PEOPLE v SLOVINSKI
Docket No. 99887
Court of Appeals of Michigan
Submitted October 7, 1987. Decided February 1, 1988.
166 Mich App 158
The Court of Appeals held:
1. The extent to which a witness may be cross-examined on questions affecting his credibility rests in the sound discretion of the trial court. However, character evidence offered to impeach or support a witness’ credibility, other than evidence of a prior conviction for a crime, must be limited to the particular character trait of truthfulness or untruthfulness. In this case, to the extent that the challenged evidence will be offered for
REFERENCES
Am Jur 2d, Constitutional Law §§ 804 et seq.
Am Jur 2d, Criminal Law §§ 135 et seq.
Am Jur 2d, Rape §§ 31-40, 38, 86.
Admissibility in rape case, under Rule 412 of Federal Rules of Evidence, of evidence of victim‘s past sexual behavior. 65 ALR Fed 519.
Constitutionality of “rape shield” statute restricting use of evidence of victim‘s sexual experiences. 1 ALR4th 283.
Modern status of admissibility, in forcible rape prosecution, of complainant‘s prior sexual acts. 94 ALR3d 257.
2. In criminal sexual conduct cases, evidence of alleged prostitution is probative on the issue of consent if the fact that a complainant has engaged in intercourse for money has any tendency to make it more probable that the complainant consented to the sex act in issue. In this case, the proffered evidence of alleged specific acts of prostitution is probative on the issue of consent and has a tendency to make it more probable that the complainant entered into a financial arrangement with defendant for sexual acts. Any prejudicial effect such evidence may have would be outweighed by its probative value.
3. Admission of the challenged evidence would not violate
4. The right of an accused to due process is, in essence, the right to a fair opportunity to defend against the state‘s accusations. The rights to confront and cross-examine witnesses and call witnesses in one‘s behalf are critical aspects of due process. In this case, exclusion of the challenged evidence would preclude defendant from presenting a defense of consent and thus would violate defendant‘s rights of due process and confrontation.
5. A sufficient offer of proof was made by defendant regarding the complainant‘s status as an alleged prostitute to allow the admission of evidence of prostitution.
Affirmed.
DANHOF, C.J., dissented. Judge DANHOF would hold that evidence оf the complainant‘s prior sexual unchastity, in the form of reputation evidence or a specific instance of conduct, has little or no relevancy to the issue of the complainant‘s consent with defendant.
1. RAPE — CRIMINAL SEXUAL CONDUCT — EVIDENCE — PROSTITUTION — IMPEACHMENT.
Evidence of prostitution by a complainant in a criminal sexual conduct case is not admissible for purposes of attacking the credibility of the complainant; no logical nexus exists between a complainant‘s reputation as a prostitute and her character trait of truthfulness (
Evidence showing that a complainant in a criminal sexual conduct case was engaged in prostitution at the time of the alleged offense is admissible for the purpose of establishing a defense of consent where such evidence is probative on the issue of consent and has a tendency to make it more probable that the complainant had engaged in sеxual intercourse for money.
3. CONSTITUTIONAL LAW — DUE PROCESS.
The right of an accused to due process is, in essence, the right to a fair opportunity to defend against the state‘s accusations; the rights to confront and cross-examine witnesses and call witnesses in one‘s behalf are critical aspects of due process.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.
Kent County Office of the Defender (by James F. Piazza), for defendant on appeal.
Before: DANHOF, C.J., and CYNAR and J. E. MIES,* JJ.
CYNAR, J. The people appeal by leave granted from an order granting defendant‘s motion allowing introduction of evidence alleging complainant to be a prostitute.
Defendant was charged with criminal sexual conduct in the first degree,
* Circuit judge, sitting on the Court of Appeals by assignment.
However, rather than taking the complainant to the bar, defendant drove to a wooded area, parked, and threw her into the back of his van. She hit her head and passed out. When she awoke, defendant had partially removed her jeans and panties, and was engaged in sexual intercourse with the complainant.
After completing the sexual act, defendant allegedly began hitting the complainant about her face and right arm, while calling her a “bitch” and a “slut.” This activity lasted approximately twenty minutes. Defendant then pushed her back into the front seat where he held her by her hair while he kicked her in the fаce. Defendant drove away from the area, stopped and threw the complainant out of the van. He followed her to the ground and continued to hit her until a truck pulled up. At that point, defendant fled. The truck driver summoned an ambulance and the complainant was hospitalized overnight.
