior unless it falls under one
of the three exceptions . . . . The question [at issue] was not whether she had made any false
allegations of a past sexual offense [which are admissible] . . . , rather it was whether she had
made any allegations at all of such an offense and is therefore improper.”); State v Kelley, 83
SW3d 36, 40 (Mo App, 2002) (“The offer included evidence that the sexual [abuse] actually
occurred and, therefore, must be presumed inadmissible under the rape shield statute.”); State v
Rhyne, 253 Mont 513, 519 (1992) (“[U]nder [Montana’s rape shield law], sexual conduct of the
victim which is inadmissible includes prior sexual abuse.”); State v Bass, 121 NC App 306, 309-
310 (1996) (“We conclude that the prior abuse alleged here is “sexual activity” within the ambit
of [North Carolina’s rape shield law].”); State v Budis, 125 NJ 519, 532-533 (1991) (“When a
defendant seeks to elicit evidence of the prior sexual abuse of a child, the Rape Shield Statute
directs trial courts to conduct a pre-trial in camera hearing.”); State v Montoya, 91 NM 752, 753
(NM App, 1978) (“Sexual intercourse is sexual conduct whether by consent or force. [New
Mexico’s rape shield law] is not limited to sex by consent; rather, by its unlimited wording, it
applies to all forms of past sexual conduct.”); State v Smelcer, 89 Ohio App 3d 115, 122 (1993)
(“The trial court refused to allow the admission of the evidence, stating that the rape shield law
precluded evidence concerning prior sexual abuse of [the victim]. We find that this evidence
was properly excluded.”); State v Wright, 97 Or App 401, 406 (1989) (“We hold that ‘past sexual
behavior’ means a volitional or non-volitional physical act that the victim has performed for the
purpose of the sexual stimulation or gratification of either the victim or another person or an act
that is sexual intercourse, deviate sexual intercourse or sexual contact, or an attempt to engage in
such an act, between the victim and another person.”); Commonwealth v Johnson, 389 Pa Super
184, 188 (1989) (“[A]ssaultive sexual activity is covered by the Rape Shield Law . . . .”); Ex
parte Rose, 704 SW2d 751, 756 (Tex Crim App, 1984) (“Reading the phrase or term ‘sexual
conduct’ in the context in which it is used in [Texas’s rape shield law] and in accordance with
common usage, we hold that it encompasses sexual activity or conduct whether willingly
engaged in or not . . . .”); State v Quinn, 200 W Va 432, 438 (1997) (“[E]vidence that the alleged
victim of a sexual offense has made statements about being the victim of sexual misconduct,
other than the statements that the alleged victim has made about the defendant and that are at
issue in the state’s case against the defendant, is evidence of the alleged victim’s ‘sexual
conduct’ and is within the scope of West Virginia’s rape shield law . . . unless the defendant
establishes to the satisfaction of the trial judge outside of the presence of the jury that there is a
strong probability that the alleged victim’s other statements are false.”); State v Pulizzano, 155
Wis 2d 633, 643 (1990) (“The prior sexual assault [the victim] experienced clearly constitutes
‘sexual conduct’ as that term is defined in [Wisconsin’s rape shield law].”).
 10

three states concur with Justice Markman in denying the applicability of rape shield
provisions to involuntary sexual abuse.24 A fourth, New Hampshire, has enacted a statute
expressly limiting exclusion to consensual sexual conduct.25

Ultimately, there is a strong textual basis for concluding that the term “conduct,”
as it is used in the rape shield statute, encompasses both voluntary and involuntary
behavior. The Legislature’s decision to enact a broad exclusionary rule containing
limited and specific exceptions is itself a policy decision,26 which must be respected
unless it is unconstitutional.

B. Constitutional Challenge to the Rape Shield Statute
Notwithstanding the requirements of the rape shield statute, a criminal defendant
has the constitutional right to present a defense. The Sixth Amendment of the United
States Constitution and art 1, § 20, of the Michigan Constitution contain identical
provisions giving a criminal defendant the right to “be confronted with the witnesses
against him . . . .”27 In interpreting the Confrontation Clause, the United States Supreme
Court maintains that the right to present a defense is a fundamental right afforded to
criminal defendants.28 Nevertheless, it is not absolute. The protections of the Sixth
Amendment may “bow to accommodate other legitimate interests in the criminal trial
process.”29 Indeed, courts have “‘wide latitude’ to limit reasonably a criminal
24
Raines v State, 191 Ga App 743, 744 (1989) (“[A] prior rape committed against the
victim has nothing whatsoever to do with her past sexual behavior.”); Chapman v State,
117 Nev 1, 5 (2001) (“A child-victim’s prior sexual experiences may be admissible to
counteract the jury’s perception that a young child would not have the knowledge or
experience necessary to describe a sexual assault unless it had actually happened.”); State
v Markle, 118 Wash 2d 424, 438 (1992) (“[The] rape shield statute does not provide a
basis for excluding evidence of prior sexual abuse of the complaining witness . . . .”).
25
NH Rev Stat Ann 632-A:6(II) provides that “[p]rior consensual sexual activity between
the victim and any person other than the actor shall not be admitted into evidence in any
prosecution under this chapter.”
26
See Nelson, What is textualism?, 91 Va L R 347, 398-403 (2005).
27
The Sixth Amendment of the United States Constitution was held applicable to the
states through the Fourteenth Amendment in Pointer v Texas, 380 US 400, 406 (1965).
28
Crane v Kentucky, 476 US 683, 690 (1986). Additionally, art 1, § 13, of the Michigan
Constitution provides that “[a] suitor in any court of this state has the right to . . . defend
his suit, either in his own proper person or by an attorney.” See also People v Hayes, 421
Mich 271, 278 (1984).
29
Michigan v Lucas, 500 US 145, 150 (1991) (quotation marks and citations omitted).
 11

defendant’s right to cross-examine a witness ‘based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.’”30

This Court’s decision in People v Hackett requires a court to determine the
constitutionality of exclusion of evidence under the rape shield statute on a case-by-case
basis,31 as long as “[t]he defendant . . . make[s] an offer of proof as to the proposed
evidence and . . . demonstrate[s] its relevance to the purpose for which it is sought to be
admitted.”32 Only then does a trial court possess the relevant information to decide
whether a defendant is constitutionally entitled to present particular evidence excluded
under the rape shield statute.

