N. J. Kaufman, P.J.
We agree with and adopt the statement of facts presented in the dissenting opinion. However, we note that the dissenting opinion declines to discuss the constitutional implications in this case arising out of the defendants’ failure to abide by the notice requirements of the restrictive evidence provision of the criminal sexual conduct statute, MCL 750.520j(2); MSA 28.788(10)(2). We find such a discussion to be called for. This opinion, then, reflects the view that that portion of the restrictive evidence provision, which requires notice and an evidentiary hearing before admission of evidence of specific instances of sexual conduct between a complainant and a defendant, violates a defendant’s sixth amendment rights to confrontation and cross-examination.
Although prior decisions of this Court have upheld the constitutionality of this restrictive evi[6]*6dence provision in the face of challenges that the preclusion of evidence regarding prior instances of a victim’s sexual conduct with third persons denies a defendant his right of confrontation, no case has considered the factual situation presented here. In the instant case, one of the codefendants, who had engaged in prior sexual conduct with the complainant, sought to admit this evidence to show the complainant’s consent. This attempt served to no avail because of the defendants’ failure to abide by the statutory notice provisions. In point of fact, because of such improper notice, the trial court declined to conduct an in camera hearing to weigh the probative value of this evidence against its prejudicial nature.
A litany of cases is cited in the dissenting opinion. It becomes necessary to re-analyze the propositions raised in these opinions and place them in their proper perspective.
In People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977), lv den 402 Mich 829 (1977), the defendant therein sought reversal of his first-degree criminal sexual conduct conviction. On appeal, that defendant argued that the trial court’s prohibition against questioning the victim about her sexual activities with third persons, prior to the alleged rape, violated his sixth amendment rights to confront and cross-examine his accuser. That defendant further argued that inquiry into the victim’s sexual background should have been permitted since it was probative to the issue of consent, that defendant’s principal defense. This Court rejected that defendant’s arguments as irrelevant and of minimal evidentiary significance. In so holding, the Court recognized that factual situations do exist in which the victim’s sexual behavior with third persons is arguably probative of [7]*7consent. The victim’s sexual behavior with the actor, as in the instant case, then would be of greater moment.
The majority in People v Dawsey, 76 Mich App 741; 257 NW2d 236 (1977), rejected the argument of the defendant therein that his sixth amendment confrontation right was abridged when the trial court denied him the opportunity of questioning the complainant therein about her previous sexual activities with third persons. The Court held that a defendant is precluded from exploring a complainant’s sexual past in order to attack her veracity. This holding was narrow, however.
The Dawsey Court did not reach the issue of the constitutionality of the statutory provision restricting evidence with respect to opinion or reputation evidence of a complainant’s sexual conduct. Moreover, the Dawsey Court indicated that, had that defendant attempted to produce a witness to testify about that complainant’s reputation for chastity and been denied, serious constitutional questions would have been raised. The Court’s quote from People v McLean, 71 Mich 309, 312; 38 NW 917 (1888), is particularly illuminating considering the facts of the instant case:
" 'Evidence that the prosecutrix is a common prostitute, or that her character for chastity is bad, is admissible, and particular acts of unchastity or sexual intercourse with the Defendant may be shown; but evidence of such acts with a third person is not admissible’.” Dawsey, supra, 752-753.
In the case at bar, the defendants, on the issue of the complainant’s consent, sought to introduce evidence that the complainant was a common prostitute and that she had had previous sexual [8]*8conduct with one of the codefendants. Both attempts were denied by the trial court.
In People v Patterson, 79 Mich App 393; 262 NW2d 835 (1977), the constitutionality of the restrictive evidence provision was upheld in three separate opinions. Judges R. B. Burns and Holbrook summarily rejected that defendant’s sixth amendment confrontation argument. Judge Cavanagh, in a separate concurring opinion which is quite instructive, held that the subject statute was unconstitutional to the extent that it excludes evidence which, if received, might raise in the mind of a juror a reasonable doubt as to a defendant’s guilt. Further, upon a defense counsel’s oifer of proof, a defendant should be entitled to an in camera hearing at which he may conduct, for the court’s consideration, the proposed cross-examination. The trial court must then determine whether this evidence would raise a reasonable doubt in the mind of a juror. This determination would be reviewable under a "clearly erroneous” standard by this Court, Patterson, supra, 413-414.
