HOUSE BILL No. 5065 September 23, 1997, Introduced by Reps. Walberg, Baird, DeVuyst, Voorhees, Horton, Dalman, Cropsey, Goschka, McBryde, Whyman, Nye, Mans, Geiger, Green and Kukuk and referred to the Committee on Judiciary. A bill to amend 1931 PA 328, entitled "The Michigan penal code," by amending sections 520a, 520b, 520c, 520d, and 520e (MCL 750.520a, 750.520b, 750.520c, 750.520d, and 750.520e), sections 520a, 520b, and 520c as amended by 1983 PA 158 and sections 520d and 520e as amended by 1996 PA 155. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 520a. As used insections 520a to 520lTHIS 2 CHAPTER: 3 (a) "Actor" means a person accused of criminal sexual con- 4 duct IN VIOLATION OF THIS CHAPTER. 5 (b) "Developmental disability" means an impairment of gen- 6 eral intellectual functioning or adaptive behaviorwhichTHAT 7 meets ALL OF the following criteria: 03883'97 JOJ 2 1 (i) It originated before the person became 18 years of age. 2 (ii) It has continued since its origination or can be 3 expected to continue indefinitely. 4 (iii) It constitutes a substantial burden to the impaired 5 person's ability to perform in society. 6 (iv) It is attributable to 1 or more of the following: 7 (A) Mental retardation, cerebral palsy, epilepsy, or 8 autism. 9 (B) Any other condition of a person found to be closely 10 related to mental retardation because it produces a similar 11 impairment or requires treatment and services similar to those 12 required for a person who is mentally retarded. 13 (C) "EMANCIPATED" MEANS EMANCIPATED UNDER 1968 PA 293, MCL 14 722.1 TO 722.6. 15 (D)(c)"Intimate parts" includes the primary genital 16 area, groin, inner thigh, buttock, or breast of a human being. 17 (E)(d)"Mental illness" means a substantial disorder of 18 thought or moodwhichTHAT significantly impairs judgment, 19 behavior, capacity to recognize reality, or ability to cope with 20 the ordinary demands of life. 21 (F)(e)"Mentally disabled" means that a person has a 22 mental illness, is mentally retarded, or has a developmental 23 disability. 24 (G)(f)"Mentally incapable" means that a person suffers 25 from a mental disease or defectwhichTHAT renders that person 26 temporarily or permanently incapable of appraising the nature of 27 his or her conduct. 03883'97 3 1 (H)(g)"Mentally incapacitated" means that a person is 2 rendered temporarily incapable of appraising or controlling his 3 or her conduct due to the influence of a narcotic, anesthetic, or 4 other substance administered to that person without his or her 5 consent,or due to any other act committed upon that person 6 without his or her consent. 7 (I)(h)"Mentally retarded" means HAVING significantly 8 subaverage general intellectual functioningwhichTHAT origi- 9 nates during the developmental period and is associated with 10 impairment in adaptive behavior. 11 (J)(i)"Physically helpless" means that a person is 12 unconscious,OR asleep,or for any other reason is physi- 13 cally unable to communicate unwillingness to an act. 14 (K)(j)"Personal injury" means bodily injury, disfigure- 15 ment, mental anguish, chronic pain, pregnancy, disease, or loss 16 or impairment of a sexual or reproductive organ. 17 (l)(k)"Sexual contact" includes the intentional touching 18 of the victim's or actor's intimate parts or the intentional 19 touching of the clothing covering the immediate area of the 20 victim's or actor's intimate parts, if that intentional touching 21 can reasonably be construed as being for the purpose of sexual 22 arousal or gratification. 23 (M)(l)"Sexual penetration" means sexual intercourse, 24 cunnilingus, fellatio, anal intercourse, or any other intrusion, 25 however slight, of any part of a person's body or of any object 26 into the genital or anal openings of another person's body.but27emissionEMISSION of semen is not required. 03883'97 4 1 (N)(m)"Victim" means the person alleging to have been 2 subjected to criminal sexual conduct IN VIOLATION OF THIS 3 CHAPTER. 