The Michigan Legislature has proscribed the most heinous sex crimes to be punished under the Criminal Sexual Conduct – First Degree statute. Deplorable acts such as forcible rape involving incest or children are among society’s worse crimes and can carry substantial periods of imprisonment upon conviction. If you are accused of this offense, make no mistake that having strong criminal defense attorney in your corner could be the most important factor in protecting your freedom.
An individual is guilty of Criminal Sexual Conduct – First Degree in Michigan, contrary to MCL 750.520b, if the prosecutor can prove ANY of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 20.01)
- The individual engaged in sexual penetration with another person that is under 13 years of age.
- The individual engaged in sexual penetration with another person that is at least 13 years of age but less than 16 years of age and ONE OR MORE of the following circumstances:
- The actor is a member of the same household as the victim.
- The actor is related to the victim by blood or affinity to the fourth degree.
- The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.
- The actor is a teacher, substitute teacher, or administrator of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled.
- The actor 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 actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
- The actor 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, and the sexual penetration occurs during the period of that other person’s residency.
- The individual engaged in sexual penetration with another person under circumstances involving the commission of any other felony (e.g. armed robbery, home invasion, kidnapping)
- The individual engaged in sexual penetration with another person AND was aided or abetted by one or more other persons AND EITHER of the following circumstances existed:
- The individual knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
- The individual uses force or coercion to accomplish the sexual penetration.
- The individual engaged in sexual penetration with another person and is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon.
- The individual uses force or coercion to accomplish sexual penetration and cause personal injury to another person.
- The individual engaged in sexual penetration with another person that causes personal injury 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 penetration with another person AND that other person is mentally incapable, mentally disabled, mentally incapacitated, or physically helpless AND EITHER of the following circumstances existed:
- The individual is related to the victim by blood or affinity to the fourth degree.
- The individual is in a position of authority over the victim and used this authority to coerce the victim to submit.
The following definitions have specific meaning under the Criminal Sexual Conduct – First Degree statute:
- “Force or coercion”, according to MCL 750.520b(f), includes, but is not limited to, any of the following circumstances:
- When the individual overcomes the victim through the actual application of physical force or physical violence.
- 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.
- 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.
- 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.
- When the individual, through concealment or by the element of surprise, is able to overcome the victim.
- “Personal injury” means bodily injury, disfigurement, chronic pain, pregnancy, disease, loss or impairment of a sexual or reproductive organ, or mental anguish. Mental anguish means extreme pain, extreme distress, or extreme suffering, either at the time of the event or later as a result of it. INFLICTING PHYSICAL HARM IS NOT NECESSARILY REQUIRED UNDER THE STATUTE.
- “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.
- 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).
- 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).
- 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 – First Degree, a felony conviction, are as follows:
- Imprisonment for life or any term of years, EXCEPT:
- For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age, the MANDATORY MINIMUM SENTENCE IS 25 YEARS.
- For a violation that is committed by an individual 18 years of age or older against an individual less than 13 years of age, the sentence shall be LIFE WITHOUT THE POSSIBILITY OF PAROLE if the defendant committed a previous criminal sexual conduct in the second, third or fourth degree, or assault with the intent to commit sexual penetration (or a substantially federal statute or law from another state), against an individual less than 13 year of age.
- If a person is convicted of a second or subsequent offense of Criminal Sexual Conduct – First 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).
- The trial court may order a term of imprisonment to be served CONSECUTIVELY to any term of imprisonment imposed for any other criminal offense arising from the same transaction.
- Pursuant to MCL 750.520n, for a violation committed by an individual 17 years or older against an individual less than 13 years of age, the defendant shall be sentenced to lifetime electronic monitoring. The defendant will be guilty of a felony punishable by up to 2 years in prison or a fine up to $2,000.00, or both, if he or she does any of the following:
- Intentionally removes, defaces, alters, destroys, or fails to maintain the electronic monitoring device in working order.
- Fails to notify the department of corrections that the electronic monitoring device is damaged.
- Fails to reimburse the department of corrections or its agent for the cost of the electronic monitoring.
When facing an allegation of Criminal Sexual Conduct – First 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 – First Degree even if the victim is his or her legal spouse. MCL 750.520l.
Effectively defending against charges of Criminal Sexual Conduct – First Degree requires an experienced criminal defense attorney on your side. 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.