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Sex Crimes

Everything you need to know when facing a sex crime charge, and how we attack the issue head on to either vindicate you or mitigate your sentencing

What Is the Legal Definition of Consent in Michigan?

Before getting into various charges available to the prosecutor, it’s important to understand the definition of consent, one of the most commonly used defenses to CSC crimes. In Michigan, the jury will get the followers instructions and definition of consent:

  1. A person consents to a sexual act by agreeing to it freely and willingly, without being forced or coerced;
  2. It is not necessary to show that the complainant resisted the defendant to prove that this crime was committed. Nor is it necessary to show that the complainant did anything to lessen the danger to him or herself;
  3. In deciding whether or not the the complainant consented to the act, you should consider all of the evidence. It may help you to think about the following questions:
    1. Was the complainant free to leave and not take part in the sexual act?
    2. Did the defendant threaten the complainant with present or future injury?
    3. Did the defendant use force, violence, or coercion?
    4. Did the defendant display a weapon?
  4. If you find that the evidence raises a reasonable doubt as to whether the complainant consented to the act freely and willingly, then you must find the defendant not guilty.

Because consent is an affirmative defense, once a defendant introduces enough evidence to put the issue of consent into controversy, the prosecutor bears the burden of proving the absence of consent beyond a reasonable doubt. People v Thompson117 Mich App 522, 528, 324 NW2d 22 (1982).

 

What Are the Different Sex Crime Charges in Michigan?

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused engaged in a sexual act that involved:
    1. entry into the complainant’s genital or anal opening by the accused’s penis, finger, tongue, or other object; or
    2. entry into complainant’s mouth by the accused’s penis; or
    3. touching of the  complainant’s genital openings or organs with the accused’s mouth or tongue; or
    4. entry by any part of one person’s body or some object into the genital or anal opening of another person’s body;
  2. And either of the following aggravating circumstances apply:
    1. The complainant was less than thirteen years old at the time of the alleged act; or
    2. the complainant was thirteen, fourteen, or fifteen years old at the time of the alleged act, and;
      1. at the time of the alleged act the defendant and  complainant were living in the same household; or
      2. complainant is related to the accused, either by blood or by marriage; or
      3. at the time of the alleged act, the accused was in a position of authority over the complainant, and used this authority to coerce the complainant to submit to the sexual acts alleged; or
      4. at the time of the alleged act the accused was a teacher, substitute teacher, employee, contractual service provider, or administrator of a school in which the complainant was enrolled; or
      5. at the time of the alleged act, the accused was an employee, contractual service provider, or volunteer of the child-care organization that the complainant was attending; or
      6. at the time of the alleged act, the accused was a licensed operator of the foster-family home where the complainant resided; or
    3. the alleged sexual act occurred under circumstances that also involved the commission of any felony; or
    4. The actor is aided or abetted by 1 or more other persons and either of the following circumstances exists:
      1. The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless; or
      2. The actor uses force or coercion to accomplish the sexual penetration; or
    5. The actor 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; or
    6. The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration; or
    7. The actor causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless; or
    8. The complainant is mentally incapable, mentally disabled, mentally incapacitated, or physically helpless, and any of the following:
      1. The actor is related to the victim by blood or marriage; or
      2. The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.

Special Considerations

  • The defendant’s good-faith mistake as to the age of the complainant is not a defense even if the complainant lied and took steps to deceive your client about his or her true age.
  • A defendant may be convicted of criminal sexual conduct where the complainant is his or her spouse.

Penalty

  • Imprisonment for life or for any term of years
  • For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age by imprisonment for life or any term of years, but not less than 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, by imprisonment for life without the possibility of parole if the person was previously convicted of CSC against someone 13 or younger

And

  • Lifetime electronic monitoring

And

  • Lifetime registration on the public sex offender registration list (The defendant is exempt from registration if the complainant is 13–16 years old and consented to the conduct, and the age difference between the defendant and the complainant is 4 years or less.)

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused touched the complainant or made the complainant touch his or her genital area, groin, inner thigh, buttock, or breast or the clothing covering that area;
  2. That this was done for sexual purposes or could reasonably be construed as having been done for sexual purposes;
  3. And any of the aggravating circumstances outlined for first-degree CSC apply; or
    1. the complainant was under the jurisdiction of the department of corrections; and
      1. the accused was an employee, contractual employee of, or volunteer with the department of corrections; or
      2. the accused was an employee, contractual employee of, or a volunteer with a private vendor that operates a youth correctional facility; or
    2. the complainant was a prisoner or probationer under the jurisdiction of a county for purposes of imprisonment or a work program or other probationary program; and the accused was an employee, a contractual employee of, or a volunteer with the county or the department of corrections; or
    3. the complainant was detained in or committed to a facility while  awaiting a trial or hearing and the accused was an employee,  contractual employee of, or a volunteer with the facility in which the  complainant was detained or committed.

