SENATE BILL NO. 476 March 24, 1999, Introduced by Senators ROGERS, STEIL and SHUGARS 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), sections 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. 520b. (1) A person is guilty of criminal sexual con- 2 duct in the first degree if he or she engages in sexual penetra- 3 tion with another person and if any of the following circum- 4 stances exists: 5 (a) That other person isunder 13LESS THAN 16 years of 6 age. 7(b) That other person is at least 13 but less than 16 years8of age and any of the following:01288'99 TVD 2 1(i) The actor is a member of the same household as the2victim.3(ii) The actor is related to the victim by blood or affinity4to the fourth degree.5(iii) The actor is in a position of authority over the6victim and used this authority to coerce the victim to submit.7 (B)(c)Sexual penetration occurs under circumstances 8 involving the commission of any other felony. 9 (C)(d)The actor is aided or abetted by 1 or more other 10 persons and either of the following circumstances exists: 11 (i) The actor knows or has reason to know that the victim is 12 mentally incapable, mentally incapacitated, or physically 13 helpless. 14 (ii) The actor uses force or coercion to accomplish the 15 sexual penetration. Force or coercion includes but is not 16 limited to any of the circumstances listed in subdivision 17(f)(i)(E)(i) to (v). 18 (D)(e)The actor is armed with a weapon or any article 19 used or fashioned in a manner to lead the victim to reasonably 20 believe it to be a weapon. 21 (E)(f)The actor causes personal injury to the victim and 22 force or coercion is used to accomplish sexual penetration. 23 Force or coercion includes but is not limited to any of the fol- 24 lowing circumstances: 25 (i) When the actor overcomes the victim through the actual 26 application of physical force or physical violence. 01288'99 3 1 (ii) When the actor coerces the victim to submit by 2 threatening to use force or violence on the victim, and the 3 victim believes that the actor has the present ability to execute 4 these threats. 5 (iii) When the actor coerces the victim to submit by threat- 6 ening to retaliate in the future against the victim, or any other 7 person, and the victim believes that the actor has the ability to 8 execute this threat. As used in this subdivision, "to retaliate" 9 includes threats of physical punishment, kidnapping, or 10 extortion. 11 (iv) When the actor engages in the medical treatment or 12 examination of the victim in a manner or for purposes which are 13 medically recognized as unethical or unacceptable. 14 (v) When the actor, through concealment or by the element of 15 surprise, is able to overcome the victim. 16 (F)(g)The actor causes personal injury to the victim, 17 and the actor knows or has reason to know that the victim is men- 18 tally incapable, mentally incapacitated, or physically helpless. 19 (G)(h)That other person is mentally incapable, mentally 20 disabled, mentally incapacitated, or physically helpless, and any 21 of the following: 22 (i) The actor is related to the victim by blood or affinity 23 to the fourth degree. 24 (ii) The actor is in a position of authority over the victim 25 and used this authority to coerce the victim to submit. 01288'99 4 1 (2) Criminal sexual conduct in the first degree is a felony 2 punishable by imprisonment in the state prison for life or for 3 any term of years. 4 Sec. 520c. (1) A person is guilty of criminal sexual con- 5 duct in the second degree if the person engages in sexual contact 6 with another person and if any of the following circumstances 7 exists: 8 (a) That other person isunder 13LESS THAN 16 years of 9 age. 10(b) That other person is at least 13 but less than 16 years11of age and any of the following:12(i) The actor is a member of the same household as the13victim.14(ii) The actor is related by blood or affinity to the fourth15degree to the victim.16(iii) The actor is in a position of authority over the17victim and the actor used this authority to coerce the victim to18submit.19 (B)(c)Sexual contact occurs under circumstances involv- 20 ing the commission of any other felony. 21 (C)(d)The actor is aided or abetted by 1 or more other 22 persons and either of the following circumstances exists: 23 (i) The actor knows or has reason to know that the victim is 24 mentally incapable, mentally incapacitated, or physically 25 helpless. 26 (ii) The actor uses force or coercion to accomplish the 27 sexual contact. Force or coercion includes but is not limited to 01288'99 5 1 any of the circumstances listed insections 520b(1)(f)(i)2 SECTION 520B(1)(E)(i) to (v). 3 (D)(e)The actor is armed with a weapon, or any article 4 used or fashioned in a manner to lead a person to reasonably 5 believe it to be a weapon. 