Chapter 2: Criminal Sexual Conduct Offenses
2.1Overview of Criminal Sexual Conduct Statutes
A.Purpose of Criminal Sexual Conduct Statutes
“The focus of the criminal sexual conduct [CSC] statute[s] is the prevention of sexual assaults.” People v Hack, 219 Mich App 299, 307 (1996). The CSC’s purpose is “to codify, consolidate, define, and prescribe punishment for a number of sexually assaultive crimes under one heading.” People v Cash, 419 Mich 230, 234 n 1 (1984).
B.Offenses Involving Criminal Sexual Conduct
The Michigan Legislature created six substantive criminal offenses:
(1) first-degree criminal sexual conduct (CSC-I), MCL 750.520b.
(2) second-degree criminal sexual conduct (CSC-II), MCL 750.520c.
(3) third-degree criminal sexual conduct (CSC-III), MCL 750.520d.
(4) fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e
(5) assault with intent to commit criminal sexual conduct involving penetration, MCL 750.520g(1).
(6) assault with intent to commit criminal sexual conduct in the second degree, MCL 750.520g(2).
“One object of the Legislature in providing for degrees of criminal sexual conduct was to differentiate between sexual acts which affected only the body surfaces of the victim [sexual contact] and those which involved intrusion into the body cavities [sexual penetration] . . . .” People v Bristol, 115 Mich App 236, 238 (1982). Built within the degrees of criminal sexual conduct is an elevation process with which the presence of certain circumstances may escalate a sexual penetration offense from a CSC-III offense to a CSC-I offense and a sexual contact offense from a CSC-IV offense to a CSC-II offense. See People v Petrella, 424 Mich 221, 238-239 (1985); People v Rogers, 142 Mich App 88, 91 (1985).
C.Specific Intent and General Intent
Criminal sexual conduct is most often a general intent crime. People v Nickens, 470 Mich 622, 631 (2004). Notably, however, an attempt to commit a CSC offense under MCL 750.520g requires specific intent. See People v Cervi, 270 Mich App 603, 617 (2006). “[T]he distinction between specific intent and general intent crimes is that the former involve a particular criminal intent beyond the act done, while the latter involve merely the intent to do the physical act.” People v Beaudin, 417 Mich 570, 573-574 (1983). That is, specific intent requires the “[p]erformance of the physical act proscribed in the statute” and “an intent to bring about the particular result the statute seeks to prohibit.” Id. at 575. On the other hand, a general intent crime requires only that the actor possess the intent to do the physical act prohibited by the statute. See People v Anderson, 330 Mich App 189, 203-204 (2019).
“[T]he birthday rule of age calculation applies in Michigan.” People v Woolfolk, 304 Mich App 450, 504 (2014), aff’d 497 Mich 23 (2014). Under the birthday rule, “‘a person attains a given age on the anniversary date of his or her birth.’” Woolfolk, 304 Mich App at 464, quoting In re Robinson, 120 NC App 874, 877 (1995). Woolfolk held that the common-law rule of age calculation, under which an individual “‘reaches his next year in age at the first moment of the day prior to the anniversary of his birth’” does not apply in Michigan. Woolfolk, 304 Mich App at 461, quoting State v Brown, 443 SW2d 805, 807 (Mo, 1969) (emphasis added). According to the Woolfolk Court, the defendant, who shot and killed the victim on the day before the defendant’s eighteenth birthday, “was not yet 18 years of age when the shooting occurred.” Woolfolk, 304 Mich App at 506.
“If our state legislature had intended that courts consider the age differential between the offender and the victim, it could have included this consideration in the criminal sexual conduct statutes.” In re Hildebrant, 216 Mich App 384, 386-387 (1996) (“The language of the third-degree criminal sexual conduct statute[, MCL 750.520d,] does not exclude any class of offenders on the basis of age. . . . Because the purpose of the statute is the protection of the minor victim, the age of the offender is not a relevant concern.”).1 “Hildebrant . . . stands for the proposition that there is no public policy bar to prosecution of one child who engages in sexual acts with another child when both children are within the same protected age group.” In re Tiemann, 297 Mich App 250, 259, 263 (2012) (“Hildebrant establishes that a minor engaged in a consensual sexual act with another minor within the same age range can be regarded as an offender subject to prosecution.”). See People v Wilson, 196 Mich App 604, 609 (1992) (“[MCL 750.520b] specifies no age of culpability, and . . . the minors could have been criminally charged in juvenile court.”).
But see MCL 750.520e(1)(a), which specifically considers the age differential between the offender and the victim by finding “[a] person . . . guilty of criminal sexual conduct in the fourth degree if the person engages in sexual contact with another person and . . . [t]hat other person is at least 13 years of age but less than 16 years of age, and the actor is 5 or more years older than that other person.” MCL 750.520e(1)(a). Note that the rest of the circumstances listed in MCL 750.520e(1)(b)-(h) do not consider the age differential between the offender and the victim.
