At Prain Law, PLLC, we specifically concentrate on defending those accused of Criminal Sexual Conduct (CSC) in Michigan. A common question is: Do I really have to wear a tether for life if I am convicted of First Degree Criminal Sexual Conduct in Michigan?
The Michigan First Degree Criminal Sexual Conduct law, MCL 750.520b, states that "In addition to any other penalty imposed under subdivision (a) or (b), the court shall sentence the defendant to lifetime electronic monitoring under section 520n." This is contained in paragraph (2), which deals with the penalty for First Degree Criminal Sexual Conduct.
Whenever our laws use words like "shall" or "must," there is little room left for interpretation - this is the type of language the Legislature typically uses when they mean "no exceptions." But in this case, some confusion tends to occur when a person goes on to read "section 520n" of the Michigan CSC laws, the other section referred to in the above First Degree CSC law. Under MCL 750.520n:
"A person convicted under section 520b or 520c for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age shall be sentenced to lifetime electronic monitoring as provided under section 85 of the corrections code of 1953, 1953 PA 232, MCL 791.285."
A fair reading of these two sections of the Michigan Criminal Sexual Conduct laws together could lead you to believe that lifetime electronic monitoring only applies to those convicted of First Degree Criminal Sexual Conduct who are 17 or older and the complainant is under 13, but might not apply to other situations, such as a person convicted of First Degree Criminal Sexual Conduct in a case involving an adult complainant (i.e., where someone is accused of sexual penetration by force or coercion causing personal injury, but where age is not a factor). This is because the First Degree CSC law points you to another section in the CSC laws, 520n, which seems to state this limitation.
However, this is FALSE. In fact, ALL persons convicted of First Degree Criminal Sexual Conduct in Michigan must receive mandatory lifetime electronic monitoring, unless they are sentenced to life without the possibility of parole (i.e., where the Defendant is over 18, the complainant is under 13, and the Defendant has a prior CSC conviction where the complainant in that case was also under 13).
RELATED: Click here for a birds-eye view of all sections of the Michigan Criminal Sexual Conduct laws.
In 2017, the Michigan Supreme Court clarified this broad reaching requirement of lifetime electronic monitoring for everyone convicted of Criminal Sexual Conduct 1st Degree (with the one exception above) in the case of People v. Comer, 500 Mich 278 (2017). The Supreme Court specifically addressed the confusion discussed above, and ultimately stated this:
". . . we hold that . . . lifetime electronic monitoring must be imposed for all defendants convicted of CSC-1, except where the defendant has been sentenced to life without the possibility of parole . . ."
So, the bottom-line is, if you are convicted of First Degree Criminal Sexual Conduct in Michigan, unless you are sentenced to life in prison without the possibility of parole, you will have lifetime electronic monitoring.
It is also important to note that First Degree CSC is not the only one of the Degrees of CSC in Michigan for which one can receive lifetime electronic monitoring (i.e., it is also imposed for Second Degree Criminal Sexual Conduct, but there, it is specifically limited to where the Defendant is 17 or older and the complainant is under 13).
Notice also that these CSC laws simply use the phrase "lifetime electronic monitoring." The word "tether" is not used, although the use of a GPS tether at the Defendant's own expense and issued by the Michigan Department of Corrections (MDOC) happens to be the current method of monitoring for life. Of course, it is possible that future advances in technology will result in different means of lifetime electronic monitoring, and the law allows for that. The statute that sets forth how the MDOC must administer the lifetime electronic monitoring program, MCL 791.285, states:
"(1) The lifetime electronic monitoring program is established in the department. The lifetime electronic monitoring program must implement a system of monitoring individuals released from parole, prison, or both parole and prison who are sentenced by the court to lifetime electronic monitoring. The lifetime electronic monitoring program must accomplish all of the following:
(a) By electronic means, track the movement and location of each individual from the time the individual is released on parole or from prison until the time of the individual's death.
(b) Develop methods by which the individual's movement and location may be determined, both in real time and recorded time, and recorded information retrieved upon request by the court or a law enforcement agency.
(2) An individual who is sentenced to lifetime electronic monitoring shall wear or otherwise carry an electronic monitoring device as determined by the department under the lifetime electronic monitoring program in the manner prescribed by that program and shall reimburse the department or its agent as provided under section 36a while the individual is still on parole, and at the rate of $60.00 per month after the individual is discharged from parole but is still subject to electronic monitoring.
(3) As used in this section, "electronic monitoring" means a device by which, through global positioning system satellite or other means, an individual's movement and location are tracked and recorded."