2.3Second-Degree Criminal Sexual Conduct
Second-degree criminal sexual conduct (CSC-II) is the most serious contact offense. It involves sexual contact coupled with certain circumstances set out in MCL 750.520c.
“A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exists:
(a) That other person is under 13 years of age.[1]
(b) That other person is at least 13 but less than 16 years of age and any of the following:
(i) The actor is a member of the same household as the victim.
(ii) The actor is related by blood or affinity to the fourth degree to the victim.
(iii) The actor is in a position of authority over the victim and the actor used this authority to coerce the victim to submit.
(iv) The actor is a teacher, substitute teacher, or administrator of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled.
(v) The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(vi) The 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 in which that other person is a resident, and the sexual contact occurs during the period of that other person’s residency. . . . .
(c) Sexual contact occurs under circumstances involving the commission of any other felony.[2]
(d) The actor is aided or abetted by 1 or more other persons[3] and either of the following circumstances exists:
(i) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.[4]
(ii) The actor uses force or coercion to accomplish the sexual contact. Force or coercion includes, but is not limited to, any of the circumstances listed in [MCL 750.520b(1)(f)].
(e) The actor is armed with a weapon, or any article used or fashioned in a manner to lead a person to reasonably believe it to be a weapon.[5]
(f) The actor causes personal injury to the victim and force or coercion is used to accomplish the sexual contact. Force or coercion includes, but is not limited to, any of the circumstances listed in [MCL 750.520b(1)(f)].
(g) The 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.
(h) That other person is mentally incapable, mentally disabled, mentally incapacitated, or physically helpless, and any of the following:
(i) The actor is related to the victim by blood or affinity to the fourth degree.
(ii) The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.
(i) That other person is under the jurisdiction of the department of corrections and the actor is an employee or a contractual employee of, or a volunteer with, the department of corrections who knows that the other person is under the jurisdiction of the department of corrections.
(j) That other person is under the jurisdiction of the department of corrections and the actor is an employee or a contractual employee of, or a volunteer with, a private vendor that operates a youth correctional facility under . . . MCL 791.220g, who knows that the other person is under the jurisdiction of the department of corrections.
(k) That other person is a prisoner or probationer under the jurisdiction of a county for purposes of imprisonment or a work program or other probationary program and the actor is an employee or a contractual employee of or a volunteer with the county or the department of corrections who knows that the other person is under the county’s jurisdiction.
(l) The actor knows or has reason to know that a court has detained the victim in a facility while the victim is awaiting a trial or hearing, or committed the victim to a facility as a result of the victim having been found responsible for committing an act that would be a crime if committed by an adult, and the actor is an employee or contractual employee of, or a volunteer with, the facility in which the victim is detained or to which the victim was committed.” MCL 750.520c(1).
1.Sexual Contact With a Person Under 13
“It is a well-established rule that a jury may convict on the uncorroborated evidence of a CSC victim,[ and] . . . because it can be difficult to prove a defendant’s state of mind on issues such as knowledge and intent, minimal circumstantial evidence will suffice to establish the defendant’s state of mind, which can be inferred from all the evidence presented.” People v Hallak, 310 Mich App 555, 565 (2015), rev’d in part on other grounds 499 Mich 879 (2016)6 (“there was sufficient evidence to convict defendant of CSC-II based on sexual contact with a person under the age of 13” where “the evidence was sufficient to allow a jury to conclude that defendant did more than just touch [the minor-victim’s] breast during a medical examination, and that it was for a sexual purpose[; the minor-victim’s] testimony that defendant ‘cupped’ her breast, coupled with [the minor-victim’s mother’s] witnessing of the event and [the prosecution expert’s] testimony that it would not be medically ethical or acceptable to touch a patient’s breast while examining her throat, was sufficient for the jury to conclude that the touching was not for a legitimate medical purpose” and thus “was sufficient to give rise to an inference that it was for a sexual purpose, particularly in light of defendant’s various explanations for the situation when confronted by [the minor-victim’s mother]”) (citations and quotation marks omitted). See also People v DeLeon, 317 Mich App 714, 720-721 (2016) (defendant’s conviction of CSC-II was supported by sufficient evidence where the victim “testified to multiple instances in which defendant used his hands and fingers to touch her ‘from [her] vagina to [her] butt’ before penetrating her with his penis”).
