January 18, 2006, Introduced by Reps. Sheltrown and Sak 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, 520e, 520f, and 520g
(MCL 750.520a, 750.520b, 750.520c, 750.520d, 750.520e, 750.520f,
and 750.520g), sections 520a, 520b, 520c, 520d, and 520e as amended
by 2002 PA 714, and by adding section 520n.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 520a. As used in this chapter:
(a) "Actor" means a person accused of criminal sexual conduct.
(b) "Developmental disability" means an impairment of general
intellectual functioning or adaptive behavior which meets the
following criteria:
(i) It originated before the person became 18 years of age.
(ii) It has continued since its origination or can be expected
to continue indefinitely.
(iii) It constitutes a substantial burden to the impaired
person's ability to perform in society.
(iv) It is attributable to 1 or more of the following:
(A) Mental retardation, cerebral palsy, epilepsy, or autism.
(B) Any other condition of a person found to be closely
related to mental retardation because it produces a similar
impairment or requires treatment and services similar to those
required for a person who is mentally retarded.
(c) "Electronic monitoring" means that term as defined in
section 85 of the corrections code of 1953, 1953 PA 232, MCL
791.285.
(d) (c)
"Intimate parts" includes the primary
genital area,
groin, inner thigh, buttock, or breast of a human being.
(e) (d)
"Mental health professional" means that
term as
defined in section 100b of the mental health code, 1974 PA 258, MCL
330.1100b.
(f) (e)
"Mental illness" means a substantial
disorder of
thought or mood which significantly impairs judgment, behavior,
capacity to recognize reality, or ability to cope with the ordinary
demands of life.
(g) (f)
"Mentally disabled" means that a person
has a mental
illness, is mentally retarded, or has a developmental disability.
(h) (g)
"Mentally incapable" means that a person
suffers
from a mental disease or defect which renders that person
temporarily or permanently incapable of appraising the nature of
his or her conduct.
(i) (h)
"Mentally incapacitated" means that a
person is
rendered temporarily incapable of appraising or controlling his or
her conduct due to the influence of a narcotic, anesthetic, or
other substance administered to that person without his or her
consent, or due to any other act committed upon that person without
his or her consent.
(j) (i)
"Mentally retarded" means significantly
subaverage
general intellectual functioning which originates during the
developmental period and is associated with impairment in adaptive
behavior.
(k) (j)
"Nonpublic school" means that term as
defined in
section 5 of the revised school code, 1976 PA 451, MCL 380.5.
(l) (k)
"Physically helpless" means that a person
is
unconscious, asleep, or for any other reason is physically unable
to communicate unwillingness to an act.
(m) (l) "Personal injury" means bodily injury,
disfigurement,
mental anguish, chronic pain, pregnancy, disease, or loss or
impairment of a sexual or reproductive organ.
(n) (m)
"Public school" means that term as defined
in
section 5 of the revised school code, 1976 PA 451, MCL 380.5.
(o) (n)
"Sexual contact" includes the intentional
touching
of the victim's or actor's intimate parts or the intentional
touching of the clothing covering the immediate area of the
victim's or actor's intimate parts, if that intentional touching
can reasonably be construed as being for the purpose of sexual
arousal or gratification, done for a sexual purpose, or in a sexual
manner for:
(i) Revenge.
(ii) To inflict humiliation.
(iii) Out of anger.
(p) (o)
"Sexual penetration" means sexual
intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion,
however slight, of any part of a person's body or of any object
into the genital or anal openings of another person's body, but
emission of semen is not required.
(q) (p)
"Victim" means the person alleging to have
been
subjected to criminal sexual conduct.
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 years of
age and any of the following:
(i) The actor is a member of the same household as the victim.
(ii) The actor is related to the victim by blood or affinity to
the fourth degree.
(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.
(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:
(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
as follows:
(a) By imprisonment in the state prison for life or for any
term of years.
(b) If the actor is a sexually delinquent person who violates
subsection (1)(a), (b), (d)(ii), (e), (f), or (g), he or she shall
be sentenced to serve a minimum term of imprisonment of not less
than 25 years.
(c) If the victim was not more than 11 years of age at the
time the crime was committed, in addition to any other sentence
imposed, the actor shall be sentenced to lifetime electronic
monitoring as described in section 85 of the corrections code of
1953, 1953 PA 232, MCL 791.285.
