HOUSE BILL No. 4525 April 20, 1999, Introduced by Reps. Jellema, Richner, Bovin, Rick Johnson, Allen, Kukuk, Caul, Ehardt, Stamas, Kelly, Pappageorge, Bradstreet, Hart and Birkholz and referred to the Committee on Criminal Law and Corrections. A bill to amend 1931 PA 328, entitled "The Michigan penal code," by amending sections 520a, 520d, and 520e (MCL 750.520a, 750.520d, and 750.520e), section 520a as amended by 1983 PA 158 and sections 520d and 520e as amended by 1996 PA 155, and by adding section 520n. 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 4 conduct. 5 (b) "Developmental disability" means an impairment of gen- 6 eral intellectual functioning or adaptive behavior which meets 7 the following criteria: 00236'99 ** TVD 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) "EMOTIONAL OR MENTAL HEALTH SERVICES OR TREATMENT" MEANS 14 ASSESSMENT, DIAGNOSIS, TREATMENT, OR COUNSELING OF A CLIENT OR 15 PATIENT FOR A MENTAL OR EMOTIONAL ILLNESS, SYMPTOM, OR DISORDER 16 OR TO UNDERSTAND UNCONSCIOUS OR CONSCIOUS MOTIVATION, TO RESOLVE 17 EMOTIONAL, RELATIONSHIP, OR ATTITUDINAL CONFLICTS, OR TO MODIFY 18 BEHAVIORS THAT INTERFERE WITH EFFECTIVE EMOTIONAL, SOCIAL, OR 19 INTELLECTUAL FUNCTIONING. 20 (D)(c)"Intimate parts" includes the primary genital 21 area, groin, inner thigh, buttock, or breast of a human being. 22 (E) "MEMBER OF THE CLERGY" MEANS ANY OF THE FOLLOWING: 23 (i) AN INDIVIDUAL WHO IS ORDAINED OR RECOGNIZED AS A RELI- 24 GIOUS LEADER BY A CHURCH, DENOMINATION, RELIGIOUS ASSOCIATION, OR 25 RELIGIOUS SECT. 26 (ii) A LAY PERSON WHO PROVIDES SPIRITUAL GUIDANCE, AID, OR 27 COMFORT ON BEHALF OF A CHURCH. 00236'99 ** 3 1 (iii) AN INDIVIDUAL WHO SERVES AS A YOUTH PASTOR, YOUTH 2 COUNSELOR, OR CAMP COUNSELOR, OR A SUBSTANTIALLY SIMILAR POSITION 3 FOR A CHURCH, DENOMINATION, RELIGIOUS ASSOCIATION, OR RELIGIOUS 4 SECT. 5 (iv) AN INDIVIDUAL WHO HOLDS HIMSELF OR HERSELF OUT AS BEING 6 AN INDIVIDUAL DESCRIBED IN SUBPARAGRAPHS (i) TO (iii). 7 (F) "MENTAL HEALTH PROFESSIONAL" MEANS EITHER OF THE 8 FOLLOWING: 9 (i) THAT TERM AS DEFINED IN SECTION 100B OF THE MENTAL 10 HEALTH CODE, 1974 PA 258, MCL 330.1100B. 11 (ii) AN INDIVIDUAL WHO HOLDS HIMSELF OR HERSELF OUT AS BEING 12 A MENTAL HEALTH PROFESSIONAL AS DEFINED IN SECTION 100B OF THE 13 MENTAL HEALTH CODE, 1974 PA 258, MCL 330.1100B. 14 (G)(d)"Mental illness" means a substantial disorder of 15 thought or mood which significantly impairs judgment, behavior, 16 capacity to recognize reality, or ability to cope with the ordi- 17 nary demands of life. 18 (H)(e)"Mentally disabled" means that a person has a 19 mental illness, is mentally retarded, or has a developmental 20 disability. 21 (I)(f)"Mentally incapable" means that a person suffers 22 from a mental disease or defect which renders that person tempo- 23 rarily or permanently incapable of appraising the nature of his 24 or her conduct. 25 (J)(g)"Mentally incapacitated" means that a person is 26 rendered temporarily incapable of appraising or controlling his 27 or her conduct due to the influence of a narcotic, anesthetic, or 00236'99 ** 4 1 other substance administered to that person without his or her 2 consent, or due to any other act committed upon that person with- 3 out his or her consent. 