April 21, 2005, Introduced by Reps. Lemmons, III, Lemmons, Jr., Hunter, Clack, Murphy, Gosselin, Whitmer and Cheeks and referred to the Committee on Judiciary.
A bill to amend 1931 PA 328, entitled
"The Michigan penal code,"
by amending sections 520b, 520c, 520d, and 520e (MCL 750.520b,
750.520c, 750.520d, and 750.520e), as amended by 2002 PA 714.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 520b. (1) A person is guilty of criminal sexual conduct
in the first degree if he or she engages in sexual penetration with
another person and if any of the following circumstances exists:
(a) That other person is under 13 years of age.
(b)
That other person is at least 13 but less than 16 18
years of age and any of the following:
(i) The actor is a member of the same household as the victim.
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 related to the victim by blood or affinity to
the fourth degree. 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.
(iii) The actor is in a position of authority over the victim
and used this authority to coerce the victim to submit.
(iv) The actor is a teacher, substitute teacher, or
administrator of the public or nonpublic school in which that other
person is enrolled. 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.
(c) Sexual penetration occurs under circumstances involving
the commission of any other felony.
(d) The actor is aided or abetted by 1 or more other persons
and either of the following circumstances exists:
(i) The actor knows or has reason to know that the victim is
mentally incapable, mentally incapacitated, or physically helpless.
(ii) The actor uses force or coercion to accomplish the sexual
penetration. Force or coercion includes but is not limited to any
of the circumstances listed in subdivision (f)(i) to (v).
(e) The actor 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.
(f) The actor causes personal injury to the victim and force
or coercion is used to accomplish sexual penetration. 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 these threats.
(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
this threat. As used in this subdivision, "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 are
medically recognized as unethical or unacceptable.
(v) When the actor, through concealment or by the element of
surprise, is able to overcome the victim.
(g) The actor 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.
(h) That other person is mentally incapable, mentally
disabled, mentally incapacitated, or physically helpless, and any
of the following apply:
(i) The actor is related to the victim by blood or affinity to
the fourth degree.
(ii) The actor is in a position of authority over the victim
and used this authority to coerce the victim to submit.
(2) Criminal sexual conduct in the first degree is a felony
punishable by imprisonment in the state prison for life or for any
term of years.
Sec. 520c. (1) A person is guilty of criminal sexual conduct
in the second degree if the person engages in sexual contact with
another person and if any of the following circumstances exists:
(a) That other person is under 13 years of age.
(b)
That other person is at least 13 but less than 16 18
years of age and any of the following:
(i) The actor is a member of the same household as the victim.
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 related by blood or affinity to the fourth
degree to the victim. 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.
(iii) The actor is in a position of authority over the victim
and the actor used this authority to coerce the victim to submit.
(iv) The actor is a teacher, substitute teacher, or
administrator of the public or nonpublic school in which that other
person is enrolled. 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.
(c) Sexual contact occurs under circumstances involving the
commission of any other felony.
(d) The actor is aided or abetted by 1 or more other persons
and either of the following circumstances exists:
(i) The actor knows or has reason to know that the victim is
mentally incapable, mentally incapacitated, or physically helpless.
(ii) The actor uses force or coercion to accomplish the sexual
contact. Force or coercion includes, but is not limited to, any of
the circumstances listed in sections 520b(1)(f)(i) to (v).
(e) The actor is armed with a weapon, or any article used or
fashioned in a manner to lead a person to reasonably believe it to
be a weapon.
(f) The actor causes personal injury to the victim and force
or coercion is used to accomplish the sexual contact. Force or
coercion includes, but is not limited to, any of the circumstances
listed in section 520b(1)(f)(i) to (v).
(g) The actor 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.
(h) That other person is mentally incapable, mentally
disabled, mentally incapacitated, or physically helpless, and any
of the following:
(i) The actor is related to the victim by blood or affinity to
the fourth degree.
(ii) The actor is in a position of authority over the victim
and used this authority to coerce the victim to submit.
(i) That other person is under the jurisdiction of the
department of corrections and the actor is an employee or a
contractual employee of, or a volunteer with, the department of
corrections who knows that the other person is under the
jurisdiction of the department of corrections.
(j) That other person is under the jurisdiction of the
department of corrections and the actor is an employee or a
contractual employee of, or a volunteer with, a private vendor that
operates a youth correctional facility under section 20g of the
corrections code of 1953, 1953 PA 232, MCL 791.220g, who knows that
the other person is under the jurisdiction of the department of
corrections.
(k) That other person is a prisoner or probationer under the
jurisdiction of a county for purposes of imprisonment or a work
program or other probationary program and the actor is an employee
or a contractual employee of or a volunteer with the county or the
department of corrections who knows that the other person is under
the county's jurisdiction.
(l) The actor knows or has reason to know that a court has
detained the victim in a facility while the victim is awaiting a
trial or hearing, or committed the victim to a facility as a result
of the victim having been found responsible for committing an act
that would be a crime if committed by an adult, and the actor is an
employee or contractual employee of, or a volunteer with, the
facility in which the victim is detained or to which the victim was
committed.
(2) Criminal sexual conduct in the second degree is a felony
punishable by imprisonment for not more than 15 years.
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
but less than 18 years of age. This subdivision 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.
(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 a student at a public or nonpublic school,
and the actor is a teacher, substitute teacher, or administrator of
that public or nonpublic school. This subdivision 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.
(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
18 years of age, and the actor is 5 or more years
older
than that other person. This subdivision 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.
(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 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 a student at a public or nonpublic school,
and the actor is a teacher, substitute teacher, or administrator of
that public or nonpublic school. This subdivision 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.
(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.