                                                                                     Michigan Supreme Court
                                                                                           Lansing, Michigan




Syllabus
                                                                Chief Justice:       Justices:
                                                                Stephen J. Markman   Brian K. Zahra
                                                                                     Bridget M. McCormack
                                                                                     David F. Viviano
                                                                                     Richard H. Bernstein
                                                                                     Kurtis T. Wilder
                                                                                     Elizabeth T. Clement
This syllabus constitutes no part of the opinion of the Court but has been           Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.             Kathryn L. Loomis



                                               PEOPLE v SHARPE

               Docket Nos. 155747-155748. Argued April 11, 2018 (Calendar No. 3). Decided July 10,
       2018.

               Lovell C. Sharpe was charged in the Wayne Circuit Court with two counts of first-degree
       criminal sexual conduct (CSC), MCL 750.520b, two counts of third-degree CSC, MCL
       750.520d, and one count of fourth-degree CSC, MCL 750.520e, based on allegations that he
       engaged in sexual penetration and conduct with the 14-year-old complainant, DM. DM testified
       that while her mother was hospitalized from December 31, 2013 through January 5, 2014, and
       thus was absent from the home, defendant, who had been in a relationship with DM’s mother at
       the time, engaged in sexual penetration and conduct with DM. DM also described another
       incident wherein the same actions occurred at defendant’s home while her mother was sleeping
       in another room. DM became pregnant. The prosecutor entered DM’s medical records into
       evidence; the records showed that DM had a positive pregnancy test on October 16, 2014, and an
       abortion on November 17, 2014. DM’s mother testified that DM initially refused to tell her
       mother with whom she had sexual contact, but in April 2015, shortly after DM’s mother and
       defendant ended their relationship, DM informed her mother that defendant had impregnated her.
       On the basis of this testimony, defendant was bound over to the circuit court. The prosecutor
       subsequently filed a pretrial motion to admit evidence of (1) DM’s pregnancy, (2) DM’s
       abortion, and (3) DM’s lack of other sexual partners through November 2014. The court,
       Shannon N. Walker, J., granted the motion only as to evidence that DM became pregnant and
       ruled that the other evidence constituted character evidence inadmissible under MRE 404(a)(3).
       The prosecutor filed an interlocutory appeal, arguing that the entirety of the evidence was
       admissible under both MRE 404(a)(3) and the rape-shield statute, MCL 750.520j(1). Defendant
       cross-appealed, seeking a determination that MRE 404(a)(3) and the rape-shield statute excluded
       the entirety of the evidence. On interlocutory appeal, the Court of Appeals, RIORDAN, P.J., and
       METER and FORT HOOD, JJ., held that evidence of the complainant’s lack of other sexual partners
       was not subject to the rape-shield statute and was otherwise admissible under the Michigan Rules
       of Evidence and that evidence of the complainant’s pregnancy and abortion fell under the
       purview of the rape-shield statute but was admissible pursuant to the statute’s exception for
       evidence of the victim’s past sexual conduct with the actor. 319 Mich App 153 (2017).
       Defendant sought leave to appeal in the Supreme Court, and the Supreme Court granted leave to
       consider (1) whether evidence related to the complainant’s pregnancy, abortion, and lack of other
       sexual partners was within the scope of the rape-shield statute, MCL 750.520j(1); (2) if so,
       whether the evidence was nonetheless admissible under one of the exceptions set forth in MCL
750.520j(1); and (3) if not, whether the evidence was admissible under general rules governing
the admissibility of evidence, such as MRE 402 and MRE 403. 501 Mich 899 (2017).

      In an opinion by Justice CLEMENT, joined by Justices ZAHRA, MCCORMACK, VIVIANO,
and WILDER, the Supreme Court held:

       The Court of Appeals correctly held that all the evidence is admissible but erred in its
reasoning. None of the evidence falls under the scope of the rape-shield statute, but all the
evidence is otherwise admissible under the Michigan Rules of Evidence.

       1. The rape-shield statute, MCL 750.520j, serves to limit the admissibility of evidence of
a complainant’s sexual conduct. MCL 750.520j(1) provides that evidence of specific instances
of the victim’s sexual conduct shall not be admitted under MCL 750.520b through MCL
750.520g 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. Whether evidence falls within the purview of the rape-shield statute
concerns whether the evidence amounts to or references specific conduct, not whether the
evidence constitutes a consequence of or relates to sexual activity generally. Because the rape-
shield statute does not define the term “specific instances,” and because the term “specific
instances” is not a term of art, it was appropriate to consult a lay dictionary to establish the plain
meaning of the term. “Instance” means “a case or occurrence of something” and “specific”
means “specified, precise, or particular.” Accordingly, a specific instance of the victim’s sexual
conduct must relate to a particular occurrence of the victim’s sexual conduct.

        2. Evidence of DM’s pregnancy and evidence of her subsequent abortion were not
evidence of a specific instance of the victim’s sexual conduct. Although this evidence
necessarily implied that sexual activity occurred that caused the pregnancy, the pregnancy and
abortion were not evidence regarding a specific instance of sexual conduct; the evidence
demonstrated only that at least one act of sexual intercourse occurred in 2014. The conclusion
that pregnancy and abortion were not themselves specific instances of the victim’s sexual
conduct was bolstered by a reading of MCL 750.520j as a whole. MCL 750.520j(1)(b) excepts
relevant evidence of specific instances of sexual activity showing the source or origin of semen,
pregnancy, or disease. In so phrasing the statute, the Legislature has distinguished between the
specific instance of sexual activity that shows the origin or the source of the semen, pregnancy,
or disease—i.e., whatever sexual act led to these consequences—and the semen, pregnancy, or
disease itself. Accordingly, the Legislature has ipso facto made clear that semen, pregnancy, or
disease, while perhaps related to sex, are not themselves the specific instances of sexual conduct
envisioned by MCL 750.520j. And because pregnancy, and by extension abortion, is not a
specific instance of sexual conduct, neither pregnancy nor abortion falls within the rape-shield
statute. Accordingly, the Court of Appeals erred by determining that evidence of DM’s
pregnancy and abortion fell under the purview of the rape-shield statute.

       3. Evidence that DM did not engage in other sexual intercourse in 2014 did not fall
within the plain language of the rape-shield statute. This evidence demonstrated an absence of
conduct, not a “specific instance” of sexual conduct, and excluding evidence of a lack of sexual
partners under the rape-shield statute would render the phrase “specific instances” meaningless.
Accordingly, the Court of Appeals properly determined that DM’s lack of other sexual partners
did not fall within the scope of the rape-shield statute.

        4. MRE 402 provides that relevant evidence is generally admissible. In this case,
evidence of DM’s pregnancy, abortion, and lack of other sexual partners made it more probable
that defendant sexually assaulted DM, and evidence showing that DM, a 14-year-old child,
became pregnant was highly probative of the allegation that DM was sexually assaulted. The
evidence of DM’s abortion corroborated that DM was impregnated and explained the lack of
DNA evidence to identify the man who impregnated DM. Further, defendant’s offering to pay
for half of the cost of the abortion could have demonstrated defendant’s consciousness of guilt or
desire to destroy evidence. Finally, evidence demonstrating that DM had no sexual partners
other than defendant through November 2014 was, by simple process of elimination, probative
of the identity of the person who impregnated DM. Accordingly, the offered evidence was
relevant under MRE 402.

