As a Michigan Criminal Sexual Conduct Defense practice, Prain Law, PLLC concentrates specifically on defending those accused of Michigan Criminal Sexual Conduct charges (also simply called "CSC"). In our modern world where some of what are commonly referred to as "dating sites" seem to be more popular with those just looking for a quick "hook-up," one question we've received many times over is:
"Can I be charged with Criminal Sexual Conduct if my accuser lied about her age?"
A similar question is: "If I have sex with someone who I honestly believed was of legal age, but it turned out to be underage, can I be charged with Statutory Rape or CSC?"
Unfortunately, as of this writing, the answer under the current state of the Michigan Criminal Sexual Conduct laws is "yes." As awful as it may sound, you can be charged with and convicted of Criminal Sexual Conduct in Michigan if you engage in sexual contact or sexual penetration with a person who turns out to be under the legal age of consent, even if you honestly believed they were of age, and even if they outright lied about their age.
In fact, you can be charged with CSC in Michigan even if the person showed you a fake ID stating they were of legal age, or even if you met them at a club or online dating site that is for "18 and over" only. One might wonder how this can be when the majority of States in the US either outright prohibit or otherwise limit criminal prosecution for Sex Crimes in these types of scenarios - and we believe that is a very good question.
Keeping in mind that there seems to be an emerging trend of false allegations of Sexual Assault these days, no person of sound mind and heart would argue that someone who actually sexually assaulted someone they knew to be underage shouldn't be prosecuted (of course, barring certain "Romeo and Juliet" type situations between two consenting but underage teens, etc.). But we believe any legal scheme that would severely punish even the young man or young lady who took all the right steps to try and make sure their partner was of legal age is harsh and outdated.
As a side note, people often ask "What is the Romeo and Juliet exception to Criminal Sexual Conduct charges?" In fact, there is no such thing as a "Romeo and Juliet" law that allows a person to avoid being charged with Criminal Sexual Conduct under these circumstances or any other circumstances. The so-called "Romeo and Juliet" law in Michigan has to do with whether or not a young person in a consensual sexual relationship who is close in age to their underage partner will end up on the Michigan Sex Offender Registry (often called "SORA" for short), not whether or not they can be charged with CSC in the first place.
However, we use the phrase "Romeo and Juliet" in this article in the sense that most people mean it – two young people in a relationship who love each other, and who nevertheless may have unwittingly violated the Sex Crimes laws, but who otherwise are not sexually deviant and pose no real risk to society.
RELATED: Juveniles charged as adults for CSC in Michigan?
There are four Degrees of Criminal Sexual Conduct in Michigan, and each of them includes certain provisions (or "multiple variables"), making it a crime to engage in sexual penetration or sexual contact with another person when they are under a certain age, or within a certain age range, and 16 is the usual age of consent. Here are two simple examples:
- First Degree Criminal Sexual Conduct (MCL 750.520b) makes it a crime punishable by up to LIFE in Prison to engage in sexual penetration with a person who is "under 13 years of age," although for our purposes here, it would be difficult to imagine anyone under 13 who looks 16 or older, but we suppose that could be so in some obscure case.
- Third Degree Criminal Sexual Conduct (MCL 750.520d) makes it a crime punishable by up to 15 years in prison to engage in sexual penetration with a person "who is at least 13 years of age and under 16 years of age." This is something that used to be referred to as "Statutory Rape," but that term has been largely removed from modern Sex Crimes laws.
Most cases involving a reasonable mistake of age that end up in court are charged as Third Degree Criminal Sexual Conduct.
(Keep in mind, this has nothing to do with the separate issue of consent (or lack of), since what "underage" actually means is unable to legally give consent under law. You can be charged even if the other person admits they consented. However, a case where age alone would have been enough to support a conviction for CSC nay also allege "force or coercion" as a separate and distinct theory of prosecution.
These and other age-related provisions of the Michigan Criminal Sexual Conduct laws are often referred to as "strict liability" laws. In layman's terms, "strict liability" means you can be guilty regardless of your intent or mental state (i.e., even a very honest and reasonable belief, based on actual statements or other facts, that one's partner is of legal age). In other words, even if you have a very sound and honest reason for your belief, the law doesn't bend.
You might be thinking "But doesn't a person have a Constitutional right to present a defense, such as mistake of fact (or more specifically "reasonable mistake of age?" And generally speaking, you'd be correct. Back in 1984, in a case called People v. Cash, 419 Mich 230 (1984), the Michigan Supreme Court said there is no such defense in a prosecution for Criminal Sexual Conduct 3rd Degree. In fact, this goes all the way back to the early 1920s in a case called People v. Gengels, 218 Mich 632 (1922), involving what was then still called "Statutory Rape."
More recently, the Michigan Supreme Court had an opportunity to revisit this archaic "strict liability" scheme in the case of People v. Kilgo, 499 Mich 873 (2016). When the Supreme Court accepted the case, it appeared that perhaps this law would change for the better. But surprisingly, the Supreme Court ended the case with a simple Order stating they declined to decide the issue without any real explanation as to why, although oral arguments made it pretty clear that the Court felt this was an issue only the Legislature could change.
In the meantime, if you or someone you care about is facing Michigan CSC charges for mistakenly having sex with an underage person they honestly believed to be of legal age, can anything be done?
First of all, in these cases, we file a Motion to Assert the Defense of Reasonable Mistake of Age. The Court will likely deny it, but then the record is preserved in the event the law changes during any time when it may be false to our client's case.
Obviously, these already difficult cases become even more difficult when a person's defenses are stripped. However, this IS still America after all, and the Prosecution does still have to prove beyond a reasonable doubt that the sexual act actually occurred in the first place. Naturally, the Prosecution will have a much easier time meeting their burden in a case where the accused has spoken to the Police and given an incriminating admission or all-out confession, where a SANE Examination is performed and incriminating DNA evidence is obtained, or where other corroborating evidence exists, versus a case based just an accuser's word. In that regard, we recommend visiting some of our other resources on this website:
RELATED: Can I be convicted of Criminal Sexual Conduct in Michigan based only on hearsay?
RELATED: Should I speak to the Police if I am being investigated for Criminal Sexual Conduct?
At Prain Law, PLLC, concentrating on Michigan Criminal Sexual Conduct defense, we have been able to successfully defended based on reasonable mistake of age despite the current state of Michigan law. In our experience, we have found that Prosecutors thankfully are not naive to the unjust consequences that can result from a strict application of these laws, especially in cases where the accused happens to be rather young himself or herself.
These "pure age" cases often land at law enforcement's doorstep when the angry parents of an underage youth find out about the purported sex. But even where the alleged victim or their family want CSC charges brought, the Prosecutor's Office still has "Prosecutorial discretion" not to bring charges, or even if charges are brought, to handle the case in a way that avoids these awful consequences for a young Defendant, and it can take a great deal of effort and skill to negotiate a good deal, but we're definitely up for the challenge!
It may also help to know that our experience has taught us that prosecution is less likely in what people call a "Romeo and Juliet" situation and more likely where the Prosecution perceives the Defendant's conduct as being on the more "predatory" or reckless side of the spectrum.