House Introduced Bill 5116

HOUSE BILL No. 5116

September 30, 1997, Introduced by Reps. Wallace, Baird, DeHart, Gire, Dobronski, Birkholz, Hanley, LaForge, Schauer, Wojno, Thomas, Cherry, Hale, Goschka, Law, Bodem, Scranton, DeVuyst, Voorhees, Bankes, Oxender, Baade, McBryde, Cassis, Dobb, Curtis, Brater, Olshove, Harder, Freeman, Scott, Willard, Vaughn, Wetters, Leland, Emerson, Mathieu,
Hood, Varga, Parks, Prusi, Tesanovich, Rison, Quarles, Murphy and Gagliardi 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 sections 520d and

520e as amended by 1996 PA 155.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

1 Sec. 520a. As used in sections 520a to 520l THIS

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 behavior which THAT

7 meets ALL OF the following criteria:

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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) "Intimate parts" includes the primary genital area,

14 groin, inner thigh, buttock, or breast of a human being.

15 (d) "Mental illness" means a substantial disorder of thought

16 or mood which THAT significantly impairs judgment, behavior,

17 capacity to recognize reality, or ability to cope with the ordi-

18 nary demands of life.

19 (e) "Mentally disabled" means that a person has a mental

20 illness, is mentally retarded, or has a developmental

21 disability.

22 (f) "Mentally incapable" means that a person suffers from a

23 mental disease or defect which THAT renders that person tempo-

24 rarily or permanently incapable of appraising the nature of his

25 or her conduct.

26 (g) "Mentally incapacitated" means that a person is rendered

27 temporarily incapable of appraising or controlling his or her

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1 conduct due to the influence of a narcotic CONTROLLED SUBSTANCE

2 OR OTHER DRUG, anesthetic, or ANY other substance administered to

3 that person without his or her consent , or due to any other

4 act committed upon that person without his or her consent.

5 (h) "Mentally retarded" means HAVING significantly subaver-

6 age general intellectual functioning which THAT originates

7 during the developmental period and is associated with impairment

8 in adaptive behavior.

9 (i) "Physically helpless" means that a person is unconscious

10 , OR asleep , or for any other reason is physically unable to

11 communicate unwillingness to an act.

12 (j) "Personal injury" means bodily injury, disfigurement,

13 mental anguish, chronic pain, pregnancy, disease, or loss or

14 impairment of a sexual or reproductive organ.

15 (k) "Sexual contact" includes the intentional touching of

16 the victim's or actor's intimate parts or the intentional touch-

17 ing of the clothing covering the immediate area of the victim's

18 or actor's intimate parts, if that intentional touching can rea-

19 sonably be construed as being for the purpose of sexual arousal

20 or gratification.

21 (l) "Sexual penetration" means sexual intercourse, cunnilin-

22 gus, fellatio, anal intercourse, or any other intrusion, however

23 slight, of any part of a person's body or of any object into the

24 genital or anal openings of another person's body. but emission

25 EMISSION of semen is not required.

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1 (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 stances exists EXIST:

8 (a) That other person is under LESS THAN 13 years of age.

9 (b) That other person is at least 13 YEARS OF AGE but less

10 than 16 years of age and THE ACTOR IS any of the following:

11 (i) The actor is a A member of the same household as the

12 victim.

13 (ii) The actor is related RELATED to the victim by blood

14 or affinity to the fourth degree.

15 (iii) The actor is in IN a position of authority over the

16 victim and used this authority to coerce the victim to submit.

17 (c) Sexual penetration occurs under circumstances involving

18 the commission of any other felony.

19 (d) The actor is aided or abetted by 1 or more other persons

20 and either of the following circumstances exists:

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

22 mentally incapable , mentally incapacitated, or physically

23 helpless.

24 (ii) The actor uses force or coercion to accomplish the

25 sexual penetration. Force or coercion includes but is not

26 limited to any of the circumstances listed in subdivision (f)(i)

27 to (v).

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1 (e) The actor is armed with a weapon or any article used or

2 fashioned in a manner to lead the victim to reasonably believe it

3 to be IS a weapon.

4 (f) The actor causes personal injury to the victim and force

5 or coercion is used to accomplish sexual penetration. Force or

6 coercion includes but is not limited to any of the following

7 circumstances:

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

9 application of physical force or physical violence.

10 (ii) When the actor coerces the victim to submit by threat-

11 ening to use force or violence on the victim , and the victim

12 believes that the actor has the present ability to execute

13 these threats THAT THREAT.

14 (iii) When the actor coerces the victim to submit by threat-

15 ening to retaliate in the future against the victim , or any

16 other person , and the victim believes that the actor has the

17 ability to execute this THAT threat. As used in this

18 subdivision, " SUBPARAGRAPH, "THREATENING to retaliate"

19 includes BUT IS NOT LIMITED TO threats of physical punishment,

20 kidnapping, or extortion.

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

22 examination of the victim in a manner or for purposes which are

23 medically recognized as unethical or unacceptable.

24 (v) When the actor, through concealment or by the element of

25 surprise, is able to overcome the victim.

