Under Michigan law, criminal charges that include sex-related crimes are generally known as Criminal Sexual Conduct. There is no specific definition of criminal sexual conduct; instead, it is the name of a broad category that encompasses sex crimes. Below are some examples of what will be considered criminal sexual conduct, although the category is not limited to the following:
- Sexual Assault: This umbrella term can be a violent or non-violent attack, such as statutory rape. Statutory rape is consensual sexual conduct with someone under the age of consent, usually 16 years, unless extenuating circumstances exist.
- Indecent Exposure: This offense involves knowingly exposing yourself in public; it may be enhanced if someone is fondling themselves or making lewd gestures.
- Teacher Sex Abuse: This offense occurs when a teacher takes advantage of a student and has a sexual relationship with the pupil.
- Child Pornography & Child Sexually Abusive Material: This is a very serious crime and may occur when someone takes or looks at inappropriate photos or videos of minors.
- Child Molestation: These charges are taken very seriously because they involve minors and are often relentlessly pursued even if there is no strong case.
Criminal sexual conduct is divided into four categories that may result in first, second, third, or fourth-degree criminal sexual conduct charges.
Penalties For Criminal Sexual Conduct
Fourth-Degree Criminal Sexual Conduct
Fourth-degree criminal sexual conduct charges are the least severe sexual conduct charges that can be brought in Michigan. Under Michigan law, fourth-degree criminal sexual conduct includes crimes such as unwanted sexual touching involving:
- A teenager between the ages of 13 and 16, when the offender is at least five years older
- Physical force, violence, threats of violence, or unethical medical treatment in an examination
- A special needs student between the age of 16 and 26 while working at their school, except if the student is their spouse
A fourth-degree criminal sexual conduct charge will result in up to two years in prison and a fine of up to $500.
Third-Degree Criminal Sexual Conduct
Under Michigan law, third-degree criminal sexual conduct includes crimes such as:
- Statutory rape with individuals between 13 to 15 or individuals who are disabled
- A student between the age of 16 and 18
- A special needs student between 16 and 26 when the offender held a position of authority
- Someone under 16 who is in foster care
A third-degree criminal sexual conduct conviction can result in up to 15 years in prison. Generally, a third-degree criminal sexual conduct conviction has a mandatory minimum sentence of one year in prison and will require registration as a sex offender.
Second-Degree Criminal Sexual Conduct
Under Michigan law, second-degree criminal sexual conduct is a very serious crime but generally does not involve penetration. Second-degree criminal sexual conduct includes crimes such as:
- Sexual assault without penetration against someone under 13
- Sexual assault without penetration against someone who is between 13 and 16, when the offender is at least five years older
- Sexual assault without penetration against a foster child within the housing facility
- Sexual assault without penetration against someone with a mental or physical disability
- Sexual assault without penetration against a prisoner or probationer
A second-degree criminal sexual conduct conviction can result in up to 15 years in prison.
First-Degree Criminal Sexual Conduct
Under Michigan law, first-degree criminal sexual conduct is the most severe criminal conduct charge and generally encompasses crimes such as:
- Sexual assault against someone under 13
- Sexual assault against someone over 13 but under 16 and the offender is a member of the person’s family, household member, or a person in a position of authority (e.g., teacher, officer, priest)
- Armed sexual assault
- Sexual assault that results in physical injuries to the victim
- Sexual assault against a disabled individual
Due to the severity of the crime and because it usually takes a huge psychological toll on the victims of the crime, the defendant may be sentenced to life in prison.
Defenses Against Criminal Sexual Conduct Charges
Several defenses may be available to an individual being charged with criminal sexual conduct, which may include:
- Insanity or Mental Incapacity
The best defense is unique to each case. It is essential to contact an experienced and knowledgeable criminal defense attorney who can review the facts and understand the most successful defense in the situation.
