Whether evidence a victim viewed lawful pornography, without more is “sexual conduct” subject to the exclusionary bar of the rape-shield statute; “Sexual”; People v Arenda; Basham v Commonwealth (KY); State v Rorie (NC); People v Mason (IL); Whether the evidence was otherwise admissible under the rules of evidence; MRE 401-403; Prior sexual abuse; In camera hearing; Sexual conduct between complainants; Right to present a defense; Discovery of the complainants’ privileged records

The court concluded that evidence “a victim viewed lawful pornography, without more, is not ‘sexual conduct’ subject to the exclusionary bar of the rape-shield statute.” Thus, it remanded the case “to the trial court for consideration whether evidence that” one of the complainants, SU, “viewed pornography is otherwise admissible under the rules of evidence.” The court affirmed “the trial court’s orders excluding evidence of prior sexual conduct by the complainants and denying discovery of the complainants’ privileged records.” This interlocutory appeal arose out of the alleged sexual assault of the minor complainants—AU, MU, and SU—by defendant-Masi. Masi argued that the trial court erred by excluding evidence AU and SU had, at various times, viewed pornography. Masi initially asserted that this evidence “is not subject to the rape-shield statute because it is not ‘sexual conduct’ under the law.” The court held that while “the act of viewing pornography constitutes conduct, definitions of ‘sexual’ leave ambiguity about whether the Legislature intended for the phrase ‘sexual conduct’ to pertain to evidence that a victim viewed lawful pornography.” The question was “not whether lawful pornography itself involves content of a sexual nature—we agree that it does—but whether mere exposure or viewing of lawful pornography constitutes sexual conduct. The dictionary definitions do not offer a conclusive resolution of this question. Put another way, while lawful pornography traditionally involves images or videos of individuals engaged in sexual activity, it does not necessarily follow that the individual watching the pornography is engaged in sexual conduct. Particularly with minor victims, viewing pornography could be evidence of a variety of things, including curiosity or accident, that are not sexual in nature.” Our Supreme Court in Arenda “suggested that the sources of a victim’s sexual knowledge may not themselves constitute evidence of ‘sexual conduct.’” The evidence Masi sought to admit included evidence SU viewed pornography on her own. “Without more, such as evidence that the viewer engaged in acts of sexual gratification, evidence of viewing pornography is not ‘sexual conduct’ prohibited under MCL 750.520j.” Further, the court gave “persuasive value to caselaw from sister states that has reached a similar conclusion.” The court emphasized that its “conclusion is confined to the circumstances before us, where there is no evidence that the viewer engaged in sexual acts.”