4 Sec. 520b. (1) A person is guilty of criminal sexual con- 5 duct in the first degree if he or she engages in sexual penetra- 6 tion with another person and if any of the following circum- 7 stancesexistsEXIST: 8 (a) That other person isunderLESS THAN 13 years of age. 9 (b) That other person is at least 13 YEARS OF AGE but less 10 than1618 years of age and THE ACTOR IS any of the following: 11 (i)The actor is aA member of the same household as the 12 victim. THIS SUBPARAGRAPH DOES NOT APPLY IF THE VICTIM IS EMAN- 13 CIPATED OR IF BOTH PERSONS ARE LAWFULLY MARRIED TO EACH OTHER AT 14 THE TIME OF THE ALLEGED VIOLATION. 15 (ii)The actor is relatedRELATED to the victim by blood 16 or affinity to the fourth degree. THIS SUBPARAGRAPH DOES NOT 17 APPLY IF THE VICTIM IS EMANCIPATED OR IF BOTH PERSONS ARE LAW- 18 FULLY MARRIED TO EACH OTHER AT THE TIME OF THE ALLEGED VIOLATION. 19 (iii)The actor is inIN a position of authority over the 20 victim and used this authority to coerce the victim to submit. 21 (iv) THREE OR MORE YEARS OLDER THAN THE VICTIM. THIS SUB- 22 PARAGRAPH DOES NOT APPLY IF THE VICTIM IS EMANCIPATED OR IF BOTH 23 PERSONS ARE LAWFULLY MARRIED TO EACH OTHER AT THE TIME OF THE 24 ALLEGED VIOLATION. 25 (c) Sexual penetration occurs under circumstances involving 26 the commission of any other felony. 03883'97 5 1 (d) The actor is aided or abetted by 1 or more other persons 2 and either of the following circumstances exists: 3 (i) The actor knows or has reason to know that the victim is 4 mentally incapable, mentally incapacitated, or physically 5 helpless. 6 (ii) The actor uses force or coercion to accomplish the 7 sexual penetration. Force or coercion includes but is not 8 limited to any of the circumstances listed in subdivision (f)(i) 9 to (v). 10 (e) The actor is armed with a weapon or any article used or 11 fashioned in a manner to lead the victim to reasonably believe it 12to beIS a weapon. 13 (f) The actor causes personal injury to the victim and force 14 or coercion is used to accomplish sexual penetration. Force or 15 coercion includes but is not limited to any of the following 16 circumstances: 17 (i) When the actor overcomes the victim through the actual 18 application of physical force or physical violence. 19 (ii) When the actor coerces the victim to submit by threat- 20 ening to use force or violence on the victim,and the victim 21 believesthatthe actor has the present ability to execute 22these threatsTHAT THREAT. 23 (iii) When the actor coerces the victim to submit by threat- 24 ening to retaliate in the future against the victim,or any 25 other person,and the victim believesthatthe actor has the 26 ability to executethisTHAT threat. As used in this 27subdivision, "SUBPARAGRAPH, "THREATENING to retaliate" 03883'97 6 1 includes BUT IS NOT LIMITED TO threats of physical punishment, 2 kidnapping, or extortion. 3 (iv) When the actor engages in the medical treatment or 4 examination of the victim in a manner or for purposeswhich are5 medically recognized as unethical or unacceptable. 6 (v) When the actor, through concealment or by the element of 7 surprise, is able to overcome the victim. 8 (g) The actor causes personal injury to the victim,and 9the actorknows or has reason to know that the victim is men- 10 tally incapable, mentally incapacitated, or physically helpless. 11 (h) That other person is mentally incapable, mentally dis- 12 abled, mentally incapacitated, or physically helpless, and THE 13 ACTOR IS any of the following: 14 (i)The actor is relatedRELATED to the victim by blood or 15 affinity to the fourth degree. 16 (ii)The actor is inIN a position of authority over the 17 victim and used this authority to coerce the victim to submit. 18 (2) Criminal sexual conduct in the first degree is a felony 19 punishable by imprisonmentin the state prisonfor life or 20forany term of years. 