4 (K)(h)"Mentally retarded" means significantly subaverage 5 general intellectual functioning which originates during the 6 developmental period and is associated with impairment in adap- 7 tive behavior. 8 (l)(i)"Physically helpless" means that a person is 9 unconscious, asleep, or for any other reason is physically unable 10 to communicate unwillingness to an act. 11 (M)(j)"Personal injury" means bodily injury, disfigure- 12 ment, mental anguish, chronic pain, pregnancy, disease, or loss 13 or impairment of a sexual or reproductive organ. 14 (N)(k)"Sexual contact" includes the intentional touching 15 of the victim's or actor's intimate parts or the intentional 16 touching of the clothing covering the immediate area of the 17 victim's or actor's intimate parts, if that intentional touching 18 can reasonably be construed as being for the purpose of sexual 19 arousal or gratification. 20 (O)(l)"Sexual penetration" means sexual intercourse, 21 cunnilingus, fellatio, anal intercourse, or any other intrusion, 22 however slight, of any part of a person's body or of any object 23 into the genital or anal openings of another person's body, but 24 emission of semen is not required. 25 (P)(m)"Victim" means the person alleging to have been 26 subjected to criminal sexual conduct. 00236'99 ** 5 1 Sec. 520d. (1) A person is guilty of criminal sexual 2 conduct in the third degree if the person engages in sexual 3 penetration with another person and if any of the following cir- 4 cumstances exist: 5 (a) That other person is at least 13 years of age and under 6 16 years of age. 7 (b) Force or coercion is used to accomplish the sexual 8 penetration. Force or coercion includes but is not limited to 9 any of the circumstances listed in section 520b(1)(f)(i) to (v). 10 (c) The actor knows or has reason to know that the victim is 11 mentally incapable, mentally incapacitated, or physically 12 helpless. 13 (d) That other person is related to the actor by blood or 14 affinity to the third degree and the sexual penetration occurs 15 under circumstances not otherwise prohibited by this chapter. It 16 is an affirmative defense to a prosecution under this subdivision 17 that the other person was in a position of authority over the 18 defendant and used this authority to coerce the defendant to vio- 19 late this subdivision. The defendant has the burden of proving 20 this defense by a preponderance of the evidence. This subdivi- 21 sion does not apply if both persons are lawfully married to each 22 other at the time of the alleged violation. 23 (E) THE ACTOR IS A MENTAL HEALTH PROFESSIONAL AND THE SEXUAL 24 PENETRATION OCCURS DURING OR WITHIN 2 YEARS AFTER THE PERIOD IN 25 WHICH THE VICTIM IS HIS OR HER CLIENT OR PATIENT AND NOT HIS OR 26 HER SPOUSE. THE CONSENT OF THE VICTIM IS NOT A DEFENSE TO A 27 PROSECUTION UNDER THIS SUBDIVISION. 