Special Considerations

  • The aggravating circumstances that must accompany the sexual contact include all those applicable to CSC in the first degree and four additional circumstances associated with sexual contact by corrections personnel against prisoners, probationers, or juvenile detainees.
  • According to the statute, second-degree CSC may include intentional touching done in a sexual manner (1) for revenge, (2) to inflict humiliation, or (3) out of anger.

Penalty

  • Felony punishable by imprisonment for not more than 15 years. In addition, the court must sentence the defendant to lifetime electronic monitoring if the violation involved sexual contact committed by an individual 17 years of age or older against an individual less than 13 years of age.
  • Complainant is less than 13 years old: Tier III offense under Sex Offenders Registration Act (SORA); lifetime registration on public list; quarterly verification
  • Complainant is age 13 or older but less than age 18: Tier II offense under SORA; registration for 25 years on public list; semiannual verification
  • Complainant is age 18 or older: Tier II offense under SORA; registration for 25 years on public list; semiannual verification
  • Defendant is age 17 or older and convicted of second-degree criminal sexual conduct (CSC) against an individual under the age of 13: lifetime electronic monitoring.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused engaged in a sexual act that involved:
    1. entry into the complainant’s genital or anal opening by the accused’s penis, finger, tongue, or other object; or
    2. entry into complainant’s mouth by the accused’s penis; or
    3. touching of the  complainant’s genital openings or organs with the accused’s mouth or tongue; or
    4. entry by any part of one person’s body or some object into the genital or anal opening of another person’s body;
  2. And either of the following aggravating circumstances apply;
    1. the complainant was thirteen, fourteen, or fifteen years old at the time of the alleged act;
    2. Force or coercion is used to accomplish the sexual penetration;
    3. The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless;
    4. The complainant is related to the accused by blood or marriage;
    5. The complainant is at least 16 years of age but less than 18 years of age and a student at a public school or nonpublic school, and either of the following applies:
      1. The accused is a teacher, substitute teacher, or administrator of that school;
      2. The accused is an employee, volunteer, or a contractual service provider of the school;
    6. The complainant is at least 16 years old but less than 26 years of age and is receiving special education services, and either of the following applies:
      1. The accused is a teacher, substitute teacher, administrator, employee, or contractual service provider of the public school; or
      2. The accused 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 school, and the accused uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person;
    7. The accused 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 the complainant is a resident, the complainant is at least 16 years of age, and the sexual penetration occurs during the complainant’s residency.

Special Considerations

  • If a person who is convicted under this section is a second or subsequent offender, he or she must be sentenced to a mandatory minimum sentence of at least 5 years.

Penalty

  • Felony punishable by imprisonment for not more than 15 years.

And

  • Tier III offense under Sex Offenders Registration Act (SORA); lifetime registration on public sex offender registration list; quarterly verification. The defendant is exempt from registration if the complainant is at least 13 years old but less than age 16 and consented to the conduct, and the age difference between the defendant and the complainant is 4 years or less.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused touched the complainant or made the complainant touch his or her genital area, groin, inner thigh, buttock, or breast or the clothing covering that area;
  2. That this was done for sexual purposes or could reasonably be construed as having been done for sexual purposes;
  3. And any of the following aggravating circumstances apply;
    1. The complainant is at least 13 years of age but less than 16 years of age, and the accused is 5 or more years older than the complainant;
    2. Force or coercion is used to accomplish the sexual contact, including when;
      1. The accused engaged in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable; or
      2. The accused achieved the sexual contact through concealment or by the element of surprise;
    3. The accused knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless;
    4. The complainant is related to the accused by blood or marriage;
    5. The accused is a mental health professional and the sexual contact occurs during or within 2 years after the period in which the complainant is his or her client or patient and not his or her spouse;
    6. The complainant is at least 16 years of age but less than 18 years of age and a student at a public school or nonpublic school, and either of the following applies:
      1. The accused is a teacher, substitute teacher, or administrator of that school;
      2. The accused is an employee, volunteer, or a contractual service provider of the school;
    7. The complainant is at least 16 years old but less than 26 years of age and is receiving special education services, and either of the following applies:
      1. The accused is a teacher, substitute teacher, administrator, employee, or contractual service provider of the public school; or
      2. The accused 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 school, and the accused uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person;
    8. The accused 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 the complainant is a resident, the complainant is at least 16 years of age, and the sexual penetration occurs during the complainant’s residency.