26 (G) THE ACTOR KNOWS OR HAS REASON TO KNOW THAT THE VICTIM IS

27 MENTALLY INCAPACITATED.

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1 (H) (g) The actor causes personal injury to the victim ,

2 and the actor knows or has reason to know that the victim is

3 mentally incapable , mentally incapacitated, or physically

4 helpless.

5 (I) (h) That other person is mentally incapable, mentally

6 disabled, mentally incapacitated, or physically helpless, and THE

7 ACTOR IS any of the following:

8 (i) The actor is related RELATED to the victim by blood or

9 affinity to the fourth degree.

10 (ii) The actor is in IN a position of authority over the

11 victim and used this authority to coerce the victim to submit.

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

13 punishable by imprisonment in the state prison for life or

14 for any term of years.

15 Sec. 520c. (1) A person is guilty of criminal sexual con-

16 duct in the second degree if the person engages in sexual contact

17 with another person and if any of the following circumstances

18 exists EXIST:

19 (a) That other person is under LESS THAN 13 years of age.

20 (b) That other person is at least 13 YEARS OF AGE but less

21 than 16 years of age and THE ACTOR IS any of the following:

22 (i) The actor is a A member of the same household as the

23 victim.

24 (ii) The actor is related RELATED by blood or affinity to

25 the fourth degree to the victim.

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1 (iii) The actor is in IN a position of authority over the

2 victim and the actor used this authority to coerce the victim

3 to 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 SECTION

14 520b(1)(f)(i) to (v).

15 (e) The actor is armed with a weapon , or any article used

16 or fashioned in a manner to lead a person THE VICTIM to reason-

17 ably believe it to be IS 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 KNOWS OR HAS REASON TO KNOW THAT THE VICTIM IS

23 MENTALLY INCAPABLE.

24 (H) (g) The actor causes personal injury to the victim and

25 the actor knows or has reason to know that the victim is men-

26 tally incapable , mentally incapacitated, or physically

27 helpless.

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1 (I) (h) That other person is mentally incapable, mentally

2 disabled, mentally incapacitated, or physically helpless, and THE

3 ACTOR IS any of the following:

4 (i) The actor is related RELATED to the victim by blood or

5 affinity to the fourth degree.

6 (ii) The actor is in IN a position of authority over the

7 victim and used this authority to coerce the victim to submit.

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

9 punishable by imprisonment for not more than 15 years.

10 Sec. 520d. (1) A person is guilty of criminal sexual con-

11 duct in the third degree if the person engages in sexual penetra-

12 tion with another person and if any of the following circum-

13 stances exist:

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

15 under BUT LESS THAN 16 years of age.

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

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

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

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

20 mentally incapable , mentally incapacitated, or physically

21 helpless.

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

23 affinity to the third degree and the sexual penetration occurs

24 under circumstances not otherwise prohibited by this chapter. It

25 is an affirmative defense to a prosecution under this subdivision

26 that the other person was in a position of authority over the

27 defendant and used this authority to coerce the defendant to

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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 third degree is a felony

6 punishable by imprisonment for not more than 15 years.

7 Sec. 520e. (1) A person is guilty of criminal sexual con-

8 duct in the fourth degree if he or she engages in sexual contact

9 with another person and if any of the following circumstances

10 exist:

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

12 under BUT LESS THAN 16 years of age , and the actor is 5 or

13 more years older than that other person.

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

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

16 the following 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 believes that the actor has the present ability to execute

22 these threats THAT 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 believes that the actor has the

26 ability to execute this THAT threat. As used in this

27 subdivision, " SUBPARAGRAPH, "THREATENING to retaliate"

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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 purposes which are

5 medically recognized as unethical or unacceptable.

6 (v) When the actor achieves the sexual contact through con-

7 cealment or by the element of surprise.

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

9 mentally incapable , mentally incapacitated, or physically

10 helpless.

11 (d) That other person is under the jurisdiction of the

12 department of corrections and the actor is an employee or a con-

13 tractual employee of , or a volunteer with , the department

14 of corrections who knows that the other person is under the

15 jurisdiction of the department of corrections.

16 (e) That other person is a prisoner or probationer under the

17 jurisdiction of a county for purposes of imprisonment or a work

18 program or other probationary program and the actor is an

19 employee or a contractual employee of or a volunteer with the

20 county who knows that the other person is under the county's

21 jurisdiction.

22 (f) The actor knows or has reason to know that the juvenile

23 division of the probate court, the circuit court, or the

24 recorder's court of the city of Detroit has detained the victim

25 in a facility while the victim is awaiting a trial or hearing, or

26 committed the victim to a facility as a result of the victim

27 having been found responsible for committing an act that would be

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1 a crime if committed by an adult, and the actor is an employee or

2 contractual employee of , or a volunteer with , the facility

3 in which the victim is detained or to which the victim was

4 committed.

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

6 affinity to the third degree and the sexual contact occurs under

7 circumstances not otherwise prohibited by this chapter. It is an

8 affirmative defense to a prosecution under this subdivision that

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

10 defendant and used this authority to coerce the defendant to vio-

11 late this subdivision. The defendant has the burden of proving

12 this defense by a preponderance of the evidence. This subdivi-

13 sion does not apply if both persons are lawfully married to each

14 other at the time of the alleged violation.

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

16 meanor punishable by imprisonment for not more than 2 years or a

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

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