Rape-by-deception or rape-by-fraud is a form of criminal sexual conduct where a person obtains consent and has sexual contact or intercourse by way of fraud, deception, misrepresentation or impersonation. For example, a person may impersonate someone else and gain consent for sexual activity under the misunderstanding that the other person believed she consented to sex with a different person. These kinds of cases are not criminalized in many states because the consent obtained, although dishonestly, was not the result of any force or coercion. Is rape-by-deception or rape-by-fraud a criminal offense in Michigan?
At common law, rape required a sexual act inflicted by force and against the will of the victim. This legal definition did not allow for prosecution for acts committed by fraud or deception but lacking force. In Don Moran v People, 25 Mich 356 (1872), the Michigan Supreme Court vacated a conviction of a defendant who was a doctor and told his fifteen-year old female patient that she had to have sex with him to save her life (which she submitted to). Since there was no force involved, the charges were thrown out for legal insufficiency. However, evolving standards of decency and gender equality led to changes in the law to cover these acts. Over time, the penal code was amended to cover sex crimes perpetrated by concealment or surprise.
In Michigan, a person can be found guilty of sexual conduct in the first degree if he or she engages in sexual penetration with another person, causes personal injury to the victim, and uses force or coercion to accomplish sexual penetration through methods which include, but are not limited to, “the actor, through concealment or by the element of surprise, is able to overcome the victim.” MCL 750.520b(1)(f)(v). Criminal sexual conduct in the first degree is punishable by imprisonment for life or any term of years. MCL 750.520b(2)(a). The lesser degrees of criminal sexual conduct that include concealment and surprise are as follows:
- Criminal Sexual Conduct in the Second Degree: A person can be found guilty of sexual conduct in the second degree if he or she engages in sexual contact with another person, causes personal injury to the victim, and uses force or coercion to accomplish sexual contact through methods which include, but are not limited to, “the actor, through concealment or by the element of surprise, is able to overcome the victim.” MCL 750.520c(1)(f). Criminal sexual conduct in the second degree is punishable by up to 15 years in state prison. MCL 750.520c(2)(a).
- Criminal Sexual Conduct in the Third Degree: A person can be found guilty of sexual conduct in the third degree if he or she engages in sexual penetration with another person and uses force or coercion to accomplish sexual penetration through methods which include, but are not limited to, “the actor, through concealment or by the element of surprise, is able to overcome the victim.” MCL 750.520d(1)(b). Criminal sexual conduct in the third degree is punishable by up to 15 years in state prison. MCL 750.520d(2).
- Criminal Sexual Conduct in the Fourth Degree: A person can be found guilty of sexual conduct in the fourth degree if he or she engages in sexual contact with another person and uses force or coercion to accomplish sexual contact through methods which include, but are not limited to, “the actor, through concealment or by the element of surprise, is able to overcome the victim.” MCL 750.520e(1)(b). Criminal sexual conduct in the fourth degree is punishable by a fine up to $500.00 or up to 2 years in state prison. MCL 750.520e(2).
In People v Crippen, 242 Mich App 278; 617 NW2d 760 (2000), the defendant was charged with one count of third-degree criminal sexual conduct (CSC III). After a preliminary examination, the district court dismissed the CSC III charge, finding that the prosecution had not introduced any evidence of force or coercion, but bound defendant over on fourth-degree criminal sexual conduct (CSC IV). The prosecution appealed the district court’s dismissal of the CSC III charge to the circuit court which reversed the district court ruling and remanded the case with an order that defendant be bound over on the charge of CSC III. The defendant appealed to the Michigan Court of Appeals, which was confronted by the following facts:
“On August 16, 1996, the complainant was living with her fiancé in an apartment in Novi, Michigan. That evening, the complainant fell asleep on the couch while her fiancé went to sleep in the bedroom. It is alleged that a few hours later, the complainant awoke and saw defendant standing in the living room wearing black, fishnet, thigh-high tights, shorts and a short-sleeved shirt. His head and face were covered with a turban-like garment. The complainant believed that defendant was her fiancé. Defendant began removing the complainant’s clothes and started to fondle her. Defendant then removed the complainant’s shorts and began to masturbate. Defendant continued to fondle and digitally penetrate the complainant. The complainant called out her fiancé name but received no response. Defendant removed the complainant’s sweatshirt and ejaculated on her stomach. Defendant then left the apartment through the doorwall. The complainant waited for him to return, but he never did. The complainant got up and walked toward the bathroom where she heard snoring coming from the bedroom. She looked into the bedroom and observed her fiancé asleep in bed. The complainant immediately realized that the man who had left the apartment was a stranger and she called the police to report the incident. The following evening, the complainant heard a disturbance outside her apartment. She later learned that the police, who had been conducting surveillance at the apartment complex, had apprehended defendant while he was peeking into her apartment.” Crippen, 242 Mich App at 280-281.
The Michigan Court of Appeals upheld the bindover for the offense of CSC III, determining that the elements of “concealment or surprise to overcome the victim” were present:
“The offense of CSC III requires a showing that the defendant engaged in sexual penetration with another under certain aggravating circumstances, including sexual penetration accomplished by force or coercion. The existence of force or coercion is to be determined in light of all the circumstances, and includes, but is not limited to, acts of physical force or violence, threats of force, threats of retaliation, inappropriate medical treatment, or concealment or surprise to overcome the victim. The term ‘concealment’ is not defined in the criminal sexual conduct statute.” Crippen, 242 Mich App at 282-283.
“Although our research has revealed no Michigan case law explicitly holding that the sort of concealed identity as alleged here constitutes coercion as defined in the statute, this Court has previously held that coercion was shown where the defendant, as the victim’s psychotherapist, manipulated therapy sessions to establish a relationship that would permit his sexual advances to be accepted without protest, subjugat[ing] the victim into submitting to his sexual advances against her free will. Applying the plain and ordinary, i.e., dictionary, meaning of the word “conceal” to the facts of this case, we conclude that the evidence that defendant disguised himself, and took advantage of the complainant’s misidentification of him as her fiancé to induce her to submit to his sexual advances, was sufficient to establish the requisite coercion by concealment or surprise necessary for bindover. The complainant did not knowingly consent to performing sexual acts with defendant; only through defendant’s concealment of his identity was he able to persuade the victim to submit to his sexual advances. Accordingly, we find that the circuit court did not err in reversing the district court’s ruling and ordering that defendant be bound over on the charge of CSC III.” Crippen, 242 Mich App at 283-284.
Criminal sexual conduct is a serious criminal offense that can result in prison time and placement on Michigan’s Sex Offender Registry for decades. You need skilled criminal defense counsel in your corner to help counter the resources available to the prosecutor and the police. A good lawyer will hold the prosecutor to the high standard of proving guilt beyond a reasonable doubt and assert any defenses available at law. Very often, an accusation of criminal sexual conduct (especially those alleging deception or trickery) comes down to the credibility of the complainant. It is possible that the prosecutor’s case will crumble if the complainant’s story does not hold up under vigorous cross-examination. Our law firm has the trial experience to go after dishonest witnesses and poke holes in their flimsy stories on the stand. The stakes are too high to settle for less than the most aggressive defense on your side.
If you are charged with any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
