2.5Fourth-Degree Criminal Sexual Conduct
Fourth-degree criminal sexual conduct (CSC-IV) involves sexual contact coupled with certain circumstances set out in MCL 750.520e.
“A person is guilty of criminal sexual conduct in the fourth degree if the person engages in sexual contact with another person and if any of the following circumstances exist:
(a) That other person is at least 13 years of age but less than 16 years of age,[1] and the actor is 5 or more years older than that other person.
(b) Force or coercion is used to accomplish the sexual contact. Force or coercion includes, but is not limited to, any of the following circumstances:
(i) When the actor overcomes the victim through the actual application of physical force or physical violence.
(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute that threat.
(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute that threat. As used in this subparagraph, ‘to retaliate’ includes threats of physical punishment, kidnapping, or extortion.
(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable.
(v) When the actor achieves the sexual contact through concealment or by the element of surprise.
(c) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
(d) That other person is related to the actor by blood or affinity to the third degree and the sexual contact occurs under circumstances not otherwise prohibited by this chapter. It is an affirmative defense to a prosecution under this subdivision that the other person was in a position of authority over the defendant and used this authority to coerce the defendant to violate this subdivision. The defendant has the burden of proving this defense by a preponderance of the evidence. This subdivision does not apply if both persons are lawfully married to each other at the time of the alleged violation.
(e) The 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. The consent of the victim is not a defense to a prosecution under this subdivision. A prosecution under this subsection shall not be used as evidence that the victim is mentally incompetent.
(f) That other person is at least 16 years of age but less than 18 years of age and a student at a public school or nonpublic school, and either of the following applies:
(i) The actor is a teacher, substitute teacher, or administrator of that public school, nonpublic school, school district, or intermediate school district. This subparagraph does not apply if the other person is emancipated at the time of the alleged violation.
(ii) 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 the actor’s employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(g) That other person is at least 16 years old but less than 26 years of age and is receiving special education services, and either of the following applies:
(i) The actor is a teacher, substitute teacher, administrator, employee, or contractual service provider of the public school, nonpublic school, school district, or intermediate school district from which that other person receives the special education services. This subparagraph does not apply if both persons are not less than 18 years of age and were lawfully married to each other at the time of the alleged violation.
(ii) The actor 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 the actor’s employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(h) 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, that other person is at least 16 years of age, and the sexual contact occurs during that other person’s residency. . . .” MCL 750.520e(1).
Constitutional issue—statute not vague on its face.“MCL 750.520e(1)(d) is not vague on its face because it clearly and plainly sets forth the elements that the prosecutor must prove beyond a reasonable doubt and does not leave the jury with unstructured and unlimited discretion in finding guilt.” People v Russell, 266 Mich App 307, 311-312 (2005) (“reject[ing] defendant’s argument that MCL 750.520e(1)(d) gives the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed” because “MCL 750.520e(1)(d) requires that the fact-finder find that a sexual contact occurred” and “clearly defines ‘sexual contact’”; “while defendant is correct in his assertion that MCL 750.520e(1)(d) precludes sexual conduct between two consenting adults under some circumstances when the adults are related by affinity, this is irrelevant to whether the statute is unconstitutionally vague”).
CSC-IV is a general intent crime. People v Lasky, 157 Mich App 265, 272 (1987).
An indictment for a violation or attempted violation of CSC-IV “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.
“[CSC-IV] is a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $500.00, or both.” MCL 750.520e(2). For information on district court sentencing, see the Michigan Judicial Institute’s Criminal Proceedings, Vol. 2, Chapter 6.2
CSC-IV is a probationable offense for adult offenders. See MCL 771.1(1). A defendant convicted of CSC-IV is not eligible for reduced probation under MCL 771.2(2). MCL 771.2(10)(f). 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 CSC-IV convictions. For more information on costs in general and costs authorized for misdemeanor offenses,3 see the Michigan Judicial Institute’s Table of General Costs and Table of Misdemeanor Offenses for Which Costs are Authorized.
MCL 769.1k(1)(b)(i) permits the court to order a defendant to pay a fine that is specifically authorized by the penal statute under which he or she was convicted. For a CSC-IV conviction, MCL 750.520e(2) specifically authorizes the imposition of “a fine of not more than $500.00[.]”
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 CSC-IV must pay a crime victim assessment of $75.4 See MCL 780.905(1)(b). 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-IV, the court must order full restitution.5 MCL 769.1a(2); MCL 771.3(1)(e). For more information on restitution, see the Michigan Judicial Institute’s Crime Victim Rights Benchbook, Chapter 8.
Registration is required. If the victim is:
•18 years old or older, CSC-IV is a tier I offense under the Sex Offenders Registration Act (SORA), MCL 28.722(r)(v).
•at least 13 years old but less than 18 years old, CSC-IV is a tier II offense under the SORA, MCL 28.722(t)(x).
•under 13 years old and the actor is 17 years old or older, CSC-IV is a tier III offense under the SORA, MCL 28.722(v)(vi).
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).
2 In some jurisdictions, the circuit court will sentence a defendant convicted of CSC-IV after the defendant has had a preliminary examination and been bound over from the district court. See, e.g., MCR 6.008.
3 While MCL 750.520e(2) provides that CSC-IV is a “misdemeanor punishable by imprisonment for not more than 2 years”, MCL 761.1(f) defines a felony as “a violation of a penal law of this state for which the offender, upon conviction, may be punished by imprisonment for more than 1 year[.]”
4 While MCL 750.520e(2) provides that CSC-IV is a “misdemeanor punishable by imprisonment for not more than 2 years”, MCL 780.901(d) defines a felony as “a violation of a penal law of this state for which the offender, upon conviction, may be punished by imprisonment for more than 1 year[.]”
5 While MCL 750.520e(2) provides that CSC-IV is a “misdemeanor punishable by imprisonment for not more than 2 years”, MCL 761.1(f) defines a felony as “a violation of a penal law of this state for which the offender, upon conviction, may be punished by imprisonment for more than 1 year[.]”