Opinion
No. 112771.
December 18, 1998.
Leave to Appeal Denied December 18, 1998.
Reported below: 230 Mich. App. 699.
I would grant leave to appeal to consider whether evidence of the victim's lack of sexual experience was improperly admitted. The sixteen-year-old victim testified that defendant, whom she had never met before the night when her brother invited him over, penetrated her both vaginally and rectally and that she feigned sleep and did not cry out because her lack of experience made her fearful of what would follow. The defense was consent. The Court of Appeals opinion characterized the testimony as evidence of the victim's virginity and held that it was precluded by MRE 404(a)(3). There is nothing in MRE 404(a)(3) that prevents the prosecution from explaining the victim's failure to cry out. In addition, the complainant's lack of sexual experience is admissible to explain why the victim was unable to testify with any specificity regarding details of the sexual assault, such as how deeply she was penetrated.
The trial court precluded reference to the victim's virginity and no such reference was made.
The Court of Appeals seemed to read the rule to provide that since prior specific instances of sexual conduct are not admissible to prove the victim willingly had sex, the absence of sexual experience is likewise precluded by the rule. The absence of experience is quite clearly not a trait of "character," nor is it "evidence of sexual activity." As Justice Kelly observed in People v. Mooney, 216 Mich. App. 367, 374 (1996), evidence that the victim had no experience was "explicative" of her conduct. It was anticipatory rebuttal of the defendant's claim that the victim consented. The Court of Appeals decision has the dubious remit of disabling the most inexperienced victim from attempting to explain behavior when consent is the defense. Because I believe neither the court rule nor the statute were so intended, I would grant leave to appeal.
WEAVER, J.
I join in the statement of Justice BOYLE.