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Michigan's "Rape Shield" Statute Questioning the Wisdom of Legislative Determinations of Relevance

NCJ Number
Cooley Law Review Volume: 3 Dated: (September 1987) Pages: 545-558
L A Farhat; R C Kraus
Date Published
14 pages
Michigan's rape shield law, intended to abolish the practice of cross-examining the complaining witness in sexual assault trials concerning her past sexual history, was adopted as part of a comprehensive revision of the laws governing sexual assault crime. The statute broadly prohibits any evidence of the complaining witness's sexual history with two narrow exceptions.
This author argues that despite a sound legislative history, the actual statute conflicts with the traditional functions of the trial judge to weigh the evidence, apply the facts, and determine the relevance and admissibility of evidence. As a result, the legislation has been effectively rewritten in several State supreme court decisions, in which the statute is limited to sexual conduct evidence offered to prove consent or lack of credibility in normal circumstances. Despite the serious flaws in this legislation, the courts have been reluctant to aggressively take back control over the admissibility of evidence in sexual assault cases. 82 notes


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