21 Sec. 520c. (1) A person is guilty of criminal sexual con- 22 duct in the second degree if the person engages in sexual contact 23 with another person and if any of the following circumstances 24existsEXIST: 25 (a) That other person isunderLESS THAN 13 years of age. 26 (b) That other person is at least 13 YEARS OF AGE but less 27 than1618 years of age and THE ACTOR IS any of the following: 03883'97 7 1 (i)The actor is aA member of the same household as the 2 victim. THIS SUBPARAGRAPH DOES NOT APPLY IF THE VICTIM IS EMAN- 3 CIPATED OR IF BOTH PERSONS ARE LAWFULLY MARRIED TO EACH OTHER AT 4 THE TIME OF THE ALLEGED VIOLATION. 5 (ii)The actor is relatedRELATED by blood or affinity to 6 the fourth degree to the victim. THIS SUBPARAGRAPH DOES NOT 7 APPLY IF THE VICTIM IS EMANCIPATED OR IF BOTH PERSONS ARE LAW- 8 FULLY MARRIED TO EACH OTHER AT THE TIME OF THE ALLEGED VIOLATION. 9 (iii)The actor is inIN a position of authority over the 10 victim andthe actorused this authority to coerce the victim 11 to submit. 12 (iv) THREE OR MORE YEARS OLDER THAT THE VICTIM. THIS SUB- 13 PARAGRAPH DOES NOT APPLY IF THE VICTIM IS EMANCIPATED OR IF BOTH 14 PERSONS ARE LAWFULLY MARRIED TO EACH OTHER AT THE TIME OF THE 15 ALLEGED VIOLATION. 16 (c) Sexual contact occurs under circumstances involving the 17 commission of any other felony. 18 (d) The actor is aided or abetted by 1 or more other persons 19 and either of the following circumstances exists: 20 (i) The actor knows or has reason to know that the victim is 21 mentally incapable, mentally incapacitated, or physically 22 helpless. 23 (ii) The actor uses force or coercion to accomplish the 24 sexual contact. Force or coercion includes but is not limited to 25 any of the circumstances listed insectionsSECTION 26 520b(1)(f)(i) to (v). 03883'97 8 1 (e) The actor is armed with a weapon,or any article used 2 or fashioned in a manner to leada personTHE VICTIM to 3 reasonably believe itto beIS a weapon. 4 (f) The actor causes personal injury to the victim and force 5 or coercion is used to accomplish the sexual contact. Force or 6 coercion includes but is not limited to any of the circumstances 7 listed in section 520b(1)(f)(i) to (v). 8 (g) The actor causes personal injury to the victim andthe9actorknows or has reason to know that the victim is mentally 10 incapable, mentally incapacitated, or physically helpless. 11 (h) That other person is mentally incapable, mentally dis- 12 abled, mentally incapacitated, or physically helpless, and THE 13 ACTOR IS any of the following: 14 (i)The actor is relatedRELATED to the victim by blood or 15 affinity to the fourth degree. 16 (ii)The actor is inIN a position of authority over the 17 victim and used this authority to coerce the victim to submit. 18 (2) Criminal sexual conduct in the second degree is a felony 19 punishable by imprisonment for not more than 15 years. 20 Sec. 520d. (1) A person is guilty of criminal sexual con- 21 duct in the third degree if the person engages in sexual penetra- 22 tion with another person and if any of the following circum- 23 stances exist: 24 (a) That other person is at least 13 years of ageand under2516BUT LESS THAN 18 years of age. THIS SUBDIVISION DOES NOT 26 APPLY IF THE VICTIM IS EMANCIPATED OR IF BOTH PERSONS ARE 03883'97 9 1 LAWFULLY MARRIED TO EACH OTHER AT THE TIME OF THE ALLEGED 2 VIOLATION. 3 (b) Force or coercion is used to accomplish the sexual 4 penetration. Force or coercion includes but is not limited to 5 any of the circumstances listed in section 520b(1)(f)(i) to (v). 6 (c) The actor knows or has reason to know that the victim is 7 mentally incapable, mentally incapacitated, or physically 8 helpless. 9 (d) That other person is related to the actor by blood or 10 affinity to the third degree and the sexual penetration occurs 11 under circumstances not otherwise prohibited by this chapter. It 12 is an affirmative defense to a prosecution under this subdivision 13 that the other person was in a position of authority over the 14 defendant and used this authority to coerce the defendant to vio- 15 late this subdivision. The defendant has the burden of proving 16 this defense by a preponderance of the evidence. This subdivi- 17 sion does not apply if both persons are lawfully married to each 18 other at the time of the alleged violation. 