Chapter 4: Defenses to Sexual Assault Crimes
4.1Consent1
As discussed in this section, consent may be an affirmative defense to charged offenses involving CSC and related conduct. However, an alleged victim of criminal sexual conduct need not show that he or she resisted the defendant. See M Crim JI 20.27, Consent.
A.Applicability to Criminal Sexual Conduct Offenses
Consent may be raised as an affirmative defense to criminal sexual conduct offenses when a defendant produces enough evidence to place consent at issue, and the defense of consent is not precluded by law.2People v Thompson, 117 Mich App 522, 528 (1982) (CSC-I based on commission of an underlying felony—kidnapping). When a defendant produces sufficient evidence to give rise to the issue of an affirmative defense, the prosecutor must disprove the affirmative defense beyond a reasonable doubt. Id.
Force or coercion. “In the context of the CSC statutes, consent can be utilized as a defense to negate the elements of force or coercion.” People v Waltonen, 272 Mich App 678, 689 (2006). “The statute [prohibiting CSC-III—penetration accomplished by force or coercion] is silent on the defense of consent. However, [MCL 750.520d(1)(b)] impliedly comprehends that a willing, noncoerced act of sexual intercourse between persons of sufficient age who are neither mentally defective, or incapacitated nor physically helpless is not criminal sexual conduct.” People v Jansson, 116 Mich App 674, 682 (1982). The Court further explained:
“Although consent therefore precludes conviction of criminal sexual conduct in the third degree by force or coercion, the prosecution is not required to prove nonconsent as an independent element of the offense. If the prosecution offers evidence to establish that an act of sexual penetration was accomplished by force or coercion, that evidence necessarily tends to establish that the act was nonconsensual.” Jansson, 116 Mich App at 682-683.
CSC offense while armed. In People v Hearn, 100 Mich App 749, 755 (1980), the Court of Appeals stated:
“Although [MCL 750.520b(1)(e)—CSC-I while armed with a weapon] does not specifically address the defense of consent, its various provisions when considered together clearly imply the continuing validity of that defense. Certainly the Legislature, in eliminating the necessity of proof of nonconsent by the prosecution, did not intend to preclude an accused from alleging consent as a defense to the charge.”
CSC-I involving commission of underlying felony. “[T]he issue of consent relative to charges brought under [MCL 750.520b(1)(c)] can only arise in the context of the underlying felony because if a defendant successfully argues the existence of consent with respect to the underlying felony, assuming that consent is a legally recognizable defense, the prosecution cannot establish the second element of CSC[-]I pursuant to [MCL 750.520b(1)(c)].”3 Waltonen, 272 Mich App at 689.
Consent is not a defense to CSC-I under MCL 750.520b(1)(c) (penetration under circumstances involving the commission of any other felony) if consent is not a valid defense to the underlying felony itself. People v Wilkens, 267 Mich App 728, 737 (2005). Accordingly, because consent is not a defense to the felony of producing child sexually abusive material under MCL 750.145c(2), it is not a defense to MCL 750.520b(1)(c) under circumstances involving child sexually abusive material. Wilkens, 267 Mich App at 737-738.
B.Consent Defense Inapplicable to Certain CSC Offenses
The consent defense does not apply to CSC offenses involving victims who lack the legal capacity to consent. In People v Khan, 80 Mich App 605, 619 n 5 (1978), the Court of Appeals observed:
“Although the statute is silent on the defense of consent, we believe it impliedly comprehends that a willing, noncoerced act of sexual intimacy or intercourse between persons of sufficient age who are neither ‘mentally defective’,[4] ‘mentally incapacitated’, nor ‘physically helpless’, is not criminal sexual conduct.” Khan, 80 Mich App at 619 n 5 (citations omitted).
1.Offenses Requiring Proof of Age5
Because a person under the age of 16 is legally incapable of consenting to a sexual act, consent is inapplicable for all CSC offenses involving victims under the age of 16. People v Starks, 473 Mich 227, 235 (2005); People v Cash, 419 Mich 230, 247-248 (1984); see also In re Tiemann, 297 Mich App 250, 263 (2012) (rejecting “[the respondent’s] argument that MCL 750.520d violates public policy or is ambiguous with regard to the prosecution of consenting minors engaging in sexual conduct”).
Consent may not be raised as a defense to the following CSC offenses:
•First-degree criminal sexual conduct (penetration) or second-degree criminal sexual conduct (contact) when:
•the victim is under age 13. MCL 750.520b(1)(a); MCL 750.520c(1)(a).
•the victim is at least age 13 but less than age 16, and the actor is a member of the victim’s household. MCL 750.520b(1)(b)(i); MCL 750.520c(1)(b)(i).
•the victim is at least age 13 but less than age 16, and the actor is related to the victim by blood or affinity to the fourth degree. MCL 750.520b(1)(b)(ii); MCL 750.520c(1)(b)(ii).
•the victim is at least age 13 but less than age 16, and the actor is in a position of authority over the victim and used his or her authority to coerce the victim to submit. MCL 750.520b(1)(b)(iii); MCL 750.520c(1)(b)(iii).
•the victim is at least age 13 but less than age 16, and the actor is a teacher, substitute teacher, or administrator of the public or nonpublic school, school district, or intermediate school district where the victim is enrolled. MCL 750.520b(1)(b)(iv); MCL 750.520c(1)(iv).