Here, defendant has only offered proof that the prior allegations were relevant to
D.W.’s credibility. The Constitution does not require evidence of sexual conduct, such as
these prior allegations, to be introduced when the defendant’s only proffered reason for
introducing such evidence is to wage a general attack on a witness’s credibility, as
opposed to a specific attack on a witness’s “possible biases, prejudices, or ulterior
motives . . . .”33 The Sixth Circuit Court of Appeals decision in Boggs v Collins is
instructive on this point:

No matter how central an accuser’s credibility is to a case—indeed, her
credibility will almost always be the cornerstone of a rape or sexual assault
case, even if there is physical evidence—the Constitution does not require
that a defendant be given the opportunity to wage a general attack on
credibility by pointing to individual instances of past conduct.[34]
Our Legislature has determined that the fact that a complainant had been abused in the
past is simply irrelevant to her present credibility. This would seem to be an especially
important policy when such prior sexual abuse occurred when D.W. could have been as
young as three years old and when D.W. made her prior allegations of abuse when she
was five years old.

Defendant’s latest and third argument for introducing the evidence—explaining
D.W.’s age-inappropriate sexual knowledge and behavior—is somewhat more
30
Id. at 149, quoting Delaware v Van Arsdall, 475 US 673, 679 (1986).
31
People v Hackett, 421 Mich 338 (1984).
32
Id. at 350.
33
Davis v Alaska, 415 US 308, 316 (1974).
34
Boggs v Collins, 226 F3d 728, 740 (CA 6, 2000).
 12

compelling.35 By failing to introduce this theory of admissibility at trial, however,
defendant has forfeited it and bears the burden to show: “1) error must have occurred, 2)
the error was plain, i.e., clear or obvious, and 3) the plain error affected substantial
rights.”36 And, if defendant can meet his burden, this Court must exercise its discretion
to reverse only when “the defendant is actually innocent or the error seriously affected
the fairness, integrity, or public reputation of judicial proceedings.”37

Defendant has failed to show that error occurred, much less that it was clear or
obvious. As noted earlier, the constitutional right to present a defense must be balanced
against the state’s interest in protecting the integrity of criminal sexual conduct trials and
the privacy of complainants. Hackett expressed that constitutional concerns might trump
the rape shield statute when showing (on a proper offer of proof) that the complainant’s
prior victimization is probative of her bias or ulterior motive against the criminal
defendant.38 Defendant does not make such a claim here.

The Court of Appeals decision in People v Morse held that, before a jury may hear
evidence of prior sexual abuse against a complainant, the trial judge must determine (at

35
Defendant’s new theory, however, is not without its holes: because D.W. was abused as
a very young child, she might be especially able to recognize and describe the abuse she
is alleged to have suffered from defendant. Indeed she had her own childishly graphic
terms for a penis (“weenie”), ejaculation (“[the weenie] got sick”), and ejaculate
(“medicine”). Chief Justice Kelly, however, struggling to bolster the relevance of the
evidence, suggests that D.W. cannot use similar language to describe similar events that
happened to her. Her explanation fails to persuade. The graphic terms that D.W. used to
describe the alleged instances of sexual abuse were part of her own vocabulary. The
mere fact that she has this unique vocabulary to describe all the alleged instances of
sexual abuse does not make it “extremely unlikely” for D.W. to have been abused both
by her step-grandfather and by defendant. Post at 17. If Chief Justice Kelly “[does] not
suggest[] that D.W.’s behavior encouraged someone to sexually abuse her,” id. at 17 n
54, she nevertheless does suggest that, in order to be believed, a victim of sexual abuse
had better come up with a different way to describe any subsequent abuse she suffers. I
see little to effectively distinguish this “one and done” rule for sexual assault victims, that
“it is extremely unlikely that both defendant and D.W.’s [step-]grandfather abused D.W.
in the same manner,” id., from the nineteenth-century sensibility that the rape shield
statute intended to put to rest: that “[t]he probability that a woman who conducts herself
properly will be frequently assaulted is very small . . . . ” Derwin, 52 Mich at 427.
36
People v Carines, 460 Mich 750, 763 (1999).
37
Id. at 774.
38
Hackett, 421 Mich at 348.
 13

an in camera hearing): (1) that the proffered evidence is relevant, (2) that another person
was convicted of criminal sexual conduct (CSC) involving the complainant, and (3) that
the facts underlying the previous conviction are significantly similar to the case before
it.39

Because D.W.’s step-grandfather was not charged with CSC, let alone convicted
of such a crime, evidence of previous abuse is not eligible for introduction at trial under
Morse. Morse appropriately balanced the defendant’s necessity for introducing a defense
with the state’s interests in protecting the integrity of CSC trials and the privacy of
complainants. It is much less invasive to a complainant if the previous abuse suffered is
already a matter of public record that had previously been examined in open court.
Accordingly, there is no compelling justification for extending this test to previous acts of
CSC committed against a complainant that have not already withstood the publicity of a
trial.40

Defendant is, therefore, not constitutionally entitled to introduce evidence of the
previous abuse D.W. suffered. Accordingly, he is not entitled to a new trial.

III. Conclusion
For the reasons stated, I concur in this Court’s decision to deny leave to appeal.
D.W.’s prior sexual victimization is covered under the plain meaning of the rape shield
statute, and the exclusion of that evidence pursuant to the statute did not violate
defendant’s constitutional rights. Accordingly, he is not entitled to a new trial.

CORRIGAN, J., joins the statement of YOUNG, J.

KELLY, C.J. (dissenting).