The evidence which the defendants sought to introduce with respect to the complainant’s prior sexual activity with codefendant Williams could raise a reasonable doubt in the mind of a juror.
In People v Khan, 80 Mich App 605; 264 NW2d 360 (1978), Iv den 402 Mich 903 (1978), this Court again upheld the constitutionality of the evidence limitation provision, finding a complainant’s previous sexual encounters with persons other than a defendant to be logically and legally irrelevant.
It is noteworthy that none of the aforementioned cases dealt with specific instances of prior sexual conduct between a complainant and a defendant, as here. Moreover, language in these cases suggests that their application is narrow in [9]*9scope. Such application should not be extended to encompass the situation herein.
Restrictive evidence provisions are not given such an interpretation in California. In People v Blackburn, 56 Cal App 3d 685, 690; 128 Cal Rptr 864, 866-867 (1976), it was stated:
"The relevance of past sexual conduct of the alleged victim of the rape with persons other than the defendant to the issue of her consent to a particular act of sexual intercourse with the defendant is slight at best.” (Emphasis added.)
The California Evidence Code Section 1103, as amended, contains no provision allowing a trial court, in the exercise of its discretionary powers, to deny evidence of specific instances of prior sexual conduct between a complainant and a defendant.
Furthermore, recently adopted FRE 412 requires the trial court to conduct an evidentiary hearing to consider specific instances of sexual conduct between a complainant and a defendant if the defendant complies with the statutory notice provision. Whereas, in Michigan, upon a defendant’s compliance with the notice provision, the evidentiary hearing is still subject to the discretion of the trial court.
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N. J. Kaufman, P.J.
We agree with and adopt the statement of facts presented in the dissenting opinion. However, we note that the dissenting opinion declines to discuss the constitutional implications in this case arising out of the defendants’ failure to abide by the notice requirements of the restrictive evidence provision of the criminal sexual conduct statute, MCL 750.520j(2); MSA 28.788(10)(2). We find such a discussion to be called for. This opinion, then, reflects the view that that portion of the restrictive evidence provision, which requires notice and an evidentiary hearing before admission of evidence of specific instances of sexual conduct between a complainant and a defendant, violates a defendant’s sixth amendment rights to confrontation and cross-examination.
Although prior decisions of this Court have upheld the constitutionality of this restrictive evi[6]*6dence provision in the face of challenges that the preclusion of evidence regarding prior instances of a victim’s sexual conduct with third persons denies a defendant his right of confrontation, no case has considered the factual situation presented here. In the instant case, one of the codefendants, who had engaged in prior sexual conduct with the complainant, sought to admit this evidence to show the complainant’s consent. This attempt served to no avail because of the defendants’ failure to abide by the statutory notice provisions. In point of fact, because of such improper notice, the trial court declined to conduct an in camera hearing to weigh the probative value of this evidence against its prejudicial nature.
A litany of cases is cited in the dissenting opinion. It becomes necessary to re-analyze the propositions raised in these opinions and place them in their proper perspective.
In People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977), lv den 402 Mich 829 (1977), the defendant therein sought reversal of his first-degree criminal sexual conduct conviction. On appeal, that defendant argued that the trial court’s prohibition against questioning the victim about her sexual activities with third persons, prior to the alleged rape, violated his sixth amendment rights to confront and cross-examine his accuser. That defendant further argued that inquiry into the victim’s sexual background should have been permitted since it was probative to the issue of consent, that defendant’s principal defense. This Court rejected that defendant’s arguments as irrelevant and of minimal evidentiary significance. In so holding, the Court recognized that factual situations do exist in which the victim’s sexual behavior with third persons is arguably probative of [7]*7consent. The victim’s sexual behavior with the actor, as in the instant case, then would be of greater moment.
The majority in People v Dawsey, 76 Mich App 741; 257 NW2d 236 (1977), rejected the argument of the defendant therein that his sixth amendment confrontation right was abridged when the trial court denied him the opportunity of questioning the complainant therein about her previous sexual activities with third persons. The Court held that a defendant is precluded from exploring a complainant’s sexual past in order to attack her veracity. This holding was narrow, however.
