The Macomb Daily
Appeals judges rule Rape Shield Law doesn’t protect accuser’s pornography viewing
Judges rule in child molestation case
A child sexual-assault victim’s potential viewing of pornography can be used at the trial of a Macomb County man accused of molesting her and two other juvenile female relatives, in a precedent-setting ruling by the state Court of Appeals.
A three judge panel says in an opinion released March 10 that defendant Carl Thomas Masi’s attorneys can bring up the allegation that one of the trio of complaining witnesses viewed pornography on her own because the conduct does not fall within the state Rape Shield Law, which bars the inclusion of the “sexual conduct” of a complaining witness in a rape trial.
The judges said the allegation is admissible in which “there is no evidence that the viewer engaged in sexual acts” while watching the pornography.
“Evidence that a victim viewed lawful pornography, without more, is not ‘sexual conduct,’ subject to the exclusionary bar of the rape shield statute,” the judges wrote. “While lawful pornography traditionally involves images or videos of individuals engaged in sexual activity, it does not necessarily follow that the individual watching the pornography is engaged in sexual conduct. Particularly with minor victims, viewing pornography could be evidence of a variety of things, including curiosity or accident, that are not sexual in nature.
“Without more, such as
evidence that the viewer engaged in acts of sexual gratification, evidence of viewing pornography is not ‘sexual conduct’ prohibited under” the law.
The judges also noted “case law from sister states that has reached a similar conclusion.”
The ruling reversed Macomb Circuit Judge James Biernat Jr., who ruled the complainant’s watching of pornography was protected from disclosure under the Rape Shield Law.
The judges at the same time also denied Masi’s attempt for inclusion of a second alleged victim’s supposed viewing or pornography due to different circumstances. That youth says she previously watched pornography with a different adult male relative during which the perpetrator also allegedly engaged in sexual contact with himself and her.
“This evidence falls within the rape-shield’s prohibition on evidence of a victim’s sexual conduct because it occurred amidst alleged acts of sexual abuse perpetrated by” the adult male, the judges say.
Masi, 51, is charged with 12 counts of first degree sexual conduct and four counts of second degree sexual conduct stemming from allegations he sexually assaulted three girls at various times
over a six-year period ending in 2018. Two of the firstdegree counts are due to a victim under age 13 and two of the first-degree counts are due to a relationship.
Masi was bound over to circuit court in 2018 by Judge Sebastian Lucido of 41B District Court in Clinton Township, which has jurisdiction in cases in Clinton and Harrison townships, and Mount Clemens.
Masi’s attorney, Jodi Switalski, said her client says he is innocent. She said three are other legal issues to be resolved in the case before it goes to trial.
“We certainly have a situation with a lot of early childhood trauma (suffered by the accusers), and how it effected them will be an issue in this case,” Switalski said. “We have to look at the impact of mental health and an individual’s ability to recall and recount.”
Switalski said a decision on whether to appeal this ruling to the state Supreme Court is being considered.
Also charged in the case is Maria Rose Ryder, 48, who allegedly played a secondary but participatory role in alleged acts with one of the complaining witnesses, the same child who allegedly viewed pornography on her own. Ryder faces one count of first-degree criminal sexual conduct and two counts of third-degree criminal sexual conduct.
Ryder’s attorney, Nicole Blank, said of the allegations: “Miss Ryder maintains her innocence and is looking forward to her day in court.”
First-degree criminal sexual conduct carries a penalty of up to life in prison.
The five-year-old case has been lingering in circuit court due to legal motions, the appeal and COVID-19 restrictions.
It is scheduled for an April 6 pretrial in front of Biernat in the county courthouse in Mount Clemens.
Also as part of the recent ruling, the court ordered Bierenat to conduct a hearing on whether the pornography evidence “is otherwise admissible” under rules of evidence, the judges say.
The appeals panel also upheld Biernat on other issues in the case.
Biernat ruled the defense cannot raise the allegation that one of the alleged victims was sexually abused by the adult male relative, and she and another victim engaged in sexual conduct, due to the Rape Shield Law.
Masi also contended that Biernat “erred by denying his motion for discovery of the complainants’ privileged medical, psychological, and school records.”
But the judges denied that claim.
“The privileged records did not contain any evidence about the untruthfulness of the complainants, evidence of sexual behavior or pornographic exposure involving the complainants, or evidence of a history of trauma suffered by the complainants,” the said.
Both defendants are free in lieu of bond.
The panel was composed of judges Kristina Robinson Garrett, Noah P. Hood and Thomas C. Cameron.