SENATE BILL No. 135

 

 

January 31, 2013, Introduced by Senators JONES, EMMONS, BIEDA, ANDERSON and GREEN and referred to the Committee on Judiciary.

 

 

 

     A bill to amend 1931 PA 328, entitled

 

"The Michigan penal code,"

 

by amending sections 520d and 520e (MCL 750.520d and 750.520e), as

 

amended by 2012 PA 372.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 520d. (1) A person is guilty of criminal sexual conduct

 

in the third degree if the person engages in sexual penetration

 

with another person and if any of the following circumstances

 

exist:

 

     (a) That other person is at least 13 years of age and under 16

 

years of age.

 

     (b) Force or coercion is used to accomplish the sexual

 

penetration. Force or coercion includes but is not limited to any


 

of the circumstances listed in section 520b(1)(f)(i) to (v).

 

     (c) The actor knows or has reason to know that the victim is

 

mentally incapable, mentally incapacitated, or physically helpless.

 

     (d) That other person is related to the actor by blood or

 

affinity to the third degree and the sexual penetration occurs

 

under circumstances not otherwise prohibited by this chapter. It is

 

an affirmative defense to a prosecution under this subdivision that

 

the other person was in a position of authority over the defendant

 

and used this authority to coerce the defendant to violate this

 

subdivision. The defendant has the burden of proving this defense

 

by a preponderance of the evidence. This subdivision does not apply

 

if both persons are lawfully married to each other at the time of

 

the alleged violation.

 

     (e) That other person is at least 16 years of age but less

 

than 18 years of age and is a student at a public school or

 

nonpublic school, and either of the following applies:

 

     (i) The actor is a teacher, substitute teacher, or

 

administrator of that public school, nonpublic school, school

 

district, or intermediate school district. This subparagraph does

 

not apply if the other person is emancipated or if both persons are

 

lawfully married to each other at the time of the alleged

 

violation.

 

     (ii) The actor is an employee or a contractual service provider

 

of the public school, nonpublic school, school district, or

 

intermediate school district in which that other person is

 

enrolled, or is a volunteer who is not a student in any public

 

school or nonpublic school, or is an employee of this state or of a


 

local unit of government of this state or of the United States

 

assigned to provide any service to that public school, nonpublic

 

school, school district, or intermediate school district, and the

 

actor uses his or her employee, contractual, or volunteer status to

 

gain access to, or to establish a relationship with, that other

 

person.

 

     (f) That other person is at least 16 years old but less than

 

26 years of age and is receiving special education services, and

 

either of the following applies:

 

     (i) The actor is a teacher, substitute teacher, administrator,

 

employee, or contractual service provider of the public school,

 

nonpublic school, school district, or intermediate school district

 

from which that other person receives the special education

 

services. This subparagraph does not apply if both persons are

 

lawfully married to each other at the time of the alleged

 

violation.

 

     (ii) The actor is a volunteer who is not a student in any

 

public school or nonpublic school, or is an employee of this state

 

or of a local unit of government of this state or of the United

 

States assigned to provide any service to that public school,

 

nonpublic school, school district, or intermediate school district,

 

and the actor uses his or her employee, contractual, or volunteer

 

status to gain access to, or to establish a relationship with, that

 

other person.

 

     (f) (g) The actor is an employee, contractual service

 

provider, or volunteer of a child care organization, or a person

 

licensed to operate a foster family home or a foster family group


 

home, in which that other person is a resident, that other person

 

is at least 16 years of age, and the sexual penetration occurs

 

during that other person's residency. As used in this subdivision,

 

"child care organization", "foster family home", and "foster family

 

group home" mean those terms as defined in section 1 of 1973 PA

 

116, MCL 722.111.

 

     (2) Criminal sexual conduct in the third degree is a felony

 

punishable by imprisonment for not more than 15 years.

 

     Sec. 520e. (1) A person is guilty of criminal sexual conduct

 

in the fourth degree if he or she engages in sexual contact with

 

another person and if any of the following circumstances exist:

 

     (a) That other person is at least 13 years of age but less

 

than 16 years of age, and the actor is 5 or more years older than

 

that other person.

