1.4Development of Statutory Law Against Sexual Assault From 1808-1974

In 1808, two laws prohibiting sexual assault were enacted and appeared in Laws of the Territory of Michigan, Vol. IV., Supplemental.¹ One of those laws prohibited a man from raping a female by force against her will:

“Sec. 9. And be it enacted, That if any man shall ravish or carnally know any woman, maid, or damsel, committing carnal copulation with her by force against her will, and being thereof convicted before the Supreme Court, he shall be fined not exceeding one thousand dollars, and be imprisoned or confined to hard labor during life.”

A separate law enacted in 1808 prohibited a person over age 15 from sexually assaulting a female child under age 11:

“Sec. 10. And be it enacted, That if any person over the age of fifteen years shall unlawfully and carnally know and abuse any woman child under the age of eleven years, with her will or against her will, and being thereof convicted before the Supreme Court, he shall suffer the same punishment as directed in the ninth section of this act [a fine of not more than $1,000 and imprisoned or confined to hard labor for life].”

A 1974 article in the University of Michigan Journal of Law Reform discusses the history of Michigan law against sexual assault from 1846 through the amendment and expansion of the law that occurred in 1974; the law against sexual assault that appears in 1975 as a result of the 1974 amendment is referred to by the authors of the article as the “new” sexual assault law. Cobb & Schauer, Legislative Note: Michigan’s Criminal Sexual Assault Law,² 8 U. Mich. J. L. Reform 217, 217 (1974).

By 1846, 128 years before the “new” sexual assault law was enacted in 1974, the two existing laws against sexual assault³ had been combined into a single law prohibiting “any person” from ravishing or carnally knowing any female aged 10 or older “by force and against her will[.]”:⁴

“Sec. 20. If any person shall ravish and carnally know any female of the age of ten years or more, by force and against her will, or shall unlawfully and carnally know and abuse any female child under the age of ten years, he shall be punished by imprisonment in the state prison for life, or for any term of years; and such carnal knowledge shall be deemed complete upon proof of penetration only.”⁵ 

Additional laws on the books in 1846 were early enactments of the laws prohibiting specific sexual conduct under the conditions detailed in the statutory language. For example, in 1846 there was a law against taking or attempting to take a woman “unlawfully and against her will, and by force, menace or duress, compel her to marry him or any other person,” and a law against enticing a female under age 16 without her parent’s or guardian’s consent “for the purpose of prostitution, concubinage, or marriage[.]”⁶

By 1897, the age of consent had been established at age 16:

“Sec. 20. If any person shall ravish and carnally know any female of the age of sixteen years, or more, by force and against her will, or shall unlawfully and carnally know and abuse any female under the full age of sixteen years, he shall be punished by imprisonment in the state prison for life, or for any such period as the court in its discretion shall direct, and such carnal knowledge shall be deemed complete upon proof of penetration only.”⁷

The law remained substantially the same for decades. In 1915, the language was exactly the same as it appeared in 1897.⁸ The Legislature enacted the Penal Code with the passage of 1931 PA 328, effective September 18, 1931. By then the Legislature had categorized the crime of rape as a felony and amended the language describing the evidence required for conviction of sexual assault. The commission of sexual assault required proof of sexual penetration, but the statute now stated that the offense was deemed complete if there was proof of sexual penetration “however slight.”

“Sec. 520. Punishment—Any person who shall ravish and carnally know any female of the age of sixteen years, or more, by force and against her will, or who shall unlawfully and carnally know and abuse any female under the full age of sixteen years, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. Such carnal knowledge shall be deemed complete upon proof of any sexual penetration however slight.”⁹ (Emphasis added.)

The language remained unchanged until 1952. In 1952, an offender’s status as a sexually delinquent person had been added to the law against sexual assault and expressly provided a sentence for sexually delinquent offenders who were convicted of certain sexual misconduct crimes. See 1952 PA 73, effective April 9, 1952.

“Sec. 520. Any person who shall ravish and carnally know any female of the age of 16 years, or more, by force and against her will, or who shall unlawfully and carnally know and abuse any female under the full age of 16 years, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life. Such carnal knowledge shall be deemed complete upon proof of any sexual penetration however slight.”¹⁰ (Emphasis added.)

