The rape-shield statute (MCL 750.520j); Evidence of an alleged victim’s prior sexual abuse offered to explain the victim’s age-inappropriate sexual knowledge; “Sexual conduct”; People v Parks; People v Arenda; The admissibility test in People v Morse

In an interlocutory appeal, the court held that “evidence related to prior sexual abuse of a minor is ‘sexual conduct’ under” the rape-shield statute (the RSS). But it overruled “the admissibility test articulated in Morse to the extent that it requires evidence of a prior conviction.” Defendant is charged with CSC “arising out of allegations that he sexually abused the minor complainants[.]” He contended that evidence that one of the complainants “viewed pornography during the course of alleged sexual abuse committed by her uncle is not ‘sexual conduct’ under MCL 750.520j(1) and thus is not barred under the” RSS. He also challenged the test set forth in Morse. The court noted the RSS “does not define ‘sexual conduct.’” Consulting dictionary definitions, it interpreted “the plain meaning of ‘sexual conduct’ in MCL 750.520j(1) as encompassing individual behaviors—including acts and responses—that involve or are associated with sexual activities. This interpretation does not require an act of volition. After all, an ‘action and response to stimulation’ need not be volitional.” Thus, it held “that nonvolitional acts, such as involuntarily viewing pornography during the course of sexual abuse, constitute ‘sexual conduct’ within the meaning of the” RSS. Next, the court agreed with the Morse Court of Appeals “panel that, under some circumstances, admission of evidence regarding a complainant’s prior sexual abuse is constitutionally required in light of a defendant’s right to confrontation and right to present a defense.” But it disagreed “that admission of such evidence is constitutionally required only if there was a prior conviction for sexual abuse.” It noted that “none of the caselaw that Morse found persuasive required” this, and the court saw no “persuasive reason to include such a requirement.” It held that once a defendant makes a sufficient offer of proof, “the trial court must hold an in camera evidentiary hearing to determine whether the defendant is constitutionally entitled to present particular evidence that is otherwise excluded under the” RSS. The trial court must determine at the hearing whether “defendant has shown that (1) the prior act occurred, (2) the act closely resembled those at issue, (3) the act is relevant to a material issue, (4) the evidence is necessary to the defendant’s case, and (5) the probative value of the evidence outweighs its prejudicial effect.” Affirmed in part, vacated in part, and remanded to the trial court for such an in camera evidentiary hearing.