Part II—Offenses Involving Child Sexually Abusive Activity or Child Sexually Abusive Material
3.2Introduction to Offenses Involving Child Sexually Abusive Activity or Child Sexually Abusive Material
“The offense of engaging a child in sexually abusive activity [under MCL 750.145c] . . . focuses on protecting children from sexual exploitation, assaultive or otherwise. The purpose of the statute is to combat the use of children in pornographic movies and photographs, and to punish the production and distribution of child pornography.” People v Ward, 206 Mich App 38, 42-43 (1994).
MCL 750.145c specifically prohibits a person from doing any of the following or engaging in certain behaviors or actions designed to accomplish any of the following:
•producing, making, copying, or financing child sexually abusive activity or material, MCL 750.145c(2).
•distributing or promoting child sexually abusive material, MCL 750.145c(3).
•possessing child sexually abusive material, MCL 750.145c(4).
“[O]nce it is determined that an image constitutes child sexually abusive material, it must then be determined into which of the statute’s three tiers the defendant’s conduct falls.” People v Hill, 486 Mich 658, 677 (2010). “The three tiers of offenses and punishments in MCL 750.145c compellingly indicate the Legislature did not intend to impose the same maximum penalty on a person who downloads a prohibited image from the Internet and burns it to a CD–R for personal use as on a person who is involved in the creation or origination of child sexually abusive material.” Hill, 486 Mich at 683.
“Expert testimony as to the age of the child used in a child sexually abusive material or a child sexually abusive activity is admissible as evidence in court and may be a legitimate basis for determining age, if age is not otherwise proven.” MCL 750.145c(6).
“It is an affirmative defense to a prosecution under this section that the alleged child is a person who is emancipated by operation of law under [MCL 722.4(2)], as proven by a preponderance of the evidence.” MCL 750.145c(7).
3.Depiction Not of Actual Child
“If a defendant in a prosecution under this section proposes to offer in his or her defense evidence to establish that a depiction that appears to include a child was not, in fact, created using a depiction of any part of an actual person under the age of 18, the defendant shall at the time of the arraignment on the information or within 15 days after arraignment but not less than 10 days before the trial of the case, or at such other time as the court directs, file and serve upon the prosecuting attorney of record a notice in writing of his or her intention to offer that defense. The notice must contain, as particularly as is known to the defendant or the defendant’s attorney, the names of witnesses to be called on behalf of the defendant to establish that defense. The defendant’s notice must include specific information as to the facts that establish that the depiction was not, in fact, created using a depiction of any part of an actual person under the age of 18. Failure to file a timely notice in conformance with this subsection precludes a defendant from offering this defense.” MCL 750.145c(8).
B.Reporting to Law Enforcement Agency
“If a commercial film or photographic print processor reports to a law enforcement agency having jurisdiction his or her knowledge or observation, within the scope of his or her professional capacity or employment, of a film, photograph, movie film, videotape, negative, or slide depicting a person that the processor has reason to know or reason to believe is a child engaged in a listed sexual act; furnishes a copy of the film, photograph, movie film, videotape, negative, or slide to a law enforcement agency having jurisdiction; or keeps the film, photograph, movie film, videotape, negative, or slide according to the law enforcement agency’s instructions, both of the following apply:
(a) The identity of the processor must be confidential, subject to disclosure only with his or her consent or by judicial process.
(b) If the processor acted in good faith, he or she is immune from civil liability that might otherwise be incurred by his or her actions. This immunity extends only to acts described in this subsection.” MCL 750.145c(9).
“If a computer technician reports to a law enforcement agency having jurisdiction his or her knowledge or observation, within the scope of his or her professional capacity or employment, of an electronic visual image, computer-generated image or picture or sound recording depicting a person that the computer technician has reason to know or reason to believe is a child engaged in a listed sexual act; furnishes a copy of that image, picture, or sound recording to the law enforcement agency; or keeps the image, picture, or sound recording according to the law enforcement agency’s instructions, both of the following apply:
(a) The identity of the computer technician must be confidential, subject to disclosure only with his or her consent or by judicial process.
(b) If the computer technician acted in good faith, he or she is immune from civil liability that might otherwise be incurred by his or her actions. This immunity extends only to acts described in this subsection.” MCL 750.145c(10).
C.Reproduction of Photographic or Other Pictorial Evidence
“In any criminal proceeding regarding an alleged violation or attempted violation of this section, the court shall deny any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any photographic or other pictorial evidence of a child engaging in a listed sexual act if the prosecuting attorney makes that evidence reasonably available to the defendant. Evidence is considered to be reasonably available to the defendant under this subsection if the prosecuting attorney provides an opportunity to the defendant and his or her attorney, and any person the defendant may seek to qualify as an expert witness at trial, to inspect, view, and examine that evidence at a facility approved by the prosecuting attorney.” MCL 750.145c(11).