        5. MRE 403 provides that relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. In this case, the probative value of
the evidence was not substantially outweighed by the danger of unfair prejudice. The evidence
of DM’s pregnancy and abortion definitively demonstrated that sexual penetration occurred. If
the jury finds credible DM’s testimony that she did not engage in sexual intercourse with anyone
other than defendant through November 2014, that testimony proves that defendant was the man
who sexually assaulted DM. Accordingly, this evidence was highly probative, and the danger of
unfair prejudice created by the evidence did not substantially outweigh this high probative value.
Abortion evidence, while perhaps incendiary to some, is not so inherently prejudicial as to render
it inadmissible. Although there may be some danger of juror sympathy for a young woman who
has gone through pregnancy and abortion or, alternatively, a danger of juror revulsion for a
young woman choosing abortion, the evidence here was both highly probative and concise. And
to the extent that the abortion evidence could be viewed as cumulative of the evidence of DM’s
pregnancy, it also served the purpose of explaining why the prosecutor is unable to offer DNA
evidence to prove the identity of the man who impregnated DM. If the abortion evidence were
not admitted, the jury might be left to speculate as to why DNA evidence is unavailable and
whether the pregnancy came to term. As for the lack of sexual partners, the prosecution
concisely alleged a valid purpose: the lack of sexual partners eliminates the possibility that
someone other than defendant impregnated DM. Moreover, at the time of trial, the trial court has
the ability to provide a limiting instruction to the jury concerning the use of this evidence.
Accordingly, given the high probative value of the evidence of DM’s pregnancy, abortion, and
lack of other sexual partners through November 2014, and its low danger of unfair prejudice, the
evidence was admissible under MRE 402 and MRE 403.

       Affirmed for the reasons stated in the opinion; case remanded to the trial court for further
proceedings.

        Chief Justice MARKMAN, concurring, agreed with the majority’s conclusion that evidence
of the complainant’s pregnancy, abortion, and lack of other sexual partners was not subject to the
rape-shield statute and was admissible under the Michigan Rules of Evidence, but he reached the
conclusion that evidence of the complainant’s pregnancy and evidence of the abortion were not
subject to the rape-shield statute for different reasons than the majority. Chief Justice MARKMAN
would have focused on the language “victim’s sexual conduct” as opposed to the majority’s
focus on the language “specific instances” to reach the conclusion that while pregnancy and
abortion are evidence of a specific instance of sexual conduct, they are not evidence of a specific
instance of the victim’s sexual conduct. In this case, because only one alleged sexual penetration
could have been the source of DM’s pregnancy, both evidence of DM’s pregnancy and evidence
of DM’s abortion were—contrary to the majority’s assertion—evidence of a “specific instance”
of sexual conduct. However, such evidence is not evidence of the “victim’s sexual conduct”;
“conduct” refers only to volitional actions and thus does not encompass involuntary acts such as
those that stem from being subjected to sexual abuse.

        Justice BERNSTEIN, concurring in part and dissenting in part, agreed with the majority’s
conclusion that evidence of DM’s abortion and her lack of other sexual partners was not
governed by the rape-shield statute and that evidence of DM’s lack of other sexual partners was
admissible under the Michigan Rules of Evidence, but he would have held that evidence of DM’s
pregnancy was governed by the rape-shield statute and that evidence of DM’s abortion was
barred by MRE 402 and MRE 403. Justice BERNSTEIN agreed with Chief Justice MARKMAN’s
conclusion that evidence of DM’s pregnancy was evidence of a specific instance of the victim’s
sexual conduct—the particular sexual encounter that resulted in the pregnancy. Accordingly,
because the prosecutor charged defendant with one of the counts of first-degree criminal sexual
conduct based on an allegation that a specific instance of sexual penetration resulted in DM
becoming pregnant, DM’s pregnancy was being presented as evidence of a specific instance of
the victim’s sexual conduct and evidence of that pregnancy thus fell within the rape-shield
statute. Of the two counts of first-degree criminal sexual conduct that defendant was charged
with, the majority conceded that one could not have been the source of DM’s pregnancy, given
the timing. The timing of the remaining count of first-degree criminal sexual conduct had yet to
be firmly established. Because the plain language of MCL 750.520j(1)(a) notes that only
evidence of the victim’s past sexual conduct with the actor is potentially admissible, Justice
BERNSTEIN would have held that the rape-shield statute required the prosecutor to make a
threshold showing in the trial court about the timing of the alleged sexual penetration in order to
establish that DM’s pregnancy was linked to past sexual conduct with defendant. As for
evidence of DM’s abortion, Justice BERNSTEIN would have held that MRE 402 and MRE 403
barred admission of the evidence. The majority focused on the potential prejudice that might fall
on DM; however, given that it was defendant who argued against admission of the evidence of
DM’s abortion, the focus should have been on the effect of this evidence on defendant, and when
viewed in this light, the danger of unfair prejudice to defendant substantially outweighed the
probative value of the evidence.




                                    ©2018 State of Michigan
                                                                       Michigan Supreme Court
                                                                             Lansing, Michigan



OPINION
                                                     Chief Justice:         Justices:
                                                     Stephen J. Markman     Brian K. Zahra
                                                                            Bridget M. McCormack
                                                                            David F. Viviano
                                                                            Richard H. Bernstein
                                                                            Kurtis T. Wilder
                                                                            Elizabeth T. Clement

                                                                      FILED July 10, 2018



                            STATE OF MICHIGAN

                                    SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                              Nos. 155747-155748

LOVELL CHARLES SHARPE,

              Defendant-Appellant.


BEFORE THE ENTIRE BENCH

CLEMENT, J.
      At issue in this case is whether the rape-shield statute, MCL 750.520j, precludes

the prosecutor from admitting evidence of a complainant’s pregnancy, abortion, and lack

of other sexual partners during a criminal-sexual-conduct prosecution. On interlocutory

appeal, the Court of Appeals held that evidence of the complainant’s lack of other sexual

partners was not subject to the rape-shield statute and was otherwise admissible under the

Michigan Rules of Evidence.         As to evidence of the complainant’s pregnancy and
abortion, the Court held that this evidence fell under the purview of the rape-shield

statute but was admissible pursuant to the statute’s exception for evidence of the victim’s

past sexual conduct with the actor.

         We agree that the entirety of the evidence offered is admissible but hold that none

of the evidence falls within the scope of the rape-shield statute. Further, we hold that the

entirety of the evidence is otherwise admissible under the Michigan Rules of Evidence.

Therefore, we reject the reasoning of the Court of Appeals but affirm its disposition that

the offered evidence is admissible.

                   I. FACTUAL AND PROCEDURAL BACKGROUND

         Defendant was charged with two counts of first-degree criminal sexual conduct

(CSC), MCL 750.520b, two counts of third-degree CSC, MCL 750.520d,1 and one count

of fourth-degree CSC, MCL 750.520e, based on allegations that he engaged in sexual

penetration and conduct with the 14-year-old complainant, DM. Defendant was in a

relationship with DM’s mother through early 2015, and he fathered DM’s two half-

siblings. Defendant did not reside with DM’s mother and the three children during his

relationship with DM’s mother. According to DM’s mother’s preliminary-examination

testimony, DM’s mother was hospitalized from December 31, 2013 through January 5,

2014.2 During this time, defendant stayed at DM’s mother’s apartment to care for the


1
    The third-degree CSC charges were in the alternative to the first-degree CSC charges.
2
  DM’s mother testified at the preliminary examination that she was hospitalized from
December 31, 2013 to January 5, 2014. On cross-examination, she answered in the
affirmative when defense counsel asked whether she was hospitalized from December
2014 to January 2015. Because this alleged sexual encounter could not have been the


                                              2
children. DM testified that while her mother was absent from the home, defendant

“touched” DM “[e]verywhere.” She elaborated that he touched her breasts with his

mouth and penetrated her vagina with his penis. Upon further questioning, she answered

that this was not the first or the only time she had sexual contact with defendant. She

described another incident wherein the same actions occurred at defendant’s home while

her mother was sleeping in another room.

