1.2Overview of Benchbook

“Domestic [and Sexual] Violence . . . has devastating effects on victims, their children, and the entire society. It is criminal conduct that cannot be tolerated. A comprehensive community response to domestic [and sexual] violence through education, advocacy, and appropriate intervention is necessary to bring about change and end the violence. Battering [and sexual assault] stops only when assailants are held accountable for their abuse.” Michigan Department of Health & Human Services, Domestic & Sexual Violence, Mission and Philosophy Statement.¹

Sexual assault and domestic violence are offenses that are often discussed in tandem; that is, sexual assault may be the method by which domestic violence occurs. See the National Coalition Against Domestic Violence (NCADV) fact sheet about domestic violence in Michigan. NCADV defines domestic violence as “the willful intimidation, physical assault, battery, sexual assault, and/or other abusive behavior as part of a systematic pattern of power and control perpetrated by one intimate partner against another. It includes physical violence, sexual violence, threats, and emotional abuse.” NCADV fact sheet, Domestic Violence in Michigan (2020). Sexual assault and domestic violence are often addressed together in a single source or intervention program. See DHHS Mission and Philosophy Statement; Michigan Legal Help, What Is Domestic Violence?; and National Network to End Domestic Violence, Domestic Violence and Sexual Assault Fact Sheet. For a comprehensive source of information about domestic violence and related legal issues and proceedings, see the Michigan Judicial Institute’s Domestic Violence Benchbook.

In Michigan, criminal sexual conduct is generally punished under the Criminal Sexual Conduct Act (CSC Act), MCL 750.520a et seq.² The CSC Act prohibits a broad range of sexual misconduct, and distinguishes criminal sexual conduct by the method of assault and specific circumstances that might be involved in perpetrating the assault. The Michigan Legislature also enacted prohibitions against other crimes involving sexual misconduct that fall outside the provisions of the CSC Act.

Chapters 2 and 3 of the benchbook discuss offenses involving criminal sexual misconduct that are expressly prohibited by the CSC Act and offenses involving sexual misconduct that fall outside the provisions of the CSC Act.

•Chapter 2 focuses on the offenses found in the CSC Act, and defines the terms used in the CSC Act as well as discusses caselaw interpreting the definitions in actual practice. Chapter 2 also includes a brief discussion of the fines, costs, and crime victim assessment applicable to convictions under the CSC Act. Finally, Chapter 2 introduces information specific to student offenders and repeat offenders.

•Chapter 3 discusses other sex-related offenses prohibited under Michigan law but are not found in the CSC Act. These offenses include, but are not limited to, human trafficking offenses and offenses involving prostitution. Chapter 3 includes the statutory language defining each offense as well as caselaw addressing the offenses, where relevant caselaw exists.

Chapters 4 and 5 contain information about common defenses arising in sexual misconduct cases, and select pretrial considerations like nondomestic personal protection orders (PPOs) and discovery.

•Chapter 4 discusses the defenses an offender may raise to mitigate or eliminate liability for his or her conduct including consent and mistake of fact.

•Chapter 5 contains information related to an offender’s pretrial release, including bond, victim notification, and conditions a court may place on an offender’s pretrial release. Also included in Chapter 5 is a discussion about testing for sexually transmitted infections. For more information about the crime victim at trial, see the Michigan Judicial Institute’s Crime Victim Rights Benchbook.

Chapters 6 and 7 address common evidentiary issues in cases of sexual misconduct, expert testimony, and scientific evidence that may arise in cases of sexual assault.

•Chapter 6 focuses on the evidence admitted against a defendant at trial. The chapter discusses the rape-shield statute and admission of a defendant’s other crimes, wrongs, or acts. For a more detailed information about evidentiary issues, see the Michigan Judicial Institute’s Evidence Benchbook.

•Chapter 7 includes a discussion of expert testimony including testimony specifically given by physicians and sexual assault nurse examiners. The chapter also includes a brief introduction to the admissibility of scientific evidence such as DNA profiles, blood type, and the results of sexual assault evidence collection kits.

Chapters 8 and 9 contain discussions of posttrial and postconviction issues, sentencing matters, and the content and requirements of the Sex Offenders Registration Act (SORA).

•Chapter 8 focuses on the sentencing hearing, probation, parole, and electronic monitoring. Setting aside or expunging a defendant’s conviction, as well as brief discussions about other sentencing matters is also addressed in this chapter. For a comprehensive discussion about these topics, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2.

•Chapter 9 focuses solely on the SORA and contains a detailed and comprehensive discussion about registration under the SORA and the requirements of compliance with the SORA. Also addressed are the law enforcement’s database of offenders and the public website database of offenders. Offenses subject to registration under the SORA are addressed, as are the penalties for an offender’s failure to comply with the SORA.

1.3General Definitions of Terms

The Glossary to this benchbook contains definitions of statutory terms applicable to specific offenses or to the statutes that involve sexual assault in general. The definitions in this section of the benchbook do not correspond to specific statutes; rather, the definitions in this section serve as an introduction to the subject matter in this chapter and the benchbook in general. The words found here appear on the State of Michigan’s website under Sexual Assault & Abuse.³

•Sexual assault

“is when a person forces or pressures another person into unwanted sexual contact. This can be unwanted sexual penetration of the body or unwanted touching of private parts of the body. Some, but not all perpetrators force unwanted sexual contact when a victim is asleep, unconscious, under the influence of alcohol or drugs or physically helpless. Michigan law refers to sexual assault as ‘Criminal Sexual Conduct.’”

•Child sexual abuse or molestation

“is when a person has sexual contact with a child. In most cases, children know their abusers. Perpetrators can be family members, neighbors, coaches, teachers, clergy members, caretakers, family friends, or other trusted adults. Examples of child sexual abuse might include sexual touching, penetration, manipulating the child to do something sexual, or taking graphic photos of children. Perpetrators use grooming behaviors to gain a child’s trust and slowly introduce sexual contact.”

•Rape

“is sexual assault or sexual abuse that involves penetration of the body. This is when a perpetrator forces sexual penetration upon someone who does not want it, who is intoxicated, or who is not legally old enough to give consent. All of these examples are rape. The word rape [is no longer] used in Michigan law, but it is common for people to use this term.”

•Other forms of sexual abuse

“do not fit into neat categories. For example, sexual abuse includes a perpetrator having sex in front of children and making inappropriate comments to children. Another form of sexual abuse against adults and children is non-consensual pornography,” which “is when one person posts or publishes explicit or sexual photos of someone else without their consent.”