N.J. KAUFMAN, J. (dissenting in part, concurring in part).

Defendant was convicted after a bench trial in Detroit Recorder's Court of the offense of criminal sexual conduct in the first degree, MCLA 750.520b(1)(e); MSA 28.788(2)(1)(e). He was subsequently sentenced to a term of from 4 to 15 years in prison and now appeals as of right.

This case confronted the court below with the typical one-on-one confrontation problem in a rape case: whom does the trier of fact believe, the complainant or the defendant?

At trial, the complaining witness testified to the following facts: On June 17, 1975, at about 1 a.m., she was walking home from her girlfriend's house in southwest Detroit. During the journey, a man, identified by her as the defendant, walked up from behind and asked if he might walk with her. She refused, but he continued to walk with her for approximately 10 more minutes.

She further testified that as they walked the man put what she believed to be a knife up to her throat and told her not to scream. Then, she recounted, the man forced her across the street to a park and told her to take off her clothes. She complied out of fear because of her belief that the defendant was armed with a knife. The defendant then forced her to engage in intercourse with him.

Immediately thereafter, the defendant grabbed the complainant by the wrist and told her he was taking her to his house. She stated that as they were heading toward his house they passed a man identified by the defendant as "my brother John".

Further testimony by the complainant disclosed that she was able to convince the defendant that they should go to her house instead. She testified that this offer was made solely out of concern for her safety and to "psyche out" the defendant in order to get away from him. As they walked, the complainant did not see a knife but, again, felt one on the side of her neck.

The complainant testified further that as they reached her home, she called out to her girlfriend and her girlfriend's stepfather to call the police because she had just been raped. As a result of this action, she escaped from the defendant.

A short time later, the complainant called the police. After giving the police a report, she was taken to Detroit General Hospital for an examination. The examining doctor was of the opinion that she recently had sexual intercourse. He found no evidence of trauma, scratches, bleeding or abrasion on any part of her body, but stated she was emotionally upset.

After the prosecution rested, the defendant responded on the stand to the complainant's accusations. He testified that he was 18 years old and had never been convicted of a criminal offense. He agreed that on the night in question, he walked up to the complainant as he was walking home from a friend's house. They struck up a conversation, he said, and she asked if he wanted to smoke some marijuana. Thereupon, they went to the park across the street, smoked a couple of "joints", kissed a little bit and sexual intercourse ensued. He denied having a knife.

Afterwards, defendant stated that he invited her to his house and during the trip saw his brother coming down the street. He claimed that he did not introduce the girl to his brother because he was unaware of her name.

While on the way, defendant testified, the complainant invited him to her house. As they walked toward her house, a late model Thunderbird pulled up. The complainant purportedly talked with a man in the car for about two minutes. Thereupon, defendant stated, the complainant told the defendant that she had better see him later because the "dude" in the car knew her boyfriend and it might get a little rough on both of them. Accordingly, he left.

After listening to all of the evidence, the trial judge found defendant guilty and made the following findings of facts:

"The Court will now proceed to rule. There is no question that an act of sexual penetration was committed in connection with the meaning of the statute that was recently enacted. The explanation of the defendant in connection therewith and as to the issue of voluntariness is at best a guarded one.

"The fact that he would meet this young lady at this hour of the night, that she would voluntarily take him in the park and allow him sexual pleasures with him [sic] and that he was going to then go to her home for additional pleasures without ever even knowing her name, I find it totally unbelievable. The Court finds that the act of sexual penetration under Section 520(b) 1, was under subsection E in that the defendant accomplished this act upon the person of the complainant while using a weapon or an article used or fashioned in a manner to lead the complainant to believe it to be a weapon and that he thereupon overcame her will in connection therewith and the Court does find him guilty of the offense of criminal sexual conduct in the first degree."

On appeal, defendant propounds three claims of error. First, it is contended that the portion of the criminal sexual conduct statute under which defendant was charged is unconstitutionally vague. This is so, defendant argues, because the essential element of force or lack of force is absent from the statutory language. Second, it is defendant's position that MCLA 750.520j; MSA 28.788(10), which excludes all evidence of prior sexual activity between the complainant and third parties in rape cases, is unconstitutional in that it impermissibly curtails the defendant's right to cross-examine the complaining witness. Finally, defendant submits that the prosecutor failed to present sufficient evidence to find defendant guilty beyond a reasonable doubt.

