The age of consent for sexual intercourse in Michigan is 16 years of age. Any child younger than the age of consent CANNOT agree to consensual sexual acts and a person engaging in such behavior with children will be found guilty of statutory rape. However, it is also illegal to encourage, entice, accost or solicit a child to engage in such acts even if no sexual or delinquent acts take place. The mere invitation to do these inappropriate behaviors with a child can lead to severe criminal sanctions.
An individual is guilty of accosting, enticing or soliciting a child in Michigan, contrary to MCL 750.145a, if the prosecutor can prove all of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 20.40):
- First, that the individual accosted, enticed, solicited or encouraged a child.
- Second, EITHER OF THE FOLLOWING:
- That the child was less than 16 years old (it doesn’t matter whether the individual actually knew the child’s age, OR;
- The individual believed that the child was less than 16 years old (it doesn’t matter if the child was actually older as long as the prosecutor can prove the individual believed the child was less than 16 years old).
- Third, EITHER OF THE FOLLOWING:
- That when the individual accosted, enticed or solicited the child, he or she intended to induce or force that child to commit an immoral act, submit to an act of sexual intercourse, submit to an act of gross indecency, submit to an act of depravity, or submit to an act of delinquency. It does not matter whether the child actually submitted to the immoral act, sexual intercourse, gross indecency, act of depravity or act of delinquency.
- That the individual encouraged the child to engage in an immoral act, engage in sexual intercourse, engage in an act of gross indecency, engage in an act of depravity, or engage in an act of delinquency. It does not matter whether the child actually engaged in the immoral act, sexual intercourse, gross indecency, act of depravity or act of delinquency.
The penalties for accosting, enticing or soliciting a child, a felony conviction, are as follows:
- If the defendant has no prior convictions for this offense, the penalty is a fine up to $4,000.00 or up to 4 years in prison, or both. MCL 750.145a.
- If the defendant has at least one prior conviction for this offense, the penalty is a fine up to $10,000.00 or up to 10 years in prison, or both. MCL 750.145b.
- Whether or not the defendant had a prior offense, he or she will be required to register as a Tier II Offender on the Michigan Sex Offender Registry for 25 years.
Note that there is no requirement that the child actually has to be under 16 years of age (or even be a child at all!) as long as the defendant believes this is the case. This opens the door for law enforcement to conduct sting operations to entrap and prosecute offenders who thought they were luring children.
In People v Kowalski, 489 Mich 488; 803 NW2d 200 (2011), the Michigan Supreme Court upheld a conviction for an individual who was soliciting inappropriate acts over the Internet to another person who was ultimately an undercover police officer. The defendant, who was a 51-year old man, asked who he believed to be a female in a Yahoo! chat room her age and “she” advised being 15 year of age. After learning this information, the defendant requested that the “15-year old” send photographs of herself, inquired about her chest size, advised that he was “horny”, and invited her to engage in sexy conversation that he could masturbate to. The undercover police officer ultimately executed a search warrant of the defendant’s house and seized computer equipment that implicated him in the crime. Defense counsel argued that the actus reus of the offense was not carried out because the defendant did actually accost, entice or encourage a child, but the jury found him guilty after trial all the same. The Michigan Supreme Court concluded that “[d]efendant engaged in highly sexualized online chats with a person whom he believed to be a 15-year-old girl [and], [i]n doing so, he accosted, enticed, solicited, or encouraged a child to commit an immoral, grossly indecent, delinquent, or depraved act within the meaning of those terms in MCL 750.145a.” In short, if you thought you were inviting a child to engage in sexual acts, you are guilty of this crime no matter who the identity of the “victim” was.
A finding of guilt for accosting, enticing or soliciting a child for immoral purposes is no laughing matter. Besides the obvious danger of fines and imprisonment, a lengthy registry as a sex offender will cause permanent damage to your reputation, restrict your future employment opportunities, and make you susceptible to greater future penalties if the behavior is repeated. The perils that come with a conviction are so great that you can’t afford not to have a zealous criminal defense lawyer on your side.
If you are facing a charge of accosting, enticing or soliciting a child for immoral purposes or any other offense, do not hesitate to seek the assistance of the experienced attorneys at Kershaw, Vititoe & Jedinak PLC.