The Dawsey Court did not reach the issue of the constitutionality of the statutory provision restricting evidence with respect to opinion or reputation evidence of a complainant’s sexual conduct. Moreover, the Dawsey Court indicated that, had that defendant attempted to produce a witness to testify about that complainant’s reputation for chastity and been denied, serious constitutional questions would have been raised. The Court’s quote from People v McLean, 71 Mich 309, 312; 38 NW 917 (1888), is particularly illuminating considering the facts of the instant case:
" 'Evidence that the prosecutrix is a common prostitute, or that her character for chastity is bad, is admissible, and particular acts of unchastity or sexual intercourse with the Defendant may be shown; but evidence of such acts with a third person is not admissible’.” Dawsey, supra, 752-753.
In the case at bar, the defendants, on the issue of the complainant’s consent, sought to introduce evidence that the complainant was a common prostitute and that she had had previous sexual [8]*8conduct with one of the codefendants. Both attempts were denied by the trial court.
In People v Patterson, 79 Mich App 393; 262 NW2d 835 (1977), the constitutionality of the restrictive evidence provision was upheld in three separate opinions. Judges R. B. Burns and Holbrook summarily rejected that defendant’s sixth amendment confrontation argument. Judge Cavanagh, in a separate concurring opinion which is quite instructive, held that the subject statute was unconstitutional to the extent that it excludes evidence which, if received, might raise in the mind of a juror a reasonable doubt as to a defendant’s guilt. Further, upon a defense counsel’s oifer of proof, a defendant should be entitled to an in camera hearing at which he may conduct, for the court’s consideration, the proposed cross-examination. The trial court must then determine whether this evidence would raise a reasonable doubt in the mind of a juror. This determination would be reviewable under a "clearly erroneous” standard by this Court, Patterson, supra, 413-414.
The evidence which the defendants sought to introduce with respect to the complainant’s prior sexual activity with codefendant Williams could raise a reasonable doubt in the mind of a juror.
In People v Khan, 80 Mich App 605; 264 NW2d 360 (1978), Iv den 402 Mich 903 (1978), this Court again upheld the constitutionality of the evidence limitation provision, finding a complainant’s previous sexual encounters with persons other than a defendant to be logically and legally irrelevant.
It is noteworthy that none of the aforementioned cases dealt with specific instances of prior sexual conduct between a complainant and a defendant, as here. Moreover, language in these cases suggests that their application is narrow in [9]*9scope. Such application should not be extended to encompass the situation herein.
Restrictive evidence provisions are not given such an interpretation in California. In People v Blackburn, 56 Cal App 3d 685, 690; 128 Cal Rptr 864, 866-867 (1976), it was stated:
"The relevance of past sexual conduct of the alleged victim of the rape with persons other than the defendant to the issue of her consent to a particular act of sexual intercourse with the defendant is slight at best.” (Emphasis added.)
The California Evidence Code Section 1103, as amended, contains no provision allowing a trial court, in the exercise of its discretionary powers, to deny evidence of specific instances of prior sexual conduct between a complainant and a defendant.
Furthermore, recently adopted FRE 412 requires the trial court to conduct an evidentiary hearing to consider specific instances of sexual conduct between a complainant and a defendant if the defendant complies with the statutory notice provision. Whereas, in Michigan, upon a defendant’s compliance with the notice provision, the evidentiary hearing is still subject to the discretion of the trial court.
When evidence of specific instances of sexual conduct between a complainant and a codefendant is presented, the requirement for a hearing on the evidence lacks validity. The very nature of this evidence is personal between the parties. As such, a hearing upon its admissibility would necessarily break down into a consideration of the complainant’s word against the defendant’s word. Such a credibility assessment is better placed before the jury. The trial court usurps their role as a factfind[10]*10ing body when it preliminarily reviews and denies admission of this evidence through exercise of its discretionary powers. The hearing requirement retains its constitutional validity only in situations involving previous sexual conduct between a complainant and third persons. A trial court ruling on admissibility is more in order in that situation.
This conclusion is not affected by the fact that codefendant Williams did not comply with the ten-day notice provision required by the statute. Many states choose not to impose a notice requirement where previous relations between a complainant and a defendant are concerned. See generally, Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum L Rev 1, fn 196 at 32, and pp 100-103 (1977). There seems to be no logical justification for its imposition. We find this requirement unconstitutional when applied to preclude evidence of specific instances of sexual conduct between a complainant and a codefendant.
