Michigan Penal Code Section 520d (MCL 750.520d): Third-Degree Criminal Sexual Conduct

1. Definition and Elements of the Crime

Third-degree criminal sexual conduct (CSC-III) under MCL 750.520b is the third most serious form of criminal sexual conduct in Michigan (after first- and second-degree). The statute generally applies to sexual penetrations of victims under certain circumstances.

CSC-III contains two elements, both of which the prosecution must prove beyond a reasonable doubt:

1. First, that the defendant engaged in a sexual act that involved one of the following:
   1. Entry into the victim’s genital or anal opening by the defendant’s penis, finger, or other object. Any entry, no matter how slight, is enough. It does not matter whether the sexual act was completed or whether semen was ejaculated.
   2. Entry into the victim’s mouth by the defendant’s penis. Any entry, no matter how slight, is enough. It does not matter whether the sexual act was completed or whether semen was ejaculated.
   3. Touching of the victim’s genital opening with the defendant’s mouth or tongue.
   4. Entry by any part of the defendant’s body or an object into the genital or anal opening of another person’s body. Any entry, no matter how slight, is enough. It does not matter whether the sexual act was completed or whether semen was ejaculated.
2. Second, that the sexual act involved one of the following:
   1. The victim was 13, 14, or 15 years old.
   2. The victim was 16 or 17 years old and the defendant was a teacher or administrator at a school where the victim was enrolled.
   3. The victim was 16 or 17 years old and the defendant was an employee, contractual service provide, or volunteer at a school where the victim was enrolled, and the defendant used his or her status to gain access to or establish a relationship with the victim.
   4. The victim was 16 years old but less than 26 years old and receiving special education services and the defendant was a teacher or administrator at a school where the victim was receiving special education services.
   5. The victim was 16 years old but less than 26 years old and receiving special education services and the defendant was an employee, contractual service provide, or volunteer at a school where the victim was enrolled, and the defendant used his or her status to gain access to or establish a relationship with the victim.
   6. The victim was 16 years old or older and the defendant was an employee, contractual service provide, or volunteer at a child care organization or a person licensed to operate a foster family home in which the victim was a resident.
   7. The defendant used force or coercion to commit the sex act.
   8. The victim was mentally incapable, mentally incapacitated, or physical helpless and the defendant knew or should have known this.
   9. The defendant was related to the victim by blood or marriage to the third degree.

As you can see, a variety of sex acts fall within the ambit of MCL 750.520d.

2. Examples

A 17-year-old boy has consensual sex with his 15-year-old girlfriend.

A man and woman, both adults, meet at a party. They hit it off. Both are drinking. Afterward, the woman goes to the man’s apartment. They have sex. Later, the woman claims that she had been “too drunk to consent.”

3. Related Offenses

Other similar or related offenses include:

1. First-degree criminal sexual conduct, MCL 750.520b
2. Assault with intent to commit sexual penetration, MCL 750.520g

4. Defenses to Third-Degree Criminal Sexual Conduct

Defenses in CSC cases usually take one of two forms: (1) failure to prove the elements or (2) consent.

Consider the example of the 17-year-old and the 15-year-old. Consent would not be a defense because the age of consent in Michigan is 16. The young man might try to argue that the sex never happened and that the accuser is lying. But what if it’s undisputed that the sex occurred? In that case, the young man may be eligible for a deferral under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq. In most cases, if the defendant successfully completes a probationary term, a conviction will not be entered on their record and they will not have to register as a sex offender. In a CSC-III case—where prison time is always on the table—a HYTA deferral is seen as a victory for the defense.

Now take the example of the woman who was “too drunk to consent.” Whether the man is liable for CSC-III will likely turn on whether the woman was “mentally incapacitated” or “physically helpless” under the law. A person is “mentally incapacitated” where she is rendered temporarily incapable of appraising or controlling her conduct due to the influence of a narcotic, anesthetic, or other substance administered to her without her consent, or due to any other act committed upon her without her consent. So in a case where the accuser voluntarily got drunk, she is not “mentally incapacitated” under the law. What about “physically helpless?” That requires her to be unconscious, asleep, or otherwise physically unable to communicate unwillingness to act. So if the accuser was awake, conscious, and able to communicate during sex—even though visibly intoxicated—she wasn’t “physically helpless.” A case like this would usually be defended on the ground that the sex was consensual and “buyer’s remorse” is not sexual assault.

5. Penalties

CSC-III is punishable by up to 15 years in prison. It also requires lifetime registration on the sex offender registry. The one exception to the registry requirement is where (1) the victim was at least 13 years old but less than 16 years old, (2) the sexual conduct was consensual, and (3) the age difference between the defendant the complainant was 4 years or less.

6. Criminal Defense for Third-Degree Criminal Sexual Conduct Cases

Prosecutors take CSC-III charges seriously. Prison time is always a possibility even where the facts aren’t particularly egregious. If you’re under investigation for or have been charged with CSC-III, you need to hire an experienced criminal defense attorney as soon as possible. Grabel & Associates has been in business for more than 20 years and has handled hundreds of CSC cases. Our highly respected attorneys know what it takes to obtain the best result in your case.

For more information about CSC-III and to talk about your case, contact Grabel & Associates at (800) 342-7896.