MCL 750.520j, Michigan’s rape shield statute, provides that:
(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 … 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.
In its recent opinion in People v. Hoskinson, 2010 WL 5129891 (Mich.App. 2010), the Court of Appeals of Michigan rejected the appellant’s argument that he could present evidence of the alleged victim’s sexual conduct to prove that she consumed a high level of alcohol on the night he allegedly sexually assaulted her. In rejecting this argument, the court concluded: “Allowing the jury to hear about a victim’s sexual past to prove the victim consumed a high level of alcohol is not a recognized exception, and such a rule would violate a victim’s rights under the rape shield statute.”
At first blush, this sentence seems innocuous, something we might see in any case denying an appellant’s rape shield appeal. But at second glance, it seems much more significant.
So, what’s the significance? Well, most rape shield opinions only reference the rights of the defendant, with the question being whether the application of a rape shield rule, a rule of evidence, violates the rights of the defendant. Indeed, Federal Rule of Evidence 412, the federal rape shield rule, specifically indicates that there is an exception to the rule for “evidence the exclusion of which would violate the constitutional rights of the defendant.”
Conversely, you don’t often see a rape shield case mention the victim’s rights. Indeed, a quick WESTLAW search of “victim’s rights” /p “rape shield” returned no results in the ALLFEDS database. The same search returned 8 results, including People v. Hoskinson, in the ALLSTATES database. 4 of these results come from Montana courts, which do seem to embrace the idea of Montana’s rape shield rule vesting rights in the victim.
Some of the other results are less clear. In a Georgia case, it was the appellant himself who claimed that the alleged victim’s rights under Georgia’s rape shield rule had to yield to his right to confront witnesses against him. And, in an Illinois case, the court referenced the alleged victim’s rights under Illinois’ rape shield rule only as part of its finding that those rights had to yield to the defendant’s confrontation rights.
So, the opinion of the Court of Appeals of Michigan in People v. Hoskinson is actually fairly atypical and, I would claim, important. Why? Well, if the prosecution is prosecuting a defendant for rape and loses a rape shield ruling, the prosecution might not choose to appeal that ruling before the evidence is presented And, if the rape shield rule is just a rule of evidence, the alleged victim presumably could not appeal that ruling on her own. But, if the rule creates rights in the victim, maybe she would be able to appeal.
Meanwhile, if an alleged victim in a civil action for sexual assault loses a rape shield ruling ruling, and the rape shield rule is just a rule of evidence, all she has at her disposal is the typical appeal process. But, if the rule creates rights, she might have alternative avenues to relief.
Of course, this all depends on the nature of the rights created by a rape shield rule. Is it a right to privacy? Is it a right to bodily integrity? Is it Constitutionally based? Very few courts have even found that rape shield rules vest rights in victims, let alone addressed the question of what types of rights they create. But perhaps the opinion in People v. Hoskinson is a sign that this is about to change.