Michigan's Rape Shield Law: MCL 750.520j and MRE 404(a)(2)(C)

Michigan's rape shield law is a statute, MCL 750.520j. In a criminal sexual conduct prosecution it keeps out evidence of specific instances of the complainant's sexual conduct, opinion evidence about it and reputation evidence about it, unless the evidence fits one of two narrow categories and the judge finds it material and not more inflammatory or prejudicial than probative.^[1][2]

This page explains what the statute covers, the matching rule of evidence, the two exceptions, the motion and hearing procedure, and the situations in which the constitutional right to confront witnesses requires a court to admit evidence the statute would otherwise bar.

What does MCL 750.520j keep out?

The statute names three kinds of proof: "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." None of them may be admitted "unless and only to the extent that the judge finds" that the proposed evidence falls within one of the two listed categories, is material to a fact at issue, and that "its inflammatory or prejudicial nature does not outweigh its probative value."^[1][2]

By its terms the statute applies to prosecutions "under sections 520b to 520g" of the Penal Code, which are first- through fourth-degree criminal sexual conduct and assault with intent to commit criminal sexual conduct.^[1] The offenses themselves are set out in the overview of the four degrees of criminal sexual conduct.

The statute was added by 1974 PA 266, effective April 1, 1975, and its history line shows no amendment since.^[1]

Is there a "Rule 412" in Michigan?

No. People who have read about federal law sometimes look for a Michigan Rule 412. The Michigan Rules of Evidence do not have one.^[3] Since the restyled rules took effect on January 1, 2024, the rule that corresponds to the statute is MRE 404(a)(2)(C), which says that "in a criminal-sexual-conduct case, the defendant may offer evidence of: (i) the alleged victim's past sexual conduct with the defendant, and (ii) specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease."^[3]

So the shield comes from two places: the statute, MCL 750.520j, and the character-evidence rule, MRE 404(a)(2)(C).^[1][3]

The two statutory exceptions

Category	Statutory words	Still subject to
Conduct with the accused	"Evidence of the victim's past sexual conduct with the actor."[2]	The judge's finding that it is material to a fact at issue and that its inflammatory or prejudicial nature does not outweigh its probative value[1]
Physical source evidence	"Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease."[2]	The same judicial findings[1]

Two points about these categories are worth knowing. In People v Adair, as the Sexual Assault Benchbook quotes it, the Michigan Supreme Court said "past" sexual conduct "refers to conduct that has occurred before the evidence is offered at trial."^[7] And the balancing test in the statute is not the ordinary one: MRE 403 lets a court exclude relevant evidence only if its probative value is "substantially outweighed" by dangers such as unfair prejudice, while the statute keeps the evidence out unless its inflammatory or prejudicial nature "does not outweigh" its probative value.^[8][1]

What counts as "sexual conduct"?

Not everything connected with sex is "sexual conduct" under the statute. The Sexual Assault Benchbook quotes the Michigan Supreme Court's 2018 decision in People v Sharpe: "the Legislature has ipso facto made clear that semen, pregnancy, or disease, while perhaps related to sex, are not themselves the specific instances of sexual conduct envisioned by MCL 750.520j."^[9]

The benchbook also summarizes People v Masi, a 2023 Court of Appeals decision, as holding that evidence of previous sexual abuse is evidence of a specific instance of a victim's previous sexual conduct for purposes of the statute.^[10]

The procedure: a 10-day motion and an in camera hearing

1. Written motion and offer of proof. A defendant who proposes to offer evidence under either exception "within 10 days after the arraignment on the information shall file a written motion and offer of proof."^[4]
2. In camera hearing. The court "may order an in camera hearing to determine whether the proposed evidence is admissible."^[4] The Sexual Assault Benchbook states that the hearing takes place on the record but outside the presence of the jury and the public.^[11]
3. New information during trial. If new information is discovered during the trial that may make the evidence admissible, the judge may order an in camera hearing then.^[4]

As the Abadi passage quoted below puts it, the arraignment on the information occurs only after the defendant is bound over to the circuit court.^[12] The sequence of a felony case is laid out in the timeline of a felony CSC case.

What if the motion is late?

