What Are The Various Types Of Sex Offenses In Michigan?
Sex offenses in Michigan are broken down into a few general categories. The first category includes cases that involve the actual perpetration of a victim with a sex act. The second involves cases that don’t involve the touching or penetration of an actual victim. Cases in the first category are all under an umbrella statute in Michigan called ‘Criminal Sexual Conduct,’ or ‘CSC’ for short.
Frequently, clients use terms like ‘rape,’ ‘sexual assault,’ and ‘sex crime’ as terms of art. For example, a client will say, “I wasn’t charged with rape, I was charged with CSC 3.” However, Michigan doesn’t have a statute called ‘rape.’ To some people, rape might have a connotation of a certain amount of violence or force. Other people use the word rape to suggest that there was a sex act that involved vaginal or anal penetration. In Michigan, all fall under the umbrella of Criminal Sexual Conduct, or CSC.
In Michigan, all sex acts that involve an actual victim fall under this one statute – so it covers any and all rape, child molestation, and sex crimes offenses. The statute makes two basic distinctions. The first is whether there was penetration or not. Any form of penetration, versus touching or squeezing someone’s breasts or genitals. The second distinction is whether there are aggravating circumstances that raises the seriousness of the charge. So the criminal sexual conduct statute is broken down into four specific offenses: criminal sexual conduct in the first, second, third, and fourth degree. Third-degree criminal sexual conduct is actually more serious than second-degree criminal sexual conduct. First-degree and third-degree criminal sexual conduct involve penetration, while second-degree and fourth-degree criminal sexual conduct involve touching without penetration.
Any type of sexually-related penetration that can be imagined is encompassed in the first and third-degree definition of penetration (e.g., someone putting their penis in someone’s mouth, putting one’s mouth into someone’s vagina, putting fingers inside a vagina or anus, and putting a penis inside a vagina or rectum). Any amount of penetration, no matter how slight, is enough. There are many offenses that most people outside the legal realm would say do not involve penetration, such as rubbing the outside of a vagina. However, if there was any intrusion of the vaginal lips, then it would be considered penetration.
First-degree criminal sexual conduct is differentiated from third-degree criminal sexual conduct by the existence of aggravating factors. To elaborate, third-degree criminal sexual conduct is any type of penetration that’s illegal in Michigan, and first-degree criminal sexual conduct is penetration plus an aggravating factor. Third-degree penetrations can be deemed illegal on the basis of force, coercion, and age. Any penetration with a person under age 16, which is the age of consent in Michigan, is illegal. If it involved someone under the age of 13, then that would be an example of an aggravating factor. If it involved someone 13 to 15 years of age, then it would be a third-degree charge without an additional aggravating circumstance.
Other aggravating factors that can elevate a third-degree charge to a first-degree include personal injury, multiple assailants, and penetration that was accomplished during the commission of another felony. In addition, authority status can be an aggravating factor, which means a parent, teacher, or coach of the individual could face a first-degree charge.
The same distinction is present in second and fourth-degree charges. In other words, fourth-degree criminal sexual conduct is simple sexual touching. In Michigan, that is defined as a ‘specific intent crime.’ Touching someone’s breast accidentally is not illegal; the prosecution has to prove that the touching was done for a sexual purpose or for sexual gratification. Second-degree criminal sexual conduct is touching with an aggravated factor, and the same exact aggravating factors in the first degree apply to the second degree. This means that any sexual touching of someone under age 16 is automatically a fourth-degree charge, and it can be aggravated to second-degree charge if the child is under 13, or if it is done by a coach, parent, teacher, or other authority figure.
There is a second group of sex offenses includes those that do not involve the actual commission of a sex act against a person. There are four basic forms of these offenses: possession of child sexually abusive material, or CSAM (which means child pornography), child sexually abusive activity (or CSAA), general solicitation of a minor (which is typically charged in sex-related cases but doesn’t have to be), and using a computer (including a smartphone) to commit any of these offenses. The use of a computer to commit a sex offense is actually a separate crime that can subject the defendant to consecutive sentencing. Child sexually abusive material charged in conjunction with using a computer to possess child sexually abusive material are two separate crimes that can be sentenced consecutively, which means on top of the underlying charge of child sexually abusive material.
Child sexually abusive material is possession of lewd, lascivious display of genitals or a sex act. It is strange and confusing that these offenses that do not involve actual sex acts or criminal sexual conduct statute apply to people who are under the age of 18, even though the age of consent in Michigan is 16. This means that a 16-year-old can consent to sex in the state of Michigan, but they can’t talk about it on their cell phone. Having child pornography or child sexually abusive material is defined by the 18-year-old cutoff, and involves any display of a sex act or a lewd, lascivious display of genitals.
Child sexually abusive activity is a significantly more serious offense than child sexually abusive material, and actually more serious than criminal sexual conduct in both the second and third degree, which means it’s more serious than actually raping someone. In fact, it is the second most serious sex offense in the state after criminal sexual conduct in the first degree. The statute addressing child sexually abusive activity in Michigan is very interesting, and was originally passed to combat commercial child pornography. It is now one of the most commonly used offenses to go after people for a wide range of activity.
In essence, the child sexually abusive activity statute outlaws the encouragement or solicitation of any listed sex act. The listed sex acts are very wide-ranging; there is a wide range of definitions for these sex acts in Section 750.14c of the statute. It’s a really long, complex, and confusing statute that has all kinds of definitions, but what it boils down to is this: it is against the law for anyone to persuade, induce, entice, coerce, cause, or knowingly allowing a child to engage in child sexually abusive activity.
Listed acts include sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, and erotic nudity. This means that texting, emailing, discussing on social media, sending photographs or messages through Snapchat, or otherwise discussing sex with anyone under the age of 18 is illegal in Michigan under this statute.
This is the statute that’s used to prosecute sexting. A 17-year-old boy can be prosecuted under this statute for sexting or engaging in child sexually abusive activity with his 15-year-old girl-friend, even though they’re both under the age of 18. This happens very frequently. Child sexually abusive activity is not only used to prosecute those types of cases, but also the types of cases seen on Chris Hansen’s show, How To Catch A Predator, which involves people who engage in sex talk with whom they believe to be a minor, but is really an undercover police officer. It’s a very heavily used statute by prosecutors in Michigan, and it is abused too often. It is also a really a difficult charge for the accused to defend, because it is over-encompassing in terms of what behavior is deemed illegal.
Solicitation of a minor or internet solicitation is defined in Section 750.145a of the Michigan statute as the accosting, enticing, or soliciting of a child for immoral purposes. This actually requires the child to be under age 16 because it’s an older statute (sometimes called the Common Law Solicitation Statute). This statute defines a minor as the same age that applies to criminal sexual conduct law, so it is not used nearly as much as child sexually abusive activity, the latter of which allows police and prosecutors to go after people involved with child victims who are 16 and 17 years old. This statute is used more often for non-sexual behaviors, such as the solicitation of a child for an act of delinquency or possibly even depravity, which may not be sexual. While not as frequent, it is a crime that does get charged on occasion in Michigan.
Finally, use of a computer (including a smartphone) to carry out any of the above offenses—whether it’s criminal sexual conduct in the first, second, third or fourth degree, child sexually abusive material, child sexually abusive activity, or solicitation of the minor—is a separate offense in Michigan. This offense can be sentenced consecutively, which means the judge has the discretion to sentence a person consecutively for child sexually abusive activity plus the use of a computer to commit the crime of child sexually abusive activity. It’s important for people to understand that there is a charge specifically for using a computer to commit these crimes, and while it is not as serious as the underlying offense, it is frequently a problem because of consecutive sentencing.