In response to defendant's first argument, as a general rule, Michigan requires standing before a constitutional attack may be raised against a statute. See, e.g., State ex rel Wayne County Prosecuting Attorney v Bernstein, 57 Mich. App. 204; 226 N.W.2d 56 (1974). In this case, the critical fact is that the issue of force was placed before the trier of fact, and the trial judge's decision reflected his view that the statute required a finding of force or the threat of force to sustain the conviction. Accordingly, defendant is not in a position to complain of that purported vagueness problem in the statute.

Defendant's next argument, however, cannot be so easily disposed of. The statutory provision in question reads:

"(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)." MCLA 750.520j; MSA 28.788(10).

Prior to consideration of this issue, it appears necessary to determine if this question was properly preserved for appeal. Defense counsel asked the complainant at trial, "[i]s an act of sexual intercourse something new to you?" After she replied in the negative, the prosecutor objected to defense counsel's question based on the previously cited statute. This objection was sustained. Moreover, the trial judge expressed his view that his hands were tied by this statute and he had no discretion in allowing questioning of this sort. Thereafter, the following objection was tendered:

"MR. CROCKETT: [Defense counsel]: Well, for the record, I take exception to the Court's ruling prohibiting my inquiring into the complaining witness' previous sexual activity, if any, and I suggest that that statute in that particular regard is unconstitutional. All of that, I do respectfully."

No larger obligation can be placed on the shoulders of a defendant to preserve the issue for appeal.

Turning, then, to the substance of defendant's contention, the majority initially seeks to limit the inquiry into the constitutionality of the provision in question by relying on appellate counsel's somewhat inartful language that the forbidden questioning was designed to test the "veracity" of the complainant. The majority opinion holds that the statute's restriction on evidence of specific instances of the complainant's sexual conduct does not violate defendant's constitutional rights of cross-examination and confrontation as to veracity, and by extension, to credibility. Even according due weight to the presumption of constitutionality attached to statutes, I cannot subscribe to the theory of the majority and, accordingly, I dissent from that conclusion.

Undoubtedly, a serious constitutional question under the Sixth Amendment is raised by this provision. As noted above, the majority seeks to focus only on cross-examination as to veracity. However, cross-examination as to truth and veracity is so specialized, 2 Wharton's Criminal Evidence, 13th ed, § 472, and so rarely utilized, that it can be assumed that counsel was using the term "veracity" interchangeably with "credibility"; thus, I will focus not just on the statute's effect on impeachment as to veracity but also impeachment as to credibility. In the same vein, the Supreme Court in Giles v Maryland, 386 U.S. 66; 87 S Ct 793; 17 L Ed 2d 737 (1967), concluded that, in a one-on-one rape case, the issue of consent turned wholly on credibility. Thus, far from the majority's narrow approach, this case confronts this Court with the obligation to consider certain other constitutional ramifications of the criminal sexual conduct code evidentiary provision as it relates to confrontation and cross-examination.

It should be emphasized at the outset of our inquiry that the right of cross-examination has been held to be a "fundamental" right. In Chambers v Mississippi, 410 U.S. 284, 295; 93 S Ct 1038; 35 L Ed 2d 297 (1973), Mr. Justice Blackmun, speaking for the Supreme Court, wrote:

"The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the `accuracy of the truth-determining process.' Dutton v Evans, 400 U.S. 74, 89 [ 91 S Ct 210; 27 L Ed 2d 213] (1970); Bruton v United States, 391 U.S. 123, 135-137 [ 88 S Ct 1620; 20 L Ed 2d 476] (1968). It is, indeed, `an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.' Pointer v Texas, 380 U.S. 400, 405 [ 85 S Ct 1065; 13 L Ed 2d 923] (1965). Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. E.g., Mancusi v Stubbs, 408 U.S. 204 [ 92 S Ct 2308; 33 L Ed 2d 293] (1972). But its denial or significant diminution calls into question the ultimate `integrity of the fact-finding process' and requires that the competing interest be closely examined. Berger v California, 393 U.S. 314, 315 [ 89 S Ct 540; 21 L Ed 2d 508] (1969)."