On cross-examination, the complainant acknowledged that, at the time of the incident, she told police that she was forced into the van by defendant, while at the preliminary examination she testified that she willingly went with defendant. No explanation was offered regarding this discrepancy. The complainant denied that she was a prostitute. At the close of proofs, defendant was bound over.
After defendant was bound over, he filed a motion on October 6, 1986, seeking an in camera hearing to determine whether defendant could introduce evidence of the complainant‘s past sexual conduct. The in camera hearing was held on March 23, 1987, for the purpose of determining whether defendant could introduce evidence that
At the hearing, defendant testified that on March 17, 1986, he picked up the complainant on Division Street near Rose Street in Grand Rapids. At that time, he spoke with her about “sexual matters” in exchange for money. After their conversation, the complainant agreed to perform oral sex on defendant for money. The complainant went into defendant‘s vehicle and they drove to a “safe spot.” She performed oral sex and defendant paid her. Afterwards, defendant offered more money for sexual intercourse and the complainant agreed.
On cross-examination, defendant stated that he offered the cоmplainant twenty dollars for oral sex and five dollars additional for intercourse. During the oral sex act, defendant allegedly told her to stop and offered her five dollars more to “just let me penetrate you, because you ain‘t doing nothing for me.” She agreed. After the sex acts were over, defendant refused to pay her “because she wasn‘t no good.”
Thereafter, defendant called five witnesses who had positively identified photographs of the complaining witness as a prostitute working the Division and Rose Streets area. Under oath, three of the witnesses declined to positively say that the person in the photographs was known to them as a prostitute. One of the three witnesses had no knowledge of the reputation of the person as being a prostitute. It was revealed that these three witnesses had been interviewed at the Kent County Jail by the public defender‘s investigator, and at the time the witnesses identified the photographs they had been, or were being, represented by the same defender‘s office.
The other waitress stated that she served as a go-between for a restaurant customer and the complainant in that she questioned the complainant as to whether she was a prostitute. The complainant stated that she was. Her price was $50 for oral sex and $75 for other acts. The waitress also testified that during March, 1986, she saw the complainant every night in the restaurant. On cross-examination, the waitress stated that she has acted as a go-between for restaurant customers and prostitutes “at least a hundred times.”
After extensive oral argument, the trial judge ruled that he would not permit testimony from the three witnesses who hesitated about their identification. However, the judge stated that he would allow the two waitresses to testify for the purpose of impeaching the complainant‘s credibility. The court‘s bench ruling was incorporated into an April 24, 1987, order from which the people appeal by leave granted.
On appeal, the prosecution puts forth two arguments against the introduction of evidence that the complaining witness is аllegedly a prostitute. First, such evidence is prohibited by the “rape
Defendant, on the other hand, argues that the introduction of the aforesaid evidence is essential and critical in presenting a defense. He claims that this act of sexual intercourse was consensual arising from a verbally-assented-to agreement of sex for money. In addition, because the complainant denied being a prostitute, her credibility was placed in issue. Defendant should be allowed to impeach the complainant through extrinsic evidence. Finally, defendant maintains that the exclusion of this evidence would constitute a violation of his Sixth Amendment right of confrontation as guaranteed by the United States Constitution.
Our analysis begins with reference to the rape shield statute,
(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 under sections 520b to 520g 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 People v Arenda, 416 Mich 1; 330 NW2d 814
In Arenda, defendant sought to admit evidence of the eight-year-old male victim‘s possible sexual conduct with others to explain the victim‘s ability to describe the sexual acts that allegedly occurred and to dispel any inference that this ability came about from experiences with the defendant. In balancing the рotentially prejudicial nature of this evidence, in light of the legislative purposes behind the statute, against the minimal probative value of the evidence, the Supreme Court concluded that application of the rape shield law did not infringe on defendant‘s confrontation right. The Court noted that other means were available by which defendant could cross-examine the victim as to his ability to describe the alleged conduct. More importantly, however, the Court left for future case-by-case determination the question whether under different facts the statute‘s prohibition would be unconstitutional as applied. Id., p 13. The proper method by which these determinations
Justice KAVANAGH, with Justice LEVIN concurring, dissented on the ground that the categorical legislative determination that such evidence was inadmissible conflicted with a defendant‘s right to present evidence and a defense. They argued that the legislative policies behind the statute should bе balanced against a defendant‘s Sixth Amendment right to present evidence by looking at whether the evidence is relevant and not unduly prejudicial as discussed in Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974).
