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Criminal Sexual Conduct: A Fine Line Between First-Degree & Third-Degree CSC

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Key Distinctions Between First-Degree CSC & Third-Degree CSC

Before we learn about the fine line between first and third-degree criminal sexual conduct, it’s important to note that the Michigan Compiled Laws (statutes) name these crimes as "criminal sexual conduct in the first degree" and "criminal sexual conduct in the third degree," respectively. However, criminal sexual conduct is often called "CSC" for short and is referenced in several ways.

For example, first-degree criminal sexual conduct is also called:

  • Criminal sexual conduct 1st degree
  • CSC 1
  • 1st degree CSC

First-degree criminal sexual conduct (MCL 750.520b) is the most serious Michigan sex crime, punishable by:

  • Up to life in prison
  • Mandatory minimum sentence of 25 years if the alleged victim is under age 13
  • Lifetime public sex offender registration under SORA
  • Lifetime electronic monitoring (tether)

Third-degree criminal sexual conduct (MCL 750.520d) is a very serious charge, although the enhancement to criminal sexual conduct 1st degree is nevertheless a significant one. Criminal sexual conduct 3rd degree is punishable by:

  • Up to 15 years in prison
  • Lifetime public sex offender registration (if the defendant is not charged as a habitual offender)

Turn to Prain Law, PLLC if you are facing charges for first or third degree criminal sexual conduct charges. Contact us today. 

Definitions of First and Third Degree CSC

Despite the striking difference in penalties, the actual distinction between fact circumstances that justify a third-degree and first-degree CSC charge are trivial when we examine the definition of first-degree criminal sexual conduct compared to third-degree criminal sexual conduct. As a Michigan attorney, I am often asked "Can Michigan third-degree criminal sexual conduct charges be increased to first-degree criminal sexual conduct?" The answer is, “It depends.”

To begin with, both criminal sexual conduct 1st degree and criminal sexual conduct 3rd degree are based on the alleged act of unlawful sexual penetration, which includes:

  • Penile penetration
  • Digital penetration
  • Object penetration
  • Oral sex (broadly defined as mouth/tongue to genital contact)

This is important because Michigan’s definition of sexual penetration exceeds what we laypeople typically think of. If sexual contact, not penetration, is the only allegation, then the proper charge could be second-degree CSC or fourth-degree CSC, not first or third-degree CSC.

Once there is an allegation of unlawful sexual penetration, I must examine the laws to distinguish between criminal sexual conduct 1st degree and 3rd degree. Explaining all the differences would be beyond the scope of this article, but you can visit our criminal sexual conduct first-degree and criminal sexual conduct third-degree pages to read the full statutes. You'll see that the statutes for each CSC charge read like a bullet-point list of different fact scenarios, called multiple variables, where an act of sexual penetration could meet the definition of the crime.

RELATED: Should You Take a Polygraph in a Criminal Sexual Conduct Case?

Where Does the Fine Line Lie?

One variant of criminal sexual conduct 3rd degree occurs when a person engages in sexual penetration by "force or coercion" (MCL 750.520d(1)(b)). There is a corresponding variant of criminal sexual conduct 1st degree in which a person engages in sexual penetration by force or coercion and caused personal injury as a result, which is broad enough to include claims of humiliation.

Thus, if a person were charged with CSC 3 and faced up to 15 years in prison, their alleged victim’s claims of "humiliation” would suddenly increase the charge to a CSC 1 offense punishable by life in prison. Do you understand what I mean when I say the difference between CSC 1 and CSC 3 can be trivial? Trivial might be an understatement.

But in reality, how would a third-degree CSC charge evolve into a more serious first-degree CSC charge? I’ve written articles on the Michigan criminal sexual conduct court process that explain these matters in more detail. But in a basic sense, the prosecution could either charge the case as first-degree criminal sexual conduct in the initial complaint and warrant, or they could initially charge the case as third-degree criminal sexual conduct and elevate it to first-degree CSC at some point during the court process. This typically happens based on the testimony given at the criminal sexual conduct preliminary exam.

