In November, 2019, Michigan Criminal Sexual Conduct Attorney Brian J. Prain of Prain Law, PLLC smashed through an obstacle course of legal hurdles to win a jury verdict of NOT GUILTY of Second Degree Criminal Sexual Conduct. In this article, we talk to Brian about the case, the trial, and what there is to learn from the experience...
BP: Well, I won't go into too much detail out of respect for my client who is working to restore normalcy in his life after such a mentally exhausting experience, but generally speaking, the person I was defending was accused of sexually touching a person under age 13, but without any allegations involving what is defined as "sexual penetration" under Michigan law. In other words, he was accused of "sexual contact" under Michigan law, and was charged with two counts of Second Degree Criminal Sexual Conduct, MCL 750.520c. The maximum penalty for Criminal Sexual Conduct 2nd Degree under MCL 750.520c is 15 years in Prison.
JB: What is the definition of Second Degree Criminal Sexual Conduct in Michigan?
BP: The best way to explain it is by explaining how it fits into the grand scheme of Michigan Sex Crimes. Michigan Sex Crimes are divided into the four "degrees" of Criminal Sexual Conduct and then there are what I call the "leftovers" that don't fall into the degrees - charges like Gross Indecency, Accosting a Child for Immoral Purposes, and what you could call the "attempt" type charges, like Assault With Intent to Commit Sexual Penetration. Within the Michigan degrees of Criminal Sexual Conduct, there are as follows (these may appear out of order, but you can see why):
First Degree Criminal Sexual Conduct, MCL 750.520b, a life offense based on illegal sexual penetration with an aggravating circumstance making it more serious than 3rd Degree CSC;
Third Degree Criminal Sexual Conduct, MCL 750.520d, a 15 year offense based on illegal sexual penetration with a less aggravating circumstance making it less serious than 1st Degree CSC;
Second Degree Criminal Sexual Conduct, MCL 750.520c, a 15 year offense based on illegal sexual contact (touching, rather than penetration) with an aggravating circumstance making it more serious than 4th Degree CSC; and finally...
Fourth Degree Criminal Sexual Conduct, MCL 750.520e, a 2 year offense based on illegal sexual contact with a less aggravating circumstance making it less serious than 2nd Degree CSC.
JB: Was the case in Metro Detroit?
BP: No, this one wasn't. At any time, about half of the Criminal Sexual Conduct cases I do are in the Metro Detroit area (Wayne County, Oakland County, Macomb County, etc.), and the other half are soft of randomly spread across the state in the more "rural" jurisdictions.
JB: Doesn't being in a smaller jurisdiction make defending against Michigan Second Degree CSC charges more difficult?
BP: Well, I understand the notion that you're getting at; there seems to be this perception, especially when dealing with serious and stigmatized charges like CSC and other Michigan Sex Crimes, that being in a smaller jurisdiction means that you're "screwed" or that there is less justice. I can imagine some reasons people might think that, but in all honesty, and I'll certainly always tell it like it is, that has not been my personal experience. In all my trials, I have not encountered any evidence to suggest that an accused person is treated more fairly in the larger jurisdictions. In-fact, sometimes it's the complete opposite. When I think back over all of my Criminal Sexual Conduct trials, I actually find that the jurors in many of the smaller jurisdictions are some of the most enthusiastic defenders of our Constitution. In the practice of Criminal Law, we have to put forth extra effort to separate the gossip and hysteria from objective reality.
JB: What was the biggest challenge in this particular Second Degree Criminal Sexual Conduct jury trial?
BP: Really, there were two of them. One of them was the comparatively large number and frequency of objections from the Prosecution - they really wanted to convict my client, but in my opinion, all of these objections were so many that at a certain point, it simply began to come off as through they were only motivated by their zeal to convict, rather than to simply help the jury get to the truth. When the Prosecution has the burden of proving guilt, they should be the ones making sure the jury knows the truth, the whole truth, and nothing but the truth, rather than being seen as the ones trying to hide the truth. Object at your own peril. So we had to train ourselves to remain very calm and focused, and to fight those "fight or flight" emotions that rise up in your chest when something or someone you are protecting is threatened by the opponent.
The other main obstacle was that because of pretrial rulings and other rulings made during the trial itself, our defense was essentially gutted. What I mean by that is that prior to trial, the Court had ordered that we were not able to talk about a number of the facts and issues that would have best demonstrated why our client was Not Guilty of Second Degree Criminal Sexual Conduct. So we really went into this trial with our hands tied, and sometimes that's just the way it goes and we have to try to figure out creative ways to defend against the CSC allegations. Most significantly, the Court denied us the ability to present evidence that the accuser (although she and her family of course denied it) had made prior false allegations of sexual assault against other men. If you are accused of CSC, you might think you would naturally be allowed to make this part of your defense - I mean we have a right to a "fair trial," right? Well, that's just not the way it always works in reality, but you must fight on.
JB: Did you use an expert witness? Does every case need an expert witness?
BP: Yes, we did. Not every Criminal Sexual Conduct case needs an expert witness, and some cases can actually be hurt by calling an expert witness. Also, there are specific limitations on what an expert for either the Prosecution or Defense can testify to in CSC cases. For example, an expert cannot testify as to the ultimate question of whether the accuser is telling the truth. However, they can testify to whether or not, in their expert opinion, the allegations of CSC arose in a context and under circumstances that scientific research has identified as producing unreliable claims of sexual assault.
JB: if someone wants to hire you to defend against Criminal Sexual Conduct charges in Michigan, how can they reach you?
BP: Just call our office! Even if it's after hours, our answering service will take a message and it will be relayed to us via email and we'll get right back with you ASAP. Or, you can fill out the Contact Form on our website to send us an email message. Are you going to be publishing that info?
JB: Yes, it'll be right underneath the text of this interview.
BP: Great, well Happy New Year to you, and to everyone!
JB: Thanks, and to you, too.