SENATE BILL NO. 382 February 24, 1999, Introduced by Senators JAYE and SHUGARS and referred to the Committee on Judiciary. A bill to amend 1931 PA 328, entitled "The Michigan penal code," by amending sections 136b, 317, 520b, 520c, and 520d (MCL 750.136b, 750.317, 750.520b, 750.520c, and 750.520d), section 136b as added by 1988 PA 251, sections 520b and 520c as amended by 1983 PA 158, and section 520d as amended by 1996 PA 155. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 136b. (1) As used in this section: 2 (a) "Child" means a person who is less than 18 years of age 3 and is not emancipated by operation of law as provided in section 44(1)4 ofAct No. 293 of the Public Acts of 1968, being sec-5tion 722.4 of the Michigan Compiled Laws1968 PA 293, MCL 6 722.4. 01520'99 TVD 2 1 (b) "Omission" means a willful failure to provide the food, 2 clothing, or shelter necessary for a child's welfare or the 3 willful abandonment of a child. 4 (c) "Person" means a child's parent or guardian or any other 5 person who cares for, has custody of, or has authority over a 6 child regardless of the length of time that a child is cared for, 7 in the custody of, or subject to the authority of that person. 8 (d) "Physical harm" means any injury to a child's physical 9 condition. 10 (e) "Serious physical harm" means an injury of a child's 11 physical condition or welfare that is not necessarily permanent 12 but constitutes substantial bodily disfigurement, or seriously 13 impairs the function of a body organ or limb. 14 (f) "Serious mental harm" means an injury to a child's 15 mental condition or welfare that is not necessarily permanent but 16 results in visibly demonstrable manifestations of a substantial 17 disorder of thought or mood which significantly impairs judgment, 18 behavior, capacity to recognize reality, or ability to cope with 19 the ordinary demands of life. 20 (2) A person is guilty of child abuse in the first degree if 21 the person knowingly or intentionally causes serious physical or 22 serious mental harm to a child. Child abuse in the first degree 23 is a felonypunishableAND SHALL BE PUNISHED by imprisonment 24 fornot more than 15 yearsLIFE WITHOUT ELIGIBILITY FOR 25 PAROLE. 26 (3) A person is guilty of child abuse in the second degree 27 if the person's omission causes serious physical harm or serious 01520'99 3 1 mental harm to a child or if the person's reckless act causes 2 serious physical harm to a child. Child abuse in the second 3 degree is a felony punishable by imprisonment for not more than 4 4 years. 5 (4) A person is guilty of child abuse in the third degree if 6 the person knowingly or intentionally causes physical harm to a 7 child. Child abuse in the third degree is a misdemeanor punish- 8 able by imprisonment for not more than 2 years. 9 (5) A person is guilty of child abuse in the fourth degree 10 if the person's omission or reckless act causes physical harm to 11 a child. Child abuse in the fourth degree is a misdemeanor pun- 12 ishable by imprisonment for not more than 1 year. 13 (6) This section shall not be construed to prohibit a parent 14 or guardian, or other person permitted by law or authorized by 15 the parent or guardian, from taking steps to reasonably disci- 16 pline a child, including the use of reasonable force. 17 Sec. 317. (1)Second degree murder--All other kinds of18murder shall beMURDER, OTHER THAN MURDER IN THE FIRST DEGREE, 19 IS murderofIN the second degree., and shall be punished20 (2) A PERSON WHO COMMITS MURDER IN THE SECOND DEGREE IS 21 GUILTY OF A FELONY AND SHALL BE PUNISHED by imprisonmentin the22state prisonfor life, or any term of years, in the discretion23of the court trying the sameWITHOUT ELIGIBILITY FOR PAROLE. 24 Sec. 520b. (1) A person is guilty of criminal sexual con- 25 duct in the first degree if he or she engages in sexual penetra- 26 tion with another person and if any of the following 27 circumstances exists: 01520'99 4 1 (a) That other person is under 13 years of age. 2 (b) That other person is at least 13 but less than 16 years 3 of age and any of the following: 4 (i) The actor is a member of the same household as the 5 victim. 6 (ii) The actor is related to the victim by blood or affinity 7 to the fourth degree. 8 (iii) The actor is in a position of authority over the 9 victim and used this authority to coerce the victim to submit. 