19 (2) Criminal sexual conduct in the third degree is a felony 20 punishable by imprisonment for not more than 15 years. 21 Sec. 520e. (1) A person is guilty of criminal sexual con- 22 duct in the fourth degree if he or she engages in sexual contact 23 with another person and if any of the following circumstances 24 exist: 25 (a) That other person is at least 13 years of ageand under2616BUT LESS THAN 18 years of age., and the actor is 5 or more27years older than that other person.THIS SUBDIVISION DOES NOT 03883'97 10 1 APPLY IF THE VICTIM IS EMANCIPATED OR IF BOTH PERSONS ARE 2 LAWFULLY MARRIED TO EACH OTHER AT THE TIME OF THE ALLEGED 3 VIOLATION. 4 (b) Force or coercion is used to accomplish the sexual 5 contact. Force or coercion includes but is not limited to any of 6 the following circumstances: 7 (i) When the actor overcomes the victim through the actual 8 application of physical force or physical violence. 9 (ii) When the actor coerces the victim to submit by threat- 10 ening to use force or violence on the victim,and the victim 11 believesthatthe actor has the present ability to execute 12these threatsTHAT THREAT. 13 (iii) When the actor coerces the victim to submit by threat- 14 ening to retaliate in the future against the victim,or any 15 other person,and the victim believesthatthe actor has the 16 ability to executethisTHAT threat. As used in this 17subdivision, "SUBPARAGRAPH, "THREATENING to retaliate" 18 includes BUT IS NOT LIMITED TO threats of physical punishment, 19 kidnapping, or extortion. 20 (iv) When the actor engages in the medical treatment or 21 examination of the victim in a manner or for purposeswhich are22 medically recognized as unethical or unacceptable. 23 (v) When the actor achieves the sexual contact through con- 24 cealment or by the element of surprise. 25 (c) The actor knows or has reason to know that the victim is 26 mentally incapable, mentally incapacitated, or physically 27 helpless. 03883'97 11 1 (d) That other person is under the jurisdiction of the 2 department of corrections and the actor is an employee or a con- 3 tractual employee of,or a volunteer with,the department 4 of corrections who knows that the other person is under the 5 jurisdiction of the department of corrections. 6 (e) That other person is a prisoner or probationer under the 7 jurisdiction of a county for purposes of imprisonment or a work 8 program or other probationary program and the actor is an 9 employee or a contractual employee of or a volunteer with the 10 county who knows that the other person is under the county's 11 jurisdiction. 12 (f) The actor knows or has reason to know that the juvenile 13 division of the probate court, the circuit court, or the 14 recorder's court of the city of Detroit has detained the victim 15 in a facility while the victim is awaiting a trial or hearing, or 16 committed the victim to a facility as a result of the victim 17 having been found responsible for committing an act that would be 18 a crime if committed by an adult, and the actor is an employee or 19 contractual employee of,or a volunteer with,the facility 20 in which the victim is detained or to which the victim was 21 committed. 22 (g) That other person is related to the actor by blood or 23 affinity to the third degree and the sexual contact occurs under 24 circumstances not otherwise prohibited by this chapter. It is an 25 affirmative defense to a prosecution under this subdivision that 26 the other person was in a position of authority over the 27 defendant and used this authority to coerce the defendant to 03883'97 12 1 violate this subdivision. The defendant has the burden of 2 proving this defense by a preponderance of the evidence. This 3 subdivision does not apply if both persons are lawfully married 4 to each other at the time of the alleged violation. 5 (2) Criminal sexual conduct in the fourth degree is a misde- 6 meanor punishable by imprisonment for not more than 2 years or a 7 fine of not more than $500.00, or both. 03883'97 Final page. JOJ