I recognize that in cases of this type, the state has a "legitimate interest" in encouraging the prosecution of rapists by protecting witnesses from harassment and humiliation on the witness stand. The Legislature is validly concerned with ensuring that complainants are not unnecessarily subjected, and that complainants know they will not be unnecessarily subjected, to the traumatic experience of having their private lives paraded before them in the court room. The question is how to balance the competing interests, Chambers v Mississippi, supra.

In Davis v Alaska, 415 U.S. 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974), the Supreme Court conducted such a balancing process and held that the state's policy interest in protecting the confidentiality of a juvenile offender's record had to yield when faced with so vital a constitutional right as the effective cross-examination of an adverse witness for bias. The Supreme Court concluded, through Mr. Chief Justice Burger, that the state's desire that the juvenile fulfill his duty to testify free from embarrassment and with his reputation unblemished must fall before the right of the defendant to seek out the truth in the process of defending himself.

The determination that this Court must make, in much the same manner as did the United States Supreme Court in Davis, involves two separate but related goals of cross-examination: impeachment of credibility and the substantive establishment of the defense in the case. I will discuss credibility first.

The majority opinion focuses solely on veracity, a subset of the larger category of credibility. The majority contends that "[i]nsight into the sexual mores of a witness is rarely a help to a jury in determining if the witness is disposed towards untruthfulness". Thus, according to the majority, the statute's absolute bar on such evidence should survive constitutional challenge. I cannot agree with that conclusion.

Relevancy in Michigan has been defined as "`helpful in throwing light upon any material point in issue'". (Emphasis in the original.) People v Rimson, 63 Mich. App. 1, 4; 233 N.W.2d 867 (1975), citing People v Becker, 300 Mich. 562, 565; 2 N.W.2d 503 (1942). Of course, the fact that a piece of evidence is logically relevant to a material point in issue does not necessarily mean it is legally relevant to that issue, Jarecki v Ford Motor Co, 65 Mich. App. 78; 237 N.W.2d 191 (1975). But where a constitutional right is involved, a statutory declaration that certain evidence can never be legally relevant demands close scrutiny. As the credibility of the complainant is always in issue, I submit that there are instances when specific evidence of sexual conduct does bear on the complainant's credibility. In People v Bastian, 330 Mich. 457, 460; 47 N.W.2d 692 (1951), the Supreme Court held evidence as to the specific sexual habits of the complainant admissible to show that the prosecutrix was a sexual-psychopath, a condition that one physician in the case testified rendered her credibility "very poor". The trial court had ruled that the defense could not cross-examine as to "certain alleged conduct on her part tending to show, as it is claimed, that she was a sexual-psychopathic person and indulged in acts of perversion", 330 Mich at 462. The Supreme Court concluded:

"It is the claim of the defendant that the rulings of the trial court were erroneous, and that they were prejudicial to his rights. Emphasis is placed on the fact that the case against defendant rested largely on the testimony of the prosecutrix, that her credibility was questioned, and that for purposes of impeachment defendant was entitled to offer proofs, even though of a revolting nature, tending to show that prosecutrix was a nymphomaniac. While we appreciate the reluctance of the trial judge to permit testimony of the character in question to be placed before the jury, we are constrained to hold that in a case of the character in question such testimony is competent." 330 Mich at 462. See, also, People v Cowles, 246 Mich. 429, 431; 224 N.W. 387 (1929), People v Smallwood, 306 Mich. 49, 54-55; 10 N.W.2d 303 (1943).

While it is admitted that a certain amount of prejudice toward the complainant in each of the above cases would have been engendered by the admission of the excluded evidence (and did occur, if the cases were retried), nonetheless both trial and appellate courts were able to make a determination based on the facts of the case before it. Bastian, Cowles, and Smallwood demonstrate the difficulty of applying a blanket rule to this issue. Despite the need for sensitivity involved in this issue, the general rule on relevancy should be applied here, that courts may decide the issues of relevancy in the exercise of their discretion. But in accordance with that need for sensitivity, alternatives should be developed to allow the greatest measure of support to victims of rape prosecutions.