Sometimes, prosecutors may purposely charge a case as third-degree CSC despite knowing it could be charged as first-degree CSC. From there, they may threaten a first-degree CSC enhancement over the defendant's head like a storm cloud as an inducement to waive, rather than hold, the CSC preliminary exam.

Examples of When a CSC 1 Becomes a CSC 3

To further illustrate the fine line, both examples below demonstrate how a third-degree CSC charge can be increased to first-degree CSC:

  • A 15-year-old claims that when she was 14, her uncle engaged in various forms of sexual penetration with her during multiple incidents. After the young lady has a forensic interview with CARE House, the prosecution charges the uncle with criminal sexual conduct 3rd degree. Later, at the preliminary exam, the young lady testifies that she suddenly remembers the first time this supposedly happened was when she was 12, not 14.

At the end of the preliminary exam, the prosecutor moves the district court judge to "bind-over" to the circuit court on the elevated charge of first-degree criminal sexual conduct. The accused uncle who was facing 15 years is now facing life with a mandatory minimum of 25 years in prison.

  • A young lady buys drugs from a young man. One day, the two have a sexual encounter. No one is under the age of consent, and the young lady is not initially alleging any type of force or coercion (what used to be called "rape" in common law). The problem is, the young lady’s boyfriend found out about this encounter and is enraged. Her boyfriend pressures her to report the encounter to police and claim that it was forceful and against her will, or else he will break up with her (a scenario I see repeatedly).

Feeling pressured, the young lady goes to the police, claims forceful rape, and the prosecutor charges the young man with criminal sexual conduct 3rd degree. At the preliminary exam, there is no mention of increasing the charge to 1st degree CSC. However, as trial approaches in circuit court, the prosecution files a "Motion to Amend the Information" to increase the charge to 1st degree CSC based on the allegation that the reported crime was committed "under circumstances involving the commission of any other felony" (which references the delivery of the drugs).

The defense objects and claims prejudice because the prosecution failed to amend at the exam. The prosecution replies that there was no unfair surprise to the defense and they should have known this was a possibility since the “delivery of drugs” allegation was a part of the story from the start. Now, the difference between 15 years behind bars and a penalty of life in prison for CSC 1st degree for this young man rests on the decision of a circuit court judge.

The point of this discussion and these examples is to point out that the difference between facing 15 years for third-degree CSC and life for first-degree CSC can rest on a very fine line. Aside from the different penalties and consequences, a person facing third-degree CSC charges must have a bond amount set, even if it is high. Contrary to popular belief, bond, which is more accurately called "money bail", can be denied for first-degree criminal sexual conduct.

RELATED: Will I get Bond for First Degree Criminal Sexual Conduct?

The bottom line is that your CSC lawyer must not only review the evidence and case material but know about these enhancement possibilities in advance. If there is a chance that third-degree criminal sexual conduct charges could be increased to first-degree criminal sexual conduct charges, a skilled Michigan CSC attorney should be able to identify and discuss this possibility up-front. If the defense is going to make decisions that increase this possibility, they should be taken as calculated risks, not unpleasant surprises.

Award-Winning Criminal Sexual Conduct Defense in Michigan

If you or someone you care about is facing Michigan criminal sexual conduct charges, contact me, a top-ranked Michigan attorney at Prain Law, PLLC, right away. I specifically concentrate my practice on defending those accused of criminal sexual conduct all across Michigan. My process of guiding clients from arraignment to being found NOT GUILTY of criminal sexual conduct 1st degree, has earned me countless awards and honors, including:

Contact Metro Detroit sex crimes attorney Brian J. Prain of Prain Law, PLLC anytime at (248) 731-4543 or online using the contact form.

Please note that we do not handle anything related to appeals or post-conviction, and we only respond to those who have a current CSC case in court.