I respectfully dissent from the majority’s decision to deny leave to appeal in this
case. Defendant sought to introduce at trial evidence that it was equally likely that

39
Morse, 231 Mich App at 437. Like defendant’s latest argument, the defendant in
Morse sought to introduce the evidence in order to provide an alternate source for the
complainant’s age-inappropriate sexual knowledge.
40
Justice Markman implies that defendant had no way of defending against the medical
expert’s conclusion that D.W. had likely been abused. This is simply incorrect. There
was nothing to prevent the defendant from questioning the causal relationship between
the witness’s conclusion and the abuse that defendant was charged with committing; he
simply was barred from exploring the causal relationship between the witness’s
testimony and D.W.’s alleged previous abuse.
 14

another person committed the crime with which he was charged. The trial court’s refusal
of his request violated defendant’s Sixth Amendment right of confrontation.41

Because the excluded evidence was so important and its exclusion undoubtedly
tainted the verdict, I would reverse the conviction and remand the case for a new trial.

FACTS
Defendant, Ricky Parks, was convicted of two counts of first-degree criminal
sexual conduct (CSC-I)42 for molesting his nine-year-old stepdaughter, D.W.43 The
allegations against defendant arose when D.W. told a school social worker that defendant
had sexually abused her. D.W., a mentally challenged child, had been abandoned by her
mother and left with defendant. She had suffered a closed head injury when she fell from
a golf cart while living with her grandparents and was left with serious developmental
problems.

Some years later, when D.W. was living with defendant, locks had to be put on the
doors because she would leave the house naked. Her behavior at school had sexual
overtones. When asked at home why she was misbehaving, D.W. answered that her
grandfather used to bring her to his bed, touch her vaginal area, and have her touch his
penis. She claimed that he put his penis in her mouth, as well as his fingers in her vagina.
She referred to her grandfather’s penis as his “weenie” and described how, when she put
it in her mouth, it “got sick on her belly.” D.W. made some of the allegations against her
grandfather after she was caught inappropriately fondling her brother. She then said that
she was “trying to make medicine to wash his weenie off.”

Defendant and D.W.’s mother obtained counseling for D.W. at school. They also
reported the allegations D.W. made against her grandfather to the Department of Social
Services,44 but no charges were ever brought against the grandfather. Records show that
a protective services case was opened in 1996, prompted by allegations that D.W.’s
grandfather abused her. However, it was closed because D.W. failed to disclose any
abuse while talking to agency personnel.

Nonetheless, the social service caseworker concluded in 1996 that “the statements
made to mother and step-father with detail indicate that this child has either been exposed
to an extreme amount of sexual activity or that she has been abused in the past.” Also in
1996, an examining physician, Dr. Stephen Guertin, stated that the results of his
41
US Const, Am VI.
42
MCL 750.520b(1)(a).
43
I refer to the complainant as D.W. to protect her identity.
44
The Department of Social Services no longer exists. Its present equivalent is the
Department of Human Services.
 15

examination of D.W. were normal, although he could not rule out fondling. That year, a
complaint from the Department of Social Services revealed that D.W. “made a statement
alleging that she touched her [grandfather’s] weenie when it got sick.” Following the
1996 investigation, defendant attempted to enroll D.W. in counseling.

In 1998, D.W.’s mother abandoned her and moved to the West Coast. Defendant
took care of D.W. In time, his girlfriend, Julie Sutliff, moved into his home. She
observed D.W. touching herself in the vaginal area, making inappropriate sexual
comments, and misbehaving. D.W. told Sutliff that touching herself was no big deal
because her grandfather used to do it to her. She also told Sutliff that her grandfather
used to molest her and that she would suck on his penis hard enough to “get medicine out
of it.” Sutliff said that she did not contact law enforcement personnel because defendant
told her that he had attempted earlier to get help from them with no result.45

At a preliminary examination in 2002, D.W. alleged that defendant had abused
her. Her accusations were very similar to those she had made against her grandfather.
She asserted that defendant had “put his weenie in my mouth” and then “[it] got sick.”

The prosecution presented no physical evidence of sexual abuse at trial.
Defendant testified and maintained his innocence throughout the proceedings. D.W.’s
testimony was the only direct evidence of molestation brought against him. The
prosecution bolstered D.W.’s testimony by presenting evidence of her age-inappropriate
knowledge of sexual matters and her continuous sexual behavior. The trial court
prohibited defense counsel from cross-examining D.W. about her prior allegations of
assault by her grandfather.

The prosecution’s theory throughout trial was that D.W.’s abnormal behavioral
problems and age-inappropriate sexual knowledge was a “cry for help” for someone to
save her from defendant’s molestation. In her opening statement, the prosecutor told the
jury, “I don’t have a smoking gun or DNA evidence, but I do have D.W. crying out for
help,” demonstrated by her “inappropriate sexual knowledge” and “inappropriate sexual
behavior.” The prosecution continued the theme of a cry for help by calling witnesses for
the sole purpose of detailing D.W.’s erratic behavior.

The prosecution called an expert qualified in the area of pediatrics with an
emphasis on sexual abuse, Dr. Guertin, who examined D.W. after the alleged abuse by
defendant.46 Dr. Guertin testified that his examination of D.W. showed no physical

45
D.W.’s grandfather lived out-of-state when the 1996 investigation took place, which
may explain why nothing ultimately came of the investigation.
46
The jury was never permitted to hear that Dr. Guertin had examined D.W. four years
earlier for signs of sexual abuse allegedly committed by her grandfather.
 16

evidence of molestation, but, given D.W.’s “history,” it was his opinion that she had
likely been “fondled.”47 Significantly, Dr. Guertin never gave an opinion about who had
fondled D.W. or what her “history” entailed.

The prosecution also called D.W.’s former elementary school teachers to testify
about her disruptive behavior. The teachers recounted how D.W. was “a handful” at
school. She would throw temper tantrums so severe that all the other students had to be
removed from the classroom until she calmed down. Sometimes she hit her head against
the floor and screamed “I want to die.” She wrote letters to a boy in the class telling him
she would have sex with him and “if you live with me I will have a baby.”

Other students were reluctant to be in the same room with D.W. Once, D.W.
gyrated against a desk in a “humping” motion like a “dog in heat.” Another time, she
took off her overalls and stood in the classroom in her underwear. One teacher recalled a
time when D.W. screamed “don’t fuck me” when the teacher tried to restrain her. In
closing argument, the prosecution reminded the jury of D.W.’s behavior, claiming that
D.W. was crying for help because of what was going on in her house. The prosecutor
argued that, through her behavior, D.W. was yelling out “make this stop.” The
prosecutor systematically used D.W.’s behavior as proof that it was defendant who
molested her.