One defense that may be available is consent. If the accuser consented to the sexual activity and did not withdraw their consent at any time, the accused is not guilty of criminal sexual conduct. However, consent should never be assumed; instead, there must be what is called a meeting of the minds. This means that for consent, there must be a clear understanding regarding the intent of each individual involved in the sexual activity.
Additionally, consent can be withdrawn once the sexual encounter begins. If the consent is withdrawn, the other party must stop engaging in the sexual activity. If they continue, it is considered criminal sexual conduct. It is also not a defense to say that you and the accuser are in a relationship and have a history of sexual activity. Consent is not assumed, even with a spouse or partner with whom you’ve had a sexual relationship regularly. As a result, a spouse can be convicted of sexually assaulting their partner.
In deciding whether the accuser consented to the sexual conduct, the following questions may be considered:
- Did the accuser have the freedom to leave and not participate in sexual activity?
- Did the accused use force, violence, coercion, or display a weapon?
- Did the accused threaten the accuser with bodily injury or injury to someone they love if they did not perform the sexual act?
If the jury believes there is reasonable doubt concerning whether the accuser consented, the jury is generally required to find the accused not guilty of criminal sexual conduct.
Duress is also a defense that may be available to a defendant depending on the facts of their case. Duress may be used when someone commits a crime because they are attempting to escape immediate harm to themselves or someone in their immediate family. For example, if someone had the defendant’s child and said they would kill them if they did not sexually assault the victim, that might be a valid duress defense.
However, in criminal sexual conduct cases, duress is rarely used or available as a defense because it is rare for this type of action to occur and is very complicated to establish. If someone you know committed a crime because of duress, it is crucial to hire an experienced attorney. Duress is one of the most complicated defenses to employ because it requires the defense to prove that a third party placed the defendant in fear for their life or the life of their immediate family and that the fear was reasonable.
Insanity And Mental Incapacity
Insanity is one of the most challenging defenses to employ successfully. The National Institute of Mental Health has shown that the insanity defense is used in less than one percent of all felony cases and that the defense is successful in very few cases where it is used. Several steps must be completed before an insanity defense is used because it is complicated. The state must be notified in advance since the prosecutor will need to adjust strategy and have professional evaluations of the defendant performed. Generally, a medical expert will need to be hired to testify on the defendant’s behalf to show that they are legally insane.
Legal insanity means that an individual cannot understand the difference between right and wrong, meaning when they committed the crime, they could not understand that what they were doing was wrong. The insanity defense does not mean that an individual will avoid all penalties for their crime. Still, they may avoid prison and instead be placed in a mental institute for direct supervision.
Mental incapacity is slightly different from the defense of insanity. If someone has a mental disability that was documented before the crime, the defense of mental incapacity will likely be available to the defendant. For example, if someone is mentally incapacitated and cannot understand whether someone consented, it may result in a reduced penalty for criminal sexual conduct.
Under Michigan law, the alibi defense may be used if the defendant was not present when and where the victim says they were sexually assaulted. This is one of the most potent defenses, especially if there is corroborating evidence. For example, if the accuser says that the criminal sexual conduct occurred at 8:00 PM on Saturday, May 10th, at her apartment complex, but the defendant is seen on camera in another part of town at the same time as the alleged assault, the case will likely be dismissed.
Generally, the police will find this evidence before the charges are brought against the defendant. In some cases, the police or prosecutors cannot find the evidence, and the defendant might not remember what they were doing until after the charges are brought.
Appealing A Sexual Criminal Conduct Conviction
Sex crimes can be appealed. A higher majority of sexual appeals are successful than other criminal appeals. In the past, cases have been overturned based on inadmissible hearsay, improper police testimony, and improper expert opinions.
Hiring A Criminal Sexual Conduct Defense Attorney In Michigan
If you or someone you know has been charged with a criminal sexual conduct offense, it is essential to contact an experienced criminal defense attorney so that the charge does not follow you for the rest of your life. The attorneys at George Law will review your case and defend your interests. Contact us at 248-587-8310 or by filling out a form online.
Frequently Asked Questions About Criminal Sexual Conduct
What Is The Sex Offender Registry?
