The crimes of assault with intent to commit criminal sexual conduct are lesser offenses in Michigan available to the prosecutor to punish behavior that doesn’t neatly fit into other types of sexual assault statutes. Consider a situation where someone is caught in an incriminating position with someone else and, but for the interruption, more would have happened. For example, a wife walks into the bedroom and catches her husband about to commit sexual acts against the young neighbor girl. There was not any actual penetration or sexual contact, although that would have been an absolute certainty if there was no interruption. This is likely insufficient evidence for the prosecutor to prove criminal sexual conduct in the first degree or second degree given the actual lack of touching. However, if the prosecutor can prove beyond a reasonable doubt that the offender intended to commit these sexual acts, then he or she may be able to secure a criminal conviction that can result in possible prison and lifetime sex offender registry.
ASSAULT WITH INTENT TO COMMIT CRIMINAL SEXUAL CONDUCT INVOLVING PENETRATION
A person is guilty of assault with intent to commit criminal sexual conduct involving penetration, contrary to MCL 750.520g(1), if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 20.17):
- First, that the individual either attempted to commit a battery on the victim or did an act that would cause a reasonable person to fear or apprehend an immediate battery. A battery is a forceful or violent touching without lawful consent of the person or something closely connected with the person of another.
- Second, that the individual intended either to injure the victim or intended to make the victim reasonably fear an immediate battery.
- Third, that at the time, the individual had the ability to commit a battery, appeared to have the ability, or thought he or she had the ability.
- Fourth, that when the individual assaulted the victim, the individual intended to commit a sexual act involving criminal sexual penetration. This means that the individual must have intended some actual entry into one person’s genital opening, anal opening or mouth with another person’s penis, finger, tongue or foreign object.
- It is not required that the individual actually began to commit the sexual act. To prove this charge, the prosecutor must prove that the individual made an attempt or a threat while intending to commit the act.
- An actual touching or penetration is not required. To prove this charge, the prosecutor must prove that the individual committed the assault and intended to commit criminal sexual penetration.
Assault with intent to commit criminal sexual conduct involving penetration of BOTH criminal sexual conduct in the first degree involving personal injury and criminal sexual conduct in the first degree involving the use of force or coercion. People v Nickens, 470 Mich 622, 629-630; 685 NW2d 657 (2004).
A conviction for assault with intent to commit criminal sexual conduct involving penetration is punishable by up to 10 years in prison. In addition, the defendant will have to register as a Tier III Offender on Michigan’s Sex Offender Registry (must register FOR LIFE and report to law enforcement FOUR TIMES PER YEAR) unless the victim consented to the conduct, was at least 13 years old but not yet 16 years old, and not more than 4 years younger than the victim.
ASSAULT WITH INTENT TO COMMIT CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE
A person is guilty of assault with intent to commit criminal sexual conduct in the second degree, contrary to MCL 750.520g(2), if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 20.18):
- First, that the individual either attempted to commit a battery on the victim or did an act that would cause a reasonable person to fear or apprehend an immediate battery. A battery is a forceful or violent touching without lawful consent of the person or something closely connected with the person of another.
- Second, that the individual intended either to injure the victim or to make the victim reasonably fear an immediate battery.
- Third, that at the time, the individual had the ability to commit a battery, appeared to have the ability, or thought he or she had the ability.
- Fourth, that when the individual assaulted the victim, the individual intended to commit a sexual act involving criminal sexual contact. This means that the individual must have specifically intended to touch the victim or have the victim touch his or her genital area, groin, inner thigh, buttock, breast, or the clothing covering those areas.
- Fifth, that when the individual assaulted the victim, the individual must have specifically intended to do the act involving criminal sexual contact for the purpose of sexual arousal or gratification. However, an actual touching or penetration IS NOT REQUIRED.
- Sixth, the intended sexual contact was under ONE OR MORE of the following circumstances:
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- The other person is under 13 years of age.
- The other person is a member of the same household as the individual, AND/OR the other person is related by blood or affinity to the fourth degree to the individual, AND/OR the individual is in a position of authority over the victim and used this authority to coerce the victim to submit.
- The individual 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 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 actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
- 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 and the attempted sexual contact occurs during the period of that other person’s residency.
- The individual intended to engage in sexual conduct with another person under circumstances involving the commission of any other felony.
- The individual intended to engage in sexual conduct with another person AND the individual was aided or abetted by 1 or more other persons AND EITHER of the following circumstances exists: The individual knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless, OR the individual uses or intended to use force or coercion to accomplish the intended sexual contact.
- The individual intended to engage in sexual conduct with another person and is armed with a weapon, or any article used or fashioned in a manner to lead a person to reasonably believe it to be a weapon.