         DM became pregnant.       The prosecutor entered DM’s medical records into

evidence, and the records showed that DM had a positive pregnancy test at Henry Ford

Hospital on October 16, 2014, and an abortion at Planned Parenthood on November 17,

2014. DM’s mother testified that DM initially refused to tell her mother with whom she

had sexual contact.     Eventually, in April 2015 and shortly after DM’s mother and

defendant ended their relationship, DM informed her mother that defendant had

impregnated her. On the basis of this testimony, defendant was bound over to the circuit

court.

         The prosecutor subsequently filed a pretrial motion to admit evidence of (1) DM’s

pregnancy, (2) DM’s abortion, and (3) DM’s lack of other sexual partners through

November 2014. The trial court granted the motion only as to evidence that DM became

pregnant and ruled that the other evidence constituted character evidence inadmissible

under MRE 404(a)(3).3


source of DM’s pregnancy regardless of which date range was accurate, this discrepancy
is not material to the present appeal.
3
    MRE 404 provides, in relevant part:



                                             3
      The prosecutor filed an interlocutory appeal, arguing that the entirety of the

evidence was admissible under both MRE 404(a)(3) and the rape-shield statute, MCL

750.520j(1), which generally excludes “[e]vidence 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 . . . .” Defendant responded and also cross-appealed the

trial court’s determination that evidence of DM’s pregnancy was admissible, seeking a

determination that MRE 404(a)(3) and the rape-shield statute excluded the entirety of the

evidence.

      In a published opinion, the Court of Appeals determined that all the evidence was

admissible. People v Sharpe, 319 Mich App 153, 173; 899 NW2d 787 (2017). As to the

pregnancy and abortion evidence, the Court of Appeals held that MRE 404(a)(3) did not

apply because MRE 404(a)(3) concerns the admissibility of character evidence and, here,

the prosecutor was not seeking to introduce evidence of the pregnancy and abortion in

order to demonstrate that DM acted in conformity with that character. Id. at 164-165,

171. The Court then concluded that while evidence of DM’s pregnancy and abortion was



              (a) Character evidence generally. Evidence of a person’s character
      or a trait of character is not admissible for the purpose of proving action in
      conformity therewith on a particular occasion, except:

                                         * * *

             (3) Character of alleged victim of sexual conduct crime. In a
      prosecution for criminal sexual conduct, evidence of the alleged victim’s
      past sexual conduct with the defendant and evidence of specific instances of
      sexual activity showing the source or origin of semen, pregnancy, or
      disease[.]



                                            4
evidence of a specific instance of DM’s sexual conduct that would typically be barred by

the rape-shield statute, the evidence was admissible under the rape-shield statute’s

exception for evidence of the victim’s past sexual conduct with the actor. Id. at 165, 171.

The Court further held that the evidence satisfied the remaining requirements of the rape-

shield statute because the evidence was material to a fact at issue—whether sexual

penetration occurred—and because the probative value of the evidence outweighed its

prejudicial nature. Id. at 166, 172-173. Unlike the trial court, the Court of Appeals did

not view the abortion evidence to be so prejudicial that it outweighed its probative value.

Id. at 172-173.

       As to the evidence concerning DM’s lack of other sexual partners, the Court of

Appeals again concluded that the evidence did not fall under MRE 404(a)(3) because it

was not introduced to demonstrate that DM acted in conformity with her lack of sexual

partners. Id. at 168. It further held that the evidence was not barred under the rape-shield

statute because the statute excludes specific instances of sexual conduct, not the lack of

specific instances of sexual conduct. Id. However, it noted that even if the lack of sexual

conduct could be construed as specific instances of sexual conduct, the evidence would

be admissible under the rape-shield statute’s exception for evidence showing the origin of

pregnancy. Id. at 169. The Court then held that the evidence was otherwise admissible

under MRE 402 and MRE 403 because the evidence was relevant to and probative of

whether intercourse occurred between DM and defendant and because the evidence was

minimally prejudicial. Id. at 169-170. Consistently with this ruling, the Court reversed

in part and affirmed in part the trial court’s ruling and remanded the case to the trial court

for further proceedings. Id. at 174.


                                              5
         Defendant sought leave to appeal in this Court. We granted leave to consider the

following issues: (1) whether evidence related to the complainant’s pregnancy, abortion,

and lack of other sexual partners was within the scope of the rape-shield statute, MCL

750.520j(1); (2) if so, whether the evidence was nonetheless admissible under one of the

exceptions set forth in MCL 750.520j(1); and (3) if not, whether the evidence was

admissible under general rules governing the admissibility of evidence, such as MRE 402

and MRE 403.4

                                II. LEGAL BACKGROUND

                               A. STANDARD OF REVIEW

         This Court reviews a trial court’s evidentiary decisions for an abuse of discretion.

People v Mardlin, 487 Mich 609, 614; 790 NW2d 607 (2010). An abuse of discretion

occurs when the trial court’s decision falls outside the range of principled outcomes.

People v Blackston, 481 Mich 451, 460; 751 NW2d 408 (2008). To the extent that the

trial court’s evidentiary decision involves underlying questions of law, such as whether a

statute precludes admissibility of evidence, this Court reviews those questions of law de

novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).

         B. STATUTORY BACKGROUND OF THE RAPE-SHIELD STATUTE

         Until the late twentieth century, Michigan courts considered evidence of a

woman’s sexual history legally relevant in rape prosecutions. People v LaLone, 432

Mich 103, 123-124; 437 NW2d 611 (1989) (ARCHER, J., concurring in part and


4
    People v Sharpe, 501 Mich 899 (2017).



                                              6
dissenting in part).   Allegations of rape were perceived as easily fabricated, and,

accordingly, a woman’s chastity—or lack thereof—was believed to be probative of

whether she consented to the sexual act at issue. Id.; id. at 124 n 14.5 Unsurprisingly,

this discouraged women from seeking prosecution of their assailants because they

“ ‘fear[ed] that the trial proceedings would veer from an impartial examination of the

accused’s conduct on the date in question and instead take on aspects of an inquisition in

which [the] complainant would be required to acknowledge and justify her sexual past.’ ”

People v Arenda, 416 Mich 1, 9; 330 NW2d 814 (1982), quoting People v Khan, 80 Mich

App 605, 613; 264 NW2d 360 (1978).

      In 1974, after facing significant criticism of the state’s rape laws, the Michigan

Legislature passed several reforms that redefined unlawful sexual conduct and created

new evidentiary standards for these prosecutions.       LaLone, 432 Mich at 124-125

(ARCHER, J., concurring in part and dissenting in part). Among these reforms was the

rape-shield statute, MCL 750.520j. Id. MCL 750.520j serves to limit the admissibility of

evidence of a complainant’s sexual conduct and provides as follows:6

            (1) Evidence of specific instances of the victim’s sexual conduct,
      opinion evidence of the victim’s sexual conduct, and reputation evidence of

5
  However, in cases involving statutory rape, Michigan courts generally deemed such
evidence irrelevant to the charge. See, e.g., People v Russell, 241 Mich 125, 126-127;
216 NW 441 (1927) (“The general rule is that the chastity or want of chastity of the
prosecutrix under the age of consent is unimportant in a statutory rape case, and that
testimony on that subject is, therefore, immaterial.”).
6
  In addition to the enumerated exceptions within the rape-shield statute, evidence of a
complainant’s sexual conduct may be admitted to preserve the defendant’s constitutional
right to confrontation. See People v Hackett, 421 Mich 338, 348; 365 NW2d 120 (1984).



                                            7
       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).