•the victim is at least age 13 but less than age 16, and the actor is an employee or contractual service provider of the public or nonpublic school, school district, or intermediate school district where the victim is enrolled. MCL 750.520b(1)(b)(v); MCL 750.520c(1)(b)(v).
•the victim is at least age 13 but less than age 16, and the actor is a non-student volunteer in any public or nonpublic school, an employee of the state of Michigan or a local unit of government of the state of Michigan or of the United States who is assigned to provide any service to the school, school district, or intermediate school district where the victim is enrolled and used his or her employee, contractual, or volunteer status to access or establish a relationship with the victim. MCL 750.520b(1)(b)(v); MCL 750.520c(1)(b)(v).
•the victim is at least 13 but less than 16, and “[t]he 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,” where the victim is a resident and the sexual penetration occurred during the victim’s residency. MCL 750.520b(1)(b)(vi); MCL 750.520c(1)(b)(vi).
•Third-degree criminal sexual conduct (penetration) when:
•the victim is at least age 13 but less than age 16. MCL 750.520d(1)(a).
•Fourth-degree criminal sexual conduct (contact) when:
•the victim is at least age 13 but less than age 16, and the actor is five or more years older than the victim. MCL 750.520e(1)(a).
Note: A person may be charged with and convicted of a criminal sexual conduct offense under MCL 750.520b to MCL 750.520g, even when the victim is the person’s legal spouse. MCL 750.520l. “However, a person may not be charged or convicted solely because his or her legal spouse is mentally incapable.” Id.
2.Offenses Requiring Proof That a Victim Has a Mental or Physical Disability
Some provisions of the CSC Act require proof of a victim’s incapacity. A victim who has a mental illness or who is intellectually disabled, mentally disabled, mentally incapable, mentally incapacitated, or physically helpless is presumed legally incapable of consent under the CSC Act; accordingly, a consent defense is inapplicable to these offenses. See People v Khan, 80 Mich App 605, 619 n 5 (1978). In People v Davis, 102 Mich App 403, 408 (1980), a CSC-III case involving the former mentally defective element, the Court of Appeals stated as follows:
“The rationale behind statutes prohibiting sexual relations with mentally defective persons is that such persons are presumed to be incapable of truly consenting to the sexual act. This rationale remains just as cogent in light of the enactment of MCL 750.520d(1)(c).”6
Consent may not be raised as a defense to the following CSC offenses:
•First-degree criminal sexual conduct (penetration) and second-degree criminal sexual conduct (contact) when:
•“[t]he actor is aided or abetted by 1 or more other persons[,] and . . . [t]he actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.” MCL 750.520b(1)(d)(i); MCL 750.520c(1)(d)(i).
•“[t]he 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.” MCL 750.520b(1)(g); MCL 750.520c(1)(g).
•“[t]hat other person is mentally incapable, mentally disabled, mentally incapacitated, or physically helpless, and . . . [t]he actor is related to the victim by blood or affinity to the fourth degree . . . [or t]he actor is in a position of authority over the victim and used this authority to coerce the victim to submit.” MCL 750.520b(1)(h)(i)-(ii); MCL 750.520c(1)(h)(i)-(ii).
•Third-degree criminal sexual conduct (penetration) and fourth-degree criminal sexual conduct (contact) when:
•“[t]he actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.” MCL 750.520d(1)(c); MCL 750.520e(1)(c).
Note: A person may be charged with and convicted of a criminal sexual conduct offense under MCL 750.520b to MCL 750.520g, even when the victim is the person’s legal spouse. MCL 750.520l. “However, a person may not be charged or convicted solely because his or her legal spouse is mentally incapable.” Id.
3.Offense Requiring Proof of Professional Relationship Between Actor and Victim
Consent may not be raised as a defense to the following CSC offense:
•Fourth-degree criminal sexual conduct (contact) when:
•“[t]he actor is a mental health professional and the sexual contact occurs during or within 2 years after the period in which the victim is the actor’s client or patient and not the actor’s spouse.” MCL 750.520e(1)(e).
Once a defendant produces enough evidence to put consent in controversy, the prosecutor bears the burden of disproving consent beyond a reasonable doubt. See People v Thompson, 117 Mich App 522, 528 (1982) (kidnapping and CSC-I).
“[T]he presence of consent is not necessarily the factual equivalent of the absence of coercion.” People v Bayer, 279 Mich App 49, 68 (2008) (victim was a patient of the defendant-psychiatrist), vacated in part on other grounds 482 Mich 1000 (2008).7 “Rather, it is a determination of the validity of that consent that is the focus of the inquiry.” Bayer 279 Mich App at 68.
D.Jury Instructions on Consent
When drafting instructions on consent, a trial court must be mindful not to impermissibly shift the burden of proof to the defendant. See People v Ullah, 216 Mich App 669, 677-678 (1996). In Ullah, the Court of Appeals approved a jury instruction “virtually identical to [M Crim JI 20.27],” which stated that if the jury found that the evidence of consent raised a reasonable doubt concerning whether the complainant consented freely and willingly, it “‘must find the defendant not guilty.’” Ullah, 216 Mich App at 677-678. The Court explained that the “instruction did not state that defendant had the burden of proving or establishing a reasonable doubt. . . . [T]he instruction given . . . required acquittal if the jury found the evidence relating to consent raised a reasonable doubt concerning whether the complainant consented to the acts.” Id. at 678.