Blog

Jun 2012
02

Teenage Sex, Criminal Sexual Conduct, and the Sex Offender Registration Act

Although teenagers have consensual sex every day, Michigan law still deems it a crime — specifically, criminal sexual conduct in the third degree — whenever someone has sex with another person between the ages of 13 and 16. This applies even if the sex is consensual and both parties are underage. But while consent is not a defense to a CSC-3 charge, it is an issue when determining whether a defendant may be forced to register under the Sexual Offender Registration Act (MCL 28.723, et seq.)

Recently, a Michigan Court of Appeals panel unanimously affirmed an order requiring a 15-year-old defendant to register as a sex offender for what he claimed was consensual sex with a 14-year-old girl. The defendant pleaded no contest to a single CSC-3 charge. As part of the plea, the trial court made no finding with respect to force or coercion. The conviction was based solely on the victim’s age.

The defendant subsequently attempted to withdraw his no contest plea because he claimed to be unaware that the CSC-3 conviction required registration under SORA. The defendant’s lawyer claimed he “adequately advised” his client regarding SORA. After the trial court entered its formal disposition, the Michigan legislature amended SORA to allow juvenile offenders a hearing to determine if exemption from registration was permissible on certain grounds, such as consensual sex between underage persons. Under the amendments (MCL 28.723a), the trial court must find “by a preponderance of the evidence” that there was consent.

After a hearing, the trial court held the defendant in this case could not prove by a preponderance of the evidence that his sex with the victim was consensual. Thus, he was not exempt from registration under SORA. Tiemann appealed on numerous grounds. He alleged the CSC-3 statute was “ambiguous” regarding consensual sex between minors, that his prosecution violated “equal protection” since prosecutors did not charge Tiemann’s partner for having sex with a minor, and that he was not afforded with an opportunity to cross-examine his accuser at the SORA hearing in violation of the Sixth Amendment.

In an unsigned opinion, a three-judge panel composed of Court of Appeals Judges William Whitbeck, David Sawyer and Joel Hoekstra rejected all of Tiemann’s claims. First, the panel said there was no ambiguity regarding the applicability of the CSC-3 statute (MCL 750.520d) to consensual sex between teenagers. While the panel said there was “some merit” to Tiemann’s view that it is “absurd” to think the Michigan legislature wrote MCL 750.520d to criminalize consensual teenage sex, “the statute, as plainly written, is unambiguous.”

Next, the panel said Tiemann could not establish his equal protection claim —namely, that he was unfairly prosecuted simply because he was a man. While the Court of Appeals acknowledged Tiemann and his female partner were “similarly situated,” the evidence presented to the trial court indicated he was charged with CSC-3 “because of his aggressive behavior, not because he was male.”

Finally, the panel said the SORA hearing did not violate Tiemann’s constitutional rights. Tiemann claimed that MCL 28.723a deprived him of procedural due process by requiring him to prove consent by a preponderance of the evidence (rather than requiring the state to prove lack of consent beyond a reasonable doubt). Tiemann further objected that he was not afforded a chance to confront his accuser during the SORA hearing. The alleged victim instead read a statement into the record claiming the sexual acts at issue were not consensual. The Court of Appeals said there was no Sixth Amendment or other due process violation because, contrary to Tiemann’s claims, “SORA is regulatory and does not impose punishment.” The only procedural safeguards Tiemann was entitled to were those granted by SORA itself.

Of course, while the Court of Appeals maintains SORA is not a criminal statute, defendants like Tiemann are still eager to avoid the punitive impact of being forced to publicly register as a sexual offender. In an environment where teenagers are forced to “prove” any sex they have with a classmate is consensual to avoid SORA, it is especially critical to have qualified and zealous representation. For two decades, Satawa Law has specialized in representing individuals accused of sex crimes. If you or a family member find yourself in a situation similar to Tiemann, we strongly encourage you to contact us immediately.

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