Special Considerations

  • A person who engages in sexual contact accomplished through the use of force or coercion, but without the aggravating circumstance of personal injury, is guilty of fourth-degree rather than second-degree CSC.
  • An adult offender may be placed on probation after conviction of fourth-degree CSC.

Penalty

  • High court misdemeanor punishable by imprisonment for not more than 2 years, a fine of not more than $500, or both.

And

  • Complainant is less than age 13 and defendant is age 17 or older: Tier III offense under Sex Offenders Registration Act (SORA); lifetime registration on public list; quarterly verification
  • Complainant is age 13 or older but less than age 18: Tier II offense under SORA; registration for 25 years on public list; semiannual verification.
  • Complainant is age 18 or older: Tier I offense under SORA; registration for 15 years on nonpublic list; annual verification.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused either attempted to commit a battery on the complainant or did an act that would cause a reasonable person to fear or apprehend an immediate battery;
  2. The accused intended either to injure the complainant or intended to make the  complainant reasonably fear an immediate battery;
  3. That at the time, the accused had the ability to commit a battery, appeared to have the ability, or thought he or she had the ability; and 
  4. That when the accused assaulted the complainant, they intended to commit a sexual act involving criminal sexual penetration or contact.

Special Considerations

  • It is not required that the defendant actually began to commit the sexual act. To prove this charge, the prosecutor must prove that the defendant 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 defendant committed the assault and intended to commit criminal sexual penetration.

Penalty

  • Intent to commit criminal sexual penetration: Felony punishable by imprisonment for not more than 10 years.
  • Intent to commit criminal sexual contact: Felony punishable by imprisonment for not more than 5 years

And

  • Tier III offense under Sex Offenders Registration Act; lifetime registration on public sex offender registration list; quarterly verification.  

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused engaged in a sexual act that involved one or more of the following:
    1. entry into another person’s vagina or anus by the accused’s penis, finger, tongue, or other object;
    2. entry into another person’s mouth by the accused’s penis;
    3. touching of another person’s genital openings or genital organs with the accused’s mouth or tongue;
    4. entry by any part of one person’s body or some object into the genital or anal opening of another person’s body;
    5. masturbation of oneself or another; or
    6. masturbation in the presence of a minor, whether in a public place or private place;
  2. That the sexual act was committed in a public place.

Special Considerations

  • A place is public when a member of the public, who is in a place the public is generally invited or allowed to be, could have been exposed to or viewed the act.
  • This list of acts is not intended to be exhaustive

Penalty

  • Felony punishable by imprisonment in the state prison for not more than 5 years; a fine of not more than $2,500; or, if the person was at the time of the offense a sexually delinquent person, imprisonment in the state prison for an indeterminate term, with a minimum term of 1 day and a maximum term of life.

And

  • Gross indecency and complainant is less than 13 years old: Tier III offense under Sex Offenders Registration Act (SORA); lifetime registration on public sex offender registration list; quarterly verification.
  • Gross indecency and complainant is age 13 or older but less than age 18: Tier II offense under SORA; registration for 25 years on public sex offender registration list; semiannual verification. (There are exemptions if (1) the complainant is age 13 or older but less than age 16 and consented, and the age difference is 4 years or less; or (2) the complainant is age 16 or 17 and consented, and the defendant had no custodial authority.)

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused knowingly exposed his or her genitals, pubic area, buttocks, or breasts;
  2. The accused  did this in a place under circumstances in which another person might reasonably have been expected to observe it and which created a substantial risk that someone might be offended or in a place where such exposure is likely to be an offense against your community’s generally accepted standards of decency and morality;

Special Considerations

  • A sexually delinquent person is any person whose sexual behavior “is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16.
  • Knowledge of the exposure is a critical element; thus, accidental exposure may be a defense argument depending on the facts.

Penalty

  • Misdemeanor punishable by imprisonment for not more than 1 year, a fine of not more than $1,000, or both.
  • If the person was fondling his or her genitals, pubic area, buttocks, or, if the person is female, breasts, while committing indecent exposure, this is a high court misdemeanor punishable by imprisonment for not more than 2 years, a fine of not more than $2,000, or both. 
  • If the person was at the time of the violation a sexually delinquent person, the violation is punishable by imprisonment for an indeterminate term, with a minimum term of 1 day and a maximum term of life.

And

  • Offense is indecent exposure with fondling and the complainant is a minor: Tier I offense under Sex Offenders Registration Act; registration for 15 years on public sex offender registration list; annual verification.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused either:
    1. forced, persuaded, encouraged, or tricked complainant to become a prostitute; or
    2. took, agreed to take, gave, or agreed to give money or anything of value for making or attempting to make complainant become a prostitute

Special Considerations

  • The pandering statute penalizes one who induces a female to become a prostitute but not one who induces a female who is already a prostitute to perform further acts of prostitution.