Sweeping changes were made to the law governing sexual assault by 1974 PA 266, effective April 1, 1975.¹¹ Cobb & Schauer, Legislative Note: Michigan’s Criminal Sexual Assault Law, 8 U. Mich. J. L. Reform 217, 217 (1974).¹² According to the article, “[u]nder increasing pressure from women’s rights groups and other reform organizations, the Michigan legislature has re-evaluated its centenarian rape statute, found it inadequate for the realities of the mid-twentieth century, and enacted a new sexual assault act.” Id. This new sexual assault act appeared in 1974 PA 266, effective April 1, 1975. 1974 PA 266 repealed MCL 750.520 as it existed at the time and enacted a more comprehensive and detailed series of statutes penalizing different degrees of criminal sexual conduct. What had been formerly known as the law prohibiting rape, MCL 750.520, became first-degree criminal sexual conduct as part of the comprehensive statutory law dedicated to offenses involving sexual assault:¹³

 “Sec. 520b. (1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:

(a) That other person is under 13 years of age.

(b) The other person is at least 13 but less than 16 years of age and the actor is a member of the same household as the victim, the actor is related to the victim by blood or affinity to the fourth degree to the victim, or the actor is in a position of authority over the victim and used this authority to coerce the victim to submit.

(c) Sexual penetration occurs under circumstances involving the commission of any other felony.

(d) The actor is aided or abetted by 1 or more other persons and either of the following circumstances exists:

(i) The actor knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless.

(ii) The actor uses force or coercion to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in subdivision (f) (i) to (v).

(e) 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.

(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes but is not limited to any of the following circumstances:

(i) When the actor overcomes the victim through the actual application of physical force or physical violence.

(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.

(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, ‘to retaliate’ includes threats of physical punishment, kidnapping, or extortion.

(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable.

(v) When the actor, through concealment or by the element of surprise, is able to overcome the victim.

(g) The actor causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless.

(2) Criminal sexual conduct in the first degree is a felony punishable by imprisonment in the state prison for life or for any term of years.”

The new sexual assault law put in place by 1974 PA 266 abolished the offense of common-law rape and other sex offenses including assault with intent to commit rape,¹⁴ sodomy, or gross indecency; attempted rape¹⁵; taking indecent liberties with a minor under age 16; offenses involving debauching—males against females under age 15, and males against males under age 15; ravishing a female patient in an institution for the insane; and carnal knowledge of a female ward by a guardian. Legislative Note at 219. Michigan’s new criminal sexual assault law was formulated to distinguish among degrees of violence as motivated by hostility rather than passion, indicating that rape, like other crimes, is more heinous in certain contexts than others. Id. at 217. The new law set out “a hierarchy of degrees which relate to the severity of the criminal act involved.” Id. at 220. “The new degree structure offer[ed] the courts objective guidelines for matching the crime with the offensiveness of the actor’s conduct; the lower level offenses in the new law constitute[d] an appropriate mid-point between the old extremes of rape and mere assault.” Id. at 220-221.

“The new law acknowledge[d] that criminal sexual conduct [was] generally a premeditated crime of violence rather than a crime provoked by the victim’s behavior.” Legislative Note at 217. “[T]he Legislative history reveals that the Legislature intentionally changed the name of the crime from ‘sexual assault’ to ‘criminal sexual conduct’ so that the established legal definition for ‘assault’ would not impede criminal sexual conduct prosecutions.^[16] In our view, this history reveals a Legislative intent to make criminal sexual conduct a uniquely heinous crime that is distinct from and far more invasive of human sanctity and dignity than common assault.”¹⁷ People v Corbiere, 220 Mich App 260, 265-266 (1996). The new law eliminated the requirement that a victim resist the assault. Id. In addition, the new criminal sexual conduct law was made “sex-neutral” so that men as well as women were protected under the law. Legislative Note at 220.

Importantly, “[t]he new law for the first time . . . codified definitions which may be determinative of the defendant’s guilt or innocence—such as what constitutes ‘intimate parts’ of the body, when a person is ‘mentally defective’ or ‘physically helpless,’ what type of ‘personal injury’ may be grounds for a higher charge under the statute, and what ‘sexual contact’ and ‘sexual penetration’ entail. Some of these terms were alluded to under prior statutes, but it was left to the courts to construe such terms.” Legislative Note at 218. Courts have not always been consistent over the years in their interpretation of terms relevant to sexual misconduct. Id. Even though some definitions of terms relevant to sexual assault may be challenged as ambiguous in some cases, the definitions included in the new law were necessary to determining the scope and defining the reach of the statutory language that prohibits the conduct. Id. at 219.