THE RAPE-SHIELD ACT VS THE CONSTITUTIONAL RIGHT OF CONFRONTATION
In limited situations, the admission of evidence of a victim’s past sexual conduct
may be not only relevant but required to preserve a defendant’s constitutional right to
confrontation.48 The trial court must balance the legitimate competing interests of the
state and the accused on a case-by-case basis.49 The United States Supreme Court has
identified specific factors that need to be considered: (1) the strength vel non of state
interests weighing against admission of the evidence,50 (2) the importance of the evidence
to an effective defense,51 and (3) the scope of the ban on the evidence.52

47
When eliciting testimony, the prosecutor specifically instructed Dr. Guertin not to
explain the “history” of abuse on which he based his opinion.
48
People v Hackett, 421 Mich 338, 348 (1984).
49
Id. at 349. Hackett instructs that the trial court should use the in camera hearing
process to evaluate Confrontation Clause problems involving the rape-shield act’s bar of
normally relevant evidence. This process is found at MCL 750.520j(2); see also
Michigan v Lucas, 500 US 145, 153 (1991).
50
Chambers v Mississippi, 410 US 284, 295 (1973).
51
Davis v Alaska, 415 US 308, 319 (1974).
 17

In this case, the importance of the proposed evidence to an effective defense
overwhelmed any state interest. Defendant was charged with two counts of first-degree
criminal sexual conduct (CSC-I), a very serious crime.53 A determination of his guilt
hinged on whether the jury believed D.W. or him; it came down to a credibility contest
between the two.

Beginning with her opening statement, the prosecutor used D.W.’s age-
inappropriate knowledge and sexual behavior as proof that D.W. was telling the truth.
Almost all the state’s witnesses testified for the purpose of establishing D.W.’s abnormal
behavior. By not allowing defendant to offer an alternative plausible explanation for
D.W.’s behavior, he was left without a defense. By barring evidence that D.W. had been
abused by her grandfather, the trial court kept from the jury a critical piece of the puzzle
necessary for the jury to render a fair decision. There was no direct physical evidence
tying defendant to the alleged assaults, and D.W. was inconsistent in describing the
details of the alleged assaults. Yet, without an alternative explanation for D.W.’s age-
inappropriate sexual knowledge and abnormal behavior, the jury was led directly to the
conclusion that defendant was the one who committed the acts.

Furthermore, the evidence was pertinent and necessary to the defense because of
the similarity between D.W.’s description of the alleged sexual abuse by defendant and
her grandfather. D.W. testified at the preliminary examination that defendant “put his
weenie in my mouth” and then “[i]t got sick.” This language is nearly identical to the
statements she allegedly made against her grandfather. The 1996 social services report
indicated that D.W. said that she “touched her [grandfather’s] weenie when it got sick.”
This is similar to D.W.’s telling defendant’s girlfriend that her grandfather made her
perform oral sex on him until “medicine” came out. It is extremely unlikely that both
defendant and D.W.’s grandfather abused D.W. in the same manner and used the same
peculiar language to describe the incidents.54

52
Delaware v Van Arsdall, 475 US 673, 679 (1986). See White v Coplan, 399 F3d 18, 24
(CA 1, 2005) (listing factors to be considered); see also Barbe v McBride, 521 F3d 443,
458 (CA 4, 2008).
53
CSC-I carries a maximum sentence of life in prison. MCL 750.520b(2).
54
In his concurring statement, Justice Young appears to misunderstand the point I make
here. I am not suggesting that D.W.’s behavior encouraged someone to sexually abuse
her. Far from it. I am suggesting that D.W.’s description of the alleged abuse was first
made before the dates on which defendant is alleged to have abused her. Hence, the
abuser, if there was indeed one abuser, was not defendant, and the jury was never allowed
to learn the facts that lead to that conclusion. Unless defendant abused D.W. in the same
manner and using the same peculiar language as a prior abuser employed, D.W.’s age-
 18

Moreover, the initial abuse had to have occurred before 1996. Because, by 1996,
D.W. had already described acts of oral sex and a “weenie” getting “sick,” with a liquid
being ejaculated, which she referred to as “medicine.” However, defendant was charged
with abuse that allegedly occurred sometime between 1999 and 2000. At trial, D.W.
could not remember the time of year, time of day, or day of the week of the first assault.
Evidence that D.W. was molested before 1996 was relevant to show that D.W. may not
have been abused in 1999 or 2000. If that is the case, defendant is innocent of the
charges brought against him in this case.

Finally, the evidence of prior sexual abuse was essential to put Dr. Guertin’s
testimony in proper context. Dr. Guertin was the only expert in child sexual assaults to
testify at trial. He stated that, on the basis of D.W.’s “history,” she had likely been
fondled. The evidence at trial suggested to the jury that the only person who might have
fondled D.W. was defendant. Hence, it was essential for defendant to be able to show
that the “history” on which Dr. Guertin based his conclusion included sexual abuse by
another person. Without that knowledge, the jury was left with no viable explanation for
Dr. Guertin’s testimony that did not implicate defendant. Other courts reviewing
applications of a rape-shield act have found a defendant’s constitutional rights to have
been impermissibly violated in similar circumstances.55

Defendant’s guilt was a question of fact to be decided by an informed jury. If the
jury had disbelieved D.W.’s testimony, the prosecution would have had no case. No
other evidence linked defendant to the crimes. The jury was left without critical pieces of
evidence to evaluate D.W.’s testimony, and this effectively rendered defendant
defenseless. The trial court erred by refusing to allow defendant to develop evidence
about the prior allegations of sexual abuse by D.W.’s grandfather. The error was not
harmless beyond a reasonable doubt.

