2.4Third-Degree Criminal Sexual Conduct
Third-degree criminal sexual conduct (CSC-III) involves sexual penetration coupled with certain circumstances set out in MCL 750.520d.
“A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exist:
(a) That other person is at least 13 years of age and under 16 years of age.[1]
(b) Force or coercion is used to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in [MCL 750.520b(1)(f)(i)-(v)].
[Note: “Although consent . . . precludes conviction of criminal sexual conduct in the third degree by force or coercion, the prosecution is not required to prove nonconsent as an independent element of the offense.”2 People v Jansson, 116 Mich App 674, 683 (1982).]
(c) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.[3]
(d) That other person is related to the actor by blood or affinity to the third degree and the sexual penetration occurs under circumstances not otherwise prohibited by this chapter.[4] It is an affirmative defense to a prosecution under this subdivision that the other person was in a position of authority over the defendant and used this authority to coerce the defendant to violate this subdivision. The defendant has the burden of proving this defense by a preponderance of the evidence. This subdivision does not apply if both persons are lawfully married to each other at the time of the alleged violation.
(e) That other person 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:
(i) The actor is a teacher, substitute teacher, or administrator of that public school, nonpublic school, school district, or intermediate school district.[5] This subparagraph does not apply if the other person is emancipated at the time of the alleged violation.
(ii) The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or 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 public school, nonpublic school, school district, or intermediate school district, and the actor uses the actor’s employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(f) That other person 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:
(i) The actor is a teacher, substitute teacher, administrator, employee, or contractual service provider of the public school, nonpublic school, school district, or intermediate school district from which that other person receives the special education services. This subparagraph does not apply if both persons are not less than 18 years of age and were lawfully married to each other at the time of the alleged violation.
(ii) The actor 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 public school, nonpublic school, school district, or intermediate school district, and the actor uses the actor’s employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(g) The actor 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 that other person is a resident, that other person is at least 16 years of age, and the sexual penetration occurs during that other person’s residency. . . .” MCL 750.520d(1).
“The language of [MCL 750.520d] does not exclude any class of offenders on the basis of age”; “[b]ecause the purpose of [MCL 750.520d] is the protection of the minor victim, the age of the offender is not a relevant concern.” In re Hildebrant, 216 Mich App 384, 386 (1996) (a 16-year-old defendant who engaged in a consensual act with her 14-year-old adopted brother was subject to prosecution for committing). “Hildebrant . . . stands for the proposition that there is no public policy bar to prosecution of one child who engages in sexual acts with another child when both children are within the same protected age group.” In re Tiemann, 297 Mich App 250, 257, 259 (2012) (rejecting 15-year-old respondent’s contention “that MCL 750.520d violates public policy as applied to consenting minors in the same age class”), citing Hildebrant, 216 Mich App at 386-387.
1.Force or Coercion During CSC-III
“[T]he force contemplated in MCL 750.520d(1)(b) does not mean ‘force’ as a matter of mere physics, i.e., the physical interaction that would be inherent in an act of sexual penetration, nor . . . does it follow that the force must be so great as to overcome the complainant. It must be force to allow the accomplishment of sexual penetration when absent that force the penetration would not have occurred. In other words, the requisite ‘force’ for a violation of MCL 750.520d(1)(b) does not encompass nonviolent physical interaction in a mechanical sense that is merely incidental to an act of sexual penetration. Rather, the prohibited ‘force’ encompasses the use of force against a victim to either induce the victim to submit to sexual penetration or to seize control of the victim in a manner to facilitate the accomplishment of sexual penetration without regard to the victim’s wishes.” People v Carlson, 466 Mich 130, 140 (2002) (it was error for the trial court to require “‘some evidence of actual physical force to overcome’ the complainant to support a charge of CSC III”).
2.Reasonable Person Standard for CSC-III Offense
“[B]y the plain language of MCL 750.520d(1)(c), an individual who did not know of his partner’s mental defect[6] and who would never had engaged in the act of penetration had he known of said defect could nonetheless be convicted of third-degree criminal sexual conduct if he had reason to know of the mental incapacity.” People v Davis, 102 Mich App 403, 406-407 (1980) (“by including the ‘knows or has reason to know’ language, the Legislature did not desire to excuse a defendant who is unreasonable in his conclusion that the victim could consent to the sexual penetration”; instead, “the Legislature only intended to eliminate liability where the mental defect is not apparent to reasonable persons”).
