Does Michigan's rape-shield statute bar a defendant charged with criminal sexual conduct from introducing evidence that the victim publicly exposed and allowed the fondling of her breasts by third parties earlier the same evening, without having filed the statute's ten-day notice, and does the exclusion violate his right of confrontation?

Defendant was charged with first-degree criminal sexual conduct and kidnapping. The victim testified that defendant penetrated her without her consent. Defendant testified that consensual sexual contact and penetration occurred in his boat, parked in his parents' driveway. Both the victim and defendant were in a bar earlier that evening, though not together. Defendant claimed he saw the victim lift her shirt and expose her breasts to two men at her table, and that she allowed one of them to fondle her breasts. He claimed another witness also saw this. The prosecutor learned of this proposed evidence only during trial. Defendant had not filed the written motion and offer of proof required by the rape-shield statute within ten days of arraignment. Defendant offered the evidence as relevant to whether the victim consented to intercourse with him later that night. Police also seized a pen and a mirror from the boat after defendant's arrest; the victim said she left them there so she could identify the place she had been.

Defendant was tried by jury in circuit court on charges of first-degree criminal sexual conduct and kidnapping and was convicted of third-degree criminal sexual conduct. He was sentenced to three years and nine months to ten years' imprisonment. The circuit court denied his request for a second-degree criminal sexual conduct instruction, excluded the bar-conduct evidence under the rape-shield statute, and denied his motion to suppress evidence seized from his boat. Defendant appealed as of right to the Court of Appeals, which originally reversed his conviction. The Court of Appeals then granted rehearing on its own motion and affirmed.

(Per Curiam)

Yes, the rape-shield statute bars the evidence, and no, its exclusion did not violate defendant's right of confrontation.

Evidence of a victim's sexual conduct with third parties is ordinarily irrelevant to whether she consented to intercourse with the defendant. The Legislature enacted the rape-shield law to encourage victims to report and testify without facing an inquisition into their past, and to bar evidence that is of arguable probative worth and likely to prejudice or mislead the jury. People v Hackett, 421 Mich 338 (1984); People v Arenda, 416 Mich 1 (1982).

The public nature of the conduct does not remove it from the statute, which draws no such distinction. A woman's consensual sexual conduct with one person in public does not indicate she would engage in similar conduct with others. The exposure of the breasts, followed by touching, was sexual conduct. Defendant's having observed the conduct does not make it past sexual conduct with him, because it was directed at the men at her table.

State v Colbath, 130 NH 316 (1988), is distinguishable: the conduct there was a public display of sexual interest involving the defendant directly, the victim left the bar with various men, and a violent assault by the defendant's companion supplied a motive to fabricate. This case is closer to State v Bevins, 140 Vt 415 (1981), where conduct with third parties was irrelevant to consent. Because the evidence was irrelevant, exclusion did not deny confrontation. The failure to hold an evidentiary hearing was harmless.

Second-degree criminal sexual conduct is a cognate, not necessarily included, lesser offense of first-degree criminal sexual conduct. Because the evidence (penetration alleged by the victim, consensual penetration claimed by defendant) was inconsistent with a contact-only theory, the trial court properly refused the instruction. People v Heflin, 434 Mich 482 (1990). Admission of the pen and mirror was harmless because defendant did not dispute the victim was on his boat, and any error in denying a directed verdict on kidnapping did not prejudice him. The conviction is affirmed.

Concurrence (Shepherd, P.J.) Concurs in the result because defendant failed to comply with the ten-day notice provision, which Michigan v Lucas held not per se unconstitutional. Timely notice would have let the prosecutor investigate and the judge hold an in camera hearing on whether the evidence was more probative than prejudicial. Hackett effectively rewrote the statute as a rule of evidence that must preserve the defendant's rights to present a defense and to confrontation, so third-party sexual conduct may sometimes be admissible. But a defendant must give notice even for matters outside the statutory exceptions, because such matters require immediate investigation to preserve corroboration. The prosecutor learned of this defense theory only after trial began, and the trial judge correctly noted the unfairness. Preferring not to reach the merits because defendant's noncompliance prevented any inquiry, Shepherd invites a motion for rehearing on this issue if error is perceived.