CONCLUSION

inappropriate sexual acting out could have been occasioned solely by abuse she suffered
by someone other than defendant.
55
See, e.g., McBride, 521 F3d 443 (concluding that the defendant had a constitutional
right to introduce evidence of past sexual abuse of the child-victim to provide an
alternative explanation for the child’s psychological profile); United States v Bear Stops,
997 F2d 451, 457 (CA 8, 1993) (holding that the defendant’s constitutional rights were
violated when he was prohibited from introducing evidence that the six-year-old
complainant had been sexually assaulted previously because the evidence “provide[d] an
alternative explanation for the prosecution’s persuasive evidence about [the victim’s]
behavioral manifestations of a sexually abused child”).
 19

There are limited situations where the rape-shield act is irreconcilable with a
defendant’s Sixth Amendment rights. In those situations, the statute must yield to a
defendant’s constitutional rights of confrontation and to a fair trial. When the rape-shield
act and a defendant’s rights of confrontation conflict, the trial court must balance the
state’s interest in protecting the victim against the importance of the evidence to the
defense.

In this case, the trial court violated defendant’s rights by barring all evidence that
D.W.’s grandfather had previously sexually abused her. Defendant’s defense was
critically impaired when he was prevented from showing an equally plausible alternative
explanation—that the child’s grandfather had abused her in the past. Defendant is
entitled to a new trial. Therefore, I dissent from the denial of leave to appeal.

MARKMAN, J. (dissenting).

I respectfully dissent and would reverse defendant’s convictions and remand for a
new trial. I believe that the trial court seriously erred in relying on the rape-shield statute
to preclude defendant from introducing evidence concerning past sexual abuse of the
complainant. As a result, the jury was presented with an incomplete and distorted picture
of what had occurred, the truth-seeking process of the criminal justice system was
compromised, and defendant, in my judgment, was denied a fair trial. By denying leave
to appeal, this Court upholds defendant’s convictions while depriving him of substantial
relevant evidence with which to defend himself.

I. History
A jury convicted defendant of two counts of first-degree criminal sexual conduct
(CSC-1) pursuant to MCL 750.520b(1)(a)(sexual penetration with a person under 13
years of age). The charges arose out of two alleged incidents with defendant’s
stepdaughter, complainant DW. On the first day of trial, the prosecutor requested a
ruling by the court to prohibit defense questioning regarding any previous allegations
made by DW of sexual abuse.56 The trial court determined that such testimony would be
contrary to the rape-shield statute and ruled that defendant could not elicit such
testimony.

During trial, DW testified that defendant performed certain acts with her. She
described sexual acts that a child of her age — nine years old — typically would not have
knowledge of or be able to describe. Despite this testimony, defendant was prohibited
from introducing evidence that DW could have learned about such acts not only from
DW’s alleged abuse, but also from the abuse alleged against her step-grandfather. Dr.
Stephen Guertin, the medical doctor who examined DW after her allegations against her
56
Prior to her allegations against defendant, DW had alleged that her step-grandfather
sexually abused her.
 20

step-grandfather, and also after her allegations against defendant, testified that DW’s
history led him to believe that she had been abused. Defendant, however, was again not
allowed to explore DW’s past allegations and how the conduct that was the subject of
these allegations might have affected Dr. Guertin’s opinion.

The jury subsequently convicted defendant on both counts of CSC-1, and the
Court of Appeals affirmed. People v Parks, unpublished opinion per curiam of the Court
of Appeals, issued May 18, 2004 (Docket No. 244553). We held defendant’s application
for leave to appeal in abeyance, pending our decision in People v Jackson, 477 Mich
1019 (2007). In Jackson we held that “testimony concerning prior false allegations does
not implicate the rape-shield statute.” Id. We remanded this case to the trial court to
afford “the defendant the opportunity to offer proof that the complainant made a prior
false accusation of sexual abuse against another person.” 478 Mich 910 (2007).

The trial court held an evidentiary hearing in accordance with our remand order.
The testimony provided a glimpse of DW’s life leading up to the present allegations
against defendant. DW spent the first four years of her life living with her mother, Terry,
and her grandmother and step-grandfather in Missouri. During that time, when DW was
around three years old, she fell off a golf cart and suffered a closed-head injury. The
injury has affected DW’s development, and she still receives medical treatment,
including drug treatment, in order to limit seizures caused by the injury.

In 1995, when DW was four years old, Terry, who was then pregnant, moved with
DW to Michigan, where they met defendant, who began living with them. Terry and
defendant married and had a child of their own. During this period, DW began acting out
in various sexual ways, all of which were inappropriate for a child of her age. When
asked why she was behaving in such a manner, DW described certain occasions on which
her step-grandfather had allegedly abused her.57

Terry and defendant sought help in connection with DW’s allegations against her
step-grandfather, including contacting the Family Independence Agency (FIA). During
DW’s interview with the FIA, she did not disclose any past abuse by her step-
grandfather. The FIA, however, referred DW to Dr. Guertin for an examination.

In 1996, Dr. Guertin examined DW with respect to the allegations about her step-
grandfather, but he did not find any physical manifestation of the molestation. DW also
did not disclose to Dr. Guertin abuse by her step-grandfather. Defendant and Terry were
unable to pursue the allegations any further.
57
DW told defendant that her step-grandfather had touched her vagina and put his penis
in her mouth. The language DW used in relating this abuse is similar to the language she
used to describe the alleged acts by defendant and demonstrated sexual knowledge
clearly inappropriate for a four- to five-year-old child.
 21

In 1998, Terry left with her three children, including DW. Shortly thereafter,
defendant received a call from a police officer in Oregon, inquiring about the children.
Terry had apparently been charged with drug offenses, and the children were at risk of
being placed in foster care. Defendant arranged for the children to come live with him,
which they did in early 1999. Around that same time, defendant began living with Julie
Sutliff. Sutliff testified at the evidentiary hearing that DW exhibited sexually
inappropriate behavior, and when Sutliff asked DW about her behavior, DW told Sutliff
about the incidents with her step-grandfather.

The trial court determined that DW’s past allegations of abuse by her step-
grandfather were not “false” and thus remained within the scope of the rape-shield
statute. Defendant again sought leave to appeal in this Court, and we heard oral
argument regarding, among other things, whether DW’s allegations against her step-
grandfather are inadmissible on the basis of the rape-shield statute. 481 Mich 860.