“[T]he material issue [is] not the defendant’s subject perception of the victim’s mental capacity but whether the victim’s incapacity [is] apparent to a reasonable person.” People v Baker, 157 Mich App 613, 615-616 (1986). See People v Cox, 268 Mich App 440, 446-447 (2005) (“a rational trier of fact could find that defendant knew or had reason to know that the victim was mentally incapable of consenting to a sexual relationship” where several witnesses testified that the victim’s mental deficiency was “readily noticeable after only a short period of interaction” and “[t]here was also evidence that defendant had ample opportunity to notice these limitations.”).
3.CSC-III Committed by Relative
MCL 750.520d(1)(d) “punishes what is commonly known as incest without regard to the parties’ consent to the sexual activity.” People v Goold, 241 Mich App 333, 335 n 1 (2000).
Circumstances not otherwise prohibited by chapter. For purposes of MCL 750.520d(1)(d), the phrase under circumstances not otherwise prohibited by this chapter does not limit the prosecutor’s ability to file charges against a defendant with CSC; rather, it focuses on whether a defendant can be convicted of CSC-III when those circumstances exists. Goold, 241 Mich App at 339, 341. Accordingly, “the prosecutor may present the factfinder with a CSC III charge relying on evidence of affinity as well as other CSC charges and theories. In that situation, if the factfinder determines that the evidence establishes a factual basis on which to convict the defendant of CSC III on that basis of familial affinity, the factfinder may return a guilty verdict on that charge only if it does not convict the defendant of any other CSC charge involving penetration.” Id. at 335, 341 (“conclud[ing] that [MCL 750.520d] permits filing multiple [CSC] charges as alternative theories in the same count in criminal information, but that the district court erred in permitting the prosecutor to charge [the defendant] with two theories of CSC III in separate counts”).
Adoption. The CSC Act is silent on whether adopted children are related by blood or affinity to their parents or stepparents or to other extended family members for purposes of the CSC Act. However, the Michigan Supreme Court has determined that “persons who are related by adoption but who otherwise do not share an ancestor in common are not related ‘by blood’ for purposes of MCL 750.520d(1)(d).” People v Moss (Moss II), 509 Mich 253, 267 (2022), overruling in part People v Moss (Moss I), 333 Mich App 515 (2020).7 In Moss, “[d]efendant and the complainant [did] not have a birth parent in common, but they were both adopted by the same woman.” Moss II, 509 Mich at 257.
4.Timing of CSC-III Offense Involving School Employee
“[T]here is no temporal requirement in the plain language of the statute regarding the commission of the sexual penetration. Consequently, if a sexual penetration by a substitute teacher occurs before school or after the school bell rings at the end of the day, or on a weekend, or during the summer, prosecution pursuant to MCL 750.520d(1)(e)(i) is not foreclosed. Rather, if the actor’s occupation as a substitute teacher allowed the actor access to the student of the relevant age group in order to engage in sexual penetration, the Legislature intended to punish that conduct.” People v Lewis, 302 Mich App 338, 347 (2013).
The status of a substitute teacher at the time of the offense determines whether the alleged criminal sexual conduct can be prosecuted under MCL 750.520d(1)(e)(i); the substitute teacher is not required to be “actively performing” the role of substitute teacher at the time of the offense. People v Hofman, 339 Mich App 65, 72 (2021) (holding that, at the time of the alleged sexual misconduct, the defendant did not qualify as the student’s substitute teacher because at the time of the offense, the defendant was not employed by the school attended by the complainant; at the time of the offense, the defendant qualified only as the complainant’s former substitute teacher). According to Hofman, the Lewis Court “clearly focused on the distinction between being a substitute teacher and acting as a substitute teacher.” Hofman, 339 Mich App at 71.
CSC-III “is a general intent crime proved by showing that the defendant committed a proscribed sexual act.” People v Corbiere, 220 Mich App 260, 266 (1996).
If the victim is 18 years old or older, an indictment for a violation or attempted violation of CSC-III “may be found and filed as follows:
(a) Except as otherwise provided in subdivision (b), an indictment may be found and filed within 10 years after the offense is committed or by the alleged victim’s twenty-first birthday, whichever is later.
(b) If evidence of the offense is obtained and that evidence contains DNA that is determined to be from an unidentified individual, an indictment against that individual for the offense may be found and filed at any time after the offense is committed. However, after the individual is identified, the indictment may be found and filed within 10 years after the individual is identified or by the alleged victim’s twenty-first birthday, whichever is later.” MCL 767.24(3).
If the victim is under 18 years of age, an indictment for a violation or attempted violation of CSC-III “may be found and filed as follows:
(a) Except as otherwise provided in subdivision (b), an indictment may be found and filed within 15 years after the offense is committed or by the alleged victim’s twenty-first birthday, whichever is later.
