The differences between the Degrees of Criminal Sexual Conduct in Michigan can be confusing to say the least. Because most Michigan First Degree Criminal Sexual Conduct cases are often based on allegations of sexual assault made against the Defendant by someone who is a minor, some may think that all First Degree Criminal Sexual Conduct cases involve an alleged victim who is a minor. This is not the case. A charge of First Degree Criminal Sexual Conduct can definitely arise from an allegation leveled by an adult. Let's explore this a little closer...
The Michigan First Degree Criminal Sexual Conduct law is MCL 750.520b, which makes it punishable by up to life in prison. This charge is also referred to by other, similar terms such as Criminal Sexual Conduct 1st Degree, CSC First Degree, CSC 1, and others which all refer to the same criminal charge, and we use them interchangeably to cover all the various names. All charges of First Degree CSC involve an alleged, unlawful act of "sexual penetration," as opposed to just sexual contact, which can form the basis for different CSC charges. The definition of sexual penetration under Michigan law includes far more than some may think, including oral sex and touching in certain ways.
Michigan has two Criminal Sexual Conduct charges that are based on sexual penetration - First Degree as stated above, as well as the less-serious Third Degree Criminal Sexual Conduct under MCL 750.520d, punishable by up to 15 years. So, what is the difference between First Degree Criminal Sexual Conduct and Third Degree Criminal Sexual Conduct?
Criminal Sexual Conduct 3rd Degree is sexual penetration under any one of a number of circumstances that make it unlawful, including the alleged victim being at least 13 but less than 16 years of age, sexual penetration by force or coercion, sexual penetration with someone who is mentally incapable, mentally incapacitated, or physically helpless, sexual penetration between certain people related by blood or affinity, and others.
Criminal Sexual Conduct 1st Degree is sexual penetration under any one of a number of circumstances that the law regards as more serious than those comprising a charge of Third Degree CSC. The very first one on the list in MCL 750.520b is where the alleged victim is "under 13 years of age." But there are many others, including but not limited to:
- Where the alleged victim is at least 13 but under 16 combined in addition to an aggravating circumstance, such as where the accused used a position of authority to coerce the alleged victim to submit;
- Where sexual penetration "occurs under circumstances involving the commission of any other felony," regardless of the alleged victim's age;
- Where the accused is "armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon," regardless of the alleged victim's age;
- Where the accused "causes personal injury to the victim and force or coercion is used to accomplish sexual penetration," regardless of the alleged victim's age;
- Where the accused "causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless," regardless of the alleged victim's age;
- and others...
So while it is true that many if not most Michigan First Degree Criminal Sexual Conduct charges happen to be based on allegations by a minor under the age of 13, as one can easily see, there are also plenty of circumstances where someone can be charged with First Degree when the alleged victim is an adult, and that is true whether they're 18 or 80.
That being said, also realize that if the alleged victim of an act involving sexual penetration is under 13, the Michigan CSC laws basically dictate that a charge brought by the Prosecution would have to be Criminal Sexual Conduct 1st Degree, since nothing else covers that. But in cases where the alleged victim is older, charging with 1st Degree requires that there be sufficient evidence of one of the additional, more aggravating factors listed in the Michigan CSC 1st Degree law. In other words, by charging someone with 1st Degree, the Prosecution is saddling themselves with the burden of proving those additional facts (or "elements") like some of those listed above beyond a reasonable doubt in order to obtain a conviction.
Obviously in some cases involving allegations of unlawful sexual penetration by adult complainants, those additional "elements" making them more severe simply aren't even being alleged at all, in which case the likely charge would have to be Third Degree CSC. And in-fact, a charge of Third Degree Criminal Sexual Conduct under Michigan's modern CSC laws takes the place of what used to be the common law charge called "Rape."
Other times, there might arguably be some evidence in the form of allegations or otherwise tending to show one of those additional First Degree elements, but the Prosecution uses their discretion to charge with the less-serious Third Degree instead for various reasons, such as not having the burden of proving those additional things. This is the same idea at play when we read in the news about someone who commentators allege could have been charged with murder, but are being charged only with manslaughter instead.
Considering these reasons, at the end of the day, the natural forces at play tend to dictate a trend over time where most often we see that when the alleged victim is under 13, the charge is First Degree, and when it is otherwise, it's Third Degree. But that doesn't represent an accurate statement of the law as written.
Why is this important to know? One important reason is so that those charged with Criminal Sexual Conduct 3rd Degree are well-advised to understand that there are circumstances where CSC 3rd Degree can be increased or amended to a charge of 1st Degree - sometimes based on just one small claim or piece of additional evidence. A good Criminal Sexual Conduct Defense Lawyer will know to identify when this risk is present in a case and involve the client in all decision-making that could affect this possibility.