In a case decided the same day as Arenda, People v Williams, 416 Mich 25; 330 NW2d 823 (1982), the Court was called upon once again to address the constitutionality of the rape shield law as applied to that case. In Williams, all four defendants were prosecuted on charges of first-degree criminal sexual conduct. All four asserted at trial that the complainant had consented to the acts with them as a group. In support of their defense, they sought to introduce evidence that the victim had had intercourse with one of the four and that in the past she had engaged in prostitution. Id., p 31.
On the issue of consent, defendants asserted that introduction of evidence of prior sexual relations between defendant Williams and the complainant was probative of their claim that the complainant consented to have group sex with all four. Id., pp 36-37.
Justice WILLIAMS, writing for the plurality, and applying the general relevance rule,
In addition, the Court rejected defendants’ assertion that the complainant‘s prior sexual acts should have been admitted on the issue of the victim‘s credibility. Justice WILLIAMS stated that the notion of unchaste women being prone to lying was as antiquated and foolish as the belief that simply because a woman consented to intercourse with a third party she probably consented to intercourse with the defendant. Id., p 39. Citing
As to introduction of evidence of prostitution, the Court once more rejected defendants’ basis for such evidence, noting that there was very little evidence indicating that any sex for money was discussed. In light of these facts, the Court stated:
It is evident that defendants did not seek to establish at trial that the complainant consented to sexual intercourse with all four defendants as an act of prostitution. Thus we need not decide whether upon a proper record supporting the defense of financially induced consent, a trial court could constitutionally exclude evidence of prior or past prostitution based on § 520j(2). [416 Mich 42-43.]
Finally, the Court stated that there is no logical relation between a complainant‘s reputation for prostitution and the character trait of truthfulness or untruthfulness. “The law should not recognize any necessary connection between a witness‘s veracity and her sexual immorality.” Id., p 45.
In our opinion it would have been error under the facts of this case for the trial court to have admitted evidence that one of four defendants had past sexual relations with the complainant, and that the complainant was a prostitute. This is not to say, however, that evidence of a complainant‘s prior sexual behavior with a sole defendant or even one of several defendants, or her reputation as a prostitute can never be relevant to an issue presented at trial. Our decision today rests solely on the irrelevance in this particular case of the proffered evidence to the asserted defense of consent and to impeachment of the cоmplainant‘s credibility. It is, therefore, unnecessary to address ourselves to constitutional questions which may arise in the future by the application of this state‘s “rape shield” law to different circumstances of enhanced probative value. Accordingly, we reverse the judgment of the Court of Appeals and reinstate defendants’ convictions. [416 Mich 46.]
The issuance of Arenda and Williams did not settle the question of the rape shield law‘s constitutionality since in Arenda the Court found the law constitutional as applied, while in Williams the Court utilized general evidence rules to determine the admissibility of evidence of prior sexual history of the complainant.
Subsequently, in People v Hackett and its companion case of People v Paquette, 421 Mich 338, 344; 365 NW2d 120 (1984), the Supreme Court addressed once again the constitutionality of the rape shield statute as against the challenge that exclusion of evidence of the victims’ prior sexual conduct with persons other than the defendant violated defendants’ Sixth Amendment rights of confrontation and cross-examination. Before ad-
Ultimately the Hackett Court held that the exclusionary provisions of the statute did not deprive defendants of their right to confrontation. The more interesting aspect of the Hackett decision was the approach taken by the Court in reaching that result. The majority opinion effectively adopted
In Hackett, the majority stated that the statute and “its parallel provisions in the Michigan Rules of Evidence,
However, the Court recognized that there was a dimension of the confrontation clause that guaran-
More importantly, the Hackett majority acknowledged that, although the Legislature had determined that such evidence was not admissible as character evidence to prove consent or for general impeachment, it did not necessarily follow that such evidence was never admissible. Id., p 348.
