2.7Assault With Intent to Commit Criminal Sexual Conduct in the Second Degree
An assault with intent to commit criminal sexual conduct in the second degree is a necessarily included lesser offense of CSC-II.1 See People v Lasky, 157 Mich App 265, 270-271 (1987).
A person is guilty of assault with intent to commit criminal sexual conduct in the second degree under MCL 750.520g(2) if:
(a) the person committed an assault,
(b) that involved an aggravating circumstance or the person “intended to do some act which would have given rise to an aggravating circumstance,”
(c) there was a “specific intent to touch the victim’s genital area, groin, inner thigh, buttock, breast, or clothing covering those areas,” and
(d) the touching was “for the purpose of sexual arousal or sexual gratification.” People v Evans, 173 Mich App 631, 634 (1988); People v Lasky, 157 Mich App 265, 270-271 (1987).
Assault with a sexual purpose. “To support a conviction of assault with intent to commit criminal sexual conduct in the second degree there must be assault with a sexual purpose.” People v Fairbanks, 165 Mich App 551, 554-555 (1987). See also Evans, 173 Mich App 631, 636-637 (1988), where the evidence was sufficient to support defendants’ convictions for assault with intent to commit CSC-II and aiding and abetting theory where the trial court “clearly inferred the principal’s intent from the circumstances” when it found that both defendants testified to “‘grabb[ing] the [complainant] around the neck and . . . pull[ing] his pants down and . . . while they [were] doing it they grabbed [the complaint’s] buttocks and spread[] the grease around. The specific intent which is necessary for any type of specific intent has to be gleaned from expressions made by the defendants which was testified to by the one individual who testified as to what they were going to do or it has to be determined by circumstantial evidence. In this case there being no doubt whatsoever that the[ defendants] were in the [complainant’s] cell . . . . They were taking advantage of an opportunity and they did and they both testified that they wanted to horseplay. If they wanted to horseplay there are ways to do it, but you don’t go take a person’s pants down and spread grease on their buttocks.’”
Assault with intent to commit CSC-II is a specific intent crime. See People v Evans, 173 Mich App 631, 634 (1988); People v Reese, 114 Mich App 644, 645 (1982).
An indictment for a violation of MCL 750.520g(2) “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-II is a felony “punishable by imprisonment for not more than 5 years.” MCL 750.520g(2). For information on felony sentencing in Michigan, including scoring assault with intent to commit CSC-II offenses, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 2.
Assault with intent to commit CSC-II 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-II 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 1, 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(2) does not specifically authorize the imposition of a fine for an assault with intent to commit CSC-II 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)).2
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(2) 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 intent to commit CSC-II, 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.
Registration is required for the following offenses:
•If the victim is 18 years old or older, assault with intent to commit CSC-II is a tier I offense under the SORA, MCL 28.722(r)(v).
•If the victim is at least 13 years old but less than 18 years old, assault with intent to commit CSC-II is a tier II offense under the SORA, MCL 28.722(t)(x).
•If the victim is under 13 years old, assault with intent to commit CSC-II is a tier III offense under the SORA, MCL 28.722(v)(v).
For more information on the SORA’s registration requirements, see Chapter 9.
1 For additional discussion of necessarily included lesser offenses, see Section 2.1(E).
2 Although the Johnson Court did not address MCL 750.520g(2) specifically, similar to MCL 750.520g(1), that portion of the statute does not authorize imposition of a fine and has been included here for that reason. This holding has not been explicitly extended to a violation under MCL 750.520g(2).