The sex offender registry in Michigan puts a sex offender’s picture, address, and criminal history on the Internet to be found by anyone looking. Additionally, certain people and organizations will be notified of the sex offender status when that person moves to a new area. For example, schools, law enforcement agencies, and other organizations dealing with children will be notified of a registered sex offender within their area. Being on the sex offender registry also affects where the offender may live. For example, they cannot live or work near a school.
Should I Take A Polygraph Examination?
It is generally not recommended to agree to a polygraph test if someone is accused of criminal sexual conduct, at least not until consulting with an experienced attorney. In most cases, a polygraph will be closer to an interrogation with the goal of obtaining a confession from the accused. To ensure that an untrue confession is not extracted from the accused, a defense attorney will help protect your rights.
Can Someone Be Charged With A Sex Crime Without Physical Evidence?
Yes, in Michigan, someone can be charged with a sex crime without physical evidence; someone can be charged with sex crimes based on the accuser’s statements. Under Michigan law, the testimony of a victim does not need to be corroborated, meaning their statement that they have been assaulted is all that is needed to bring charges against an accused.
What Is Lifetime Electronic Monitoring?
Lifetime electronic monitoring may be a consequence of sex crimes. Lifetime electronic monitoring will result in the offender having to wear a tracking device and be monitored by the government for a long time, if not for the rest of their life.
If The Victim Does Not Resist Can An Accused Be Convicted Of Sexual Assault?
Yes, under Michigan law, a victim does not need to resist sexual assault for the assailant to be convicted of first, second, third, or fourth-degree criminal sexual conduct. Therefore, arguing that a victim did not resist does not negate criminal sexual conduct.
Can Someone Be Charged With Criminal Sexual Conduct Against Their Spouse?
Yes, an individual can be charged with criminal sexual conduct against their spouse. Consent is required regardless of who is engaging in sexual conduct. Additionally, arguing that there was a history of previous sexual assault in the relationship does not impact the charges.
What Is The Age Of Consent In Michigan?
The age of consent in Michigan is 16 years old if there is no exception to the facts. This means that anyone under the age of 16 cannot legally consent to sexual conduct. Adults who engage in sexual activity with someone under 16 will likely be charged with statutory rape in the first degree. If the alleged victim is under 16, the defense of consent cannot be used.
What Is The Jury Instruction For Consent In Michigan?
When a defense of consent is being used by an accused, the jury will be informed of what consent is and that if the evidence provides reasonable doubt regarding there being consent, then the accused should not be found guilty of the crime. However, the evidence doesn’t need to show that the accuser resisted the sexual assault or did anything to put themselves in less danger. For example, it cannot be argued that the victim did not fight against the defendant because consent can never be assumed. Choosing not to fight against a sexual assault does not equal consent.
Can Consent Be Assumed In Michigan?
No, consent can never be assumed. Instead, before sexual activity is engaged, both parties should clearly understand the other party’s intent. Additionally, consent may be withdrawn after the sexual activity has begun, and the non-withdrawing party must stop the sexual conduct immediately or risk charges of criminal sexual conduct.
What Is The Jury Instruction For Duress In Michigan?
When the defense of duress is employed in Michigan, the jury will be instructed that the accused is not guilty of criminal sexual conduct if they committed the crime under duress. In determining duress, the jury may consider if the following are true:
- The accused was threatened with harm if they didn’t carry out sexual conduct with someone
- The threat would have placed a reasonable person in fear of death or serious bodily harm
- The defendant had a fear of immediate death or serious bodily harm at the time they committed the criminal sexual conduct
- The defendant committed the criminal sexual conduct for the sole purpose of avoiding the threatened harm
While deciding whether the defendant committed the criminal sexual conduct because of their fear of death or serious bodily injury, the jury may consider the following:
- The nature of the threats made
- The background of the person who made the threats or used force against the accused
- The surrounding circumstances when the accused committed the criminal sexual conduct
- How a reasonable person would have acted if they had been placed in the same situation—for example, if a reasonable person would not have committed the criminal sexual conduct due to the threat from a third party, the duress defense likely would not be successful
If the jury believes the defendant may have been under duress, it may find the defendant not guilty.