Thereafter, the Court indicated that in certain limited circumstances such evidence may not only be relevant, but necessary to preserve a defendant‘s confrontation right. The Court then set out some instanсes where such evidence would be admissible:
For example, where the defendant proffers evidence of a complainant‘s prior sexual conduct for the narrow purpose of showing the complaining witness’ bias, this would almost always be material and should be admitted. Commonwealth v Joyce, 382 Mass 222; 415 NE2d 181, 185-186 (1981); see also Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974). Moreover in certain circumstances, evidence of a complainant‘s sexual conduct may also be probative of a complainant‘s ulterior motive for making a false charge. State v Jalo, 27 Or App 845; 557 P2d 1359 (1976); State v Howard, 121 NH 53; 426 A2d 457 (1981). Additionally, the defendant should be permitted to show that the complainant has made false accusations of rape in the past. People v Werner, 221 Mich 123, 127; 190 NW 652 (1922); People v Mikula, 84 Mich App 108, 115-116; 269 NW2d 195 (1978); State ex rel Pope v Mohave Superior Court, [113 Ariz 22, 29; 545 P2d 946 (1976)]. [421 Mich 348-349.]
If defendant‘s offer of proof withstands this level, the trial court continues to possess discretion to exclude the relevant evidence offered where its probative value is substantially outweighed by the risks of unfair prejudice, confusion of issues, or misleading the jury. Id., p 351. See also
The facts in Hackett were as follows: Defendant made an offer of proof to admit evidence of the victim‘s reputation for homosexuality for the purposes of impeaching his credibility and showing consent. Defendant also sought introduction of specific instances of the complainant‘s prior homo-sexual conduct with prisoners of the same race as
The Court rejected defendant Hackett‘s proffered evidence of the victim‘s reputation for homosexual activity to impeach his credibility as a witness, because generally there was no logical nexus between a complainant‘s reputation for unchastity and the character trait for truthfulness or untruthfulness. Id., p 352. The Court also rejected evidence of the victim‘s reputation or specific acts of homosexual conduct as necessary to establish the defense of consent. The Court noted that homosexuality, standing alone, had little or no logical relevance between the prior acts and the issue of consent. Although the Court declared such evidence irrelevant, it is interesting to note that this evidence of alleged homosexual conduct between the complainant and a black male prisoner occurring three days prior to the incident was nonetheless brought out at trial. Justice BOYLE indicated that defendant Hackett was not denied his right to confrontation “since he was given the opportunity, even though limited in fashion, to expose to the jury the complainant‘s past homosexual encounter with a prisoner of the same race as defendant as tending to show his consent in this instance.” Id., p 353. This conclusion raises an interesting question whether the Hackett majority would have permitted this prior instance, if it had not been introduced at the trial. The Court‘s analysis is not clear on this point.
The most recent Supreme Court case construing the rape shield law concerned the admissibility of evidence of prior sexual conduct between the complainant and defendant, People v Perkins, 424 Mich 302, 303; 379 NW2d 390 (1986). The Court, in
With the foregoing background and discussion, we now turn to the task of deciding whether the application of the rape shield statute and its counterpart,
IMPEACHMENT
In his first assertion for permitting evidence that the complainant is an alleged prostitute, defendant alleges that the complainant‘s past conduct is relevant on the issue of credibility because she denied being an alleged prostitute, thereby placing herself in a false light. Defendant claims that, through extrinsic evidence, he should be allowed to impeach the complainant.
In this case, the trial court complied with the procedure outlined in Hackett, supra, and
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The extent to which a witness may be cross-examined on questions affecting his or her credibility rests in the sound discretion of the trial court. People v Bouchee, 400 Mich 253, 266-267; 253 NW2d 626 (1977). In Bouchee, our Supreme Court held that character evidence offered to impeach or support a witness’ credibility, other than evidence of a prior conviction for a crime, must be limited to the particular character trait of truthfulness or untruthfulness. Id.
In Williams, supra, p 45, the Supreme Court observed that a defendant‘s endeavor to impeach a complainant‘s credibility through her alleged reputation as a prostitute is limited to the particular character trait of truthfulness or untruthfulness. The Court found no logical nexus between a complainant‘s reputation for prostitution and the character trait of truthfulness or untruthfulness. See also Hackett, supra, p 352.
In our case, to the extent that defendant sought
Defendant also claims that, while extrinsic evidence is normally inadmissible to prove collateral issues, a recognized exception does exist when a witness puts herself in a “false light.” In support of his claim, defendant relies on federal cases. It should be noted that
Defendant first cites United States v Herman, 589 F2d 1191 (CA 3, 1978), in support of this proposition. In Herman, the trial court allowed the government to introduce evidence of specific acts of the defendant to rebut defendant‘s character testimony. However, in allowing the evidence, the trial court did not indicate upon which rule of evidence it was relying. Id., p 1196.