In summary, since it is possible for specific instances of the complainant's sexual conduct to be legally relevant (thus admissible) to the issue of credibility, it is necessary to inquire whether there are alternate methods which could protect the state's legitimate interest with less curtailment of the defendant's Sixth Amendment rights. More specifically, the question is whether the statute is so narrowly drawn that it does not exceed that which is necessary to protect the state's interest. I must answer this question in the negative.

Statutes enacted in other jurisdictions include alternatives less stringent than in Michigan. They, too, were enacted in response to public demands to protect complainants who take the stand. However, while all of these provisions are not the same, they generally provide that an in camera hearing must be held to determine the admissibility of the proposed evidence, at which time the trial judge will weigh the probative value of the offered evidence against the prejudice it would produce. This alternative provides a mechanism which can protect witnesses from unjustified harassment on the stand. Moreover, victims are assured of protection before the judicial system, thereby encouraging them to bring complaints. Lastly, it allows the defendant the opportunity to proffer evidence which may be admitted if its probative value clearly outweighs its prejudicial effect.

Even were these alternatives devised by some sister states put aside, I would be ineluctably drawn to the conclusion that the present statutory provision must fall, because the statute potentially forbids the admission of evidence relevant to the issue of consent.

The majority opinion only "consider[s] briefly" the relationship of the statute to the issue of consent and concludes:

"While evidence indicating that the complainant is a person of `indiscriminate promiscuity', Comment, 43 U Chi L Rev 613, 624 (1976), may tend to prove her consent to sex on a particular occasion, a complainant's willingness to engage in sex with certain partners does not make it more likely that she consented in the incident for which defendant stands charged."

The majority's conclusion appears irreconcilable with People v Oliphant, 399 Mich. 472; 250 N.W.2d 443 (1976), wherein the Supreme Court held that pattern evidence is relevant to the issue of consent or nonconsent. As in Oliphant, supra, at 490, "[t]he fact to be established, nonconsent, is crucial". Furthermore, as in Oliphant, supra, at 491, "[o]n the key issue of consent, there is directly contradictory testimony". The Supreme Court, after noting that the trial court had undertaken to balance the probative value of the evidence against its potential prejudicial effect, allowed evidence of the defendant's previous sexual encounters. It is difficult to conceive a reason why a defendant's sexual history should be treated differently than that of complainant's. Indeed, Justice LEVIN, dissenting, voiced concern over that very point, 399 Mich at 514-515. Therefore, I cannot accept the majority's conclusion.

Trial courts must be given discretion to make a determination akin to the decision made in People v Oliphant, supra. But the statute as presently designed is inflexible. The fact that evidence offered is exceedingly probative and critical to a defendant's defense cannot remove it from the statute's prohibitions — no discretion whatsoever being placed in the trial court. A clear illustration of the difficulties engendered by this provision is found in the trial judge's findings of facts in this case. As noted previously, the trial judge found that "[t]he fact that he would meet this young lady at this hour of the night, that she would voluntarily take him in the park and allow him sexual pleasures with him [sic] and that he was going to then go to her home for additional pleasures without ever even knowing her name, I find it totally unbelievable". Surely, if defendant had been able to demonstrate that this particular course of conduct had been commonly engaged in by the complainant, the finder of fact would have had to examine the facts of the case under a different light; yet, because of the statute, the defendant lacked even the opportunity to ask the trial judge to allow him to offer evidence along these lines. The lack of flexibility in this approach, with its denial of even an opportunity to a defendant to offer such evidence, is not cured by the limited exceptions contained in subsection (2). A state's interest in putting criminals in jail and protecting witnesses affords no warrant for so abridging the fundamental rights of a defendant. It must always be remembered that it may be an innocent defendant who is precluded from even attempting to offer what may be the most critical evidence he has to exonerate himself.

