Criminal Sexual Conduct FAQ: What Happens if The Alleged Victim Doesn’t Appear?

Child with mouth covered

Learning How the Criminal Courts Handle No-Show Victims

Criminal sexual conduct charges in Michigan can send you to prison for the rest of your life. You can even be sentenced to a mandatory minimum of 25 years, such as in the case of criminal sexual conduct in the first degree involving someone under 13 years of age. With so much gossip circulating about cases being dismissed because alleged victims fail to appear in court, it's natural to wonder whether or not your criminal sexual conduct (CSC) charge could be dismissed if you should be so lucky as to have your accuser not show up in court. In this article, Michigan defense attorney Brian J. Prain explains what you should expect.

Due to the nature of CSC cases and the prosecutors’ efforts to ensure that the alleged victim is willing to cooperate (sometimes ethically, sometimes not), the alleged victim in a CSC case would rarely fail to appear in court. But let's imagine they do fail to appear...

Factors for Consideration

The Type of Hearing Matters

First, whether or not your criminal sexual conduct charge would be dismissed depends on the type of hearing at which the alleged victim doesn't appear. If it’s not a hearing where the alleged victim must testify, then the charges will certainly not be dismissed. These types of hearings that don't involve testimony include:

  • arraignments
  • probable cause conferences
  • pretrial conferences
  • certain motions and evidentiary hearings
  • settlement conferences
  • docket conferences
  • calendar conferences
  • sentencings

Under the Sixth Amendment, you have a Constitutional right of "confrontation." The Sixth Amendment says that a person charged with CSC or any crime has the right "to be confronted with the witnesses against him." This is called the "Confrontation Clause," and it means that if you’re facing a situation where the prosecution has the alleged victim testify as a witness against you, you then have the right, either yourself or through your CSC defense attorney, to question and cross-examine them, meaning to ask them questions to show that they are not credible.

If the prosecution cannot produce the witness, then you would be denied this right, and the judge usually has two choices:

  1. Give the prosecution more time and a second chance to get them there
  2. Your CSC charges must be dismissed (usually "without prejudice," meaning you could still be re-charged with CSC in the future).

Hearings of this type include preliminary examinations and trials.

Exceptions to the Confrontation Clause

The Supreme Court, however, has an exception to the rule that the alleged victim must be present for you to question them. In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court said that your CSC charges can go forward to a verdict in a trial, even if the alleged victim doesn't show up at trial to testify. This means they can prosecute you by introducing previous statements and any testimony that the alleged victim has already given if certain requirements are met (see below).

  • "Testimonial" Statements Only: The first requirement is that the alleged victim’s statements must be “testimonial” in order to be introduced as evidence if they don’t show up.

Another Supreme Court case, Davis v. Washington, 547 U.S. 813 (2006), says that "testimonial" means "the circumstances objectively indicate that the primary purpose of the statement is to establish or prove past events potentially relevant to later criminal prosecution, rather than to meet an ongoing emergency."

For example, frantic statements made to a 911 operator during an ongoing alleged home invasion and rape to get an emergency police response would not be "testimonial," but a statement to a police officer following his arrival well after the suspect has fled while the officer takes notes would be "testimonial." If the alleged victim does not appear at trial, the prosecution can only introduce their "testimonial” statements.

  • Alleged Victim or Witness Must be "Unavailable": It seems the easiest thing for the prosecutor to do is to tell the alleged victim to not show-up at trial or give little to no effort to get them there, introduce their prior testimonial statements where they claim you committed CSC, and thereby avoid your right to confront them and risk the chance that you'll expose them as a liar.

But that would make your Sixth Amendment right of confrontation worthless and give the government an incentive not to have them appear. So obviously it doesn't work that way. The prosecution has to prove that the alleged victim is actually "unavailable,” meaning they cannot testify due to the following reasons outlined in the Michigan Rule of Evidence ("MRE") 804(a):

  • They are exempted by a court ruling or privilege
  • They have refused to testify (subject to contempt of court, of course)
  • They have suffered a lack of memory
  • They died
  • They are disabled by physical or mental illness
  • They are absent and the prosecution is unable to get them there by a subpoena or other reasonable means
  • Prosecutor Must Show Due Diligence Efforts: Just because a witness in a criminal sexual conduct case doesn't want to show up in court, the prosecution must show that they took meaningful steps to try to get them to court before sending you to trial. These meaningful steps are called "due diligence," and a good CSC lawyer would invoke the case of People v. Dye and argue to the judge that the prosecution should have to show their due diligence at a special hearing requiring them and the police to testify about their efforts to get the alleged CSC victim into court.

