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New Hurdle for Defendants Accused of Sex Crimes

By Rachael M. Sedlacek posted 03-18-2019 09:59

  

Aside from prison time, the Sex Offenders Registration Act (SORA) is one of the most significant consequences that can result from a criminal sexual conduct conviction. Beginning March 17, 2019, there is another serious consequence: that conviction could become evidence in a subsequent hearing or trial. Under amended MCL 768.27b (see 2018 PA 372), other acts evidence of prior sexual assault will be admissible “for any purpose for which it is relevant.” Sexual assault in this context means any tier I, II, or III offense under SORA. MCL 768.27b(6)(c) (referencing MCL 28.722(j)).

Of course, evidence of prior sexual assaults could also come in under MRE 404(b). But the rule prohibits using such evidence to prove propensity or character. The statute does not have these scope limitations. See People v Rosa, 322 Mich App 726, 913 NW2d 392 (2018). In this way, it mirrors FRE 413 (similar crimes in sexual-assault cases), which Michigan has not adopted. Although many states declined to adopt FRE 413, several have integrated a form of it into their jurisprudence through common-law doctrines such as lustful disposition

Unlike FRE 413, however, MCL 768.27b limits admissibility to acts occurring not more than 10 years before the charged offense. 2018 PA 372 added caveats to this limit. The 10-year limit can be overcome in a sexual assault case if at least one of these is true:

  • The prior sexual assault had been reported to law enforcement within 5 years of its occurrence.
  • A sexual assault evidence kit was collected.
  • Evidence from the assault was tested and resulted in a DNA profile associated with the defendant.
  • It is in the interests of justice to admit the evidence.

MCL 768.27b(4). In addition to the temporal limits, MRE 403 still curbs admissibility under the statute. 

For more updates in this realm, see our on-demand seminar Criminal Sexual Conduct Cases.

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