II. Rape-Shield Statute
The rape-shield statute, MCL 750.520j, reads in part:

(1) Evidence of specific instances of the victim’s sexual conduct,
opinion evidence of the victim’s sexual conduct, and reputation evidence of
the victim’s sexual conduct shall not be admitted under sections [MCL
750.520b to 750.520g] unless and only to the extent that the judge finds
that the following proposed evidence is material to a fact at issue in the case
and that its inflammatory or prejudicial nature does not outweigh its
probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the
source or origin of semen, pregnancy, or disease.
This statute only excludes evidence of the “victim’s sexual conduct.” Thus, any inquiry
into the statute’s application must focus on the meaning of “conduct.” The ordinary
meaning of “conduct” is harmonious with the Legislature’s use of “conduct” throughout
the enacting legislation, 1974 PA 266,58 and with the Legislature’s purposes in enacting
the rape-shield statute. Each of these interpretative guides strongly suggests that
“conduct” refers only to volitional actions by the victim and does not encompass
involuntary acts such as those that stem from being subjected to sexual abuse.

The definition of “conduct” varies little from dictionary to dictionary. Conduct is
defined as: “personal behavior; way of acting; deportment,” Random House Webster’s
58
This amended the criminal code with comprehensive legislation covering criminal
sexual conduct (CSC). MCL 750.520a et seq.
 22

College Dictionary (1997); “[t]he way a person acts; behavior,” The American Heritage
Dictionary of the English Language (1981); and “[t]he manner of guiding or carrying
one’s self; personal deportment; mode of action; behavior,” Webster’s Revised
Unabridged Dictionary (1996). The common theme of these definitions is that “conduct”
pertains to an individual’s own behavior, to actions initiated or set in motion by the
individual. Being the victim of, or having been subjected to, sexual abuse by another
does not by this definition of “conduct” constitute something within the scope of the
rape-shield statute, and therefore should not be excluded from evidence under the
authority of this statute.

This interpretation of “conduct” is further supported by the Legislature’s use of
“conduct” throughout the rape-shield statute. If “conduct” is read to include abuse
perpetrated against the victim by other persons, then references in the statute, MCL
750.520j(1), to “opinion evidence of the victim’s sexual conduct” and “reputation
evidence of the victim’s sexual conduct” make no sense. Reputation and opinion
evidence are typically based on a person’s character, such as the person’s tendency for
aggression.59 A person’s character and conduct are similar at least in the sense that they
are each formed by voluntary decisions made by that individual. Actions concerning
which an individual has no control cannot be said to establish a person’s character, so
when the Legislature extended protection from reputation and opinion evidence in MCL
750.520j(1), it likely understood that such evidence could only apply with respect to a
victim’s sexual history over which the victim has control. Thus, the ordinary volitional
understanding of “conduct” also fits within the context in which it is used in the rape-
shield statute, whereas a broader definition, encompassing non-volitional behavior,
including sexual abuse by others, does not.

The statute provides additional insight on the meaning of “conduct” by
distinguishing “conduct” from “activity” in paragraphs (a) and (b) of MCL 750.520j(1).
These paragraphs set forth two exceptions to the general inadmissibility of evidence
regarding a “victim’s sexual conduct” in subsection (1). Paragraph (a) renders admissible
evidence of the “victim’s past sexual conduct with the actor,” and paragraph (b) renders
admissible “specific instances of sexual activity” concerning the “source or origin of
semen, pregnancy, or disease.” “Activity” does not connote the concept of volition to the
same extent as “conduct.” “Activity” in paragraph (b) pertains to conditions that directly
result from the physical sex act itself — semen, pregnancy, disease — in which the
concept of volition is essentially irrelevant. In contrast, “conduct” in paragraph (a)
pertains to a range of interpersonal behavior that extends beyond the physical act itself,
and in which the concept of volition may be quite relevant in assessing whether the
victim chose to behave in such a way that the defendant should be deemed less culpable,
59
This Court recognized that “sexual reputation,” when presented to show that the victim
consented, is “simply a variation of character evidence.” People v Hackett, 421 Mich
338, 348 (1985).
 23

or not culpable at all, for the alleged offense. Interpreting “conduct” to include non-
volitional action blurs the Legislature’s apparently careful distinction between “conduct”
and “activity.”

The Legislature’s use of “conduct” throughout 1974 PA 266 further supports
interpreting “conduct” to include only volitional actions. See, e.g., MCL 750.520b
(describing first-degree criminal sexual “conduct”). It seems unlikely that the Legislature
intended to punish non-volitional activity under the criminal code. Interpreting
“conduct” to mean only volitional action maintains this understanding. “Identical
language should receive identical construction when found in the same act.” People ex
rel Simmons v Munising Twp, 213 Mich 629, 633 (1921).

Further uses of “conduct” in 1974 PA 266 are found in MCL 750.520a, in which
the Legislature defined “actor” as “a person accused of criminal sexual conduct,” MCL
750.520a(a), and “victim” as “the person alleging to have been subjected to criminal
sexual conduct,” MCL 750.520a(s). These definitions distinguish a person who has
chosen to perform a certain act from one who had no choice in performing such act. If a
victim, for example, is raped by an actor, the rape is considered to be the actor’s conduct.
The victim is considered to have been “subjected to” the conduct, strongly suggesting
that rape is not fairly characterized as the victim’s conduct.60 Rather, it would only be the
“conduct” of the person who chose to perform the act.61

The overall purpose of the rape-shield statute also supports understanding
“conduct” by its normal definition to encompass only volitional activity. MCL 750.520j
was clearly enacted to prevent the introduction of embarrassing evidence regarding the
victim’s sexual history at trial.62 Such prohibition, it was hoped, would increase the