6 (E)(f)The actor causes personal injury to the victim and 7 force or coercion is used to accomplish the sexual contact. 8 Force or coercion includes but is not limited to any of the cir- 9 cumstances listed in section520b(1)(f)(i)520B(1)(E)(i) to 10 (v). 11 (F)(g)The actor causes personal injury to the victim and 12 the actor knows or has reason to know that the victim is mentally 13 incapable, mentally incapacitated, or physically helpless. 14 (G)(h)That other person is mentally incapable, mentally 15 disabled, mentally incapacitated, or physically helpless, and any 16 of the following: 17 (i) The actor is related to the victim by blood or affinity 18 to the fourth degree. 19 (ii) The actor is in a position of authority over the victim 20 and used this authority to coerce the victim to submit. 21 (2) Criminal sexual conduct in the second degree is a felony 22 punishable by imprisonment for not more than 15 years. 23 Sec. 520d. (1) A person is guilty of criminal sexual con- 24 duct in the third degree if the person engages in sexual penetra- 25 tion with another person and if any of the following circum- 26 stances exist: 01288'99 6 1(a) That other person is at least 13 years of age and under216 years of age.3 (A)(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 section520b(1)(f)(i)6 520B(1)(E)(i) to (v). 7 (B)(c)The actor knows or has reason to know that the 8 victim is mentally incapable, mentally incapacitated, or physi- 9 cally helpless. 10 (C)(d)That other person is related to the actor by blood 11 or affinity to the third degree and the sexual penetration occurs 12 under circumstances not otherwise prohibited by this chapter. It 13 is an affirmative defense to a prosecution under this subdivision 14 that the other person was in a position of authority over the 15 defendant and used this authority to coerce the defendant to vio- 16 late this subdivision. The defendant has the burden of proving 17 this defense by a preponderance of the evidence. This subdivi- 18 sion does not apply if both persons are lawfully married to each 19 other at the time of the alleged violation. 20 (2) Criminal sexual conduct in the third degree is a felony 21 punishable by imprisonment for not more than 15 years. 22 Sec. 520e. (1) A person is guilty of criminal sexual con- 23 duct in the fourth degree if he or she engages in sexual contact 24 with another person and if any of the following circumstances 25 exist: 01288'99 7 1(a) That other person is at least 13 years of age and under216 years of age, and the actor is 5 or more years older than that3other person.4 (A)(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 believes that the actor has the present ability to execute these 12 threats. 13 (iii) When the actor coerces the victim to submit by threat- 14 ening to retaliate in the future against the victim, or any other 15 person, and the victim believes that the actor has the ability to 16 execute this threat. As used in this subdivision, "to retaliate" 17 includes threats of physical punishment, kidnapping, or 18 extortion. 19 (iv) When the actor engages in the medical treatment or 20 examination of the victim in a manner or for purposes which are 21 medically recognized as unethical or unacceptable. 22 (v) When the actor achieves the sexual contact through con- 23 cealment or by the element of surprise. 24 (B)(c)The actor knows or has reason to know that the 25 victim is mentally incapable, mentally incapacitated, or physi- 26 cally helpless. 01288'99 8 1 (C)(d)That other person is under the jurisdiction of the 2 department of corrections and the actor is an employee or a 3 contractual employee of, or a volunteer with, the department of 4 corrections who knows that the other person is under the juris- 5 diction of the department of corrections. 6 (D)(e)That other person is a prisoner or probationer 7 under the jurisdiction of a county for purposes of imprisonment 8 or a work program or other probationary program and the actor is 9 an 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 (E)(f)The actor knows or has reason to know that the 13juvenileFAMILY division ofthe probateCIRCUIT court,OR 14 the circuit court, or the recorder's court of the city of15Detroithas detained the victim in a facility while the victim 16 is awaiting a trial or hearing, or committed the victim to a 17 facility as a result of the victim having been found responsible 18 for committing an act that would be a crime if committed by an 19 adult, and the actor is an employee or contractual employee of, 20 or a volunteer with, the facility in which the victim is detained 21 or to which the victim was committed. 22 (F)(g)That other person is related to the actor by blood 23 or affinity to the third degree and the sexual contact 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 01288'99 9 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. 01288'99 Final page. TVD