2.What Constitutes a Household for CSC-II Offenses7
“[T]he term ‘household’ has a fixed meaning in our society not readily susceptible of different interpretation. The length of residency or the permanency of residence has little to do with the meaning of the word as it is used in [MCL 750.520b(1)(b)(i)].[8] Rather, the term denotes more of what the Legislature intended as an all-inclusive word for a family unit residing under one roof for any time other than a brief or chance visit. The ‘same household’ provision of the statute assumes a close and ongoing subordinating relationship that a child experiences with a member of his or her family or with a coercive authority figure.” People v Garrison, 128 Mich App 640, 642-643, 646-647 (1983) (13-year-old victim was a member of the same household as the defendant under MCL 750.520b(1)(b) where “[o]n the day school recessed for summer vacation, [the victim] went to live with her mother and the defendant in their home pursuant to court-ordered extended visitation over the summer months” and while living with her mother and the defendant, “the defendant had sexual intercourse with her on a number of occasions”).
Garrison does not require “proof of a [subordinating relationship or that defendant is a] ‘coercive authority figure’ . . . because the ‘household’ requirement assumes such a link between the victim and the defendant by virtue of ‘the fact that people in the same household, those living together, bear a special relationship to one another,’” and because MCL 750.520c(1)(b)(i)9 “does not, by its plain language, require such proof.” People v Phillips, 251 Mich App 100, 103-105, 105 n 2 (2002) (defendant and victim were members of the same household where the victim had been living with the defendant and his wife for approximately four months while they were in the process of adopting the victim), quoting Garrison, 128 Mich App at 645.
CSC-II is a general intent crime. People v Brewer, 101 Mich App 194, 195 (1980).
If the victim is 18 years old or older, an indictment for a violation or attempted violation of CSC-II “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).
If the victim is under 18 years of age, an indictment for a violation or attempted violation of CSC-II “may be found and filed as follows:
(a) Except as otherwise provided in subdivision (b), an indictment may be found and filed within 15 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 15 years after the individual is identified or by the alleged victim’s twenty-first birthday, whichever is later.” MCL 767.24(4).
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.
“[CSC-II] is a felony punishable . . . [b]y imprisonment for not more than 15 years.” MCL 750.520c(2)(a). For information on felony sentencing in Michigan, including scoring CSC-II offenses, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 2.
CSC-II is a probationable offense for adult offenders. See MCL 771.1(1). A defendant convicted of CSC-II is not eligible for reduced probation under MCL 771.2(2). MCL 771.2(10)(e).
For further information regarding probation in juvenile delinquency, designation, and waiver proceedings, see the Michigan Judicial Institute’s Juvenile Justice Benchbook.
3.Lifetime Electronic Monitoring
In addition to the prison sentence imposed under MCL 750.520c(2)(a), the court must sentence the offender to lifetime electronic monitoring as provided under MCL 791.285 “if the violation involved sexual contact committed by an individual 17 years of age or older against an individual less than 13 years of age.”10 MCL 750.520c(2)(b); MCL 750.520n(1). See also People v Johnson, 298 Mich App 128, 136 (2012) (“a person convicted under [MCL 750.520c] is to be sentenced to lifetime [electronic] monitoring only if the defendant was 17 or older at the time of the crime and the victim was less than 13”).
“Considering MCL 750.520c, MCL 750.520n, and MCL 791.285 together, . . . lifetime electronic monitoring applies only to persons who have been released on parole or from prison, or both[.]” People v Kern, 288 Mich App 513, 519 (2010) (because MCL 791.285 contemplates lifetime electronic monitoring only for persons who have been released on parole or from prison; a defendant sentenced to serve time in jail is not subject to lifetime monitoring).
a.Not Cruel or Unusual Punishment
Lifetime electronic monitoring was not cruel or unusual punishment as applied to a defendant convicted of CSC-II where “[a]lthough he had no prior record, . . . evidence of improper sexual acts involving 13 women or children . . . suggest[ed] that lifetime monitoring would help to protect potential victims from defendant, who in turn would likely be deterred from engaging in such acts if he were closely monitored.”11 People v Hallak, 310 Mich App 555, 560, 576 (2015), rev’d in part on other grounds 499 Mich 879 (2016).12
“[P]lacement of an electronic monitoring device to monitor defendant’s movement constitutes a search for purposes of the Fourth Amendment. But . . . lifetime electronic monitoring for a defendant 17 years or older convicted of CSC-II involving a minor under 13 is not unreasonable.”People v Hallak, 310 Mich App 555, 579, 581 (2015) (finding that “strong public interest in the benefit of monitoring those convicted of CSC-II against a child under the age of 13 outweigh[ed] any minimal impact on defendant’s reduced privacy interest”), rev’d in part on other grounds 499 Mich 879 (2016)13 and citing Grady v North Carolina, 575 US 306 (2015).