Indeed, the United States Supreme Court has held that the right of an accused to present a defense, beyond taking the stand, "is a fundamental element of due process of law". Washington v Texas, 388 U.S. 14, 19; 87 S Ct 1920; 18 L Ed 2d 1019 (1967). See also, Pointer v Texas, 380 U.S. 400; 13 L Ed 2d 923; 85 S Ct 1065 (1965).

The majority opinion neglects the impact of the confrontation cases on the Michigan statute under review. A fair reading of Washington v Texas, supra, suggests that it may be constitutionally impossible to absolutely prohibit necessary cross-examination about specific acts to establish a defense. Opponents of this viewpoint will doubtlessly argue that even if it is admitted that it is possible for a factual situation to exist wherein the victim's sexual behavior with third persons is probative of consent, the prejudice engendered by the admission of the evidence would outweigh its probative value. That argument, though, neglects the constitutional due process aspect inherent in this issue. I must reiterate my concern about how best to effectuate the state's legitimate interest in this area. But if there are even "imaginable" situations where evidence of sexual behavior with third persons is only arguably probative of consent, then, because of the statutory exclusion, in those cases a due process violation would occur. In those situations, which admittedly may be small, a criminal defendant, presumed innocent, will be deprived of the opportunity to present potentially exonerating evidence without any recourse to show its probative value. Such a procedure would mock the right to a fair trial and denigrate the right to cross-examination. However, the right to cross-examination need not be wholly unfettered, to the destruction of the state's interest. There is no doubt but that constitutionally valid restrictions can be placed on defendant's right of cross-examination, Chambers v Mississippi, supra.

This being so, this Court should consider what remedy should be afforded to the defendant. As noted above, I am of the view that defendant is only entitled to the opportunity to offer such evidence. This opportunity should be afforded by a remand to the trial court where a hearing may be held at which time the defendant may offer the cross-examination which he sought to ask. It follows that upon hearing the proffered evidence the trial judge would rule on its admissibility in light of the standards set forth herein. If the evidence is ruled inadmissible, the conviction should be affirmed. If ruled admissible, a new trial should be ordered. For guidance in his ruling, I would point to People v McLean, 71 Mich. 309; 38 N.W. 917 (1888), and People v Whitfield, 58 Mich. App. 585; 228 N.W.2d 475 (1975). These cases stand for the proposition that as a general rule evidence of specific acts of sexual activity with third parties is inadmissible; only in rare instances is evidence of this sort admissible. It is incumbent upon the defendant to strongly tie up the proffered evidence to the particular facts of the case; fishing expeditions have always been, and will continue to be, frowned upon. This is so because in all instances the protection of the complaining witness is a legitimate and proper concern. The interest is not a constant, however. For example, the state's interest diminishes in situations where the probative value of the evidence clearly outweighs its prejudicial effect. In sum, I would give the judge discretion, but I emphasize that it should be exercised cautiously, constantly aware of the general rule against admissibility.

Additionally, in all cases after this opinion, I would recommend that the prosecutor bring a motion in limine to preclude such questioning and evidence. An in camera hearing would then be held to determine the admissibility of the evidence. This course of conduct would protect both the complainant and the defendant.

This Court should again stress to trial judges that, in the rare instances where cross-examination is allowed after an in camera hearing, they should not then abdicate their judicial responsibility of running the proceedings by allowing defense counsel a free hand in harassing a witness. When defense counsel exceeds the proper character of cross-examination, the judge is always empowered to cut him off. As was said in Alford v United States, 282 U.S. 687, 694; 51 S Ct 218; 75 L Ed 624 (1931), "[t]here is a duty to protect * * * [a witness] from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him".

Finally, defendant's last argument must be rejected. There was sufficient evidence on the record to support a finding of guilt beyond a reasonable doubt on the charged crime. People v Booth, 58 Mich. App. 466; 228 N.W.2d 425 (1975).

As noted above, I would hold that the evidentiary provision of the criminal sexual code is unconstitutional because it violates defendant's rights of cross-examination and confrontation. As that provision can be severed from the rest of the statute, my holding in no way affects provisions of the statute not discussed in this opinion. I would remand for proceedings in conformity with this opinion.