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What Is Criminal Sexual Conduct - Fourth Degree In Michigan (MCL 750.520e)?

The offense of Criminal Sexual Conduct - Fourth Degree is one of the lesser sex crimes in terms of severity that you can be charged with in Michigan. However, this should not be any assurance that judges and prosecutors will take this charge lightly. A conviction for this offense can lead to fines, incarceration and a length reporting period on the Michigan Sex Offender Registry. If the courts take these matters seriously, then you should respond in kind with an aggressive criminal defense.

An individual is guilty of Criminal Sexual Conduct - Fourth Degree in Michigan, contrary to MCL 750.520e, if the prosecutor can prove ANY of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 20.13)

  • The individual engaged in sexual contact with another person who is at least 13 years of age but less than 16 years of age AND the individual is 5 or more years older than that other person.
  • The individual engaged in sexual contact with another person through force and coercion.
  • The individual engaged in sexual contact with another person and the individual knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
  • The individual engaged in sexual contact with another person and that other person is related to the individual by blood or affinity to the third degree and the sexual penetration occurs under circumstances not otherwise prohibited. However, it is an affirmative defense that the other person was in a position of authority over the defendant and used this authority to coerce the defendant into engaging in sexual penetration. The defendant has to prove this defense by a preponderance of the evidence and does not apply if both parties were legally married at the time of the offense.
  • The individual engaged in sexual contact with another person and the individual is a mental health professional and the sexual contact occurs during or within 2 years after the period in which the victim is his or her client or patient and not his or her spouse. The consent of the victim is not a defense to a prosecution under this section.
  • The individual engaged in sexual contact with another person AND that other person is at least 16 years of age but less than 18 years of age and a student at a public school or nonpublic school, AND either of the following applies:
  1. The individual is a teacher, substitute teacher, or administrator of that public school, nonpublic school, school district, or intermediate school district (unless the other person is emancipated or if both persons are lawfully married to each other at the time of the alleged violation).
  2. The individual is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the individual uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
  • The individual engaged in sexual contact with another person AND that other person is at least 16 years old but less than 26 years of age and is receiving special education services, AND either of the following applies:
  1. The individual is a teacher, substitute teacher, administrator, employee, or contractual service provider of the public school, nonpublic school, school district, or intermediate school district from which that other person receives the special education services (unless both persons are lawfully married to each other at the time of the alleged violation).
  2. The individual is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the individual uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
  • The individual engaged in sexual contact with another person and the individual is an employee, contractual service provider, or volunteer of a child care organization, or a person licensed to operate a foster family home or a foster family group home, in which that other person is a resident, that other person is at least 16 years of age, and the sexual contact occurs during that other person's residency.

The following definitions have specific meaning under the Criminal Sexual Conduct - Fourth Degree statute:

  • "Force or coercion", according to MCL 750.520e(1)(b), includes, but is not limited to, any of the following circumstances:
  1. When the individual overcomes the victim through the actual application of physical force or physical violence.
  2. When the individual coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.
  3. When the individual coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. "To retaliate" includes threats of physical punishment, kidnapping, or extortion.
  4. When the individual engages in the medical treatment or examination of the victim in a manner or for purposes that are medically recognized as unethical or unacceptable.
  5. When the individual, through concealment or by the element of surprise, is able to overcome the victim.
  • "Sexual contact" means an intentional touching of (or made the victim touch or permitted the victim to touch) the genital area, groin, inner thigh, buttock or breast, or the clothing covering that area. The contact must have been done for sexual purposes or could reasonably be construed as having been done for sexual purposes.

The penalties for Criminal Sexual Conduct - Fourth Degree, a high court misdemeanor conviction, are as follows:

  • Up to 2 years in state prison or a fine up to $500.00, or both.
  • The individual will be listed on the Michigan Sex Offender Registry as follows:
  1. If the victim was under 13 years old and the offender was 17 years old or older, then he or she would register as a Tier III Offender for life.
  2. If the victim was at least 13 years old but not yet 18 years old, then the offender would register as a Tier II Offender for 25 years.
  3. If the victim was 18 years old or older, then the offender would register as a Tier I Offender for 15 years.
  4. If the offender has not yet reached 16 years of age, then he or she will NOT be required to register.

When defending against an allegation of Criminal Sexual Conduct - Fourth Degree, you must consider the following:

  • The testimony of a victim does NOT have to be corroborated in a prosecution. In fact, the victim's testimony can be the ONLY evidence to sustain a conviction. MCL 750.520h.
  • An individual can assert as an absolute, affirmative defense that the victim actually consented to the sexual act. However, the victim must have been of legal age, since consent is not a defense to statutory rape. Since it is an affirmative defense, the defendant has the burden of showing by a preponderance of the evidence that the sexual conduct was consensual. A victim is not required to have resisted the defendant. MCL 750.520i.
  • The defense is prohibited from producing evidence of specific instances of the victim's sexual conduct, or opinion and reputation evidence of the victim's sexual conduct, UNLESS the evidence is the victim's past sexual conduct with the defendant or evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease (known is Michigan's "rape-shield" law). However, this proposed evidence may only be admitted if it is material to a fact at issue and that its inflammatory or prejudicial nature does not outweigh its probative value. MCL 750.520j.
  • A person may be charged and convicted of Criminal Sexual Conduct - Fourth Degree even if the victim is his or her legal spouse. MCL 750.520l.

You deserve an experienced defense attorney in your corner that will fight your Criminal Sexual Conduct - Fourth Degree charge as seriously as any other allegation. If you or a loved one are accused of a criminal sexual offense or any other crime, do not hesitate to contact the skilled lawyers at Kershaw, Vititoe & Jedinak PLC.

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