10 (c) Sexual penetration occurs under circumstances involving 11 the commission of any other felony. 12 (d) The actor is aided or abetted by 1 or more other persons 13 and either of the following circumstances exists: 14 (i) The actor knows or has reason to know that the victim is 15 mentally incapable, mentally incapacitated, or physically 16 helpless. 17 (ii) The actor uses force or coercion to accomplish the 18 sexual penetration. Force or coercion includes but is not 19 limited to any of the circumstances listed in subdivision (f)(i) 20 to (v). 21 (e) The actor is armed with a weapon or any article used or 22 fashioned in a manner to lead the victim to reasonably believe it 23 to be a weapon. 24 (f) The actor causes personal injury to the victim and force 25 or coercion is used to accomplish sexual penetration. Force or 26 coercion includes but is not limited to any of the following 27 circumstances: 01520'99 5 1 (i) When the actor overcomes the victim through the actual 2 application of physical force or physical violence. 3 (ii) When the actor coerces the victim to submit by threat- 4 ening to use force or violence on the victim, and the victim 5 believes that the actor has the present ability to execute these 6 threats. 7 (iii) When the actor coerces the victim to submit by threat- 8 ening to retaliate in the future against the victim, or any other 9 person, and the victim believes that the actor has the ability to 10 execute this threat. As used in this subdivision, "to retaliate" 11 includes threats of physical punishment, kidnapping, or 12 extortion. 13 (iv) When the actor engages in the medical treatment or 14 examination of the victim in a manner or for purposes which are 15 medically recognized as unethical or unacceptable. 16 (v) When the actor, through concealment or by the element of 17 surprise, is able to overcome the victim. 18 (g) The actor causes personal injury to the victim, and the 19 actor knows or has reason to know that the victim is mentally 20 incapable, mentally incapacitated, or physically helpless. 21 (h) That other person is mentally incapable, mentally dis- 22 abled, mentally incapacitated, or physically helpless, and any of 23 the following: 24 (i) The actor is related to the victim by blood or affinity 25 to the fourth degree. 26 (ii) The actor is in a position of authority over the victim 27 and used this authority to coerce the victim to submit. 01520'99 6 1 (2)CriminalEXCEPT AS PROVIDED IN SUBSECTION (3), 2 CRIMINAL sexual conduct in the first degree is a felony punish- 3 able by imprisonment in the state prison for life or for any term 4 of years. 5 (3) IF A PERSON IS CONVICTED OF VIOLATING THIS SECTION AND 6 THE VICTIM OF THE VIOLATION WAS LESS THAN 18 YEARS OF AGE WHEN 7 THE VIOLATION WAS COMMITTED, AND THE PERSON WAS PREVIOUSLY CON- 8 VICTED OF VIOLATING THIS SECTION, SECTION 316, 317, 520C, 520D, 9 OR 520E, OR A LAW OF THE UNITED STATES, OF ANOTHER STATE, OR OF A 10 LOCAL UNIT OF GOVERNMENT OF ANOTHER STATE SUBSTANTIALLY CORRE- 11 SPONDING TO THIS SECTION OR SECTION 316, 317, 520C, 520D, OR 12 520E, AND THE VICTIM OF THE PREVIOUS VIOLATION WAS LESS THAN 18 13 YEARS OF AGE WHEN THAT VIOLATION WAS COMMITTED, THE PERSON SHALL 14 BE SENTENCED TO IMPRISONMENT FOR LIFE WITHOUT ELIGIBILITY FOR 15 PAROLE. 16 Sec. 520c. (1) A person is guilty of criminal sexual con- 17 duct in the second degree if the person engages in sexual contact 18 with another person and if any of the following circumstances 19 exists: 20 (a) That other person is under 13 years of age. 21 (b) That other person is at least 13 but less than 16 years 22 of age and any of the following: 23 (i) The actor is a member of the same household as the 24 victim. 25 (ii) The actor is related by blood or affinity to the fourth 26 degree to the victim. 01520'99 7 1 (iii) The actor is in a position of authority over the 2 victim and the actor used this authority to coerce the victim to 3 submit. 4 (c) Sexual contact occurs under circumstances involving the 5 commission of any other felony. 6 (d) The actor is aided or abetted by 1 or more other persons 7 and either of the following circumstances exists: 8 (i) The actor knows or has reason to know that the victim is 9 mentally incapable, mentally incapacitated, or physically 10 helpless. 