Penalty

  • Felony punishable by imprisonment in the state prison for not more than 20 years.
  • Tier II offense under Sex Offenders Registration Act; registration for 25 years on public sex offender registration list; semiannual verification.
  • A vehicle, vessel, or realty used for prostitution is a public nuisance and may be seized by the government.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused either:
    1. persuaded, induced, enticed, coerced, caused, or knowingly allowed a child under 18 years old to engage in child sexually abusive activity; or
    2. arranged for, produced, made, copied, reproduced, or financed, or attempted, prepared, or conspired to arrange for, produce, make, copy, reproduce, or finance child sexually abusive activity or material;
    3. distributed, promoted, or financed the distribution or promotion of sexually abusive activity or material, or received for the purpose of distributing or promoting sexually abusive activity or material, or conspired,  attempted, or  prepared to distribute, receive, finance, or promote child sexually abusive material or activity; or
    4. possessed child sexually abusive material or looked for child sexually abusive material and intentionally caused it to be sent to or seen by another person;
  2. The accused caused or allowed the person to engage in child sexually abusive activity for the purpose of producing or making child sexually abusive material; and 
  3. The accused knew or reasonably should have known that the person was less than 18 years old, or failed to take reasonable precautions to determine whether the person was less than 18 years old.

Special Considerations

  • The statute prohibits both real and simulated sexual acts.
  • The statute encompasses individuals who arrange for or attempt or prepare to arrange for child sexually abusive activity

Penalty

  • Persuading, inducing, enticing, coercing, causing, or knowingly allowing: Felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both
  • Distributing or promoting, or financing the distribution or promotion of: felony, punishable by imprisonment for not more than 7 years, or a fine of not more than $50,000.00, or both
  • Possessing or knowingly seeking and accessing: felony punishable by imprisonment for not more than 4 years or a fine of not more than $10,000.00, or both

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused accosted, enticed, or solicited the complainant;
  2. The complainant was less than 16 years old, or the accused believed the complainant to be less than 16 years old;
  3. That when the defendant accosted, enticed, or solicited the complainant, he or she intended to induce or force the complainant 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; or
  4. The accused encouraged the complainant 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.

Special Considerations

  • It does not matter whether the complainant actually submitted to or engaged in any act or intercourse.

Penalty

  • Felony punishable by imprisonment for not more than 4 years or a fine of not more than $4,000.00, or both

What will we do as your Defense Attorney?

These are very serious charges that require an aggressive defense in which all of the facts of the case are thoroughly reviewed. We listen carefully to what our clients tell us in order to both put together a strong defense and mitigate sentencing. We do this in several ways.

First, we never take for granted that the police report is an accurate representation of the incident in question. These reports are usually very biased towards convicting the accused, and are therefore often filled with inconsistencies. We use our client’s testimony, research, private investigators, and crime scene visits to poke holes in the prosecution’s case, and ultimately, prove your innocence or argue that the facts are so that a lenient sentence is appropriate. We always visit the scene of the crime. It’s the only way to learn details showing that the police investigation was flawed or that the prosecution’s eyewitness could not have seen what he or she claims.

When an allegation of criminal sexual conduct is raised, it is critical that we begin our investigation right away. We hire a qualified private investigator to thoroughly investigate the allegation and interview witnesses, including witnesses who may have seen the complainant and our client together and individually before and after the alleged incident. We use these facts to build a case, poke holes in the prosecution’s story, and even enlighten the court of facts the prosecution did not previously know about the nature of the relationship or the alleged act.

CSC clients are the most common to be falsely accused and we take this very seriously. A polygraph test may be effective in convincing a prosecutor to dismiss the charge against you.

If the accused is between the ages of 17 and 24 they may be eligible to qualify for a sentence under the Holmes Youthful Trainee Act (HYTA). This Act allows the client to plead guilty, but have the offense dismissed by the court if he or she satisfies the terms set by the court. HYTA does not apply to any felony where the maximum penalty is life imprisonment (such as First Degree Arson). With that said, we always try to plea down to a non–life offense such as simple Second Degree Arson, so that HYTA is available. 

Convincing the prosecutor to reduce the charge should always be on the table.  Mitigating factors that we look out for are things like the state of mind of the accused and whether they were acting in a desperate manner due to drugs or alcohol. Also important is the relationship between the accused and the complainant and the past behavior of the accused. In other words the punishment must fit the crime or we will not stand for it. 

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Email: kerrylawpllc@gmail.com

Tel: (734) 263-1193

Address: 214 S. Main St. Ste 200
                 Ann Arbor MI, 48104
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