       The rape-shield statute “constitutes a legislative policy determination that sexual

conduct or reputation regarding sexual conduct as evidence of character and for

impeachment, while perhaps logically relevant, is not legally relevant.” People v Morse,

231 Mich App 424, 429-430; 586 NW2d 555 (1998). The statute also reflects a belief

that “inquiries into sex histories, even when minimally relevant, carry a danger of

unfairly prejudicing and misleading the jury.” Arenda, 416 Mich at 10. Finally, the

statute protects the privacy of the alleged victim and, in so doing, removes an institutional

discouragement from seeking prosecution. Id. at 10-11; LaLone, 432 Mich at 123-124

(ARCHER, J., concurring in part and dissenting in part). See also Michigan v Lucas, 500

US 145, 149-150; 111 S Ct 1743; 114 L Ed 2d 205 (1991) (“The Michigan statute

represents a valid legislative determination that rape victims deserve heightened

protection against surprise, harassment, and unnecessary invasions of privacy.”).




                                             8
                                    III. ANALYSIS

      In the present case, the prosecutor sought admission of evidence of DM’s

pregnancy and abortion and DM’s lack of other sexual partners through November 2014.

There are two different alleged procedural bars to the admission of the evidence proffered

by the prosecutor: the rape-shield statute and the Michigan Rules of Evidence. We

consider them each in turn.

              A. APPLICABILITY OF THE RAPE-SHIELD STATUTE

      When interpreting a statute, our primary goal is to ascertain and give effect to the

Legislature’s intent. People v Gardner, 482 Mich 41, 50; 753 NW2d 78 (2008). “If the

statute’s language is clear and unambiguous, we assume that the Legislature intended its

plain meaning and we enforce the statute as written.” People v Weeder, 469 Mich 493,

497; 674 NW2d 372 (2004). In so doing, we assign each word and phrase its plain and

ordinary meaning within the context of the statute. People v Kowalski, 489 Mich 488,

498; 803 NW2d 200 (2011); MCL 8.3a. We must also avoid any construction that would

render any part of a statute surplusage or nugatory, if possible. People v Rea, 500 Mich

422, 428; 902 NW2d 362 (2017).

      The rape-shield statute generally prohibits the admission of “[(1)] [e]vidence of

specific instances of the victim’s sexual conduct, [(2)] opinion evidence of the victim’s

sexual conduct, and [(3)] reputation evidence of the victim’s sexual conduct . . . .” MCL

750.520j(1). Although the statute was enacted in response to the practice of impeaching

the complainant’s testimony with evidence of the complainant’s sexual conduct, the plain

language of the statute does not limit the exclusion of such evidence upon whether the




                                            9
evidence is offered by the prosecutor or by the defendant.7 The statute’s latter two

categories of exclusion are not relevant here because the evidence offered by the

prosecutor in this case does not constitute opinion or reputation evidence. Specifically,

the proffered evidence consists of medical records of DM’s pregnancy and abortion,

DM’s mother’s testimony that DM became pregnant and obtained an abortion, and DM’s

testimony that she had no other sexual partners through November 2014. The prosecutor

has not sought to offer witness testimony commenting on DM’s sexual reputation or any

witness’s opinion of DM’s sexual conduct.

       Remaining at issue is whether the offered evidence constitutes “[e]vidence of

specific instances of the victim’s sexual conduct.” MCL 750.520j(1).8 Because the rape-

shield statute fails to define the term “specific instances,” we may refer to a dictionary to

help establish its plain meaning. See Rea, 500 Mich at 428. As the term “specific

instances” is not a term of art, we use a lay dictionary to aid with interpretation. See

People v Thompson, 477 Mich 146, 151-152; 730 NW2d 708 (2007). Random House

Webster’s College Dictionary (2001) defines “instance” as “a case or occurrence of

something” and defines “specific” as “specified, precise, or particular.” Accordingly, a

specific instance of the victim’s sexual conduct must relate to a particular occurrence of

the victim’s sexual conduct.

7
  However, MCL 750.520j(2) only requires a written motion and offer of proof if such
evidence is offered by the defendant. Accordingly, even if this evidence was subject to
the rape-shield statute, the prosecutor was not required to move for its admission.
8
  We do not adopt Chief Justice MARKMAN’s definition of the term “conduct” as
expressed in his concurring opinion for the reasons noted by Justice YOUNG in People v
Parks, 483 Mich 1040 (2009) (YOUNG, J., concurring).



                                             10
       Evidence of DM’s pregnancy and her subsequent abortion are not evidence of a

specific instance of the victim’s sexual conduct. Although this evidence necessarily

implies that sexual activity occurred that caused the pregnancy, the pregnancy and

abortion are not evidence regarding a specific instance of sexual conduct. As we have

previously stated, whether evidence falls within the purview of the rape-shield statute

concerns whether the evidence “amount[s] to or reference[s] specific conduct,” People v

Ivers, 459 Mich 320, 329; 587 NW2d 10 (1998), not whether the evidence constitutes a

consequence of or relates to sexual activity generally. In this case, the pregnancy and

abortion evidence alone does not describe a particular or specific sexual encounter. The

evidence demonstrates only that at least one act of sexual intercourse occurred in 2014

and does not describe one particular occurrence of sexual conduct. Because DM’s

pregnancy and abortion are not evidence of a particular occurrence of sexual conduct,

evidence thereof does not fall under the purview of the rape-shield statute, and the Court

of Appeals erred in determining otherwise. See Kowalski, 489 Mich at 498.

       The conclusion that pregnancy and abortion are not themselves specific instances

of the victim’s sexual conduct is bolstered by a reading of MCL 750.520j as a whole.

“[W]ords and phrases used in an act should be read in context with the entire act and

assigned such meanings as to harmonize with the act as a whole,” and “a word or phrase

should be given meaning by its context or setting.” Hannay v Dep’t of Transp, 497 Mich

45, 57; 860 NW2d 67 (2014) (quotation marks and citation omitted; alteration in

original).   MCL 750.520j(1) explains that specific instances of the victim’s sexual

conduct shall not be admitted, but MCL 750.520j(1)(b) excepts relevant “[e]vidence of

specific instances of sexual activity showing the source or origin of semen, pregnancy, or


                                           11
disease.” These specific instances of sexual conduct may be used to “show,” or “cause or

permit to be seen,” Merriam-Webster’s Collegiate Dictionary (11th ed), the “origin of

semen, pregnancy, or disease.”        In so phrasing the statute, the Legislature has

distinguished between the specific instance of sexual activity that shows the origin or the

source of the semen, pregnancy, or disease—i.e., whatever sexual act led to these

consequences—and the semen, pregnancy, or disease itself. Accordingly, the Legislature

has ipso facto made clear that semen, pregnancy, or disease, while perhaps related to sex,

are not themselves the specific instances of sexual conduct envisioned by MCL 750.520j.

And because pregnancy, and by extension abortion, is not a specific instance of sexual

conduct, neither pregnancy nor abortion falls within the rape-shield statute.

       Similarly, evidence that DM did not engage in other sexual intercourse in 2014

does not fall within the plain language of the rape-shield statute.             This evidence

demonstrates an absence of conduct, not a “specific instance” of sexual conduct.9

Excluding evidence of a lack of sexual partners under the rape-shield statute would

render the phrase “specific instances” meaningless. See Rea, 500 Mich at 428. We must

give effect to all words in the statute, and, accordingly, the Court of Appeals properly

determined that DM’s lack of other sexual partners does not fall within the scope of the

rape-shield statute.

9
  To the extent that defendant cites caselaw from Minnesota and Wisconsin wherein
courts held that evidence demonstrating a lack of sexual conduct was prohibited under
the rape-shield statutes in those states, we note that Minnesota’s and Wisconsin’s statutes
do not contain the phrase “specific instances” and, accordingly, we find this caselaw
unpersuasive. See Minn Stat § 609.347(3) (referring to “evidence of the victim’s
previous sexual conduct” generally); Wis Stat § 972.11(2)(b) (using the phrase “any
evidence concerning the complaining witness’s prior sexual conduct”) (emphasis added).