11 (ii) The actor uses force or coercion to accomplish the 12 sexual contact. Force or coercion includes but is not limited to 13 any of the circumstances listed in sections 520b(1)(f)(i) to 14 (v). 15 (e) The actor is armed with a weapon, or any article used or 16 fashioned in a manner to lead a person to reasonably believe it 17 to be a weapon. 18 (f) The actor causes personal injury to the victim and force 19 or coercion is used to accomplish the sexual contact. Force or 20 coercion includes but is not limited to any of the circumstances 21 listed in section 520b(1)(f)(i) to (v). 22 (g) The actor causes personal injury to the victim and the 23 actor knows or has reason to know that the victim is mentally 24 incapable, mentally incapacitated, or physically helpless. 25 (h) That other person is mentally incapable, mentally dis- 26 abled, mentally incapacitated, or physically helpless, and any of 27 the following: 01520'99 8 1 (i) The actor is related to the victim by blood or affinity 2 to the fourth degree. 3 (ii) The actor is in a position of authority over the victim 4 and used this authority to coerce the victim to submit. 5 (2)CriminalEXCEPT AS PROVIDED IN SUBSECTION (3), 6 CRIMINAL sexual conduct in the second degree is a felony punish- 7 able by imprisonment for not more than 15 years. 8 (3) IF A PERSON IS CONVICTED OF VIOLATING THIS SECTION AND 9 THE VICTIM OF THE VIOLATION WAS LESS THAN 18 YEARS OF AGE WHEN 10 THE VIOLATION WAS COMMITTED, AND THE PERSON WAS PREVIOUSLY CON- 11 VICTED OF VIOLATING THIS SECTION, SECTION 316, 317, 520B, 520D, 12 OR 520E, OR A LAW OF THE UNITED STATES, OF ANOTHER STATE, OR OF A 13 LOCAL UNIT OF GOVERNMENT OF ANOTHER STATE SUBSTANTIALLY CORRE- 14 SPONDING TO THIS SECTION OR SECTION 316, 317, 520B, 520D, OR 15 520E, AND THE VICTIM OF THE PREVIOUS VIOLATION WAS LESS THAN 18 16 YEARS OF AGE WHEN THAT VIOLATION WAS COMMITTED, THE PERSON SHALL 17 BE SENTENCED TO IMPRISONMENT FOR LIFE WITHOUT ELIGIBILITY FOR 18 PAROLE. 19 Sec. 520d. (1) A person is guilty of criminal sexual con- 20 duct in the third degree if the person engages in sexual penetra- 21 tion with another person and if any of the following circum- 22 stances exist: 23 (a) That other person is at least 13 years of age and under 24 16 years of age. 25 (b) Force or coercion is used to accomplish the sexual 26 penetration. Force or coercion includes but is not limited to 27 any of the circumstances listed in section 520b(1)(f)(i) to (v). 01520'99 9 1 (c) The actor knows or has reason to know that the victim is 2 mentally incapable, mentally incapacitated, or physically 3 helpless. 4 (d) That other person is related to the actor by blood or 5 affinity to the third degree and the sexual penetration occurs 6 under circumstances not otherwise prohibited by this chapter. It 7 is an affirmative defense to a prosecution under this subdivision 8 that the other person was in a position of authority over the 9 defendant and used this authority to coerce the defendant to vio- 10 late this subdivision. The defendant has the burden of proving 11 this defense by a preponderance of the evidence. This subdivi- 12 sion does not apply if both persons are lawfully married to each 13 other at the time of the alleged violation. 14 (2)CriminalEXCEPT AS PROVIDED IN SUBSECTION (3), 15 CRIMINAL sexual conduct in the third degree is a felony punish- 16 able by imprisonment for not more than 15 years. 17 (3) IF A PERSON IS CONVICTED OF VIOLATING THIS SECTION AND 18 THE VICTIM OF THE VIOLATION WAS LESS THAN 18 YEARS OF AGE WHEN 19 THE VIOLATION WAS COMMITTED, AND THE PERSON WAS PREVIOUSLY CON- 20 VICTED OF VIOLATING THIS SECTION, SECTION 316, 317, 520B, 520C, 21 OR 520E, OR A LAW OF THE UNITED STATES, OF ANOTHER STATE, OR OF A 22 LOCAL UNIT OF GOVERNMENT OF ANOTHER STATE SUBSTANTIALLY CORRE- 23 SPONDING TO THIS SECTION OR SECTION 316, 317, 520B, 520C, OR 24 520E, AND THE VICTIM OF THE PREVIOUS VIOLATION WAS LESS THAN 18 25 YEARS OF AGE WHEN THAT VIOLATION WAS COMMITTED, THE PERSON SHALL 26 BE SENTENCED TO IMPRISONMENT FOR LIFE WITHOUT ELIGIBILITY FOR 27 PAROLE. 01520'99 10 1 Enacting section 1. This amendatory act does not take 2 effect unless Senate Bill No. 383 3 of the 90th Legislature is enacted into 4 law. 01520'99 Final page. TVD