00236'99 ** 6 1 (F) THE ACTOR IS A MEMBER OF THE CLERGY AND THE SEXUAL 2 PENETRATION OCCURS DURING OR WITHIN 2 YEARS AFTER THE PERIOD IN 3 WHICH THE ACTOR IS PROVIDING EMOTIONAL OR MENTAL HEALTH SERVICES 4 OR TREATMENT, SPIRITUAL COUNSELING, SPIRITUAL ADVICE, OR AID AND 5 COMFORT TO THE VICTIM, WHO IS NOT HIS OR HER SPOUSE, AS PART OF 6 HIS OR HER DUTIES AS A MEMBER OF THE CLERGY. THE CONSENT OF THE 7 VICTIM IS NOT A DEFENSE TO A PROSECUTION UNDER THIS SUBDIVISION. 8 (2) Criminal sexual conduct in the third degree is a felony 9 punishable by imprisonment for not more than 15 years. 10 Sec. 520e. (1) A person is guilty of criminal sexual con- 11 duct in the fourth degree if he or she engages in sexual contact 12 with another person and if any of the following circumstances 13 exist: 14 (a) That other person is at least 13 years of age and under 15 16 years of age, and the actor is 5 or more years older than that 16 other person. 17 (b) Force or coercion is used to accomplish the sexual 18 contact. Force or coercion includes but is not limited to any of 19 the following circumstances: 20 (i) When the actor overcomes the victim through the actual 21 application of physical force or physical violence. 22 (ii) When the actor coerces the victim to submit by threat- 23 ening to use force or violence on the victim, and the victim 24 believes that the actor has the present ability to execute these 25 threats. 26 (iii) When the actor coerces the victim to submit by 27 threatening to retaliate in the future against the victim, or any 00236'99 ** 7 1 other person, and the victim believes that the actor has the 2 ability to execute this threat. As used in this subdivision, "to 3 retaliate" includes threats of physical punishment, kidnapping, 4 or extortion. 5 (iv) When the actor engages in the medical treatment or 6 examination of the victim in a manner or for purposes which are 7 medically recognized as unethical or unacceptable. 8 (v) When the actor achieves the sexual contact through con- 9 cealment or by the element of surprise. 10 (c) The actor knows or has reason to know that the victim is 11 mentally incapable, mentally incapacitated, or physically 12 helpless. 13 (d) That other person is under the jurisdiction of the 14 department of corrections and the actor is an employee or a con- 15 tractual employee of, or a volunteer with, the department of cor- 16 rections who knows that the other person is under the jurisdic- 17 tion of the department of corrections. 18 (e) That other person is a prisoner or probationer under the 19 jurisdiction of a county for purposes of imprisonment or a work 20 program or other probationary program and the actor is an 21 employee or a contractual employee of or a volunteer with the 22 county who knows that the other person is under the county's 23 jurisdiction. 24 (f) The actor knows or has reason to know that the juvenile 25 division of the probate court, the circuit court, or the 26 recorder's court of the city of Detroit has detained the victim 27 in a facility while the victim is awaiting a trial or hearing, or 00236'99 ** 8 1 committed the victim to a facility as a result of the victim 2 having been found responsible for committing an act that would be 3 a crime if committed by an adult, and the actor is an employee or 4 contractual employee of, or a volunteer with, the facility in 5 which the victim is detained or to which the victim was 6 committed. 