When Does The Defendant Need To Implement An Alibi Defense?
If the defendant intends to establish an alibi, they must notify the prosecution at least ten days before trial or 15 days after the arraignment. The notice should contain the information known by the defendant, such as names of witnesses who will be called to establish the alibi and specifics concerning the place the defendant is claiming they were at when the criminal sexual conduct occurred.
Does The Defendant Have To Testify At Their Trial To Present An Alibi Defense?
No, the defendant is not required to testify at their trial to use the alibi defense. Instead, the defendant can call witnesses and present physical evidence that supports the alibi defense.
What Is The Statute Of Limitations For Criminal Sexual Conduct?
The statute of limitations depends on the degree of criminal sexual conduct being charged and whether DNA evidence was used. For example, a first-degree criminal sexual conduct charge has no statute of limitations, meaning that the prosecution may charge the defendant at any time. The statute of limitations for second, third, and fourth-degree criminal sexual conduct charges requires the prosecution to bring charges within ten years after the criminal sexual conduct occurred or by the victim’s 21st birthday. However, if DNA evidence is used, the prosecution must bring charges within ten years of when the defendant was identified or by the victim’s 21st birthday, whichever occurs later.
Is Intoxication A Defense To Criminal Sexual Conduct?
No, intoxication is not a viable defense to criminal sexual conduct in Michigan. If the accused was voluntarily intoxicated because it was their choice to become intoxicated, and the intoxication resulted in them conducting illegal behavior, they can be charged with a crime.
What Is The Process For Criminal Conduct Charges?
Several steps are generally followed when someone is charged with criminal sexual conduct. First, there will be an investigation to determine if the charges should be brought against the defendant. Second, a warrant for arrest will be entered for the defendant, meaning they may be arrested at any time. Third, an arraignment hearing will be held, and a bond will be set. Fourth, a probable cause conference will be held in District Court to discuss the following:
- Possible plea agreements
- Bail and bond modification
- Stipulations and procedural aspects of the case
- Any matters that are relevant to the case
Fifth, the preliminary exam hearing must occur five to seven days after the probable cause conference. The preliminary exam hearing is like a miniature trial in front of just the judge. In some cases, the defendant may waive the preliminary exam hearing. Before deciding to waive the preliminary exam hearing, it is critical to consult with an experienced attorney. Sixth, there is a hearing called an arraignment on information. Seventh, the trial, and then finally, sentencing. Generally, a defendant is not sentenced on the same day they are found guilty of a felony.
What Does The State Have To Prove To Convict The Defendant Of Criminal Sexual Conduct?
The prosecution must show that there was sexual penetration, including oral sexual penetration, for a first-degree criminal sexual conduct conviction to occur. Additionally, they must show the victim’s age if they are a minor or the victim’s mental condition if the defendant is being charged with criminal sexual conduct against someone who is mentally incapacitated.
Should I Appeal A Criminal Sexual Conduct Conviction?
Generally, yes, you should consider appealing a criminal sexual conduct conviction. However, there is no guarantee that any conviction will be overturned on appeal; therefore, contacting an experienced criminal defense attorney is essential to ensure that the best appeal is made to enhance your odds of the conviction being overturned.
If The Police Contact Me Concerning Criminal Sexual Conduct, Should I Talk To Them?
You should never speak to the police without contacting a sex crimes lawyer, even if they tell you they are contacting you as a witness. In some cases, the police are just trying to gather facts without accusing anyone of a crime. However, in other sex crime cases, they may believe you are the offender and attempt to get a confession.
A knowledgeable attorney will be able to prepare you for a conversation with the police to ensure that no untrue confessions or incriminating statements are made. Contact one of our criminal sexual conduct lawyers at George Law by calling us at 248-587-8310 or by filling out a form online.