The object behind imposition of a notice requirement is to allow the prosecution to investigate the validity of a defendant’s claim so as to better prepare to combat it at trial. This rationale is sound when applied to notices of alibi and insanity defenses. It loses its logical underpinnings however when applied to the instant situation. As stated, the very nature of the evidence sought to be presented, i.e., prior instances of sexual conduct between a complainant and a codefendant, is personal between the parties. As such, it does not involve a subject matter that requires further witnesses to develop. An in camera hearing will necessarily focus on a complainant’s word against the word of a codefendant. Requiring notice in this situation, then, would serve no useful purpose. There would be no. witnesses to investigate and, [11]*11thus, no necessity for preparation time. In view of the foregoing, we find that the trial court’s denial of codefendant Williams’ proffered evidence represents a consideration of form over substance. The evidence should have been admitted despite noncompliance with the notice provision. This ten-day notice provision loses its constitutional validity when applied to preclude evidence of previous relations between a complainant and a defendant.
The ten-day notice provision should not preclude the admission of the evidence on behalf of the codefendants as well, albeit for different reasons. The defendants jointly petitioned for separate trials. The trial court denied these severance motions. Since all of the defendants raised consent as a defense, joinder was proper. See People v Hurst, 396 Mich 1; 238 NW2d 6 (1976). Nevertheless, joinder should not serve to deny codefendant Williams his right to properly present his defense. He had a right to have the jury consider evidence of his previous sexual contacts with the complainant on the issue of consent. The fact that, had the trials been held separately, the remaining defendants would not have had such a right, should not prejudice codefendant Williams. This conclusion must follow even though, as a result, the other codefendants’ defenses would be bolstered by evidence deemed irrelevant under prior case law, Thompson, supra. A limiting instruction might be provided restricting the jury’s consideration of this evidence to codefendant Williams’ defense. However, we recognize that it is naive to assume that such an instruction would be at all effective. As stated in Bruton v United States, 391 US 123, 129; 88 S Ct 1620, 1624; 20 L Ed 2d 476, 481 (1968),
" 'The naive assumption that prejudicial effects can [12]*12be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction * * ”
Thus, we conclude that evidence of the complainant’s previous sexual contacts with codefendant Williams should have been admitted on the issue of consent. Codefendant Williams had the right to present this evidence in his own defense. The remaining defendants should have been allowed to benefit from the admission of this evidence because of its relevance and materiality to codefendant Williams’ defense, the joinder of the defendants in one trial, and a realistic consideration of the inefficacy of limiting instructions in such instances.
Additionally, it should be noted that the trial court did not allow defense counsel to delve into the complainant’s prior criminal record as evidenced by her rap sheet.1 It precluded this inquiry due to defendants’ failure to abide by the notice provisions of the criminal sexual conduct statute. In response to complaint by defense counsel that these materials had not been made available for discovery until the day of trial, the court held that, nevertheless, this evidence did not constitute newly discovered information tending to make the evidence described in MCL 750.520(j)(l)(a) and (b) admissible. The problem with this conclusion is that this evidence might have been admissible as prior conviction evidence reflective upon the complainant’s credibility or lack thereof. In such case, the trial court had a duty to exercise its discretion in reviewing this proffered evidence without regard to any notice provisions. See People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), and [13]*13People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978). Thus, we find the trial court erred in summarily dismissing this evidence without determining its nature.
Lastly, defendants raise a claim of ineffective assistance of counsel based on the ten-day notice provision violation by counsel. We cannot accept this claim. The law in this area is in a state of flux, as evidenced by the varied nature of the opinions cited herein. Moreover, at least one of the assigned counsel was appointed just before the trial and could in no way have complied with the statutory notice provision. In view of the foregoing, we are not prepared to hold that the Garcia-Beasley standards for ineffective assistance of counsel were violated herein. See People v Garcia, 398 Mich 250, 264-266; 247 NW2d 547 (1976).
In view of the foregoing, we reverse and remand for a new trial. If this trial is held jointly, the trial court should consider any evidence of previous relations between defendant Williams and the complainant. The other defendants should be allowed to benefit from the admission of this evidence as well, for the reasons stated hereinbefore. However, if separate trials are held, evidence of previous relations between defendant Williams and the complainant should only be admitted at defendant Williams’ trial. This evidence should not inure to the benefit of the remaining defendants. Additionally, whether joint or separate trials are held, the trial court(s) should rule upon the admissibility of prior convictions of the complainant, if any, according to the Jackson-Crawford standards.
J. X. Theiler, J., concurred.