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 years of
age and any of the following:
(i) The actor is a member of the same household as the victim.
(ii) The actor is related by blood or affinity to the fourth
degree to the victim.
(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.
(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
as follows:
(a) By imprisonment for not more than 15 years.
(b) If the actor is a sexually delinquent person who violates
subsection (1)(a), (b), (d)(ii), (e), (f), or (g), he or she shall
be sentenced to serve a minimum term of imprisonment of not less
than 25 years.
(c) If the victim was not more than 11 years of age at the
time the crime was committed, in addition to any other sentence
imposed, the actor shall be sentenced to lifetime electronic
monitoring as described in section 85 of the corrections code of
1953, 1953 PA 232, MCL 791.285.
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
years of age.
(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
as follows:
(a) By imprisonment for not more than 15 years.
(b) If the actor is a sexually delinquent person who violates
subsection (1)(a) or (b), he or she shall be sentenced to serve a
minimum term of imprisonment of not less than 25 years.
(c) If the victim was not more than 11 years of age at the
time the crime was committed, in addition to any other sentence
imposed, the actor shall be sentenced to lifetime electronic
monitoring as described in section 85 of the corrections code of
1953, 1953 PA 232, MCL 791.285.
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 years of age, and the actor is 5 or more years older than
that other person.
(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 as
follows:
(a) By imprisonment for not more than 2 years or a fine of not
more than $500.00, or both.
(b) If the actor is a sexually delinquent person who violates
subsection (1)(a) or (b), he or she shall be sentenced to serve a
minimum term of imprisonment of not less than 25 years.
(c) If the victim was not more than 11 years of age at the
time the crime was committed, in addition to any other sentence
imposed, the actor shall be sentenced to lifetime electronic
monitoring as described in section 85 of the corrections code of
1953, 1953 PA 232, MCL 791.285.
Sec.
520f. (1) If Except
as otherwise provided under section
520b, 520c, and 520d, if a person is convicted of a second or
subsequent offense under section 520b, 520c, or 520d, the sentence
imposed under those sections for the second or subsequent offense
shall provide for a mandatory minimum sentence of at least 5 years.
(2) For purposes of this section, an offense is considered a
second or subsequent offense if, prior to conviction of the second
or subsequent offense, the actor has at any time been convicted
under section 520b, 520c, or 520d or under any similar statute of
the United States or any state for a criminal sexual offense
including rape, carnal knowledge, indecent liberties, gross
indecency, or an attempt to commit such an offense.
Sec.
520g. (1) Assault Except as provided in subsection (3),
assault with intent to commit criminal sexual conduct involving
sexual
penetration shall be is a felony punishable by
imprisonment for not more than 10 years.
(2) Assault
Except as provided in
subsection (3), assault
with intent to commit criminal sexual conduct in the second degree
is a felony punishable by imprisonment for not more than 5 years.
(3) If the criminal sexual conduct involved 1 or more of the
characteristics described in section 520b(1)(a), (b), (d)(ii), (e),
(f), or (g), all of the following apply:
(a) The actor shall be sentenced to serve a minimum term of
imprisonment of not less than 25 years.
(b) If the victim was not more than 11 years of age at the
time the crime was committed, in addition to any other sentence
imposed, the actor shall be sentenced to lifetime electronic
monitoring as described in section 85 of the corrections code of
1953, 1953 PA 232, MCL 791.285.
Sec. 520n. (1) A person who has been sentenced under this
chapter to lifetime electronic monitoring as described in section
85 of the corrections code of 1953, 1953 PA 232, MCL 791.285, who
does any of the following is guilty of a felony punishable by
imprisonment for not more than 2 years or a fine of not more than
$2,000.00, or both:
(a) Intentionally removes, defaces, alters, destroys, or fails
to maintain the electronic monitoring device in working order.
(b) Fails to notify the department of corrections that the
electronic monitoring device is damaged.
(c) Fails to reimburse the department of corrections or its
agent for the cost of the monitoring.
(2) This section does not prohibit an individual from being
charged with, convicted of, or punished for any other violation of
law that is committed by that individual while violating this
section.
(3) A term of imprisonment imposed for a violation of this
section may run consecutively to any term of imprisonment imposed
for another violation arising from the same transaction.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 5557(request no.
04642'05 a) of the 93rd Legislature is enacted into law.