                                            12
       Finally, we note that this conclusion is consistent with the purposes of the rape-

shield statute.   The rape-shield statute was designed to prevent unwelcome and

unnecessary inquiry into a complainant’s sexual activities, thereby protecting the

complainant’s privacy and protecting the complainant from suffering unfair prejudice

based on her sexual history. See Arenda, 416 Mich at 10. But here, the complainant has

voluntarily offered evidence of her pregnancy, abortion, and lack of sexual history to

bolster her allegations of criminal sexual conduct against defendant.        There is no

indication from our Legislature or in our caselaw that the rape-shield statute was

designed to prevent a complainant’s disclosure of her own sexual history or its attendant

consequences.10 Accordingly, giving effect to the plain language of the statute and to the

Legislature’s intent in enacting the rape-shield statute, we hold that the entirety of the

evidence offered here is not subject to the rape-shield statute. See Gardner, 482 Mich at

50.

                   B. APPLICATION OF MRE 402 AND MRE 403

       Because the offered evidence is not excluded under the rape-shield statute, we

now analyze whether the evidence is otherwise admissible under the Michigan Rules of

Evidence. Generally, relevant evidence is admissible. MRE 402; People v Roper, 286


10
   Although we conclude that the evidence offered is not rendered inadmissible by the
rape-shield statute, we offer a note of caution to prosecutors who seek to introduce this
type of evidence. As we have stated before, the admission of evidence typically barred
by the rape-shield statute “may be required to preserve a defendant’s constitutional right
to confrontation.” Hackett, 421 Mich at 348. The admission of this type of evidence
may open the door to the introduction of evidence whose admission may otherwise have
been precluded by the rape-shield statute.



                                           13
Mich App 77, 91; 777 NW2d 483 (2009). Relevant evidence is “evidence having any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.” MRE

401. Relevant evidence may be excluded, however, if its probative value is substantially

outweighed by the danger of unfair prejudice. MRE 403. The weighing of evidence’s

probative value against its prejudicial effect requires a balancing of several factors,

including the necessary time to present the evidence, whether the evidence is needlessly

cumulative, how directly probative the evidence is, how necessary the fact to be proven

by the evidence is, whether the evidence would mislead the jury, and whether there is an

alternative and less potentially harmful way to prove the fact. Blackston, 481 Mich at

462.11

         The offered evidence is relevant under MRE 402. Evidence of DM’s pregnancy,

abortion, and lack of other sexual partners makes it more probable that defendant

sexually assaulted DM.      Evidence showing that DM, a 14-year-old child, became

pregnant is highly probative of the allegation that DM was sexually assaulted. See

People v Borowski, 330 Mich 120, 126; 47 NW2d 42 (1951). It also provides context for


11
    We note that the trial court’s MRE 402 and MRE 403 analysis did not sufficiently
address the basis of its decision to exclude the evidence of abortion and the lack of sexual
partners. Cf. People v Johnigan, 265 Mich App 463, 469-470; 696 NW2d 724 (2005)
(opinion by SAWYER, J.); Woodington v Shokoohi, 288 Mich App 352, 357; 792 NW2d
63 (2010). To the extent that the trial court based its ruling excluding evidence of the
lack of sexual partners and the abortion on MRE 404(a)(3), that was an abuse of
discretion. MRE 404(a) only excludes character evidence used to prove conformity to a
character trait. The prosecutor, however, articulated valid, nonpropensity explanations
for the evidence of lack of sexual partners and the abortion.



                                            14
DM’s disclosure of the sexual assault: DM did not originally disclose the sexual assault

but only did so after she discovered that she was pregnant and after repeated questioning

by her mother regarding the identity of who impregnated DM. The evidence of DM’s

abortion corroborates that DM was impregnated and explains the lack of DNA evidence

to identify the man who impregnated DM. Further, defendant’s offering to pay for half

of the cost of the abortion may demonstrate defendant’s consciousness of guilt or desire

to destroy evidence. To the extent that defendant presents alternative theories for why he

paid for half of DM’s abortion, we note that the standard for probative force is minimal,

People v Crawford, 458 Mich 376, 390; 582 NW2d 785 (1998), and that defendant may

present any one of the reasonable alternative reasons for payment to the jury, who will

then weigh this evidence. And finally, evidence demonstrating that DM had no sexual

partners other than defendant through November 2014 is, by simple process of

elimination, probative of the identity of the person who impregnated DM.

       The probative value of this evidence is not substantially outweighed by the danger

of unfair prejudice, and therefore, the evidence is not excluded under MRE 403. The

evidence of DM’s pregnancy and abortion definitively demonstrates that sexual

penetration occurred. If the jury finds credible DM’s testimony that she did not engage in

sexual intercourse with anyone other than defendant through November 2014, that

testimony proves that defendant was the man who sexually assaulted DM. Accordingly,

this evidence is highly probative.

       The danger of unfair prejudice created by the evidence does not substantially

outweigh this high probative value. All relevant and material evidence is prejudicial; we

are concerned only with unfairly prejudicial evidence that may be given inappropriate


                                           15
weight by the jury or involve extraneous considerations. See People v Mills, 450 Mich

61, 75-76; 537 NW2d 909 (1995). We agree with the Court of Appeals that abortion

evidence, while perhaps incendiary to some, is not so inherently prejudicial in today’s

society as to render it inadmissible. See State v Stanton, 319 NC 180, 186; 353 SE2d 385

(1987) (“The mere fact that an abortion took place is not so inflammatory as to render it

inadmissible.”). Although there may be some danger of juror sympathy for a young

woman who has gone through pregnancy and abortion or, alternatively, a danger of juror

revulsion for a young woman choosing abortion, the evidence here is both highly

probative and concise. And to the extent that the abortion evidence could be viewed as

cumulative of the evidence of DM’s pregnancy, it also serves the purpose of explaining

why the prosecutor is unable to offer DNA evidence to prove the identity of the man who

impregnated DM. If the abortion evidence were not admitted, the jury might be left to

speculate as to why DNA is unavailable and whether the pregnancy came to term.

       As for the lack of sexual partners, Michigan courts have generally taken a dim

view on this evidence. See People v Stull, 127 Mich App 14, 18; 338 NW2d 403 (1983);

People v Bone, 230 Mich App 699, 702; 584 NW2d 760 (1998); People v Khan, 80 Mich

App 605, 621; 264 NW2d 360 (1978). But those cases involved efforts to use a victim’s

lack of sexual history to support arguments about the victim’s credibility or, alternatively,

about consent. In this case, the prosecution has concisely alleged a valid purpose: the

lack of sexual partners eliminates the possibility that someone other than defendant

impregnated DM. Moreover, at the time of trial, the trial court has the ability to provide a

limiting instruction to the jury concerning the use of this evidence.




                                             16
       Given the high probative value of the evidence of DM’s pregnancy, abortion, and

lack of other sexual partners through November 2014, and its low danger of unfair

prejudice, the evidence is admissible under MRE 402 and MRE 403.

                                   IV. CONCLUSION

       We hold that evidence of DM’s pregnancy, abortion, and lack of other sexual

partners through November 2014 does not fall under the rape-shield statute. Further, this

evidence is otherwise admissible under MRE 402 and MRE 403. We therefore affirm the

result reached by the Court of Appeals—allowing the admission of this evidence—but we

do so for the reasons stated in this opinion, and we remand this case to the trial court for

further proceedings consistent with this opinion.


                                                        Elizabeth T. Clement
                                                        Brian K. Zahra
                                                        Bridget M. McCormack
                                                        David F. Viviano
                                                        Kurtis T. Wilder




                                            17
                             STATE OF MICHIGAN

                                     SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                             Nos. 155747-155748

LOVELL CHARLES SHARPE,

               Defendant-Appellant.


MARKMAN, C.J. (concurring).