- The individual intended to engage in sexual conduct by using force or coercion and caused personal injury to another person.
- The individual intended to engage in sexual conduct causing personal injury to another person and the individual knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
- The individual intended to engage in sexual conduct with another person and that other person is under the jurisdiction of the department of corrections (e.g. prisoner) and the individual is an employee or a contractual employee of, or a volunteer with, the department of corrections who knows that the other person is under the jurisdiction of the department of corrections.
- The individual intended to engage in sexual conduct with another person and that other person is a prisoner or probationer under the jurisdiction of a county for purposes of imprisonment or a work program or other probationary program and the individual is an employee or a contractual employee of or a volunteer with the county or the department of corrections who knows that the other person is under the county’s jurisdiction.
- The individual intended to engage in sexual conduct with another person and the individual knows or has reason to know that a court has detained the victim in a facility while the victim is awaiting a trial or hearing, or committed the victim to a facility as a result of the victim having been found responsible for committing an act that would be a crime if committed by an adult, and the individual is an employee or contractual employee of, or a volunteer with, the facility in which the victim is detained or to which the victim was committed.
A conviction for assault with intent to commit criminal sexual conduct in the second degree is punishable by up to 5 years in prison. In addition, the defendant will have to register on Michigan’s Sex Offender Registry as follows:
- As a Tier III Offender (must register FOR LIFE and report to law enforcement FOUR TIMES PER YEAR) if the victim was under 13 years old.
- As a Tier II Offender (must register FOR 25 YEARS and report to law enforcement TWO TIMES PER YEAR) if the victim was at least 13 years old but not yet 18 years old.
- As a Tier I Offender (must register FOR 15 YEARS and report to law enforcement ONCE PER YEAR) if the victim is 18 or older.
Assault with intent to commit criminal sexual conduct in the second degree may not be a necessarily lesser included offense of assault with intent to commit criminal sexual conduct involving penetration, but “it clearly is a cognate or allied offense”. People v Snell, 118 Mich App 750; 325 NW2d 563 (1982). “The only element which the lesser may not have shared with the greater was the question of whether defendant’s actions were for the purpose of sexual arousal or gratification.” Id at 759. It is possible that a court can convicted the defendant of the lesser charge even if there is insufficient evidence to convict of the greater charge.
HOW IS “INTENT” PROVEN?
It is impossible to know exactly what someone was actually thinking, so determining whether something was “intended” depends on the totality of the circumstances and the circumstantial evidence available. In People v Starks, 473 Mich 227; 701 NW2d 136 (2005), the defendant appealed his conviction of assault with intent to commit criminal sexual conduct involving penetration on the basis that there was insufficient evidence to sustain a guilty verdict. He argues that mere preparation is not enough to show intent, but rather there has to be some kind of “overt act” with the intent to achieve penetration. The Michigan Supreme Court rejected that analysis and found that intent is determined “by the proximity of the defendant to the completed act.”:
- “The evidence presented at the preliminary examination suggests that defendant, an employee of the facility, asked the complainant, a resident, whether he wanted her to perform fellatio on him after defendant sent another resident out of the room and closed the automatically locking door. Defendant then instructed the complainant to remove his pants, and the complainant unzipped and unbuttoned his pants at defendant’s request. Defendant was observed by another employee bending over in front of the complainant less than two feet from him while the complainant held up his unzipped, unbuttoned pants. The complainant testified that defendant was about to commit fellatio when the other employee walked into the room and that when the other employee entered the room, defendant pretended to put clothes in the washing machine. The evidence suggests that, but for the other employee entering the room, defendant would have completed the act. Further, the complainant was thirteen years old and could not legally consent to an act of fellatio. Thus, the evidence presented suggests more than mere preparation; it suggests a greater degree of proximity to the completed act.” Id at
Intent can be inferred by the jury from what the accused said, the nature of the assault and other circumstances such as the state of undress, the seclusion of the location and force or coercion applied. No actual penetration or sexual contact has to occur to be convicted of this offense.
THE BOTTOM LINE
Allegations of assault with intent to commit criminal sexual conduct are very serious and you cannot settle for anything less than the most skilled criminal defense lawyer in your corner. An attorney can ensure that the prosecutor is held to the burden of proving guilt beyond a reasonable doubt, negotiate a favorable plea resolution, file motions challenging the evidence in the case, or asserting all legal defenses at trial. You only get one opportunity to properly defend against these serious charges because the outcome can change your life forever. Not only is the danger of incarceration in state prison very real, but you may have to register as a sex offender for the rest of your life. This can destroy your reputation and your livelihood forever. Don’t settle for less than the best legal advocacy.
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