In Michigan v Lucas the U.S. Supreme Court said the notice-and-hearing requirement "serves legitimate state interests in protecting against surprise, harassment, and undue delay," and that failure to comply "may in some cases justify even the severe sanction of preclusion."^[13] The Sexual Assault Benchbook reports that on remand the Michigan Court of Appeals concluded the question must be decided case by case, and that in a later case the court found error where a trial judge excluded the evidence "solely on the basis of defendant's failure to give notice, without exercising its discretion."^[14]

At the preliminary examination

The Sexual Assault Benchbook quotes a 2026 Court of Appeals decision, People v Abadi, on how this works before a case reaches circuit court. According to the quoted passage, the written motion and offer of proof "is required only after arraignment on the information occurs," so it is "a procedural step that is imposed by the statute only after a preliminary examination either occurs or is waived."^[12] The benchbook quotes the same opinion as saying that "the applicable authority for determining whether evidence of the complainant's past sexual activity [is] admissible during a preliminary examination [is] MRE 404(a)(2)(C), not MCL 750.520j."^[12] This page relies on the benchbook's quotations of Abadi and describes the case no further than they go. The hearing itself is covered in the preliminary examination in CSC cases.

When the Constitution requires more: bias, motive and prior false accusations

A defendant has a constitutional right to confront the witnesses against him or her. In People v Hackett the Michigan Supreme Court recognized that in limited situations evidence of a complainant's sexual conduct may have to be admitted to preserve that right. The Court's examples, as the Sexual Assault Benchbook quotes them, were evidence offered "for the narrow purpose of showing the complaining witness' bias," evidence "probative of a complainant's ulterior motive for making a false charge," and proof "that the complainant has made false accusations of rape in the past."^[5]

The same decision tells trial judges which way to lean. The court "should always favor exclusion of evidence of a complainant's sexual conduct where its exclusion would not unconstitutionally abridge the defendant's right to confrontation."^[15]

The process starts with the defense. As the benchbook describes Hackett, the defendant must make an offer of proof and demonstrate the relevance of the evidence to the purpose for which it is offered; if that showing is not sufficient, the trial court should deny the motion.^[16] If the offer of proof is sufficient and the right of confrontation is implicated, meaning the evidence is not sought simply as character evidence or for impeachment, the trial court must order an in camera hearing.^[16] The Supreme Court said in People v Butler (2024) that "[o]nce a sufficient offer of proof is made, the in camera evidentiary hearing is not optional."^[17] This differs from the statutory hearing on the two listed exceptions, which the statute says the court "may" order.^[4] At that hearing, Hackett says, the judge has "the responsibility to restrict the scope of cross-examination to prevent questions which would harass, annoy, or humiliate sexual assault victims and to guard against mere fishing expeditions."^[18]

The benchbook states that testimony about prior false allegations of sexual misconduct does not implicate the rape shield statute, citing the Court of Appeals in People v Williams and a 2007 Michigan Supreme Court order, People v Jackson.^[19] For an offer of proof on that subject to warrant a hearing, the benchbook quotes Butler as requiring "a showing of at least some apparently credible and potentially admissible evidence that the prior allegation was false."^[20] That subject has its own page: false allegations and the rules on impeachment.

The right has limits. The benchbook describes People v Arenda, where the defense argued that a child's sexual conduct with others would explain his ability to describe the acts; the Supreme Court found that applying the statute did not infringe the right to confrontation, noting that other means of cross-examining the child on that ability were available.^[21]

The statute applies to the prosecution too

The shield is not only a limit on the defense. In Sharpe the Supreme Court said "the plain language of the statute does not condition the exclusion of such evidence upon whether the evidence is offered by the prosecutor or by the defendant."^[6] The Court also noted that when evidence such as a complainant's pregnancy is admitted, that "may open the door to the introduction of evidence whose admission may otherwise have been precluded by the rape-shield statute."^[6]

What people get wrong

• "The statute covers every sex-related charge." Its text reaches prosecutions under sections 520b to 520g.^[1] The Sexual Assault Benchbook notes a Court of Appeals case in which accosting a minor was described as "not protected by MCL 750.520j"; the evidence was still excluded there because it was not relevant to the defense.^[22] That offense is explained in accosting a child for immoral purposes.
• "An exception means the evidence comes in." Each exception still depends on the judge's findings on materiality and on prejudice against probative value.^[1]
• "The shield makes the complainant's credibility off limits." It does not. Hackett itself says evidence showing bias "would almost always be material and should be admitted."^[5] How credibility is tested is covered in cases without other witnesses.

How the statute interacts with a consent defense is discussed in the consent defense in CSC cases. The related protections for a complainant's privacy, including name suppression, are in privacy and rights of victims in sex crime cases, and access to therapy records is covered in counseling and medical records.