In a significant legal development affecting Criminal Sexual Conduct (CSC) cases, on August 12, 2026, the Michigan Court of Appeals ruled that the procedural requirements of Michigan's "Rape Shield" statute, MCL 750.520j, do not apply at Preliminary Examinations.
As we will see, it is arguable that this amounts to a ruling that the Michigan Rape Shield statute does not apply at Preliminary Examination.
RELATED: Click here to learn the basics about Michigan's Rape Shield law.
A Preliminary Examination is a hearing early on in a CSC case (or any felony case) in the District Court where the Prosecutor has to show "probable cause" in order for each charge to continue on to Circuit Court. Think of it a a "mini-trial" but without a jury (only the Judge), not as in-depth, and where the Prosecutor doesn't have to prove the Defendant's guilt "beyond a reasonable doubt" like at a trial, but rather only has to satisfy the much lower burden of proof of "probable cause." A Preliminary Exam is like an early "checkpoint" a case must pass before progressing to the next stage.
RELATED: Michigan Attorney Brian J. Prain, concentrating primarily on Criminal Sexual Conduct defense, just named in Super Lawyers, 2026 - 13th year in a row!!
RELATED: Can I bring up my accuser's past in Court? Click here to read more about Michigan's "Rape Shield" law.
In the recent Michigan Court of Appeals decision in People of the State of Michigan v. Cyrus Naaseh Abadi, Docket No. 379356, the Defendant was charged with First Degree Criminal Sexual Conduct, a life offense, and Third Degree Criminal Sexual Conduct for allegedly forcing sexual penetration on his then girlfriend. The girlfriend revealed that she'd had intercourse with another individual 72 hours before the alleged CSC the Defendant was accused of. At his Preliminary Examination, the Defendant wanted to introduce this specific instance of past sexual conduct by his girlfriend (the alleged victim).
The Court of Appeals Opinion did not explain exactly why the Defense wanted to introduce this evidence because that wasn't important to the specific question they were deciding. But it is not hard to imagine numerous reasons why an accused man in Abadi's shoes might want a Judge or jury to know about this. Perhaps it could be important to understand DNA evidence or other scientific evidence in the case, to show the source of an alleged injury, as evidence of possible motive to falsely accuse, or any number of other reasons.
But like other States, Michigan has a "Rape Shield" law - a law generally prohibiting the Defendant in a Criminal Sexual Conduct case from introducing evidence of specific instances of the alleged victim's past sexual conduct with only a few limited exceptions. Michigan's Rape Shield law, MCL 750.520j, Evidence of victim's sexual conduct, reads as follows:
(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.
(2) If the defendant proposes to offer evidence described in subsection (1)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (1)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).
When the law says "sections 520b to 520g," that means this law applies to cases involving the the charges of:
- First Degree Criminal Sexual Conduct
- Second Degree Criminal Sexual Conduct
- Third Degree Criminal Sexual Conduct
- Fourth Degree Criminal Sexual Conduct
- Assault With Intent to Commit Sexual Penetration
- Assault With Intent to Commit Criminal Sexual Conduct in the Second Degree
Simply put, in Michigan if someone charged with Criminal Sexual Conduct wants to use evidence of specific instances of the alleged victim's past sexual conduct as part of his defense, he must first bring a pretrial motion and ask the Court for permission in advance of trial.
As you can see, this has to be done "within 10 days after the arraignment on the information." The "arraignment on the information" is a hearing that happens after the Preliminary Exam (if the Prosecution meets their burden of "probable cause" and the case goes on), but before Trail. But this begs the question...
Does a Defendant wishing to introduce evidence of the alleged victim's past sexual conduct at Preliminary Exam (as opposed to at Trial) still have to file a motion, make an offer of proof, and get a decision from the Court whether the evidence will be admitted before the start of the Preliminary Exam (as opposed to later at Trial)?
In the Abadi case, the Michigan Court of Appeals ruled that a Defendant wishing to offer evidence of the alleged victim's past sexual conduct does not have to bring a motion and offer of proof in advance.
They based this decision on their finding that the Rape Shield law is unambiguous it is's language, and the arraignment on the information only comes after the Preliminary Exam.
The Court of Appeals quoted a prior case (People v. Makela,147 Mich App 674, 683-84 (1985)), which held that "[a]lthough the rape-shield statute does not appear on its face to apply to preliminary examination, the Michigan Rules of Evidence contain parallel provisions which do apply."
In-fact, there is a Michigan Rule of Evidence ("MRE"), 404(a)(2)(C), which is very similar to the Rape Shield statute. It reads:
"(1) Prohibited uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a defendant or victim in a criminal case. The following exceptions apply in a criminal case:
. . .
(C) in a criminal-sexual-conduct case, the defendant may offer evidence of:
(i) the alleged victim’s past sexual conduct with the defendant, and
(ii) specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease."
You may notice that although the language is similar to the Rape Shield statute in terms of what is allowed, this Rule of Evidence is permissive instead of restrictive in nature (i.e., it tells what the Defendant is allowed to introduce, not what they can't and what the exceptions are and for what limited purposes). There is no mention of "materiality" like in the Rape Shield statute. You may also notice that there is no requirement that the Defendant file any motion and provide an offer of proof in advance.
In sum, what this all means is that Defendants like Mr. Abadi who wish to introduce evidence at their Preliminary Exam of specific instances of past sexual conduct of the alleged victim of the above-stated types and (in the case of (ii), above) for the above-stated purposes, should be allowed to do so merely upon a showing that it is "relevant" and that the value it offers in getting to the truth is not substantially outweighed by the risk that it would be considered in an improper way that actually would inhibit the truth-seeking process.
At Prain Law, PLLC, we specifically concentrate on defending those accused of Michigan Criminal Sexual Conduct charges. Michigan CSC Defense Attorney Brian J. Prain has won jury verdict of NOT GUILTY of CSC time after time after time - winning with consistency.
Brian's awards and recognitions include:
- Super Lawyers Magazine (2013-2026)
- Nation's Top 1% by the National Association of Distinguished Counsel
- The National Trial Lawyers Top 100
- National Academy of Criminal Defense Attorneys Top 10