c.No Double Jeopardy Violation
“Because the Legislature intended that both defendant’s prison sentence and the requirement of lifetime monitoring be sanctions for [CSC-II committed by a defendant who is 17 years of age or older against a victim less than 13 years of age], there [is] no double jeopardy violation.” People v Hallak, 310 Mich App 555, 583 (2015), rev’d in part on other grounds 499 Mich 879 (2016).14
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 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 750.520c does not specifically authorize the imposition of a fine for a CSC-II conviction. See People v Johnson, 315 Mich App 163, 198-199 (2016) (because MCL 750.520c(1)(a), does not authorize the imposition of a fine, the trial court erred in ordering a $100 fine).
Under MCL 333.5129, the court may order a defendant who was arrested and charged with violating MCL 750.520c 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).
Additionally, a defendant who is 17 years of age or older convicted of CSC-II against a victim less than 13 years of age, must be sentenced to lifetime electronic monitoring. See MCL 750.520c(2)(b); MCL 750.520n(1); People v Johnson, 298 Mich App 128, 136 (2012). “An individual who is sentenced to lifetime electronic monitoring . . . shall reimburse the department or its agent for the actual cost of electronically monitoring the individual.”15 MCL 791.285(2).
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 CSC-II 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 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. CSC-II is a tier II offense under the Sex Offenders Registration Act (SORA) when the victim is at least 13 years old but less than 18 years old. MCL 28.722(t)(x)-(xi).CSC-II is a tier III offense under the SORA when the victim is under the age of 13. MCL 28.722(v)(v).
For more information on the SORA’s registration requirements, see Chapter 9.
1 For a discussion of the calculation of age, see Section 2.1(D). For caselaw discussing sexual contact with a person under the age of 13, see Section 2.3(A)(5).
2 See Section 2.3(A)(5) for caselaw discussing CSC-II perpetrated while committing another felony.
3 See Section 2.3(A)(2) for caselaw discussing the elements of aiding and abetting.
4 See Section 2.3(A)(2) for caselaw discussing the reasonable person standard.
5 See Section 2.3(A)(2) for caselaw discussing the use of a weapon or other instrument while committing CSC-II.
6 For more information on the precedential value of an opinion with negative subsequent history, see our note.
7 No caselaw has been issued concerning the definition of household for purposes of CSC-II. The information here expressly refers to CSC-I but may be helpful should the issue arise in CSC-II cases.
8 A later panel of the Court of Appeals indicated that the “same analysis applies [to CSC-II] convictions because [MCL 750.520c(1)(b)(i)] . . . contains the same language concerning the ‘household.’” People v Phillips, 251 Mich App 100 (2002).
9 The Phillips Court analyzed Garrison in response to the defendant’s argument with respect to his CSC-I conviction. However, the Court indicated that the “same analysis applies [to CSC-II] convictions because [MCL 750.520c(1)(b)(i)] . . . contains the same language concerning the ‘household.’”
10 Before accepting a plea of guilty or nolo contendere, the trial court must advise the defendant of, and determine that he or she understands, “any . . . requirement for mandatory lifetime electronic monitoring under . . . [MCL] 750.520c[.]” MCR 6.302(B)(2). Advising the defendant of a requirement for mandatory lifetime electronic monitoring is required because “mandatory lifetime electronic monitoring is part of the sentence itself.” People v Cole, 491 Mich 325, 327 (2012). “Accordingly, when the governing criminal statute mandates that a trial court sentence a defendant to lifetime electronic monitoring, due process requires the trial court to inform the defendant entering the plea that he or she will be subject to mandatory lifetime electronic monitoring.” Id. at 337.
11 “For these same reasons, defendant [could not] succeed on his facial challenge under the state Constitution, nor [could] he prevail on his federal constitutional claim.” Hallak, 310 Mich App at 577 (citations omitted).
12 For more information on the precedential value of an opinion with negative subsequent history, see our note.
13 For more information on the precedential value of an opinion with negative subsequent history, see our note.
14 For more information on the precedential value of an opinion with negative subsequent history, see our note.
15 For additional information on lifetime electronic monitoring for CSC-II convictions, see Section 2.3(D)(3).