The Supreme Court questioned the Legislature’s intent with regard to the age of consent in two different statutory schemes when it denied leave to appeal in People v Willis (Willis I), 322 Mich App 579 (2018). People v Willis (Willlis II), 504 Mich 905, 906 (2019). The Court noted that the age of consent for conduct under the criminal sexual conduct statutes, MCL 750.520b–MCL 750.520e, is 16 years of age, while the age of consent for the child sexually abusive activity/material is 18 years of age. The Court acknowledged that the defendant in Willis “raise[d] a reasonable argument that MCL 750.145c(2), as written, elevates the age of consent in Michigan from 16 years old to 18 years old, effectively nullifying several otherwise important and often-employed criminal statutes of our state.” Id. at 906. For example,
“The relevant age of consent under the criminal sexual conduct statutes is 16 years old. See MCL 750.520b to MCL 750.520e. Specifically, ‘[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.’ MCL 750.520d(1). Revisiting the previous example, the 18-year-old would not have violated MCL 750.520d if he or she had not engaged in sexual intercourse with his or her 17-year-old partner. Nonetheless, the 18-year-old could still be convicted under MCL 750.145c(2) because he or she had ‘arranged[d] for . . . child sexually abusive activity . . . .’ In effect, then, the age of consent is no longer 16 years old, but 18 years old, as any sexually listed act with an individual under 18 years old could result in criminal liability under MCL 750.145c(2).” Willis II, 504 Mich at 906-907 (alterations in original).
Further,
“the relevant age for purposes of the solicitation statute is 16 years old. Therefore, one who entices a 17-year-old to engage in sexual intercourse would not be criminally liable under MCL 750.145a. Under MCL 750.145c(2), however, one who ‘arranges for’ that same 17-year-old to engage in sexual intercourse could be held criminally liable.” Willis II, 504 Mich at 907.
The Court went on to acknowledge that “defendant has highlighted concerns regarding the breadth of MCL 750.145c(2). The Legislature may, or may not, wish to assess these concerns and possibly clarify and harmonize our child sexual abuse statutory scheme.” Willis II, 504 Mich at 907.
“Both federal and Michigan double jeopardy provisions afford three related protections: (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) against multiple punishments for the same offense.” People v Ford, 262 Mich App 443, 447 (2004) (citations omitted).
1.Multiple Offenses During Same Transaction
“To determine what constitutes a single crime or offense under [MCL 750.145c], [courts] must . . . examine legislative intent.” People v Hack, 219 Mich App 299, 306 (1996). MCL 750.145c(2) “provides that a person commits a felony when, inter alia, he induces ‘a child’ to engage in ‘child sexually abusive activities.’ We find this language to clearly provide that a felony has been committed when a person induces one child to perform prohibited acts. Because it is undisputed that two children were involved in this case, we conclude that defendant was properly charged and convicted of two counts of this crime.” Hack, 219 Mich App at 302, 307 (“conclud[ing] that defendant’s rights against double jeopardy were not violated” when he was convicted of two counts of child sexually abusive activity under MCL 750.145c(2) for “videotaping . . . a three-year-old female victim who was forced to perform fellatio on her one-year-old male cousin”) (citation omitted). See also People v Harmon, 248 Mich App 522, 526 (2001) (“four photographs [depicting] erotic nudity . . . two of each [15-year-old] victim, could support four convictions under MCL 750.145c(2), even though the four photographs were from one photography session”).
2.Legislatively Linked Compound and Predicate Crimes
“Multiple convictions for legislatively linked compound and predicate crimes, such as the offenses [of producing child sexually abusive activity in violation of MCL 750.145c(2), and CSC-I, engaging in sexual penetration while producing the child sexually abusive activity in violation of MCL 750.520b(1)(c), or CSC-II, engaging in sexual contact while producing the child sexually abusive activity in violation of MCL 750.520c(1)(c)], do not necessarily violate the double jeopardy protection against multiple punishments.” People v Ward, 206 Mich App 38, 42-43 (1994). “[T]he criminal sexual conduct statutes and the child sexually abusive activity statute prohibit conduct that is violative of distinct social norms. The criminal sexual conduct statutes involve sexual assaults on all persons of all ages”; “[t]he offense of engaging a child in sexually abusive activity, on the other hand, focuses on protecting children from sexual exploitation, assaultive or otherwise.” Id. at 42. “Further, while the punishments for the criminal sexual conduct offenses and for the underlying predicate felony of child sexually abusive activity are not identical, . . . neither are they part of a hierarchy of crimes that build upon a single base statute.” Id. at 43. “Because the Legislature intended to punish conduct violative of distinct social norms and did not authorize punishments based on a continuum of culpability, it is apparent that the Legislature intended that the crimes of criminal sexual conduct and child sexually abusive activity be punished separately.” Id.