2.2First-Degree Criminal Sexual Conduct
First-degree criminal sexual conduct (CSC-I) is the most serious criminal sexual conduct offense. It involves sexual penetration coupled with certain circumstances set out in MCL 750.520b.
“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.[1]
(b) That other person is at least 13 but less than 16 years of age and any of the following:
(i) The actor is a member of the same household[2] as the victim.
(ii) The actor is related to the victim by blood or affinity[3] to the fourth degree.
(iii) The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.
(iv) The actor is a teacher, substitute teacher, or administrator of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled.
(v) 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 his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(vi) 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, and the sexual penetration occurs during the period of that other person’s residency. . . . .
(c) Sexual penetration occurs under circumstances involving the commission of any other felony.[4]
(d) The actor is aided or abetted by 1 or more other persons[5] and either of the following circumstances exists:
(i) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.[6]
(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).
(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.[7]
(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. . . .
(g) The actor causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
(h) That other person is mentally incapable, mentally disabled, mentally incapacitated, or physically helpless, and any of the following:
(i) The actor is related to the victim by blood or affinity to the fourth degree.
(ii) The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.” MCL 750.520b(1).
a.Multiple Aggravating Circumstances for a Single Act of Penetration
“‘Although [MCL 750.520b] is not explicitly phrased in the alternative, . . . the Legislature intended that the various aggravating circumstances be alternative ways of proving criminal sexual conduct in the first degree.’ . . . The fact that a sexual penetration happens to be accompanied by more than one of the aggravating circumstances enumerated in the statute may well ease the burden on the prosecution in attaining a conviction under MCL 750.520b, but it may give rise to only one criminal charge for purposes of trial, conviction, and sentencing.” People v Johnson, 406 Mich 320, 331 (1979), aff’g 75 Mich App 221, 226-227 (1977).
Although jury unanimity is required with respect to certain aspects of a verdict, the jurors do not have to agree on which aggravating circumstance the defendant used in committing CSC-I. People v Gadomski, 232 Mich App 24, 31-32 (1998). Accordingly, a defendant may be “properly convicted of CSC I even if some of the jurors believed that he committed the offense solely on the basis of one aggravating circumstance, while the rest of the jurors believed that he committed the offense solely on the basis of another one of the aggravating circumstances. Id. “[I]t is well settled that when a statute lists alternative means of committing an offense, which means in and of themselves do not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate theories.” Id. at 30-31 (rejecting defendant’s argument that “he was entitled to a special unanimity instruction in this case because the separate aggravating circumstances on which the jury was instructed involved alternative factual situations (i.e., a home invasion, aiding and abetting, or a personal injury)”).
b.Single Aggravating Circumstance for Multiple Acts of Penetration
One aggravating circumstance may support multiple acts of penetration. People v Martinez, 190 Mich App 442, 444-445 (1991) (affirming defendant’s conviction for two counts of CSC-I where defendant’s initial beating of the victim was “sufficient to supply the personal injury element for the count involving fellatio,” as well as “the personal injury element for the count involving cunnilingus”; both acts “occurred within ten minutes of the assault and there was no indication of the defendant’s intention to discontinue the attack during the entire episode”). See also People v Hunt, 170 Mich App 1, 8-9 (1988) (“The beating visited upon the complainant immediately prior to the series of sexual penetrations [was] sufficient to supply the element of personal injury with respect to each of the subsequent penetrations so as to support multiple convictions under MCL 750.520b(1)(f).”), rejecting the Court’s holding in People v Payne, 90 Mich App 713, 717-719 (1979). 8
2.Sexual Penetration With a Person Under 13
“‘[T]he question is not whether there was conflicting evidence, but rather whether there was evidence that the jury, sitting as the trier of fact, could choose to believe and, if it did so believe that evidence, that the evidence would justify convicting defendant.’”9 People v Bailey, 310 Mich App 703, 714 (2015) (finding that defendant’s convictions of four counts of CSC-I were supported by sufficient evidence where “[e]ach complainant testified that defendant penetrated her vagina with his fingers, and the jury was free to believe their testimony despite the delay in reporting defendant’s conduct[, and] . . . [e]ach victim offered an explanation for why they did not report defendant’s conduct when it occurred”), quoting People v Smith, 205 Mich App 69, 71 (1994). See also People v Solloway, 316 Mich App 174, 181 (2016) (defendant’s conviction of CSC-I was supported by sufficient evidence where the victim testified that he woke up to defendant on top of him, ‘shaking up and down[,]’ . . . that defendant then flipped him over and ‘put his [penis] in [the victim’s] butt,’ [and he] explained that he could feel defendant’s [penis] in his body”).
Defendant’s “guilt is not dependent . . . on whether the minor child can be considered criminally culpable. Rather, each child is merely the instrumentality by which defendant was able to achieve a sexual penetration (fellatio).” People v Hack, 219 Mich App 299, 303-304 (1996) (“by causing the three-year-old girl to perform fellatio on the one-year-old boy” the defendant was guilty of CSC-I “as a principal for using one child as the instrumentality to perform a sexual penetration with the other”).
See also People v Niemi, 344 Mich App 25 (2022), for a different result in a case in which the defendant did not himself penetrate the victim. In Niemi, the Court affirmed the lower courts’ refusal to bind the defendant over for trial for CSC-I with a victim under the age of 13, because the circumstances at the time the victim was penetrated did not involve “one person penetrat[ing] another” as required by MCL 750.520b(1)(a). Niemi, 344 Mich App at 32. Niemi involved a defendant and a 12-year-old victim who communicated with each other by using an online program accessible by computer, and later, by using a messaging application and its video features. Id. at 27. The charges against the defendant arose from a video showing the victim stuffing her underwear in her vagina; according to the victim, the defendant told her to do it “as a consequence for failing to do certain sexual acts.” Id. at 33. The prosecution argued that as in Hack, 219 Mich App at 304, the victim was guilty “as a principal for using [the victim] as the instrumentality to perform a sexual penetration . . . .” Niemi, 344 Mich App at 30. According to the prosecution, the defendant was guilty of the charges against him under the innocent-agent doctrine, which would conclude that the defendant was guilty because the victim was “an innocent agent whom defendant used to commit the sexual penetration.” Id. at 30. The Court disagreed. Id. at 32-33. The Court decided against “extend[ing] the innocent-agent doctrine to the facts of [Niemi].” Id. In contrast to Hack, the victim in Niemi had never met the defendant, the defendant was not present at the time the penetration occurred, and in fact, there was a complete absence of any interaction between the defendant and the victim when the penetration occurred. Id.
3.What Constitutes a Household for CSC-I Offenses
“[T]he term ‘household’ has a fixed meaning in our society not readily susceptible of different interpretation. The length of residency or the permanency of residence has little to do with the meaning of the word as it is used in [MCL 750.520b(1)(b)(i)]. Rather, the term denotes more of what the Legislature intended as an all-inclusive word for a family unit residing under one roof for any time other than a brief or chance visit. The ‘same household’ provision of the statute assumes a close and ongoing subordinating relationship that a child experiences with a member of his or her family or with a coercive authority figure.” People v Garrison, 128 Mich App 640, 642-643, 646-647 (1983) (13-year-old victim was a member of the same household as the defendant under MCL 750.520b(1)(b) where “[o]n the day school recessed for summer vacation, [the victim] went to live with her mother and the defendant in their home pursuant to court-ordered extended visitation over the summer months” and while living with her mother and the defendant, “the defendant had sexual intercourse with her on a number of occasions”).
Garrison does not require “proof of a [subordinating relationship or that defendant is a] ‘coercive authority figure’ . . . because the ‘household’ requirement assumes such a link between the victim and the defendant by virtue of ‘the fact that people in the same household, those living together, bear a special relationship to one another,’” and because MCL 750.520b(1)(b)(i) “does not, by its plain language, require such proof.” People v Phillips, 251 Mich App 100, 103-105 (2002) (defendant and victim were members of the same household where the victim had been living with the defendant and his wife for approximately four months while they were in the process of adopting the victim), quoting Garrison, 128 Mich App at 645.
4.CSC-I Committed by a Relative
Blood or affinity. The term blood means “‘a relationship between persons arising by descent from a common ancestor’ or a relationship ‘by birth rather than marriage.’” People v Zajaczkowski, 493 Mich 6, 13 (2012). The term affinity means “‘the relation existing in consequence of marriage between each of the married persons and the blood relatives of the other, and the degrees of affinity are computed in the same way as those of consanguinity or kindred. ‘A husband is related, by affinity, to all the blood relatives of his wife, and the wife is related, by affinity, to all the blood relatives of the husband.’” Id. at 13-14 (“[T]he context in which the term ‘by blood’ is used in the statute indicates that it is meant as an alternative to the term ‘by affinity.’”) (citations omitted).
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).10 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.
Civil presumption of legitimacy. The civil presumption of legitimacy does not extend to MCL 750.520b. Zajaczkowski, 493 Mich at 15. Accordingly, it was error to conclude that the defendant and victim were related by blood where conclusive DNA evidence indicated that they were not biologically related. Id. at 12-13, 15 (further concluding that the defendant did not “share[] a common ancestor with the victim . . . merely because defendant may be considered the issue of his mother’s marriage to the victim’s father for legitimacy purposes” because “[s]uch a conclusion would require [an extension of] the civil presumption of legitimacy to [MCL 750.520b] when the Legislature clearly has not done so”).
5.CSC-I Involving Underlying Felony
Defining felony for purposes of this offense. “[F]elony, as construed in the phrase ‘any other felony’, refers to any felony other than criminal sexual conduct. . . . Accordingly, the language of [MCL 750.520b(1)(c)], ‘any other felony’, is satisfied by proof of the felony[.]” People v Pettway, 94 Mich App 812, 815, 817-818 (1980) (the “other felony” that defendant committed was breaking and entering an occupied dwelling with the intent to commit CSC, which “is a separate and distinct offense from the completed act of sexual penetration”). However, “criminal sexual conduct upon a second person can be the ‘other felony’ supporting first degree criminal sexual conduct under MCL 750.520b(1)(c)[.]” People v White, 168 Mich App 596, 604 (1988) (“read[ing] ‘any other felony’ [under MCL 750.520b(1)(c)] as meaning a felony other than the one committed,” and finding that “the prohibition against double jeopardy does not bar the use of evidence of criminal sexual conduct upon another victim as the ‘other felony’ which elevates the criminal sexual conduct committed upon the first person to first degree”). But see People v Lockett, 295 Mich App 165, 178 (2012) (conclud[ing] that, in enacting MCL 750.520b(1)(c), the Legislature intended that the ‘circumstances involving the commission of [the] other felony’ directly impact a ‘victim’, or recipient, of the sexual penetration.”).
Direct interrelationship between CSC-I and felony. “Applying the plain and unambiguous language of MCL 750.520b(1)(c), . . . the prosecution [is] required to submit evidence sufficient to establish probable cause to believe that defendant sexually penetrated the victim, that defendant committed the underlying felony, and that there existed a direct interrelationship between the felony and the sexual penetration, which does not necessarily require that the penetration occur during the commission of the felony.” People v Waltonen, 272 Mich App 678, 693-694 (2006). “The key language of the statute is ‘occurs under circumstances involving,’ which does not necessarily demand that the sex occur during the commission of the felony, although this generally will be the case.” Id. at 692-693 (“[T]he delivery of controlled substances technically occurred after the sexual acts; however, the sexual acts were directly related to the delivery of the drugs because the only reason the victim engaged in sexual penetration was to acquire the drugs.”).
Necessarily included offense.11 Disseminating sexually explicit matter to a minor under MCL 722.675(1)(b) is a necessarily included offense of CSC-I “[b]ecause a jury could not have convicted defendants on the charged counts of CSC-I under MCL 750.520b(1)(c) without determining that defendants also committed the underlying felony[.]” People v Lockett, 295 Mich App 165, 182 (2012).
6.Aiding and Abetting a CSC-I Offense
“A conviction of aiding and abetting requires proof of the following elements: (1) the underlying crime was committed by either the defendant or some other person, (2) the defendant performed acts or gave encouragement which aided and assisted the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time of giving aid or encouragement.” People v Wilson, 196 Mich App 604, 609 (1992) (quotation marks and citation omitted).
Two cases involving the same actors, victims, and defendants were consolidated in Wilson, 196 Mich App 604 (the other case was captioned as People v Sanford12). Wilson, 196 Mich App at 607. The defendant-mothers in the consolidated cases, Wilson and Sanford, forced their children (Wilson’s son and Sanford’s daughter) to engage in sexual intercourse with each other. Id. In addition, both defendants were present and “allow[ed] unknown men to commit sexual acts with the children.” See id. at 613. However, “[m]ere presence, even with knowledge that an offense is about to be committed or is being committed, is insufficient to show that a person is an aider and abettor. . . . To be convicted of aiding and abetting, a person must either have possessed the required intent or have participated while knowing that the principal had the requisite intent. Such intent may be inferred from circumstantial evidence.” Id. at 614 (citations omitted).
Compare People v Hack, 219 Mich App 299, 304 (1996), where the Court determined that a defendant may be guilty of a crime by using a child to facilitate the crime but not by aiding and abetting the crime. In such a case, a “[d]efendant is not guilty because he aided and abetted one child in committing a sexual penetration with the other, but as a principal for using one child as the instrumentality to perform a sexual penetration with the other.” Id.
“[N]othing in [MCL 750.520b] hints at its exemption from the aiding and abetting statute[, MCL 767.39 (abolishing the distinction between an accessory and principal)]. People v Pollard, 140 Mich App 216, 221 (1985) (affirming defendants’ convictions for three counts of CSC-I where “there were three rapes: each defendant raped the complainant, then aided and abetted while the other two raped her”; thus, “[e]ach defendant committed three criminal acts and was rightly prosecuted for them”).
7.Using a Weapon or Other Instrument During CSC-I
To be “armed with a weapon”, an “actor need not have the weapon in his hands while committing the [CSC-I] offense [under MCL 750.520b(1)(e)], so long as he has knowledge of the weapon’s location and the weapon is reasonably accessible to the actor.” People v Davis, 101 Mich App 198, 201-203 (1980) (“defendant had constructive possession of the weapon when penetration occurred” where the weapon was “[l]ying but six feet away, with no persons present other than the two victims and the codefendant”). See also People v Flanagan, 129 Mich 786, 797-798 (1983) (there was sufficient evidence “for the jury to find beyond a reasonable doubt that defendant was armed with a knife” where “the testimony showed that the knife was located on the seat next to the defendant during the assaults[, and] . . . that, after the initial assaults, defendant retrieved the knife from the seat beside him and held it in his teeth during further assaults”). People v Proveaux, 157 Mich App 357, 362-363 (1987) (disarming the defendant does not negate the fact that he or she was armed to begin with; although “the testimony showed that defendant’s knife had been thrown outside the house before sexual penetration occurred inside the house[, t]he knife was not within defendant’s reach and it [was] unclear if defendant knew where the knife landed”, the “defendant was armed with a weapon” for purposes of CSC-I because “[i]t [was] enough that defendant began the assault with a knife, putting the victim in fear and traumatizing her,” and the sexual penetration that occurred after the victim disarmed the defendant was part of a continuing event”). But see People v Benard, 138 Mich App 408, 411 (1984) (“[w]here a weapon is actually in the hands of a second party, . . . possession is [not] held by a first person even though the first person is acting in concert with the second person”; accordingly, defendant could not be convicted of CSC-I while using a weapon—though under the facts, he was appropriately charged with CSC-I involving the commission of another felony).
“There is no requirement that the weapon [used in the sexual assaults] be admitted into evidence where there is testimony describing the weapon and establishing it was used.” Flanagan, 129 Mich App at 797.
8.Reasonable Person Standard for CSC-I Offense
“[T]he Legislature’s inclusion of the ‘knows or has reason to know’ language in the statute was intended to “‘protect[] individuals who have sexual relations with a partner who appears mentally sound, only to find out later that this is not the case.’” People v Cox, 268 Mich App 440, 446 (2005), quoting People v Davis, 102 Mich App 403, 407 (1980) (“[B]y the plain language of MCL 750.520d(1)(c), an individual who did not know of his partner’s mental defect[13] and who would never have engaged in the act of penetration had he known of said defect could nonetheless be convicted of third-degree criminal sexual conduct[14] if he had reason to know of the mental incapacity.”). Davis, 102 Mich App at 406-407 (“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 subjective 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).
“[I]ntrusion into the crease of the buttocks, but not into the anal cavity itself, [is] sufficient to satisfy the penetration element of CSC-I[.]” People v Anderson, 331 Mich App 552, 560, 561 (2020) (“the Legislature intended the term ‘anal opening’ to be read broadly to include both the anal canal and the crease of the buttocks or, in laymen’s terms, as the victim explained, the void between the ‘butt cheeks’”).
10.Timing of Offense Involving a School Employee
The status of a substitute teacher at the time of the offense determines whether the alleged criminal sexual conduct can be prosecuted under MCL 750.520b(1)(b)(iv); 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; the defendant qualified only as the complainant’s former substitute teacher). “[T]here was no temporal requirement [in the plain language of CSC-III15] regarding the timing of the sexual penetration.” Hofman, 339 Mich App at 70; People v Lewis, 302 Mich App 338, 347 (2013) (finding that prosecution under MCL 750.520d(1)(e)(i) was not foreclosed “if a sexual penetration by a substitute teacher occur[red] before school or after the school bell [rang] at the end of the day, or on a weekend, or during the summer”). 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. The Legislature intended to punish a defendant’s misconduct when “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[.]” Id., citing Lewis, 302 Mich App at 347.
CSC-I is a general intent crime. People v Langworthy, 416 Mich 630, 645 (1982).
A defendant may be indicted for CSC-I at any time. MCL 767.24(1)(a).16
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-I] is a felony punishable as follows:
(a) Except as provided in subdivisions (b) and (c), by imprisonment for life or for any term of years.
(b) For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age[17] by imprisonment for life or any term of years, but not less than 25 years.[18]
(c) For a violation that is committed by an individual 18 years of age or older against an individual less than 13 years of age, by imprisonment for life without the possibility of parole if the person was previously convicted of a violation of this section or [MCL 750.520c], [MCL 750.520d], [MCL 750.520e], or [MCL 750.520g] committed against an individual less than 13 years of age or a violation of law of the United States, another state or political subdivision substantially corresponding to a violation of this section or [MCL 750.520c], [MCL 750.520d], [MCL 750.520e], or [MCL 750.520g] committed against an individual less than 13 years of age.” MCL 750.520b(2).
MCL 750.520b(2) sets out the minimum statutorily authorized punishment a defendant is to serve for a CSC-I offense, and a “trial court is without authority to impose” a punishment against the defendant that is less than the statutorily required minimum. See People v Kreiner, 497 Mich 1024, 1024-1025 (2015) (finding error and remanding to the Court of Appeals to address the appropriate remedy where the trial court “ordered the prosecutor to re-offer [a] plea” agreement offering a ten-year minimum sentence in exchange for a guilty plea to CSC-I because the trial court was “without authority to impose” that sentence).
See also People v Roy, 346 Mich App 244, 253 (2023) (a defendant aged 17 or older who is convicted of CSC-I involving a victim under the age of 13 must be sentenced to a mandatory-minimum sentence of 25 years as provided in MCL 750.520b(2)(b)). “[B]ut not less than 25 years” in MCL 750.520b(2)(b) modifies the minimum number of years that must be imposed on a defendant aged 17 or older who is convicted of CSC-I involving a victim under the age of 13. Roy, 346 Mich App at 253. The phrase does not limit to 25 years of imprisonment the maximum sentence a sentencing court can impose. Id. at 253.
CSC-I 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.
3.Lifetime Electronic Monitoring
In addition to a penalty imposed under MCL 750.520b(2)(a) or MCL 750.520b(2)(b),19 the court must sentence the offender to lifetime electronic monitoring as provided under MCL 791.285.20 MCL 750.520b(2)(d); MCL 750.520n.
A judgment of sentence is invalid if the trial court is required to impose lifetime electronic monitoring, but fails to do so. People v Comer, 500 Mich 278, 292 (2017).21 A court may correct an invalid sentence on its own initiative after having given the parties an opportunity to be heard, or it may correct an invalid sentence on the motion of either party. People v Pendergrass, ___ Mich App ___, ___ (2023). See MCR 6.429(A). A court’s correction of an invalid sentence on the court’s own initiative must occur within six months of the invalid judgment’s entry. Pendergrass, ___ Mich App at ___; MCR 6.429(A).
a.Not Cruel or Unusual Punishment
Lifetime electronic monitoring was not cruel or unusual punishment as applied to a defendant convicted of CSC-II22 where “[a]lthough he had no prior record, . . . evidence of improper sexual acts involving 13 women or children . . . suggest[ed] that lifetime monitoring would help to protect potential victims from defendant, who in turn would likely be deterred from engaging in such acts if he were closely monitored.”23 People v Hallak, 310 Mich App 555, 577 (2015), rev’d in part on other grounds 499 Mich 879 (2016).24
“[P]lacement of an electronic monitoring device to monitor defendant’s movement constitutes a search for purposes of the Fourth Amendment. But . . . lifetime electronic monitoring for a defendant 17 years or older convicted of CSC-II[25] involving a minor under 13 is not unreasonable.”People v Hallak, 310 Mich App 555, 579, 581 (2015) (finding that “strong public interest in the benefit of monitoring those convicted of CSC-II against a child under the age of 13 outweigh[ed] any minimal impact on defendant’s reduced privacy interest”), rev’d in part on other grounds 499 Mich 879 (2016)26 and citing Grady v North Carolina, 575 US 306 (2015).
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-I convictions. For more information on costs in general and costs authorized for felony offenses, see the Michigan Judicial Institute’s Quick Reference Materials: 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 750.520b does not authorize a fine.” People v Escobedo, 504 Mich 893, 893 (2019) (“vacat[ing] that part of the . . . judgment of sentence imposing a $500 fine” for violating MCL 750.520b).
Under MCL 333.5129, the court may order a defendant who was arrested and charged with violating MCL 750.520b 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).
Additionally, a defendant convicted of CSC-I who is not sentenced to life without parole must be sentenced to lifetime electronic monitoring. See MCL 750.520b(2)(d); MCL 750.520n(1); People v Comer, 500 Mich 278, 289 (2017). “An individual who is sentenced to lifetime electronic monitoring . . . shall reimburse the department or its agent for the actual cost of electronically monitoring the individual.”27 MCL 791.285(2).
MCL 769.1k(1)(b)(v) permits the court to impose “[a]ny assessment authorized by law” at the time sentence is imposed or delayed or at the time a judgment of guilt is entered. A defendant convicted of CSC-I 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-I, 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.
“In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically authorized by statute.” People v DeLeon, 317 Mich App 714, 721 (2016) (quotation marks and citations omitted). However, MCL 750.520b(3) provides that when a defendant is convicted of a charge of CSC-I, “the trial ‘court may order a term of imprisonment . . . to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction.’” DeLeon, 317 Mich App at 721-722, quoting MCL 750.520b(3). “MCL 750.520b(3) does not mandate consecutive sentencing. Rather, it provides that a court ‘may’ impose consecutive sentences, making the decision discretionary.” People v Ryan, 295 Mich App 388, 401 n 8 (2012).
“[T]he Sixth Amendment does not prohibit the use of judicial fact-finding to impose” a consecutive sentence under MCL 750.520b(3).28 DeLeon, 317 Mich App at 723, 726 (although the jury’s verdict “did not necessarily incorporate a finding that [defendant’s] CSC-I conviction ‘ar[ose] from the same transaction’ as did his CSC-II conviction, . . . defendant ha[d] no Sixth Amendment right to have a jury make that determination” before the trial court could impose a consecutive sentence), quoting MCL 750.520b(3) (second alteration in original).
For more information on consecutive sentencing in general, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 7.
MCL 750.520b(3) does not define the term same transaction, “[b]ut it has a temporal requirement”; in order for two or more separate offenses to be seen as part of the same transaction within the meaning of MCL 750.520b(3), the court should determine whether the acts “grew out of a continuous time sequence” and whether the acts “sprang one from the other and had a connective relationship that was more than incidental.” People v DeLeon, 317 Mich App 714, 722 (2016); see People v Ryan, 295 Mich App 388, 403 (2012). (“[t]he evidence in this case reflected that the sexual penetrations forming counts 3 [(fellatio of a victim under age 13)] and 9 [(vaginal intercourse of a victim under age 13)] grew out of a continuous time sequence in which the act of vaginal intercourse was immediately followed by the act of fellatio,” and “[t]hese two particular sexual penetrations sprang one from the other and had a connective relationship that was more than incidental”).
“[A]n ongoing course of sexually abusive conduct involving episodes of assault does not in and of itself render the crimes part of the same transaction. For multiple penetrations [in a CSC case] to be considered as part of the same transaction, they must be part of a ‘continuous time sequence,’ not merely part of a continuous course of conduct.” People v Bailey, 310 Mich App 703, 725-726 (2015) (“the trial court did not possess the statutory authority to impose consecutive sentences and . . . doing so was plain error” where “[a]lthough a brief time overlap exist[ed]” between defendant’s molestation of three victims over a course of several years, there was no evidence in the record that any of the offenses occurred during the same transaction), citing People v Brown, 495 Mich 962, 963 (2014), and Ryan, 295 Mich App at 402-403.
Within the meaning of MCL 750.520b(3), “the phrase ‘any other criminal offense’ “can encompass additional violations of the same CSC-1 statute”; it simply “means a different sentencing offense, and offenses, for purposes of sentencing, are always reduced or broken down into individual counts. Sentences or terms of imprisonment are imposed for each count of a crime on which a defendant is convicted, including counts arising from the same transaction.” People v Ryan, 295 Mich App 388, 405-406 (2012) (holding that a trial court has discretion to order that the sentence for one CSC-I conviction be served consecutively to the sentence imposed for another CSC-I conviction as long as the conduct forming the basis for each conviction is distinct or different from the other).
CSC-I is a tier III offense under the Sex Offenders Registration Act (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).
For more information on the SORA’s registration requirements, see Chapter 9.
1 For caselaw discussing sexual penetration with a person under the age of 13, see Section 2.2.
2 See Section 2.2(A)(3) for caselaw discussing what constitutes a “household”.
3 See Section 2.2(A)(4) for caselaw discussing CSC-I committed by a relative.
4 See Section 2.2(A)(5) for caselaw discussing CSC-I perpetrated by committing another felony.
5 See Section 2.2(A)(6) for caselaw discussing the elements of aiding and abetting.
6 See Section 2.2(A)(8) for caselaw discussing the reasonable person standard.
7 See Section 2.2(A)(7) for caselaw discussing the use of a weapon or other instrument while committing CSC-I.
8 Noting no distinction between a beating where “[t]here was never any indication of the defendant’s intention to discontinue the attack during the entire episode” and “an ongoing criminal act such as the use of a deadly weapon during multiple penetrations or, for that matter, any other felony committed in close temporal proximity with the acts of penetration.” Hunt, 170 Mich App at 8-9 (“The evidence in this case show[ed] that the beating inflicted upon the [victim], which caused physical injury and was used by the defendant to force or coerce his accomplishment of multiple sexual penetrations, was part of a continuing series of sexual assaults.”).
9 “‘[T]he prosecutor ‘is not obligated to disprove every reasonable theory consistent with innocence to discharge its responsibility; it need only convince the jury “in the face of whatever contradictory evidence the defendant may provide.”’ Further, ‘“[c]ircumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.”’” People v Bailey, 310 Mich App 703, 713 (2015), quoting People v Nowack, 462 Mich 392, 400 (2000) and People v Carines, 460 Mich 750, 757 (1999).
10 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, 333 Mich App at 526.
11 See Section 2.1(E) for more information on lesser included offenses.
12 The defendant in Sanford asserted that her culpability depended on “whether a parent has a duty to prevent the commission of a criminal act upon the parent’s child where that crime takes place in the parent’s presence[.]” Wilson, 196 Mich App at 614. The Court of Appeals affirmed the trial court without addressing that issue because the case was fairly decided by the jury on the evidence presented. Id. at 615.
13 A former version of the statute referenced mental defect, which was replaced with mental incapability. See 1983 PA 158, effective March 29, 1984.
14 The Court of Appeals extended the Davis Court’s interpretation of MCL 750.520d(1)(c) “as requiring a reasonable person standard” to MCL 750.520b(1)(g). People v Baker, 157 Mich App 613, 615-616 (1986). Note: In addition to the requirement that “the actor knows or has reason to know” of the victim’s mental or physical condition, a conviction under MCL 750.520b(1)(g) also requires that “[t]he actor causes personal injury to the victim[.]” See also MCL 750.520b(d)(i) where a CSC-I conviction involving an actor’s knowledge of a victim’s mental or physical condition requires the additional fact that the actor be “aided or abetted by 1 or more other persons . . . .” MCL 750.520b(1)(d)(i).
15 The statutory language in MCL 750.520b(1)(b)(iv) “clearly address[es] the same subject or share[s] a common purpose [with MCL 750.520d(1)(e)(i) and the statutes] should be read together as a whole.” People v Hofman, 339 Mich App 65, 71 (2021).
16 The statute of limitations was changed in 2001 to allow indictment for CSC-I at any time rather than within the six-year period of limitations existing at the time of the amendment. See 2001 PA 6. However, “[t]he extension of the period of limitations with respect to victims of CSC-I to more than six years . . . could not revive a charge for which the limitations period had already run.” People v Blackmer, 309 Mich App 199, 201 (2015).
17 For a discussion of the calculation of age, see Section 2.1(D).
18 For information on mandatory sentences, including information on constitutionality and departing from the mandatory minimum, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 2, Chapter 7; and for information on sentencing a juvenile as an adult, see the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 19.
19 “[L]ifetime electronic monitoring must be imposed for all defendants convicted of CSC-I except where the defendant has been sentenced to life without the possibility of parole under [MCL 750.520b(2)(c)].” People v Comer, 500 Mich 278, 292 (2017) (finding that, contrary to lower court opinions, the ages of the defendant and victim are irrelevant to the imposition of lifetime electronic monitoring).
20 Before accepting a plea of guilty or nolo contendere, the trial court must advise the defendant of, and determine that he or she understands, “any . . . requirement for mandatory lifetime electronic monitoring under MCL 750.520b[.]” MCR 6.302(B)(2). Advising the defendant of a requirement for mandatory lifetime electronic monitoring is required because “mandatory lifetime electronic monitoring is part of the sentence itself.” People v Cole, 491 Mich 325, 327 (2012). “Accordingly, when the governing criminal statute mandates that a trial court sentence a defendant to lifetime electronic monitoring, due process requires the trial court to inform the defendant entering the plea that he or she will be subject to mandatory lifetime electronic monitoring.” Id. at 337.
21 Under Comer, 500 Mich at 301, the Court held that once the judgment of sentence was entered “the trial court lacked the authority to correct defendant’s invalid sentence absent a motion from one of the parties.” After Comer was decided, MCR 6.429(A) was amended to allow a court to sua sponte correct an invalid sentence within six months of its entry after giving the parties an opportunity to be heard. ADM File No. 2015-04, effective September 1, 2018.
22 Although unpublished opinions are not precedentially binding under the rule of stare decisis, MCR 7.215(C)(1), see People v McNees, unpublished per curiam opinion of the Court of Appeals, issued April 19, 2018 (Docket No. 337426) and People v Simon, unpublished per curiam opinion of the Court of Appeals, issued June 16, 2016 (Docket No. 326149), which extended the Hallak decision to CSC-I offenses.
23 “For these same reasons, defendant [could not] succeed on his facial challenge under the state Constitution, nor [could] he prevail on his federal constitutional claim.” Hallak, 310 Mich App at 577 (citations omitted).
24 For more information on the precedential value of an opinion with negative subsequent history, see our note.
25 Although unpublished opinions are not precedentially binding under the rule of stare decisis, MCR 7.215(C)(1), see Simon, unpub op at 11, which applied the Hallak decision to CSC-I.
26 For more information on the precedential value of an opinion with negative subsequent history, see our note.
27 For additional information on lifetime electronic monitoring for CSC-I convictions, see Section 2.2(D)(3).
28 “Although consecutive sentencing lengthens the total period of imprisonment, it does not increase the penalty for any specific offense,” and neither Apprendi v New Jersey, 530 US 466 (2000), Alleyne v United States, 570 US 99 (2013), nor People v Lockridge, 498 Mich 358 (2015), “compels the conclusion that consecutive sentencing in Michigan violates a defendant’s Sixth Amendment protections.” DeLeon, 317 Mich App at 723, 726.