2.6Assault With Intent to Commit Criminal Sexual Conduct Involving Sexual Penetration
An assault with intent to commit criminal sexual conduct involving sexual penetration is a necessarily included lesser offense of CSC-I and CSC-III.1 See People v Starks, 473 Mich 227, 236 (2005); People v Nickens, 470 Mich 622, 624 (2004); People v Love, 91 Mich App 495, 502-503 (1979).
A person is guilty of assault with intent to commit criminal sexual conduct involving sexual penetration under MCL 750.520g(1) if:
(a) the person committed an assault, and
(b) had the intent to commit criminal sexual conduct involving sexual penetration. People v Nickens, 470 Mich 622, 627 (2004).
“Nothing in MCL 750.520g(1) requires the existence of an aggravating circumstance or that the assault is made with an improper sexual purpose or intent.” Nickens, 470 Mich at 627.
“[A]n assault can occur in one of two ways.” People v Nickens, 470 Mich 622, 628 (2004). One way is often called an attempted-battery assault where there is an attempt to commit a battery (intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person). Id. The other way is often called an apprehension-type assault where there is an illegal act that places another person in reasonable apprehension of being immediately battered. Id. (also noting that if an attempt fails, the act constitutes an assault only, and if the attempt is successful, it constitutes an assault and battery; accordingly, “an attempted-battery assault is a necessarily lesser included offense of a completed battery because it is impossible to commit a battery without first committing an attempted-battery assault”).
Consent. An assault under MCL 750.520g(1) always occurs “when the actor commits CSC-I under MCL 750.520b(1)(f) [(involving force or coercion)]” because a victim who is coerced into agreeing to sexual penetration “cannot be said to have lawfully consented and, thus, a battery has occurred,” which by definition means that “an assault has also occurred.” People v Nickens, 470 Mich 622, 630-631 (2004) (further noting that the fact that CSC-I is a general intent crime and assault with intent to commit sexual penetration is a specific intent crime “is a distinction without a difference”). See also People v Starks, 473 Mich 227, 237 (2005) (consent is not always a defense to the crime of assault with intent to commit sexual penetration; accordingly, bindover on a charge of assault with intent to commit sexual penetration was proper where the complainant “could not consent to the attempted touching in this case-fellatio-and defendant’s attempt to commit fellatio” because she was 13 year old, and “if proven, [the conduct] would amount to an attempt to commit an intentional, unconsented, and harmful or offensive touching, which by definition, is an assault”).
Assault with intent to commit CSC involving sexual penetration is a specific intent crime. People v Nickens, 470 Mich 622, 631 (2004). The prosecution must prove that “(1) defendant committed an assault (2) with the intent to commit sexual penetration. There is no requirement that one prove an intent to commit criminal sexual conduct, as that is necessarily established by proof of the other elements.” People v Love, 91 Mich App 495, 502 (1979). “[P]roof of intent to commit [CSC-III, MCL 750.520d,] is established by proof of the intention to commit a forcible sexual penetration. This intention will necessarily be established by proof of assault plus proof of the intent to sexually penetrate. The intention to use force in effectuating the sexual penetration is established by the assault itself[.]” Love, 91 Mich App at 502-503. See People v McFall, 224 Mich App 403, 409-410 (1997) (there was sufficient evidence to support “a reasonable trier of factfinder to conclude that defendant intended to sexually penetrate the complainant” where “the complainant testified that after defendant had touched her genitalia, he choked her and told her to take her pants all the way down[, and] . . . that, at one point, defendant, ‘was found fumbling with his hand down his pants’”).
An indictment for a violation of MCL 750.520g(1) “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).
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.
Assault with intent to commit CSC involving sexual penetration is a felony “punishable by imprisonment for not more than 10 years.” MCL 750.520g(1). For information on felony sentencing in Michigan, including scoring assault with intent to commit CSC involving sexual penetration offenses, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 2.
Assault with intent to commit CSC involving sexual penetration is a probationable offense for adult offenders. See 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 assault with intent to commit CSC involving sexual penetration 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 750.520g(1) does not specifically authorize the imposition of a fine for an assault with intent to commit CSC involving sexual penetration conviction. See People v Johnson, 314 Mich App 422, 423 (2016) (“vacat[ing] the portion of the judgment of sentence imposing a fine” for violating MCL 750.520g(1)).
Under MCL 333.5129, the court may order a defendant who was arrested and charged with violating MCL 750.520e 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 violating MCL 750.520g(1) 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).
Assessments authorized by MCL 769.1k(1)(b)(v) apply even if a defendant is placed on probation, a defendant’s probation is revoked, or a defendant is discharged from probation. MCL 769.1k(3).
When sentencing a defendant for committing assault with the intent to commit sexual penetration, 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). If ordered to pay restitution under the Code of Criminal Procedure or the CVRA at sentencing, upon parole, a parolee’s parole order must contain a condition to pay restitution. MCL 791.236(5). For more information on restitution, see the Michigan Judicial Institute’s Crime Victim Rights Benchbook, Chapter 8.
Assault with intent to commit CSC involving sexual penetration 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).
For more information on the SORA’s registration requirements, see Chapter 9.
1 For additional discussion of necessarily included lesser offenses, see See Section 2.1(E).