        I agree with the majority that evidence of the complainant’s pregnancy, abortion,

and lack of other sexual partners is not subject to the rape-shield statute, MCL 750.520j,

and is admissible under the Michigan Rules of Evidence.                However, I reach the

conclusion that evidence of the complainant’s pregnancy and evidence of the abortion are

not subject to the rape-shield statute for different reasons than the majority. In all other

respects, I agree with the majority’s conclusions and its reasoning.

        The rape-shield statute, MCL 750.520j, provides, in pertinent part:

               (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.[1]


1
    “ ‘[P]ast’ sexual conduct refers to conduct that has occurred before the evidence is
              (b) Evidence of specific instances of sexual activity showing the
       source or origin of semen, pregnancy, or disease. [Emphasis added.]

The majority holds that “[e]vidence of DM’s pregnancy and her subsequent abortion are

not evidence of a specific instance of the victim’s sexual conduct” because “[a]lthough

this evidence necessarily implies that sexual activity occurred that caused the pregnancy,

the pregnancy and abortion are not evidence regarding a specific instance of sexual

conduct.” Although I agree with the majority’s conclusion that “[e]vidence of DM’s

pregnancy and her subsequent abortion are not evidence of a specific instance of the

victim’s sexual conduct,” I reach this conclusion for different reasons.       While the

majority focuses on the language “specific instances” to reach this conclusion, I would

focus on the language “victim’s sexual conduct.” In other words, I believe that while the

pregnancy and abortion are, in fact, evidence of a specific instance of sexual conduct,

they are not evidence of a specific instance of the victim’s sexual conduct.

       As the majority recognizes, there were two allegations of sexual penetration, but

one of these “alleged sexual encounter[s] could not have been the source of DM’s

pregnancy” due to its timing. That leaves one alleged sexual penetration that still could

have been the source of DM’s pregnancy. Therefore, contrary to the majority’s assertion,

both evidence of DM’s pregnancy and evidence of DM’s abortion are evidence of a

“specific instance” of sexual conduct. Indeed, if the majority were correct that the

pregnancy and abortion are not such evidence, I do not see how the majority can later

conclude, as it does, that this evidence is relevant-- much less “highly probative”--



offered at trial.” People v Adair, 452 Mich 473, 483; 550 NW2d 505 (1996).



                                             2
evidence.2   The pregnancy and the abortion are either evidence of the one alleged

penetration that could have resulted in DM’s pregnancy, or they are not. If they are, then

the pregnancy and abortion are evidence of a specific instance of sexual conduct, but, if

they are not, then the pregnancy and abortion are not even relevant-- let alone “highly

probative”-- evidence. For these reasons, as well as for those set forth in Part III(B) of

the majority’s opinion, I conclude that the pregnancy and abortion are evidence of a

specific instance of sexual conduct.3




2
  In Part III(B) of its opinion, the majority correctly concludes that the proffered evidence
is relevant under MRE 402 and that its probative value is not substantially outweighed by
the danger of unfair prejudice under MRE 403. As it explains, “[e]vidence of DM’s
pregnancy, abortion, and lack of other sexual partners makes it more probable that
defendant sexually assaulted DM.” Indeed, as the majority further explains, this evidence
is “highly probative” because the “evidence of DM’s pregnancy and abortion definitively
demonstrates that sexual penetration occurred” and “[i]f the jury finds credible DM’s
testimony that she did not engage in sexual intercourse with anyone other than defendant
through November 2014, that testimony proves that defendant was the man who sexually
assaulted DM.” In light of these conclusions, how can the majority conclude at the same
time that this evidence is not evidence of a “specific instance” of sexual conduct?
3
  While I agree with the majority that “pregnancy and abortion are not themselves
specific instances of the victim’s sexual conduct” (or anyone’s sexual conduct for that
matter), what the majority fails to recognize is that the rape-shield statute applies not just
to specific instances of sexual conduct themselves, but more broadly to “[e]vidence of
specific instances of the victim’s sexual conduct,” MCL 750.520j(1), and, as the majority
does recognize (at least later in its opinion), DM’s pregnancy and abortion are indeed
evidence of a specific instance of sexual conduct, i.e., the evidence of her pregnancy and
abortion “makes it more probable that defendant sexually assaulted DM.” And the fact
that the rape-shield statute contains an exception for “[e]vidence of specific instances of
sexual activity showing the source or origin of . . . pregnancy,” MCL 750.520j(1)(b),
demonstrates that the rape-shield statute generally applies to evidence of a pregnancy
because, if it did not as the majority alleges, there would be no need to include an
exception for evidence of pregnancy.



                                              3
       However, as mentioned earlier, I believe that such evidence is not evidence of the

“victim’s sexual conduct.” As I stated in my dissenting statements in People v Piscopo,

480 Mich 966 (2007),4 and People v Parks, 483 Mich 1040 (2009),5 “conduct” refers

only to “volitional actions” and thus “does not encompass involuntary acts such as those

that stem from being subjected to sexual abuse.” Parks, 483 Mich at 1060 (MARKMAN,

J., dissenting).6

       As I stated in Parks, 483 Mich at 1059-1062 (MARKMAN, J., dissenting):

              This statute only excludes evidence of the “victim’s sexual conduct.”
       Thus, any inquiry into the statute’s application must focus on the meaning
       of “conduct.” The ordinary meaning of “conduct” is harmonious with the
       Legislature’s use of “conduct” throughout the enacting legislation, 1974 PA
       266, and with the Legislature’s purposes in enacting the rape-shield statute.
4
  In Piscopo, the Court denied leave to appeal and I, joined by Justice CAVANAGH,
dissented. In that case, the defendant (a pastor) sought to admit evidence that the
complainant had made prior false allegations of sexual abuse against another pastor and
that the complainant also claimed to have been raped by a demon. I would have reversed
the trial court’s decision that barred the admission of this evidence.
5
  In Parks, this Court denied leave to appeal. Justice YOUNG wrote a concurring
statement, Chief Justice KELLY wrote a dissenting statement (focused exclusively on the
Confrontation Clause), and I wrote a dissent that Justice CAVANAGH again joined. In that
case, the defendant sought to introduce evidence that prior to her allegations against the
defendant, the complainant had alleged that her step-grandfather sexually abused her.
This was relevant because during the trial the complainant described sexual acts that a
child of her age typically would not have knowledge of or be able to describe and the
medical doctor who examined the complainant after her allegations against her step-
grandfather and after her allegations against the defendant testified that the complainant’s
history led him to believe that she had been abused. I would have reversed the trial
court’s decision that barred the admission of the evidence of the complainant’s past
sexual abuse.
6
  See also People v Duenaz, 498 Mich 969, 969 (2016) (“[W]e encourage the Legislature
to clarify whether evidence of prior sexual abuse constitutes ‘sexual conduct’ within the
meaning of the rape-shield statute, MCL 750.520j.”).



                                             4
       Each of these interpretative guides strongly suggests that “conduct” refers
       only to volitional actions by the victim and does not encompass involuntary
       acts such as those that stem from being subjected to sexual abuse.

