However, a trial court considering such an issue, should always favor exclusion as long as exclusion does not abridge the defendant's right of confrontation. People v Zysk, 149 Mich. App. 452, 459; 386 N.W.2d 213 (1986), citing People v Hackett, 421 Mich. 338, 349; 365 N.W.2d 120 (1984). The defendant is obligated initially to make an offer of proof regarding the proposed evidence and to demonstrate its relevance.

The rape-shield statute could, presumably, apply to keep out evidence of a sexual assault where the defendant wished to use that evidence to establish the victim's promiscuity or some other character trait, an impermissible purpose for using evidence of past sexual conduct under the rape-shield statute. However, as the Supreme Court noted in People v Hackett, 421 Mich. 338, 348-349; 365 N.W.2d 120 (1984), the rape-shield statute does not preclude introduction of evidence to show that a victim has made prior false accusations of rape. Such false accusations are relevant in subsequent prosecutions based upon the victim's accusations because the fact that the victim has made prior false accusations of rape directly bears on the victim's credibility and the credibility of the victim's accusations in the subsequent case, and preclusion of such evidence would unconstitutionally abridge the defendant's right to confrontation.

Thus, even had complainant initiated anal intercourse with others in the past, we fail to see its relevance to the charges levied against Sandoval. The supreme court of Michigan was faced with the task of determining the constitutional application of its rape shield statute in People v. Hackett (1984), 421 Mich. 338, 365 N.W.2d 120. Hackett is a consolidated case presenting two distinct factual backgrounds. In each instance, the court held that introduction of evidence about the sexual history of the complainant was inadmissible.

Arenda, 416 Mich at 11. In People v Hackett, 421 Mich 338, 344; 365 NW2d 120 (1984), the constitutionality of MCL 750.520j was challenged on the ground that it violated the Confrontation Clause of the Sixth Amendment. The Hackett court held that, "neither the Sixth Amendment Confrontation Clause, nor due process, confers on a defendant an unlimited right to admit all relevant evidence or cross-examine on any subject."

The rape-shield statute, MCL 750.520j, "generally excludes 'evidence of a rape victim's prior sexual conduct with others, and sexual reputation, when offered to prove that the conduct at issue was consensual or for general impeachment ....'" Butler, __ Mich. at __; slip op at 3-4, quoting People v Hackett, 421 Mich. 338, 347-348; 365 N.W.2d 120 (1984). However," 'in certain limited situations, such evidence may not only be relevant, but its admission may be required to preserve a defendant's constitutional right to confrontation.'"

Only then does a trial court possess the relevant information to decide whether a defendant is constitutionally entitled to present particular evidence excluded under the rape shield statute. People v. Hackett, 421 Mich. 338, 365 N.W.2d 120 (1984). Id. at 350, 365 N.W.2d 120.

People v Duenaz, 306 Mich App 85, 91; 854 NW2d 531 (2014). Although there are exceptions to the statute, and there may be instances where testimony that appears to run afoul of the statute should be admitted to ensure a defendant's right of confrontation, People v Hackett, 421 Mich 338, 348; 365 NW2d 120 (1984), defendant's offer of proof was too vague to identify a legitimate purpose for introducing evidence. Defendant sought to offer the stepsister's testimony to show that the complainant was preoccupied with sexual matters, but his offer of proof did not include any examples of such conduct.

That testimony was ultimately admitted during trial. Gagne moved immediately for reconsideration, arguing as to the second and fifth items (the group sex with Bermudez and the offer of group sex with Gagne's father) that Michigan case law, namely, Michigan v. Hackett, 421 Mich. 338, 365 N.W.2d 120 (1985), supported its admission. In Hackett, the Michigan Supreme Court said that “specific instances of [a] complainant's past sexual conduct with third persons is ordinarily irrelevant and inadmissible to show consent,” but for “extraordinary circumstance.”

In camera inspection of privileged information by the court is a "useful intermediate step between full disclosure and total nondisclosure." United States v Gambino, 741 F. Supp. 412, 414 (SD NY, 1990); People v Hackett, 421 Mich. 338; 365 N.W.2d 120 (1984). Where the defendant has made the required showing, in camera inspection of privileged documents by the judge strikes the delicate balance between the defendant's federal and state constitutional rights to discover exculpatory evidence shielded by privilege, and the Legislature's interest in protecting the confidentiality of the therapeutic setting.

"[T]he Legislature recognized that in the vast majority of cases, evidence of a rape victim's prior sexual conduct with others, and sexual reputation, when offered to prove that the conduct at issue was consensual or for general impeachment is inadmissible." People v Hackett, 421 Mich 338, 347-348; 365 NW2d 120 (1984). The two narrow exceptions in the statute that permit the admission of evidence of the complainant's sexual activity are not present in this case: "(a) Evidence of the victim's past sexual conduct with the actor[, and] (b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease."