Other Acts of Sexual Assault as Evidence: MCL 768.27b

MCL 768.27b lets a Michigan court admit evidence that a defendant charged with an offense involving sexual assault committed other acts of sexual assault, "for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403."^[1] The section is sometimes thought of as a domestic violence rule. Its current text is broader than that, and the section has been amended twice, effective March 17, 2019 and April 2, 2025.^[1][6]

This page sets out the statute's current scope, the time limit on older acts and its exceptions, the notice the prosecution gives, and how the statute compares with its companion statute for cases involving minors and with the general rule of evidence on other acts.

What does the statute say now?

Subsection (1) has two halves. The first describes the case: "a criminal action in which the defendant is accused of an offense involving domestic violence, sexual assault, or a violation of chapter LXVII or chapter LXVIIA of the Michigan penal code." The second describes the evidence: "the defendant's commission of other acts of domestic violence, sexual assault, or acts constituting violations of" those chapters.^[1] The Sexual Assault Benchbook describes the two chapters as prostitution and human trafficking.^[1]

"Sexual assault" is a defined term. It "means a listed offense as that term is defined in section 2 of the sex offenders registration act."^[2] That act defines a listed offense as a tier I, tier II, or tier III offense.^[7] Nothing in the definition requires the victim to be a minor.^[3]

The statute's history line reads: added by 2006 PA 78, amended by 2018 PA 372 effective March 17, 2019, and amended by 2024 PA 184 effective April 2, 2025.^[6] The Sexual Assault Benchbook notes that the 2019 amendment expanded, under specific circumstances, the admissibility of prior sexual assaults to include assaults more than 10 years before the charged offense.^[8] This page does not attempt to say exactly which words each amendment added; it describes the text as it stands.

The 10-year limit and its four exceptions

Subsection (4) says that evidence of an act occurring more than 10 years before the charged offense "is inadmissible under this section unless the court determines that 1 or more of the following apply":^[4]

1. "The act was a sexual assault that was reported to law enforcement within 5 years of the date of the sexual assault."^[4]
2. "The act was a sexual assault and a sexual assault evidence kit was collected."^[4]
3. "The act was a sexual assault and the testing of evidence connected to the assault resulted in a DNA identification profile that is associated with the defendant."^[4]
4. "Admitting the evidence is in the interest of justice."^[4]

The first three exceptions apply only where the older act was a sexual assault.^[4] Evidence kits and DNA profiles are explained in sexual assault kit testing deadlines and DNA evidence in sex crime cases.

The 10-year rule limits what is admitted as evidence "under this section."^[4] Whether a charge can still be filed is a separate question, governed by the statute of limitations and covered in delayed reporting of sexual assault.

What notice does the defense get?

A prosecuting attorney who intends to offer evidence under the section "shall disclose the evidence, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered, to the defendant not less than 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown."^[5]

Can the judge exclude the evidence?

Yes. The statute admits the evidence only "if it is not otherwise excluded under Michigan rule of evidence 403."^[1] Under that rule a court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.^[9]

Other rules of evidence also continue to apply. The Sexual Assault Benchbook quotes the Michigan Supreme Court's 2021 decision in People v Propp: "rules of evidence not specifically mentioned in MCL 768.27b may nonetheless be considered when determining whether evidence is admissible," and the statute "does not limit or preclude the consideration of MRE 802, which states that hearsay is generally not admissible."^[10] Hearsay itself is explained in the sister guide's page on hearsay and the Confrontation Clause.

Does the other act have to match the charge?

The benchbook quotes a 2024 Court of Appeals decision, People v Berklund, on this. In a case charging an offense involving domestic violence, "evidence of the defendant's commission of other acts of sexual assault is admissible under MCL 768.27b(1) so long as the evidence is not excluded by MCL 768.27b(4) or MRE 403, and is relevant." The court read the statute as intending the same result in the reverse situation, where the current charge involves sexual assault and the other act involved domestic violence.^[11] This page describes Berklund only as far as the benchbook's quotation goes.

How the same statute is used in domestic violence prosecutions is covered in the sister guide: prior acts of domestic violence under MCL 768.27b.

MCL 768.27b compared with MCL 768.27a and MRE 404(b)

	MRE 404(b)	MCL 768.27a	MCL 768.27b
When it applies	Other crimes, wrongs or acts offered in any case[12]	Defendant accused of a listed offense against a minor[13]	Defendant accused of an offense involving domestic violence, sexual assault, or a violation of the two listed Penal Code chapters[1]
What the evidence may be used for	Not to prove character; may be admissible for another purpose such as motive, intent, plan or identity[12]	"Its bearing on any matter to which it is relevant"[13]	"Any purpose for which it is relevant"[1]
Time limit in the text	None stated in the rule[12]	None stated in the section[13]	More than 10 years before the charged offense is inadmissible unless one of four exceptions applies[4]
Prosecution's notice	In writing at least 14 days before trial, stating the permitted purpose and reasoning, unless excused for good cause[14]	Disclosure at least 15 days before the scheduled trial date, or later for good cause[15]	Disclosure not less than 15 days before the scheduled trial date, or later for good cause[5]

The statutes and the rule are not mutually exclusive. MCL 768.27b says it "does not limit or preclude the admission or consideration of evidence under any other statute, including, but not limited to, under section 27a of this chapter, rule of evidence, or case law."^[16] For cases involving minors, the Michigan Supreme Court's reasoning about propensity evidence and the considerations for excluding it under MRE 403 are explained in other acts against minors under MCL 768.27a.

What people get wrong

"768.27b is the domestic violence statute, so it does not matter in a sex case." The current text names sexual assault both as a kind of charged offense and as a kind of other act.^[1]

"Anything older than 10 years is out." The 10-year bar has four exceptions, one of which is that admitting the evidence is in the interest of justice.^[4]

"Once the statute applies, nothing else matters." MRE 403 is written into the statute, and the Supreme Court has said the hearsay rule still has to be considered.^[1][10]

The rule that limits evidence about a complainant's own sexual history is separate; see Michigan's rape shield law. How other-acts evidence fits into the order of a trial is described in what happens at a CSC trial, and other common misunderstandings are collected in Michigan sex crime myths.