               The definition of “conduct” varies little from dictionary to
       dictionary. Conduct is defined as: “personal behavior; way of acting;
       deportment,” Random House Webster’s College Dictionary (1997); “[t]he
       way a person acts; behavior,” The American Heritage Dictionary of the
       English Language (1981); and “[t]he manner of guiding or carrying one’s
       self; personal deportment; mode of action; behavior,” Webster’s Revised
       Unabridged Dictionary (1996). The common theme of these definitions is
       that “conduct” pertains to an individual’s own behavior, to actions initiated
       or set in motion by the individual. Being the victim of, or having been
       subjected to, sexual abuse by another does not by this definition of
       “conduct” constitute something within the scope of the rape-shield statute,
       and therefore should not be excluded from evidence under the authority of
       this statute.[7]

              This interpretation of “conduct” is further supported by the
       Legislature’s use of “conduct” throughout the rape-shield statute. If
       “conduct” is read to include abuse perpetrated against the victim by other
       persons, then references in the statute, MCL 750.520j(1), to “opinion
       evidence of the victim’s sexual conduct” and “reputation evidence of the
       victim’s sexual conduct” make no sense. Reputation and opinion evidence
       are typically based on a person’s character, such as the person’s tendency
       for aggression. A person’s character and conduct are similar at least in the
       sense that they are each formed by voluntary decisions made by that
       individual. Actions concerning which an individual has no control cannot
       be said to establish a person’s character, so when the Legislature extended
       protection from reputation and opinion evidence in MCL 750.520j(1), it
       likely understood that such evidence could only apply with respect to a
       victim’s sexual history over which the victim has control. Thus, the
       ordinary volitional understanding of “conduct” also fits within the context
       in which it is used in the rape-shield statute, whereas a broader definition,



7
  For example, one would not ordinarily describe a rape victim as having “engaged in” or
“taken part in” sexual conduct. And it would be equally odd for a speaker of American
English to assert, for example, that a rape victim “reflected upon the trauma she had
incurred as the result of her sexual conduct” or that the victim “testified at trial as to her
own sexual conduct suffered at the hands of the defendant.”



                                              5
       encompassing non-volitional behavior, including sexual abuse by others,
       does not.

              The statute provides additional insight on the meaning of “conduct”
       by distinguishing “conduct” from “activity” in paragraphs (a) and (b) of
       MCL 750.520j(1). These paragraphs set forth two exceptions to the general
       inadmissibility of evidence regarding a “victim’s sexual conduct” in
       subsection (1). Paragraph (a) renders admissible evidence of the “victim’s
       past sexual conduct with the actor,” and paragraph (b) renders admissible
       “specific instances of sexual activity” concerning the “source or origin of
       semen, pregnancy, or disease.” “Activity” does not connote the concept of
       volition to the same extent as “conduct.” “Activity” in paragraph (b)
       pertains to conditions that directly result from the physical sex act itself—
       semen, pregnancy, disease—in which the concept of volition is essentially
       irrelevant. In contrast, “conduct” in paragraph (a) pertains to a range of
       interpersonal behavior that extends beyond the physical act itself, and in
       which the concept of volition may be quite relevant in assessing whether
       the victim chose to behave in such a way that the defendant should be
       deemed less culpable, or not culpable at all, for the alleged offense.
       Interpreting “conduct” to include non-volitional action blurs the
       Legislature’s apparently careful distinction between “conduct” and
       “activity.”

               The Legislature’s use of “conduct” throughout 1974 PA 266 further
       supports interpreting “conduct” to include only volitional actions. See, e.g.,
       MCL 750.520b (describing first-degree criminal sexual “conduct”). It
       seems unlikely that the Legislature intended to punish non-volitional
       activity under the criminal code.[8] Interpreting “conduct” to mean only


8
  Under MCL 750.520b(1)(b), “[a] person is guilty of criminal sexual conduct in the first
degree if he or she engages in sexual penetration with another person and . . . [t]hat other
person is at least 13 but less than 16 years of age” and one of several enumerated
aggravating circumstances exists, such as “[t]he actor is a member of the same household
as the victim.” As I stated in Piscopo, 480 Mich at 970 (MARKMAN, J., dissenting), in
regards to MCL 750.520d, which is very similar to MCL 750.520b,

       MCL 750.520d states that a person is guilty of “criminal sexual conduct in
       the third degree” if that person

              engages in sexual penetration with another person and if any
              of the following circumstances exist:



                                             6
volitional action maintains this understanding. “Identical language should
receive identical construction when found in the same act.”

       Further uses of “conduct” in 1974 PA 266 are found in MCL
750.520a, in which the Legislature defined “actor” as “a person accused of
criminal sexual conduct,” MCL 750.520a(a), and “victim” as “the person
alleging to have been subjected to criminal sexual conduct,” MCL
750.520a(s). These definitions distinguish a person who has chosen to
perform a certain act from one who had no choice in performing such act.
If a victim, for example, is raped by an actor, the rape is considered to be
the actor’s conduct. The victim is considered to have been “subjected to”
the conduct, strongly suggesting that rape is not fairly characterized as the
victim’s conduct. Rather, it would only be the “conduct” of the person who
chose to perform the act.

        The overall purpose of the rape-shield statute also supports
understanding “conduct” by its normal definition to encompass only
volitional activity. MCL 750.520j was clearly enacted to prevent the
introduction of embarrassing evidence regarding the victim’s sexual history
at trial. Such prohibition, it was hoped, would increase the likelihood that
sexual assault victims would report such assaults and not be deterred from
doing so by the prospect of embarrassment. Yet, reading the rape-shield
statute to exclude evidence regarding past abuse suffered by the victim
bears no apparent relationship to this purpose. While any person may well
be uncomfortable about revealing past instances in which he or she was
sexually abused, such uneasiness is sharply distinct from the kind of
embarrassment that rape-shield statutes were designed to foreclose—
embarrassment caused as a function of one’s own misbehavior or
questionable conduct. [Citation omitted.]



            (a) [t]hat other person is at least 13 years of age and
      under 16 years of age.

If “conduct” referred to passive or involuntary activity, then a girl who was
raped by a 15-year-old boy would herself be guilty of third-degree
[criminal sexual conduct] under the law. However, such an outcome would
obviously be absurd and illogical. Hence, the use of “conduct” throughout
the relevant statute suggests strongly that the Legislature must have
intended “conduct” to refer to volitional behavior and that the term does not
encompass involuntary sexual abuse.



                                     7
Not only is this the more textually grounded approach to giving meaning to MCL

750.520j, but it is also the approach that best facilitates the production of evidence, which

is the “lifeblood of the criminal justice process . . . and indispensable in ensuring fair and

just [jury] determinations.” People v Goldston, 470 Mich 523, 546; 682 NW2d 479

(2004) (MARKMAN, J., concurring).

       In the instant case, the proffered evidence relates to defendant’s sexual abuse of

DM; thus, the rape-shield statute does not apply. More specifically, the prosecutor is

seeking to introduce evidence that DM was pregnant, obtained an abortion, and did not

have sexual intercourse with anybody other than defendant.9 This evidence, if believed

by the jury, seemingly proves that defendant sexually abused DM. However, evidence of

sexual abuse is not tantamount to evidence of the “victim’s sexual conduct” and thus is

not subject to the rape-shield statute.

       Again, I agree with the majority that evidence of DM’s pregnancy, abortion, and

lack of other sexual partners is not subject to the rape-shield statute and is admissible

under the Michigan Rules of Evidence. However, I believe that evidence of DM’s

pregnancy and evidence of the abortion are not subject to the rape-shield statute for

different reasons than the majority. In all other respects, I agree with the majority’s

conclusions and its reasoning.


                                                         Stephen J. Markman


9
  DM was 14 years old at the time of the abuse and thus was legally unable to give
consent. See People v Starks, 473 Mich 227, 235; 701 NW2d 136 (2005); MCL
750.520b; MCL 750.520c; MCL 750.520d; MCL 750.520e.



                                              8
                             STATE OF MICHIGAN

                                    SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                             Nos. 155747-155748

LOVELL CHARLES SHARPE,

              Defendant-Appellant.