The third circuit reversed the lower court‘s ruling, finding that
Defendant also refers to Carter v Hewitt, 617 F2d 961 (CA 3, 1980), in support of his proposition. In Carter, the plaintiff filed a
On appeal, plaintiff alleged that admission of the letter violated
Defendant finally alludes to a 1948 California case, People v Westek, 31 Cal 2d 469; 190 P2d 9 (1948). Westek stands for the proposition that, when a defendant in his case in chief opens the door by stating that he had never done any act similar to what he was accused of with the intent to cause sexual arousal, the prosecutor may introduce evidence of similar acts to prove intent. 31 Cal 2d 481. In other words, the Westek holding is consistent with
Similarly, the othеr cases cited by defendant do not support his proposition. The federal courts have refused to recognize a “false light” exception to
CONSENT
As to this basis for admission of the evidence, this very question was left undecided in Williams, supra, pp 42-43, because the record in that case did not warrant an anаlysis of the issue. Defendant argues that this evidence is relevant to his theory of the case, namely, that the complainant consented to an act of prostitution.
Evidence is relevant if it has any tendency to make the existence of a fact in issue more or less probable than it would be without the evidence.
In this case then, the question is whether evidence of the existence of consent, a fact in issue, would have any tendency to make that fact more or less probable. We believe that it would.
Before evidence can be properly admitted, the matter sought to be established by that evidence must be in issue and the proffered evidence must have probative value with respect to that matter. People v McKinney, 410 Mich 413, 418; 301 NW2d 824 (1981). Materiality of evidence was addressed and defined in People v Oliphant, 399 Mich 472, 488-489; 250 NW2d 443 (1976):
“In the courtroom the terms relevancy and materiality are often used interchangeably, but materiality in its more precise meaning looks to the relation between the propositions for which the evidence is offered and the issues in the case. If the evidence is offered to prove a proposition which is not a matter in issue or probative of a matter in issue, the evidence is properly said to be immaterial. As to what is ‘in issue‘, that is, within the range of the litigated controversy, we look mainly to the pleadings, read in the light of the rules of pleading and controlled by the substantive law.” McCormick on Evidence (2d ed), § 185.
Under this definition, evidence probative of a matter in issue is material. Oliphant, supra, p 489. Evidence of the complainant‘s alleged status as a prostitute is being offered to show that the instant act of intercourse was consensual. This evidence is material. That is, it would help prove or disprove a matter in issue, consent.
Probative value refers to “the tendency of evidence to establish a proposition which it is offered to prove.” McCormick, Evidence (2d ed), § 185, p 435 as cited in McKinney, supra, p 418, n 3. Probativeness is a matter of simple, logical relevancy, evaluated by logic, common experience and common sense, not involving legal technicalities. Id.
Thus, evidence of alleged prostitution is probative on the issue of consent if the fact that a complainant has engaged in intercourse for money has any tendency to make it more probable that the complainant consented to the sex act in issue. We conclude that, on the record made below, the proffered evidence of alleged specific acts of рrostitution is probative on the issue of consent. It has a tendency to make it more probable that the complainant entered into a financial arrangement with defendant for sexual acts.
Although the evidence is more probative than prejudicial, it must nonetheless be admissible under
However, we do not find that the defendant seeks to introduce evidence of alleged prostitution to establish that the complainant acted in conformity therewith. Instead, the evidence is offered for the purpose of establishing the defense of financially induced consent.
As to defendant‘s other claims that this evidence is admissible under
CONFRONTATION
Defendant‘s final claim for admission of this evidence is based on his Sixth Amendment right of confrontation. Defendant alleges that without this evidence he has no defense and, thus, his right of due process would be violated. We agree. The right of an accused to due process is, in essence, the right to a fair opportunity to defend against the state‘s accusations. The rights to confront and cross-examine witnesses and call witnesses in one‘s behalf are rights which long have been recognized as critical aspects of due process. Chambers v Mississippi, 410 US 284, 294; 93 S Ct 1038; 35 L Ed 2d 297 (1973).
In In re Oliver, 333 US 257, 273; 68 S Ct 499; 92 L Ed 682 (1948), Justice Black identified these rights as necessities of a fair trial:
A person‘s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.