7 (g) That other person is related to the actor by blood or 8 affinity to the third degree and the sexual contact occurs under 9 circumstances not otherwise prohibited by this chapter. It is an 10 affirmative defense to a prosecution under this subdivision that 11 the other person was in a position of authority over the 12 defendant and used this authority to coerce the defendant to vio- 13 late this subdivision. The defendant has the burden of proving 14 this defense by a preponderance of the evidence. This subdivi- 15 sion does not apply if both persons are lawfully married to each 16 other at the time of the alleged violation. 17 (H) THE ACTOR IS A MENTAL HEALTH PROFESSIONAL AND THE SEXUAL 18 CONTACT OCCURS DURING OR WITHIN 2 YEARS AFTER THE PERIOD IN WHICH 19 THE VICTIM IS HIS OR HER CLIENT OR PATIENT AND NOT HIS OR HER 20 SPOUSE. THE CONSENT OF THE VICTIM IS NOT A DEFENSE TO A PROSECU- 21 TION UNDER THIS SUBDIVISION. 22 (I) THE ACTOR IS A MEMBER OF THE CLERGY AND THE SEXUAL CON- 23 TACT OCCURS DURING OR WITHIN 2 YEARS AFTER THE PERIOD IN WHICH 24 THE ACTOR IS PROVIDING EMOTIONAL OR MENTAL HEALTH SERVICES OR 25 TREATMENT, SPIRITUAL COUNSELING, SPIRITUAL ADVICE, OR AID AND 26 COMFORT TO THE VICTIM, WHO IS NOT HIS OR HER SPOUSE, AS PART OF 00236'99 ** 9 1 HIS OR HER DUTIES AS A MEMBER OF THE CLERGY. THE CONSENT OF THE 2 VICTIM IS NOT A DEFENSE TO A PROSECUTION UNDER THIS SECTION. 3 (2) Criminal sexual conduct in the fourth degree is a misde- 4 meanor punishable by imprisonment for not more than 2 years or a 5 fine of not more than $500.00, or both. 6 SEC. 520N. (1) IF A MENTAL HEALTH PROFESSIONAL OR MEMBER OF 7 THE CLERGY HAS REASON TO BELIEVE THAT AN INDIVIDUAL HE OR SHE IS 8 TREATING, COUNSELING, OR ADVISING IS A VICTIM OF A VIOLATION OF 9 SECTION 520B, 520C, 520D, 520E, OR 520G AND THAT THE VIOLATION 10 WAS COMMITTED BY A MENTAL HEALTH PROFESSIONAL OR MEMBER OF THE 11 CLERGY, THE MENTAL HEALTH PROFESSIONAL OR MEMBER OF THE CLERGY 12 SHALL PROMPTLY ASK THE INDIVIDUAL IF HE OR SHE WANTS HIM OR HER 13 TO MAKE A REPORT UNDER THIS SUBSECTION. THE MENTAL HEALTH PRO- 14 FESSIONAL OR MEMBER OF THE CLERGY SHALL INFORM THE INDIVIDUAL 15 THAT THE REPORT DOES NOT REQUIRE THE IDENTIFICATION OF THE INDI- 16 VIDUAL AS THE VICTIM OF THE VIOLATION. IF THE INDIVIDUAL INFORMS 17 THE MENTAL HEALTH PROFESSIONAL OR MEMBER OF THE CLERGY THAT HE OR 18 SHE WOULD LIKE HIM OR HER TO MAKE THE REPORT, THE INDIVIDUAL 19 SHALL PROVIDE THE MENTAL HEALTH PROFESSIONAL OR MEMBER OF THE 20 CLERGY WITH A WRITTEN CONSENT TO THE REPORT AND SHALL SPECIFY 21 WHETHER THE INDIVIDUAL'S IDENTITY MAY BE INCLUDED IN THE REPORT. 22 (2) WITHIN 30 DAYS AFTER THE INDIVIDUAL PROVIDES THE MENTAL 23 HEALTH PROFESSIONAL OR MEMBER OF THE CLERGY A REPORT UNDER 24 SUBSECTION (1), THE MENTAL HEALTH PROFESSIONAL OR MEMBER OF THE 25 CLERGY SHALL REPORT THE SUSPECTED VIOLATION TO BOTH OF THE 26 FOLLOWING: 00236'99 ** 10 1 (A) THE DEPARTMENT OF STATE POLICE. IF THE DEPARTMENT 2 DETERMINES THE INDIVIDUAL ALLEGED TO HAVE COMMITTED THE VIOLATION 3 IS IN A LICENSED OCCUPATION, THE DEPARTMENT SHALL PROMPTLY NOTIFY 4 THE APPROPRIATE LICENSING OR REGISTRATION BOARD OF THE ALLEGED 5 VIOLATION. 