BERNSTEIN, J. (concurring in part and dissenting in part).
       I respectfully dissent in part from this Court’s opinion, which affirms the

disposition of the Court of Appeals on other grounds. This case deals with three separate

pieces of evidence: (1) the complainant DM’s pregnancy; (2) DM’s subsequent abortion;

and (3) DM’s lack of other sexual partners during the relevant time period. The trial

court held that only evidence of DM’s pregnancy is admissible, but this Court would

instead find that all three pieces of evidence are admissible. I agree with the majority that

evidence of DM’s abortion and her lack of other sexual partners is not governed by the

rape-shield statute and that evidence of DM’s lack of other sexual partners is admissible

under our rules of evidence. However, I would hold that evidence of DM’s pregnancy is

governed by the rape-shield statute, MCL 750.520j, and that evidence of DM’s abortion

is barred by MRE 402 and MRE 403.

       First, I agree with the Court of Appeals’ implicit holding that the trial court abused

its discretion in finding that some of the evidence is inadmissible under MRE 404(a)(3),

because the prosecutor does not seek to introduce this evidence as character evidence.
Instead, we must then consider whether any of this evidence is admissible under the rape-

shield statute.

       The first question in considering admissibility under the rape-shield statute is

whether the proffered evidence is “[e]vidence of specific instances of the victim’s sexual

conduct . . . .” MCL 750.520j(1). I agree with the majority that evidence of DM’s

abortion and DM’s lack of other sexual partners does not fall under the rape-shield

statute, as that evidence is not evidence of specific instances of the victim’s sexual

conduct. However, I believe that evidence of DM’s pregnancy does fall under the rape-

shield statute.

       The majority states that “the pregnancy . . . evidence alone does not describe a

particular or specific sexual encounter. The evidence demonstrates only that at least one

act of sexual intercourse occurred in 2014 and does not describe one particular

occurrence of sexual conduct.” (Emphasis added.) The focus on the verb “describe” here

is curious, given that it does not appear anywhere in the statute. Rather, the plain

language of MCL 750.520j simply requires that the proffered evidence be “evidence” of a

specific instance of the victim’s sexual conduct. For the reasons stated in Chief Justice

MARKMAN’s concurring opinion, I would find that evidence of DM’s pregnancy is

evidence of a specific instance of the victim’s sexual conduct—the particular sexual

encounter that resulted in the pregnancy.1      As Chief Justice MARKMAN points out,


1
  Although I believe Chief Justice MARKMAN raises an interesting point concerning the
meaning of “sexual conduct” in the rape-shield statute, the prosecutor here specifically
argued that “conduct” includes both voluntary and involuntary behavior, and I would thus
leave this question for another day.



                                            2
evidence of DM’s pregnancy must be presented as evidence of a specific instance of

sexual penetration, or else it is irrelevant; if it is not evidence of a specific instance of

sexual penetration, then how would it add anything to the criminal trial against

defendant? In other words, because the prosecutor charged defendant with one of the

counts of first-degree criminal sexual conduct based on an allegation that a specific

instance of sexual penetration resulted in DM becoming pregnant, I would find that DM’s

pregnancy is being presented as evidence of a specific instance of the victim’s sexual

conduct and evidence of that pregnancy thus falls within the rape-shield statute.

       Evidence that falls under the rape-shield statute generally shall not be admitted,

subject to two exceptions. The second exception, concerning “[e]vidence of specific

instances of sexual activity showing the source or origin of semen, pregnancy, or

disease,” is clearly inapplicable here, as the mere fact of a pregnancy cannot, by itself,

show the source of semen or pregnancy, and there is nothing to suggest that a disease is

at issue. MCL 750.520j(1)(b).2




        Because I believe that evidence of an abortion is one step more attenuated from a
specific instance of sexual conduct than evidence of a pregnancy is, I agree with the
majority’s conclusion that evidence of an abortion does not fall under the rape-shield
statute, despite otherwise agreeing with Chief Justice MARKMAN’s reading of the plain
language of the statute.
2
  Contrary to the majority’s reasoning, I do not believe that reading the exception in MCL
750.520j(1)(b) alongside MCL 750.520j(1) leads to the conclusion that pregnancy is not
evidence of a specific instance of sexual conduct. While MCL 750.520j(1)(b) does no
work in this context, because evidence of a pregnancy is not evidence of the source of
itself, that does not change the fact that it is evidence of a specific instance of sexual
conduct.



                                             3
      The first exception, concerning “[e]vidence of the victim’s past sexual conduct

with the actor,” presents a more difficult question. MCL 750.520j(1)(a). Clearly, the

prosecutor argues that DM’s pregnancy is evidence of DM’s past sexual conduct with

defendant.   However, testimony presented about defendant’s alleged sexual abuse

appears to conflict with the timing of the pregnancy. There are two alleged instances of

sexual penetration, one of which the majority concedes could not have been the source of

DM’s pregnancy, given the timing. But the timing of the other alleged instance of sexual

penetration has not yet been firmly established, and defendant alleges that the timing of

both instances does not coincide with the timing of DM’s pregnancy. Because the plain

language of the first exception notes that only evidence of the victim’s past sexual

conduct with the actor is potentially admissible, I would find that the rape-shield statute

requires the prosecutor to support its assertion that DM’s pregnancy is linked to past

sexual conduct with defendant. Said differently, before evidence of DM’s pregnancy can

be deemed admissible under the first exception to the rape-shield statute, I would hold

that the prosecutor needs to make a threshold showing in the trial court that this evidence

concerns past sexual conduct with defendant. The timing of the second alleged instance

of sexual penetration has still not been established, and without an idea of the relevant

time frame, it is only through mere speculation that one can connect DM’s pregnancy to

sexual conduct with defendant. Accordingly, I would instead remand to the trial court to

allow the prosecutor to make this preliminary showing before the admissibility of

evidence of DM’s pregnancy is determined.

      Turning next to evidence of DM’s subsequent abortion, I would find that it is

barred by MRE 402 and MRE 403. As an initial matter, should evidence of DM’s


                                            4
pregnancy be excluded, the evidence of the abortion would cease to be relevant to the

extent it is needed to explain why no DNA evidence is available.3 Evidence of DM’s

abortion would, of course, tend to show that sexual penetration with someone had

occurred, and would thus be minimally relevant for that purpose.              However, in

considering the balancing test presented in MRE 403, which states that “evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice,” the majority focuses solely on the potential prejudice that might fall on DM,

not defendant. Given that it is defendant who argues against admission of this evidence

because of the potential prejudice to his criminal case, the focus should be on the effect

of this evidence on defendant. See People v Pickens, 446 Mich 298, 337; 521 NW2d 797

(1994) (“This unfair prejudice [of MRE 403] refers to the tendency of the proposed

evidence to adversely affect the objecting party’s position by injecting considerations

extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.”)

(quotation marks and citation omitted).

       Abortion remains a subject of fierce political and moral debate in modern society,

which is not fully captured by the decades-old caselaw on which the majority opinion

relies. Although juror sympathies might split more evenly when considering a minor

who chooses an abortion after alleged sexual abuse, I find it hard to believe the same

would be true when considering defendant, a grown man accused of sexually abusing a

minor. Considered in this light, I believe that evidence of DM’s abortion would not be

3
  However, given the many ways in which a pregnancy may sadly be terminated without
medical intervention, this argument about relevance does not appear to be particularly
strong, even if evidence of the pregnancy is admitted.



                                             5
highly probative, but would subject defendant to unfair prejudice, and I would hold that

such evidence should be excluded under MRE 403.

      I agree with the majority that evidence of DM’s abortion and lack of other sexual

partners is not governed by the rape-shield statute and that DM’s lack of other sexual

partners is admissible under the Michigan Rules of Evidence. However, I continue to

believe that evidence of DM’s pregnancy is governed by the rape-shield statute, and that

the prosecutor must make a threshold showing that the pregnancy is tied to the specific

instance of sexual penetration of which defendant is being accused in order for that

evidence to be admissible under MCL 750.520j(1)(a). I also believe that evidence of

DM’s abortion would subject defendant to unfair prejudice, and should therefore be

excluded under MRE 403.
                                                      Richard H. Bernstein




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