60
I disagree with the concurring justice who states that a victim “take[s] part in” the
sexual abuse to which he or she is subjected. Ante at 6. A person who is forced to endure
such abuse, or may not even be aware of it (e.g., where the victim is sleeping or
unconscious), cannot in normal parlance be said to have “take[n] part in” such act.
61
Still further support is provided by the Legislature’s definitions of “mentally incapable”
and “mentally incapacitated” in MCL 750.520a. The definitions refer to mental illness
and altering substances that “render[] [a person] incapable of appraising the nature of his
or her conduct.” MCL 750.520a(i); see MCL 750.520a(j) (using language only slightly
different from MCL 750.520a[i]). Here, “conduct” also retains its essence that an activity
be volitional, because the gist of the definitions is that the person can no longer control
his or her actions because of mental illness or the influence of drugs.
62
This Court has observed that MCL 750.520j(1) was enacted to encourage victims to
report sexual assaults by reducing a complainant’s fear that “the trial proceedings would
veer from an impartial examination of the accused’s conduct on the date in question and
instead take on aspects of an inquisition in which complainant would be required to
 24

likelihood that sexual assault victims would report such assaults and not be deterred from
doing so by the prospect of embarrassment. Yet, reading the rape-shield statute to
exclude evidence regarding past abuse suffered by the victim bears no apparent
relationship to this purpose. While any person may well be uncomfortable about
revealing past instances in which he or she was sexually abused, such uneasiness is
sharply distinct from the kind of embarrassment that rape-shield statutes were designed to
foreclose — embarrassment caused as a function of one's own misbehavior or
questionable conduct.63

By enacting the rape-shield statute, the Legislature also sought to eliminate the
potential for a defendant to exploit a victim’s sexual history to imply consent in the
defendant’s case.64 What is at issue in this case — the admissibility of evidence that the
victim was previously abused by a person other than the defendant — cannot be similarly
exploited by the defendant.

III. “Sexual Conduct”
With the understanding that the rape-shield statute only applies to volitional acts,
evidence regarding DW’s allegations against her step-grandfather does not qualify for
exclusion as “the victim’s past sexual conduct.” The testimony at the evidentiary hearing
indicates that DW’s step-grandfather may have “subjected” her to various sexual acts,
none of which DW chose to perform. Accordingly, defendant should have been allowed
to present evidence regarding this past sexual abuse.65

Because of the trial court’s erroneous interpretation of the rape-shield statute,
rather than the jury basing its decision regarding defendant’s guilt on all the relevant
information, the jury was forced to make assumptions based on incomplete information.
In particular, in order to confront the unsettling fact that DW was able at nine years of
age to describe certain sex acts she alleged defendant had performed on her, the jury was
more likely to conclude that defendant actually had performed those acts. The jury was
acknowledge and justify her sexual past.” People v Arenda, 416 Mich 1, 9 (1982),
quoting People v Khan, 80 Mich App 605, 614 (1978) (quotation marks and citation
omitted).
63
See, e.g., In re Michael, 119 Ohio App 3d 112, 121 (1997) (“Although evidence of [the
male victim’s] prior sexual abuse would intrude on an intimate detail of his personal life,
such intrusion was not to harass, degrade, or embarrass him, or to generally attack his
credibility by implying that he was immoral or unchaste.”).
64
See Hackett, supra at 353-354 (affirming the trial court’s decision to prohibit the
defendant from trying to establish a victim’s consent by introducing a previous instance
in which she had met a man at a bar and left with him for consensual relations).
65
As a result, it is unnecessary to address defendant’s constitutional argument regarding
his Sixth Amendment right to confrontation.
 25

not allowed to hear and evaluate an alternative explanation that DW may have learned
about such acts not from defendant, but from her step-grandfather. If the jury had been
apprised of DW’s allegations of previous abuse, it may well have come up with a
different explanation concerning the source of DW’s precocious sexual knowledge and
thereby reached a different conclusion regarding defendant’s guilt.66

Equally troubling is the void left by Dr. Guertin’s testimony. Dr. Guertin testified
that he had examined DW in 1996, but the jury received no information regarding what
prompted that examination. Instead, Dr. Guertin testified that during his most recent
examination of DW, which followed in time the present allegations against defendant, he
discerned no physical signs of abuse but concluded on the basis of DW’s history that she
had been sexually abused.67 The trial court then instructed the jury not to consider the
1996 examination as relevant to the instant charges. As a result, the jury heard that DW
had likely suffered abuse and was aware of only one possible source of that abuse —
defendant. Thus, by improperly expanding the purview of the rape-shield statute, the trial
court left the jury with a distorted picture of defendant’s potential role in previously
abusing DW. Defendant had no way of presenting evidence that DW’s history
potentially included abuse by another individual. The court’s limitation on Dr. Guertin’s
testimony unfairly subjected defendant to a process in which the jury heard evidence
suggesting his guilt, but did not hear any testimony by defendant with which he could
dispel this suggestion.

IV. Response to Concurrence
(1) The concurring justice asserts that the interpretation of MCL 750.520j set
forth in this dissent would “give rape victims fewer privacy interests than prostitutes
under the rape-shield statute.” Ante at 1. Although an attention-getting observation, I fail
to see how this is either relevant or true. The rape-shield statute bars evidence of
volitional sexual behavior, regardless of whether the complainant is a prostitute, a rape
victim, or any other person, whatever the complainant’s gender, profession, race, color,
66
See, e.g., Buttrey, Michigan’s rape-shield statute and the admissibility of evidence
that a child complainant has been previously molested, 15 TM Cooley L R 391, 391-393
(1998) (questioning the logic of allowing a jury to assume that the defendant is the sole
source of a complainant’s sexual knowledge where evidence indicates additional
sources).
67
The following is the relevant exchange between the prosecutor and Dr. Guertin:
Q: Okay. And without going into what history it is that she gave or
what allegations she made, if you will, what was your finding?
A: The child gave a history. The history was significant in my
opinion. The examination was normal. The examination based on her
history would be expected to be normal, and it was my impression based on
the contents of the history that she likely had been fondled.
 26

creed, lifestyle, or history of sexual promiscuity. Evidence of volitional sexual behavior
is barred with regard to all complainants. Similarly, all complainants are treated exactly
the same with regard to non-volitional sexual behavior.