6 (B) THE POLICE DEPARTMENT OF THE LOCAL UNIT OF GOVERNMENT IN 7 WHICH THE VIOLATION ALLEGEDLY OCCURRED. 8 (3) A REPORT UNDER THIS SECTION SHALL CONTAIN ONLY INFORMA- 9 TION THAT IS NECESSARY TO IDENTIFY THE MENTAL HEALTH PROFESSIONAL 10 OR MEMBER OF THE CLERGY PROVIDING THE REPORT AND THE INDIVIDUAL 11 ALLEGED TO HAVE COMMITTED THE VIOLATION AND INFORMATION REGARDING 12 THE ALLEGED VIOLATION. THE REPORT SHALL NOT CONTAIN INFORMATION 13 IDENTIFYING THE ALLEGED VICTIM UNLESS THE VICTIM HAS REQUESTED 14 THAT HIS OR HER IDENTITY BE INCLUDED. 15 (4) A MENTAL HEALTH PROFESSIONAL OR MEMBER OF THE CLERGY WHO 16 INTENTIONALLY FAILS TO FILE A REPORT UNDER THIS SECTION IS GUILTY 17 OF A MISDEMEANOR PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 93 18 DAYS OR A FINE OF NOT MORE THAN $500.00, OR BOTH. 19 (5) A REPORT AND A RECORD MADE FROM A REPORT UNDER THIS SEC- 20 TION THAT IS MAINTAINED BY THE DEPARTMENT OF STATE POLICE, A 21 LOCAL POLICE DEPARTMENT, A LICENSING OR REGISTRATION BOARD, A 22 PROSECUTING ATTORNEY, OR OTHER PERSON, OFFICIAL, OR INSTITUTION 23 IS CONFIDENTIAL AND IS EXEMPT FROM DISCLOSURE UNDER THE FREEDOM 24 OF INFORMATION ACT, 1976 PA 442, MCL 15.231 TO 15.246. 25 (6) INFORMATION REGARDING THE IDENTITY OF A VICTIM OR 26 ALLEGED VICTIM OF SEXUAL CONTACT BY A MENTAL HEALTH PROFESSIONAL 27 OR MEMBER OF THE CLERGY SHALL NOT BE DISCLOSED BY AN INDIVIDUAL 00236'99 ** 11 1 REQUIRED TO REPORT THE VIOLATION OR BY ANY OTHER PERSON WHO HAS 2 RECEIVED OR HAS ACCESS TO A REPORT OR RECORD UNDER THIS SECTION 3 UNLESS THAT DISCLOSURE IS WITH THE CONSENT IN WRITING OF THE 4 VICTIM OR ALLEGED VICTIM. THIS SUBSECTION DOES NOT PROHIBIT THE 5 DEPARTMENT OF STATE POLICE, A LOCAL POLICE DEPARTMENT, A PROSE- 6 CUTING ATTORNEY, OR A LICENSING OR REGISTRATION BOARD WITHIN THIS 7 STATE FROM EXCHANGING INFORMATION FROM A REPORT OR RECORD REGARD- 8 ING A MENTAL HEALTH PROFESSIONAL OR MEMBER OF THE CLERGY. 9 (7) IF THE DEPARTMENT OF STATE POLICE RECEIVES 2 OR MORE 10 REPORTS UNDER THIS SECTION REGARDING THE SAME MENTAL HEALTH PRO- 11 FESSIONAL OR MEMBER OF THE CLERGY, THE DEPARTMENT SHALL PROVIDE 12 THE INFORMATION FROM THE REPORTS TO THE APPROPRIATE PROSECUTING 13 ATTORNEYS. 14 (8) A PERSON WHO INTENTIONALLY DISCLOSES CONFIDENTIAL INFOR- 15 MATION IN VIOLATION OF THIS SECTION IS GUILTY OF A MISDEMEANOR 16 PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 93 DAYS OR A FINE OF 17 NOT MORE THAN $500.00, OR BOTH. 18 (9) A PERSON WHO IN GOOD FAITH MAKES A REPORT OR RECORD 19 UNDER THIS SECTION IS IMMUNE FROM ANY CIVIL OR CRIMINAL LIABILITY 20 FOR MAKING THE REPORT. IT IS A REBUTTABLE PRESUMPTION THAT A 21 PERSON WHO MAKES A REPORT UNDER THIS SECTION ACTED IN GOOD 22 FAITH. THE IMMUNITY PROVIDED UNDER THIS SUBSECTION DOES NOT 23 APPLY TO CIVIL OR CRIMINAL LIABILITY RESULTING FROM A VIOLATION 24 FOR WHICH A REPORT IS REQUIRED UNDER THIS SECTION. 00236'99 ** Final page. TVD