The law expects that if there are measures they could have taken (i.e. going to the alleged victim’s work, talking to their family, or looking at public records to find out their address), those measures should be taken or else the prosecution cannot claim that they exercised "due diligence." The U.S. Supreme Court gave a great discussion of due diligence in a sexual assault charge in the case of Hardy v. Cross. Many other examples cover what is and is not "due diligence."

  • Prior Opportunity to Cross-Examine: A final requirement before you can be sent to trial when the alleged victim doesn't show up is that you were granted a prior opportunity to cross-examine them. This topic is very complicated and could (and does) take up volumes in the law books.

But in simple terms, it means that if it's the day of your trial on criminal sexual conduct charges and your alleged victim does not appear in court, the prosecution cannot go forward against you and has to dismiss your case unless your lawyer had a chance to grill the victim on the witness stand at a previous court hearing, usually the preliminary exam. This is true for every type of victim statement that the prosecution wants to read to the jury.

In Michigan CSC cases, if the alleged victim appeared at the preliminary exam and was cross-examined by you or your lawyer, then this requirement has probably been met at least as to some of the statements from the transcript that the Prosecution wants to have read to the Jury.

Notice that it says "opportunity" to cross-examine. Therefore, if you had the opportunity for a preliminary exam but waived it, as most "lazy" Michigan lawyers do, then you may be out of luck. Michigan law also requires that in the case of a preliminary exam transcript, it must also have "sufficient indicia of reliability."

Key Takeaways

Are you thoroughly confused yet? Don't worry, that’s normal. This is why you need an aggressive Michigan defense attorney in your corner.

What you need to know for now is that just because your alleged CSC victim "doesn't show up" or "fails to appear" doesn't mean you're getting a dismissal. First, it has to be the right type of court hearing. Then, every one of the above requirements must stack-up in your favor. Finally, the prosecutor can always simply ask for more time, and it is within the judge's discretion to grant it. A competent and skilled attorney knows that hoping for a dismissal because the rumor is "she's not going to show up" is not a strategy for defending criminal sexual conduct charges.

It's a way to make sure you'll only get caught with your "pants down" and make certain that you'll end up in checkmate.

Let Us Fight Your Criminal Sexual Conduct Charges

Facing criminal sexual conduct charges in Michigan? Don't lose the game; know the road ahead. The next call you make could save your freedom, future, and reputation.

At Prain Law, PLLC, we specifically concentrate on defending those accused of crimes involving assault, including sexual assault and CSC crimes. These are some of the most serious criminal charges a person can face, and a conviction almost always means prison time. Criminal defense attorney Brian J. Prain, was recently named one of the Top 20 Criminal Defense Lawyers in Detroit for 2016. Brian has also been named Top 10 Criminal Defense Lawyer Under 40 by both the NACDA and AIOCLA, Top 10 Trial Lawyer Under 40 by the National Trial Lawyers, and Top 100 Criminal Defense Lawyers by the National Trial Lawyers. Further, he has been deemed Premier 100 by the National Academy of Jurisprudence, and one of the Nation's Top 1% by the National Association of Distinguished Counsel. Brian can be found in Super Lawyers Magazine and Hour Detroit Magazine. Brian's firm, Prain Law, PLLC has been named by the American Institute of Criminal Law Attorneys as one of the "Ten Best Law Firms" for client satisfaction.

If you are facing a Michigan criminal sexual conduct charge, call Prain Law, PLLC anytime at (248) 731-4543!


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Prain Law, PLLC is focused only on the types charges featured on our website. This helps us deliver the decisive, effective advocacy for which our clients know us. We only serve individuals currently under investigation or who have a current case pending in court. Our firm does not represent injury victims, defendants who have already taken a plea or have been sentenced, or those seeking to expunge a criminal record. We do not respond to anyone who is not involved in a pending investigation or who has a court case for a type of charge we do not handle, but we wish you the very best of luck.