(2) The concurring justice states that defendant’s “failure to preserve the
appropriate claim of error is, by itself, a sufficient — and [his] primary — basis for
denial.” Ante at 4. Yet, defendant did preserve his claim of error by arguing before the
trial court that DW’s allegations should not be precluded by the statute. In any event, as
the concurring justice himself has stated, “addressing a controlling legal issue despite the
failure of the parties to properly frame the issue is a well understood judicial principle.”
Mack v Detroit, 467 Mich 186, 207 (2002) (Young, J.). A majority of this Court has
already held that defendant’s claim of error warranted a hearing by the trial court
regarding the falsity of DW’s allegations. Now that the trial court has determined that the
allegations were not false, the controlling issue is whether the preclusion of evidence was
proper in that it constituted the victim’s “sexual conduct.” Where a defendant’s guilt, and
resultant exposure to a sentence of imprisonment for life, potentially rests entirely upon
the interpretation of a statute, I believe this Court should “set forth the law as clearly as it
can, irrespective of whether the parties assist the Court in fulfilling its constitutional
function.” Id. at 209.

(3) The concurring justice also contends that my “understanding of the term
‘conduct’ artificially restricts the term to voluntary behavior.” Ante at 6. I fail to see
how using an ordinary definition of an ordinary term injects anything “artificial” into the
interpretative process. The beginning point of statutory interpretation is to understand
what the Legislature intended by its use of a word in context. Indeed, the concurring
justice seems to agree with such an approach when he concludes that the “longstanding
definition” of “conduct” is “personal behavior.” Ante at 6 n 14. Yet, he never addresses
what this definition means in the context of the victim’s “sexual conduct.” Instead, he
concludes that “conduct” can encompass “both voluntary behavior and involuntary
behavior,” ante at 6, and, to support this conclusion, relies on a single, stray reference to
“conduct” set forth in a decision predating the rape-shield statute by 54 years, having
nothing to do with the meaning of “conduct,” and relating in not the slightest way to rape
or sexual behavior of any kind. Ante at 6 n 15. Quite apart from the fact that it is
“conduct,” not “personal behavior,” that is the subject of interpretation here, the
concurring justice’s invocation of “personal behavior” in support of his position
disregards that this latter term also describes the manner in which a person acts under his
or her own will. For example, if asked to describe a person’s “driving behavior,” or more
specifically his or her “personal driving behavior,” a response might typically reference
how fast that person chooses to drive or how that person interacts with other drivers on
the road. On the other hand, “personal driving behavior” would not typically refer to a
person having been rear-ended at a stop light or having been cut off by another driver.
Similarly, a person’s “personal sexual behavior” might typically refer to that person’s
promiscuity or lack thereof, or to his or her sexual preferences or inclinations. It would
 27

not, however, typically refer to instances of sexual abuse against that person in which he
or she had no control.

(4) The concurring justice argues that, although the initial bill included the
phrase “consensual sexual activity,” the bill actually enacted included an amendment
“that deleted the word ‘consensual.’” Ante at 7. This argument fails to recognize that the
amendment, in fact, replaced “consensual sexual activity” with “sexual conduct,” rather
than merely deleting the word “consensual.” If anything, this amendment suggests that
the Legislature considered “conduct” to be an altogether suitable substitute for
“consensual activity.”

(5) The concurring justice’s citation of People v Arenda, 416 Mich 1 (1982),
has little bearing on the present issue because the defendant in that case did not raise any
argument regarding the meaning of “conduct,” and the Court did not address this issue at
all. Ante at 8. Instead, Arenda focused exclusively on the constitutionality of the rape-
shield statute and never explored the meaning of a victim’s “sexual conduct.”

(6) The concurring justice would require the defendant to demonstrate that
“another person was convicted of criminal sexual conduct (CSC) involving the
complainant” before being allowed to reference DW’s past allegations. Ante at 13, citing
People v Morse, 231 Mich App 424 (1998). Again, I disagree. First, Morse only applies
to “conduct” barred by the rape-shield statute and DW’s prior allegations do not
constitute “conduct.” Second, the jury was allowed to hear Dr. Guertin’s testimony,
which was influenced by DW’s prior allegations, even though her step-grandfather was
never convicted of CSC. Defendant was denied an opportunity to explore those same
allegations. Requiring defendant to first show that a CSC conviction arose out of the
allegations would subject defendant to a burden higher than that of the prosecutor as a
precondition to presenting evidence to the jury.

(7) Finally, the concurring justice states that the Legislature “has determined
that the fact that a complainant had been abused in the past is simply irrelevant to her
present credibility.” Ante at 11. Here, however, it is not the abuse, but the allegations of
such abuse, that go to DW’s credibility because she testified at the preliminary hearing
that she never made any previous allegations. Further, although the concurring justice
acknowledges that such past allegations may be important in “explaining D.W.’s age-
 28

inappropriate sexual knowledge and behavior,” ante at 11, he overlooks the importance
of these allegations in also explaining Dr. Guertin’s testimony. Dr. Guertin told the jury
that he had concluded, based on DW’s history, that DW had likely been abused. The
jury, however, had no way of knowing that DW’s “history” included allegations of past
abuse and that these allegations, rather than any conduct by defendant, may have
contributed to Dr. Guertin’s conclusion.68 Allowing defendant to be convicted with such
incomplete information seriously affects the integrity of the trial process and
compromises its truth-seeking mission.

V. Conclusion
For these reasons, I would remand for a new trial. Defendant should be allowed
the opportunity to present evidence regarding DW’s allegations against her step-
grandfather and their relevance to the charges against defendant.

CAVANAGH, J., joins the statement of MARKMAN, J.

68
The concurring justice suggests that defendant could have defended against the jury’s
incomplete knowledge of DW’s history by questioning Dr. Guertin about the “causal
relationship between [his] conclusion and the abuse that defendant was charged with
committing.” Ante at 13 n 40. Such questioning, of course, would still have left the jury
in the dark about any alternative source of abuse and, even more problematically, the
jury may well have assumed, to the further detriment of defendant, that DW’s history
included additional abuse by defendant for which he had previously been charged.

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 5, 2009 _________________________________________
0602 Clerk