“Lesser offenses are divided into necessarily included lesser offenses and cognate lesser offenses. An offense is considered a necessarily included offense if it is impossible to commit the greater offense without first having committed the lesser offense. People v Nyx, 479 Mich 112, 118 n 13 (2007), citing People v Cornell, 466 Mich 335, 345 (2002). “A cognate lesser offense is one that shares elements with the charged offense but contains at least one element not found in the higher offense.” Nyx, 479 Mich at 118 n 14 (2007), citing Cornell, 466 Mich at 345. This subsection contains a brief discussion of lesser included offenses as they relate to criminal sexual conduct offenses. For a detailed discussion of lesser included offenses in general, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 12.
“Pursuant to th[e] language[ of MCL 768.32(1)], when a defendant is charged with an offense ‘consisting of different degrees,’ the fact-finder may acquit the defendant of the charged offense and find the defendant ‘guilty of a degree of that offense inferior to that charged in the indictment . . . .’ There is no dispute that criminal sexual conduct is a crime the Legislature has divided into degrees.” Nyx, 479 Mich at 117. However, “MCL 768.32(1) precludes a judge or a jury from convicting a defendant of a cognate lesser offense even if the crime is divided into degrees . . . because the word ‘inferior’ in MCL 768.32(1) is best understood as meaning an offense that is necessarily included in the greater charge.” Nyx, 479 Mich at 121.
1.Necessarily Included Lesser Offense
Assault with intent to commit CSC and CSC-I. Assault with intent to commit CSC involving penetration, MCL 750.520g(1), is a necessarily included lesser offense of CSC-I involving personal injury and the use of force or coercion, MCL 750.520b(1)(f) because “one cannot commit CSC-I involving personal injury and the use of force or coercion to accomplish sexual penetration without first committing an assault with intent to commit CSC involving sexual penetration[.]” People v Nickens, 470 Mich 622, 629-630 (2004).
CSC-I involving commission of another felony. For a charge of CSC-I where the sexual penetration occurred under circumstances involving the commission of a felony, “the underlying felony is a necessarily included lesser offense” of the CSC-I charge because a jury cannot convict a defendant “of CSC-I under MCL 750.520b(1)(c) without determining that defendant[] also committed the underlying felony[.]” People v Lockett, 295 Mich App 165, 182 (2012).
CSC-II and CSC-I. CSC-II is a cognate lesser offense of CSC-I because “it is possible to commit CSC I without first having committed CSC II, and the elements of CSC II are not ‘completely subsumed’ in the greater offense of CSC I. People v Nyx, 479 Mich 112, 136 (2007) (plurality opinion).2
CSC-III and CSC-I. CSC-III (sexual penetration of a person aged 13-15, MCL 750.520d(1)(a)) is a cognate lesser offense of CSC-I (sexual penetration while armed with a weapon/instrument reasonably believed to be a weapon, MCL 750.520b(1)(d), or with multiple actors where defendant uses force or coercion, MCL 750.520b(1)(e)) “[b]ecause, [as applied in this case,] both offenses require the act of sexual penetration and are of the same category of crimes[.]” People v Apgar, 264 Mich App 321, 327 (2004), overruled in part on other grounds by People v White, 501 Mich 160 (2017).3
The statutes of limitations applicable to the offenses contained in this chapter are indicated in the text discussing each offense. See MCL 767.24.
A tolling provision applies to each period of limitations discussed in this chapter. See MCL 767.24(11). The tolling provision states that “[a]ny period during which the party charged did not usually and publicly reside within this state is not part of the time within which the respective indictments may be found and filed.” Id.
G.Procedural Requirements When Registration Under SORA Is Mandatory
SORA registration is required when a defendant is convicted of a listed offense, and MCL 28.724 prescribes the specific procedure to be followed when a defendant is convicted of a listed offense. People v Nunez, 342 Mich App 322, 327, 328 (2022).
When registration under the SORA is mandatory, a defendant must be registered before he or she is sentenced; in addition, MCR 6.427(9) provides that when SORA registration is mandatory for the conviction, that fact must be made part of the judgment of sentence. Nunez, 342 Mich App at 330.
The notice a defendant must be given after conviction of a listed offense must also be given before a court accepts a defendant’s guilty plea to a listed offense. Nunez, 342 Mich App at 334. “Because SORA is a punitive collateral consequence of the conviction of certain crimes, a defendant must be informed of its imposition before entering a guilty plea. For the same reason, the registration requirement must be included in the judgment of sentence.” Id. at 334. In Nunez, the defendant was not required to register under the SORA after he was convicted of a listed offense because the court failed to adhere to the instructions prescribed in MCL 28.724(5) and MCR 6.427(9), and the period during which a trial court could sua sponte correct an invalid sentence had expired. See MCR 6.429(A). Nunez, 342 Mich App at 334, 335.