 

     (b) Force or coercion is used to accomplish the sexual

 

contact. Force or coercion includes, but is not limited to, any of

 

the following circumstances:

 

     (i) When the actor overcomes the victim through the actual

 

application of physical force or physical violence.

 

     (ii) When the actor coerces the victim to submit by threatening

 

to use force or violence on the victim, and the victim believes

 

that the actor has the present ability to execute that threat.

 

     (iii) When the actor coerces the victim to submit by threatening

 

to retaliate in the future against the victim, or any other person,

 

and the victim believes that the actor has the ability to execute

 

that threat. As used in this subparagraph, "to retaliate" includes

 

threats of physical punishment, kidnapping, or extortion.


 

     (iv) When the actor engages in the medical treatment or

 

examination of the victim in a manner or for purposes which that

 

are medically recognized as unethical or unacceptable.

 

     (v) When the actor achieves the sexual contact through

 

concealment or by the element of surprise.

 

     (c) The actor knows or has reason to know that the victim is

 

mentally incapable, mentally incapacitated, or physically helpless.

 

     (d) That other person is related to the actor by blood or

 

affinity to the third degree and the sexual contact occurs under

 

circumstances not otherwise prohibited by this chapter. It is an

 

affirmative defense to a prosecution under this subdivision that

 

the other person was in a position of authority over the defendant

 

and used this authority to coerce the defendant to violate this

 

subdivision. The defendant has the burden of proving this defense

 

by a preponderance of the evidence. This subdivision does not apply

 

if both persons are lawfully married to each other at the time of

 

the alleged violation.

 

     (e) The actor is a mental health professional and the sexual

 

contact occurs during or within 2 years after the period in which

 

the victim is his or her client or patient and not his or her

 

spouse. The consent of the victim is not a defense to a prosecution

 

under this subdivision. A prosecution under this subsection shall

 

not be used as evidence that the victim is mentally incompetent.

 

     (f) That other person is at least 16 years of age but less

 

than 18 years of age and is a student at a public school or

 

nonpublic school, and either of the following applies:

 

     (i) The actor is a teacher, substitute teacher, or


 

administrator of that public school, nonpublic school, school

 

district, or intermediate school district. This subparagraph does

 

not apply if the other person is emancipated or if both persons are

 

lawfully married to each other at the time of the alleged

 

violation.

 

     (ii) The actor is an employee or a contractual service provider

 

of the public school, nonpublic school, school district, or

 

intermediate school district in which that other person is

 

enrolled, or is a volunteer who is not a student in any public

 

school or nonpublic school, or is an employee of this state or of a

 

local unit of government of this state or of the United States

 

assigned to provide any service to that public school, nonpublic

 

school, school district, or intermediate school district, and the

 

actor uses his or her employee, contractual, or volunteer status to

 

gain access to, or to establish a relationship with, that other

 

person.

 

     (g) That other person is at least 16 years old but less than

 

26 years of age and is receiving special education services, and

 

either of the following applies:

 

     (i) The actor is a teacher, substitute teacher, administrator,

 

employee, or contractual service provider of the public school,

 

nonpublic school, school district, or intermediate school district

 

from which that other person receives the special education

 

services. This subparagraph does not apply if both persons are

 

lawfully married to each other at the time of the alleged

 

violation.

 

     (ii) The actor is a volunteer who is not a student in any


 

public school or nonpublic school, or is an employee of this state

 

or of a local unit of government of this state or of the United

 

States assigned to provide any service to that public school,

 

nonpublic school, school district, or intermediate school district,

 

and the actor uses his or her employee, contractual, or volunteer

 

status to gain access to, or to establish a relationship with, that

 

other person.

 

     (g) (h) The actor is an employee, contractual service

 

provider, or volunteer of a child care organization, or a person

 

licensed to operate a foster family home or a foster family group

 

home, in which that other person is a resident, that other person

 

is at least 16 years of age, and the sexual contact occurs during

 

that other person's residency. As used in this subdivision, "child

 

care organization", "foster family home", and "foster family group

 

home" mean those terms as defined in section 1 of 1973 PA 116, MCL

 

722.111.

 

     (2) Criminal sexual conduct in the fourth degree is a

 

misdemeanor punishable by imprisonment for not more than 2 years or

 

a fine of not more than $500.00, or both.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.