In Chambers, supra, the United States Supreme
We recognize that the state has legitimate interests in prohibiting a defendant from inquiring into a victim‘s sexual past. The interests include the encouragement of victims to report sexual offenses and the recognition by courts and society in general that unchaste women are not especially prone to lying. Arenda, supra, p 10; Williams, supra, p 39. These interests need to be balanced against the defendant‘s right to present a defense and confront his accuser.
The Michigan cases dealing with this issue have not found undue infringement of a defendant‘s confrontation right by the exclusion of such evidence. Other jurisdictions, however, have addressed this issue. In State ex rel Pope v Mohave Superior Court, 113 Ariz 22; 545 P2d 946 (1976), the Supreme Court of Arizona noted that where the defendant alleges that the victim consented to an act of prostitution, the accused should be permitted to present еvidence of her reputation as a prostitute and her prior acts of prostitution to support such a defense. 113 Ariz 29. However, the Pope court held that character evidence concern-
In State v Quinn, 121 Ariz 582; 592 P2d 778 (1978), the Arizona Court of Appeals held that a defendant may cross-examine a complainant on prior acts of prostitution where (1) the defendant alleges the victim actually consented to an act of prostitution, and (2) it is determined outside the jury‘s presence that the evidence is more probative than prejudicial. 121 Ariz 585.
In People v Varona, 143 Cal App 3d 566; 192 Cal Rptr 44 (1983), defendants claimed that the complainant solicited them for acts of prostitution, engaged in sex acts with them, and became enraged when she discovered that the defendants had no money. Defendants attempted to offer proof that the victim was then on probation for a plea-based conviction of prostitution. The evidence was excluded. The appellate court reversed, finding that on those facts еvidence of prostitution should have been permitted since it would cast light on her story both in regard to why she was at the bus stop and whether she voluntarily engaged in the sex acts. The court specifically did not hold that prior evidence of prostitution to show consent would be admissible in every rape case. 143 Cal App 3d 570.
Finally, in Shaffer v State, 443 NE2d 838 (Ind, 1983), the defendant claimed that the complaining witness charged him with rape when he refused to pay her for an act of prostitution. He offered testimony of witnesses who claimed to have seen the victim in an area notorious for prostitutes, approaching cars and soliciting. Id., p 840. The trial court excluded such evidence under that state‘s rape shield law. The Indiana Supreme Court rejected the “more probative than prejudicial” standard as the one to be used in determin-
The foregoing cases indicate a willingness on the part of some jurisdictions to allow evidence that a victim is a prostitute when the defense is consent and a proper showing thereof has been made. In our case, we conclude that evidence of the victim‘s prior sexual activity is absolutely critical in ensuring defendant a fair trial and in preserving his confrontation right. Without this evidence, defendant would be precluded from presenting his defense of consent.
The people further argue that the defendant has not made a strong objective showing that the complainant may be a prostitute. We disagree. Both waitresses who testified regarding the complainant testified from their own personal knowledge and observation of the complainant. One waitress even admitted to “soliciting” on behalf of a restaurant patron by questioning the complainant as to whether she was a prostitute and was willing to engage in an act of sex for money. Moreover, these waitresses were not aware of the nature of the charges pending against defendant when they identified the victim as being an alleged prostitute. On these facts, we conclude that defendant made a sufficient offer of proof on the victim‘s status as an alleged prostitute.
We wish to point out that our holding today is solely limited to the facts presented. By our decision, we do not imply that in the future such evidence will always be admissible in these types of cases. As Arenda, supra, indicated, we leave for future case-by-case determination the question whether under different facts such evidence will be admitted.
Affirmed.
DANHOF, C.J. (dissenting). I do not agree with the majority‘s holding that evidence of alleged prostitution is relevant to the issue of consent. The “rape shield” statute,
Likewise, I do not think that complainant‘s reputation as a prostitute is relevant to show consent. The fact that financially induced consent is alleged does not make the evidence of alleged prostitution any more relevant than the reputation evidence in Hackett that was used to show consent to homosexual activity. I would not address the right to confrontation issue because defendant‘s right to confrontation only extends to relevant evidence. Hackett, supra, p 354.
Notes
(a) Character evidence generally. Evidence of a person‘s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
* * *
(3) Character of victim of sexual conduct crime. In a prosecution for criminal sexual conduct, evidence of the victim‘s past sexual conduct with the defendant and evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease[.]