Jason Lee Shaver was charged with sexually abusing his cousin’s two children, J.R. and B.R., while Shaver lived with the cousin and his family. According to the children, Shaver abused them repeatedly, starting when J.R. was four years old (B.R. was three at that time). They did not tell their mother about it until after Shaver moved out.
About a month before the children disclosed Shaver’s alleged abuse, the children’s father was convicted of sexually abusing B.R. An interview specialist and clinical supervisor at the Children’s Assessment Center, who interviewed B.R. about the father’s abuse, testified that she interviewed B.R. before the children disclosed Shaver’s sexual conduct; at that time, B.R. did not say that Shaver has abused her. The supervisor did not interview J.R. at that time and did not know whether anyone else had done so. According to the supervisor’s notes, Shaver was still living with his cousin’s family at that time.
When B.R. was interviewed again, after telling her mother Shaver had abused her, she described sexual contact with Shaver, including penetration. At trial, J.R. and B.R., then ten and nine years old, described the abuse. Royce Brooks, who shared a cell with Shaver after his arrest, testified that Shaver admitted to Brooks that J.R. had performed oral sex on him. Shaver also started to tell him about an incident with B.R., but Brooks said he “shut him up” because he “did not really want to know this story.”
Shaver sought to introduce evidence that the children’s father had been convicted of abuse “similar” to the offenses Shaver was accused of, but the trial judge denied the request, citing the rape-shield act, MCL 750.520j. (In general, the rape shield act prohibits any evidence of sexual conduct between the victim and anyone other than the accused.) A jury convicted Shaver of two counts of first-degree criminal sexual conduct, MCL 750.520b(2)(b) (victim under 13, defendant 17 years or older). The trial court judge sentenced Shaver as an habitual offender, third offense, MCL 769.11, to concurrent sentences of 28 to 56 years for each count.
Shaver appealed to the Court of Appeals, and the appellate court remanded the case to the trial court, directing the court to hold an evidentiary hearing to determine: (1) whether the facts underlying the conviction of the children’s father were highly similar to the conduct the children testified to in Shaver’s case and, therefore, relevant to explain J.R.’s and B.R’s age-inappropriate sexual knowledge and (2) whether Shaver was denied the effective assistance of counsel at trial because of his attorney’s failure to investigate and present exculpatory witnesses and evidence. The trial judge determined that the facts underlying the conviction of the victims’ father were not similar to Shaver’s sexual conduct in this case, and concluded that Shaver was not denied the effective assistance of counsel.
Shaver again appealed, but in an unpublished per curiam opinion, the Court of Appeals affirmed his convictions.
Shaver argued in part that the trial judge should have granted his request to present evidence that the victims’ father was convicted of criminal sexual conduct “similar” to that Shaver allegedly engaged in with the children. The Court of Appeals disagreed: “[T]he trial court properly ruled that evidence of the victims’ father’s conviction was inadmissible under the rape-shield act. Defendant’s assertion that the rape-shield act does not apply to evidence of the children’s prior sexual abuse by their father because the acts were nonconsensual lacks merit.”
Michigan’s rape shield act provides that
(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.
While the rape-shield statute is usually invoked in cases with adult victims, Michigan appellate courts have ruled that the rape-shield law applies in child abuse cases also, the Court of Appeals noted. “Thus, the rape-shield act applies to the evidence that defendant sought to admit in this case.” Moreover, neither of the exceptions in the act (subsections a and b) applied in Shaver’s case, the panel said.
Shaver argued that the father’s conviction should be introduced to show that the children learned their age-inappropriate sexual knowledge through the father’s abuse and not from Shaver. The appellate court acknowledged, “[I]n certain limited situations, evidence that is not admissible under one of the statutory exceptions set forth in the rape-shield act may nevertheless be relevant and admissible to preserve a criminal defendant’s Sixth Amendment right of confrontation…. [including] situations where another person has been convicted of criminal sexual conduct involving the complainants and the facts underlying the previous conviction were significantly similar to the charged offense so as to show that the children’s ‘age-inappropriate sexual knowledge was not learned from defendant.’”
But Shaver had failed to show that the acts he was accused of were “highly similar” to the father’s abuse, the Court of Appeals said.
“During the evidentiary hearing on remand, no evidence was presented that the victim’s father engaged in sexual conduct with J.R. The trial court was presented with testimony that the victims’ father pleaded nolo contendere to a single count of CSC 1 for inserting his penis into B.R.’s mouth. In this case, defendant is charged with genital and anal penetration with B.R. and anal and oral penetration with J.R. On remand, the trial court found that the acts of oral penetration committed by the victims’ father were not highly similar to defendant’s sexual acts in this case. We agree. The victims’ father’s oral penetration of B.R. is not highly similar to defendant’s penetration of B.R. and J.R. Rather, it is ‘relatively dissimilar sexual conduct,’ which is inadmissible as irrelevant.”
Shaver appealed, and, in an order dated September 20, 2013, the Supreme Court granted leave to appeal. The Court directed, “The parties shall address: (1) whether evidence of a child’s prior sexual abuse is barred by the rape-shield statute, MCL 750.520j; (2) if so, whether evidence of prior sexual abuse was nevertheless admissible in this instance to preserve the defendant’s right of confrontation and to present a defense (see People v Hackett, 421 Mich 338 (1984)); and (3) whether any error in excluding evidence of prior sexual abuse in this case was harmless.”