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What Is Criminal Sexual Conduct – Third Degree In Michigan (MCL 750.520d)?

by | Dec 19, 2018 | Sex Offenses |

What is criminal sexual conduct   third degree in michigan mcl 750520d

Accusations of nonconsensual sexual behavior are extremely dangerous and can cause severe damage to your reputation and livelihood. In addition, serious charges such as Criminal Sexual Conduct – Third Degree can result in a felony conviction leading to imprisonment and lifelong registry as a sex offender. If you find yourself facing these charges in court, then you cannot afford to have anything less than an aggressive defense.

An individual is guilty of Criminal Sexual Conduct – Third Degree in Michigan, contrary to MCL 750.520d, if the prosecutor can prove ANY of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 20.12)

  • The individual engaged in sexual penetration with another person that is at least 13 years of age and under 16 years of age.
  • The individual engaged in sexual penetration with another person through the use of force or coercion.
  • The individual engaged in sexual penetration with another person if the individual knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
  • The individual engaged in sexual penetration 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 legally emancipated or both persons are lawfully married).
  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 penetration 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 were married at the time of the offense).
  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 penetration 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 penetration occurs during that other person’s residency.

The following definitions have specific meaning under the Criminal Sexual Conduct – Third Degree statute:

  • “Force or coercion”, according to MCL 750.520b(f), 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 penetration” is not limited to vaginal intercourse and also includes entry into the victim’s genital opening, anal opening or mouth by the individual’s penis, finger, tongue or any other foreign object. It doesn’t matter if the sexual act was completed or semen was ejaculated.
  1. Genital opening begins at the labia majora of the woman’s genitalia, so “penetration” is legally accomplished if an individual causes a body part or an object to go into the labia majora, no matter how slightly. People v Bristol, 115 Mich App 236; 320 NW2d 229 (1981).
  2. Fellatio and cunnilingus will legally accomplish “penetration” if there is any evidence that the victim’s mouth was penetrated, no matter how slightly. People v Johnson, 432 Mich 931; 442 NW2d 625 (1989).
  3. Sexual penetration has also been upheld where the individual forced one person to perform fellatio or intercourse on another person. People v Dilling, 222 Mich App 44; 564 NW2d 56 (1997).

The penalties for Criminal Sexual Conduct – Third Degree, a felony conviction, are as follows:

  • Up to 15 years in state prison.
  • If a person is convicted of a second or subsequent offense of Criminal Sexual Conduct – Third Degree (even if the prior offense is a substantially similar federal statute or law of another state), the sentence imposed shall provide for a mandatory minimum sentence of at least 5 years. MCL 750.520f.
  • The individual will be listed as a Tier III offender on the Michigan Sex Offender Registry subject to lifetime reporting (juveniles that are 14 years of age or older will also be subject to registry).

When defending against an allegation of Criminal Sexual Conduct – Third 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 – Third Degree even if the victim is his or her legal spouse. MCL 750.520l.

The stakes are high and the risks of a lengthy imprisonment are very real. When facing this kind of serious charge, it is imperative to get an experienced attorney on your side to protect your rights to the very end. 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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