(b) If evidence of the offense is obtained and that evidence contains DNA that is determined to be from an unidentified individual, an indictment against that individual for the offense may be found and filed at any time after the offense is committed. However, after the individual is identified, the indictment may be found and filed within 15 years after the individual is identified or by the alleged victim’s twenty-first birthday, whichever is later.” MCL 767.24(4).
A victim of criminal sexual conduct may file a civil action to recover damages sustained because of the criminal sexual conduct. See MCL 600.5805(6); MCL 600.5851b. The period of limitations depends on the age of the victim at the time of the offense. See id. For additional discussion of civil actions, see Section 1.6.
“[CSC-III] is a felony punishable by imprisonment for not more than 15 years.” MCL 750.520d(2). For information on felony sentencing in Michigan, including scoring CSC-III offenses, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 2.
CSC-III is a nonprobationable offense for adult offenders. MCL 771.1(1). For further information regarding probation in juvenile delinquency, designation, and waiver proceedings, see the Michigan Judicial Institute’s Juvenile Justice Benchbook.
The authority to impose fines, costs, and assessments on defendants convicted of criminal offenses is governed by statute. This sub-subsection provides a brief overview of court-ordered payments as it specifically relates to CSC-III convictions. For more information on costs in general and costs authorized for felony offenses, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 8, Table of General Costs and Table of Felony Offenses for Which Costs are Authorized.
MCL 769.1k(1)(b)(i) does not allow a court to order a defendant to pay a fine that is not specifically authorized by the penal statute under which he or she was convicted, and MCL 750.520d does not specifically authorize the imposition of a fine for a CSC-III conviction.
Under MCL 333.5129, the court may order a defendant who was arrested and charged with violating MCL 750.520d to undergo examination and/or testing for certain diseases. “The court may, upon conviction or the issuance by the probate court of an order adjudicating a child . . . [under MCL 712A.2(a)(1)], order an individual who is examined or tested under [MCL 333.5129] to pay the actual and reasonable costs of that examination or test incurred by the licensed physician or local health department that administered the examination or test.” MCL 333.5129(10).
At the time a defendant is sentenced, at the time sentence is delayed, or at the time of entry of a judgment of guilt is deferred, MCL 769.1k(1)(b)(v) permits the court to impose “[a]ny assessment authorized by law.” A defendant convicted of CSC-III must pay a crime victim assessment of $130. See MCL 780.905(1)(a). Only one crime victim assessment per case may be ordered, even when the case involves multiple offenses. MCL 780.905(2).
When sentencing a defendant for committing CSC-III, the court must order full restitution. See MCL 769.1a(2); MCL 769.34(6); MCL 771.3(1)(e); MCL 780.766; MCR 6.425(E)(1)(f). For more information on restitution, see the Michigan Judicial Institute’s Crime Victim Rights Benchbook, Chapter 8.
CSC-III is a tier III offense under the SORA for which registration is required unless “the court determines that the victim consented to the conduct constituting the violation, that the victim was at least age 13 years of age but less than 16 years of age at the time of the offense, and that the individual is not more than 4 years older than the victim.” MCL 28.722(v)(iv).
MCL 750.520d does not conflict with MCL 28.722(v)(iv). In re Tiemann, 297 Mich App 250, 261 (2012) (rejecting the 15-year-old respondent’s assertion “that it would be irreconcilable if a defendant did not have to register under SORA after a finding of consent but would nonetheless remain convicted of consensual statutory rape”).
For more information on the SORA’s registration requirements, see Chapter 9.
1 For a discussion of the calculation of age, see Section 2.1(D).
2 “The express language of [MCL 750.520i] precludes any . . . requirement” “that the victim resisted the actor or . . . expressed an intent to resist.” People v Jansson, 116 Mich App 674, 681-683 (1982). For additional discussion of protections under the criminal sexual conduct statutes, including MCL 750.520i, see Section 2.9.
3 See Section 2.4(A)(2) for caselaw discussing the reasonable person standard.
4 See Section 2.4(A)(3) for caselaw discussing CSC-III committed by a relative.
5 See Section 2.4(A)(4) for caselaw discussing the timing of this offense, specifically as it relates to school employees.
6 A former version of the statute referenced mental defect, which was replaced with mental incapability. See 1983 PA 158, effective March 29, 1984.
7 The Supreme Court “[left] undisturbed the Court of Appeals’ conclusion that defendant and the complainant are not related by affinity.” Moss II, 509 Mich at 257 n 1. The Court of Appeals had concluded that the relationship between the adopted individuals in Moss did not arise from marriage, and therefore, for purposes of MCL 750.520b–MCL 750.520e, the two adopted individuals in Moss were not related by affinity. Moss I, 333 Mich App at 526.