Criminal Sexual Conduct - The Defense of Consent

ConsentModern day sex crimes in Michigan are referred to as Criminal Sexual Conduct (called "CSC" for short). In the old days, the only sex crime was called "rape." In the legal sense, "rape" meant sexual intercourse "by force and without consent." This was called "common law rape." Because part of the definition of rape was "without consent," arguing that the alleged victim consented to the sexual intercourse was a defense to the charge. Things are different today... In Michigan's modern Criminal Sexual Conduct laws, you won't see the word "rape" anymore. Still, we are often asked the question "Is consent a defense to Michigan CSC charges?" The answer: Not necessarily, but it might be. It depends on which degree of Criminal Sexual Conduct charge you're facing, and more specifically, which of the "multiple variables" you're charged under within that degree. Generally, consent is a defense to Michigan CSC charges that require "force or coercion." "Force or coercion" are the modern-day equivalent of the "by force and without consent" aspect of a rape charge in the old days. However, lack of consent is not an element that the Prosecution must prove against you in any CSC charge.
RELATED: click here to learn about the definition of "force or coercion" under the Michigan CSC laws.
The main Michigan Criminal Sexual Conduct charges are broken down into four "degrees": First Degree CSC (punishable by LIFE in Prison), Second Degree CSC (punishable by 15 years in Prison), Third Degree CSC (punishable by 15 years in Prison), and Fourth Degree CSC (punishable by 2 years in Prison). Each degree of CSC is separated into "multiple variables," which simply means multiple reasons why a person can be guilty of that degree of CSC.
RELATED: click here for our main page on all Michigan CSC crimes. From there, click on a specific CSC charge to learn everything about it.
If you are facing a CSC charge in Michigan, begin by looking at the document called the Complaint (or "Warrant") or the "Information" (if your case has already been bound-over to Circuit Court). This will tell you what degree of CSC you are facing, as well as a written description of what specific "multiple variables" of that degree you are charged under. From there, you can begin to determine whether the Michigan CSC laws allow you to argue consent as a defense to your particular CSC charge. Contacting an excellent Michigan CSC defense lawyer to see if consent applies to your particular case is a must. However, here are a few examples:
  • Consent isnot a defense if you are charged with First Degree CSC for sexual penetration with a student by a teacher, counselor, administrator, volunteer, or other school employee.
  • Consent may be a defense if you are charged with First Degree CSC for sexual penetration under circumstances involving the commission of any other felony, but only if consent is a defense to the underlying felony.
  • Consent is a defense if you are charged with First Degree CSC for sexual penetration while armed with a weapon.
  • Consent is not a defense if you are charged with Second Degree CSC for sexual contact with a Jail or Prison inmate by an employee, subcontracted employee, vendor, or volunteer of the Department of Corrections or Community Corrections.
  • Consent isnot a defense if you are charged with Third Degree CSC for sexual penetration with a student over the age of 16 by a teacher, counselor, administrator, volunteer, or other school employee. Consent is also not a defense if you are charged with Third Degree CSC for sexual penetration with a Special Education student under age 26 by a teacher, counselor, administrator, volunteers, or other school employee.
  • Consent is not a defense if you are charged with Fourth Degree CSC for sexual contact with a patient by a mental health professional within 2 years after that person is a patient.
  • Consent is not a defense if you are charged with Assault With Intent to Commit Sexual Penetration or Assault With Intent to Commit CSC 2 unless consent would be a defense to the underlying CSC crime you are alleged to have intended to commit.
  • Consent is not a defense to any charge of Gross Indecency.
  • Consent is not a defense to any charge of Accosting, Enticing, or Soliciting a Child for Immoral Purposes.
  • Consent is not a defense to any charge of possessing Child Sexually Abusive Material (Child Pornography Charges).
Let's assume for a moment that your Michigan Criminal Sexual Conduct defense attorney determines that you are able to raise the defense of consent to your CSC charge. If the defense is properly raised, the Judge will read the Jury an instruction which states: "There has been evidence in this case about the defense of consent. A person consents to a sexual act by agreeing to it freely and willingly, without being forced or coerced. It is not necessary to show that [name complainant] resisted the defendant to prove that this crime was committed. Nor is it necessary to show that [the accuser] did anything to lessen the danger to herself. In deciding whether or not [the accuser] consented to the act, you should consider all of the evidence. It may help you to think about the following questions:

(a) Were they free to leave and not take part in the sexual act?

(b) Did the Defendant threaten with present or future injury?

(c) Did the Defendant use force, violence, or coercion?

(d) Did the Defendant display a weapon?

(e) Any other relevant circumstances.

If you find that the evidence raises a reasonable doubt as to whether [name complainant] consented to the act freely and willingly, then you must find the defendant not guilty." But there is one more major piece of the puzzle in raising consent as a defense to a CSC charge in Michigan: not everything you may think of as evidence of "consent" will be accepted by the Court. The Judge will only give the above Jury Instruction on consent if you have shown enough of the right type of evidence of consent to allow "a reasonable jury could conclude that the elements of the defense have been met" - and that question is up to the Judge. However, Michigan's appellate Courts have had to define some of the things that do not constitute consent. That means there are people sitting in Michigan Prisons right now because the lawyer they trusted showed up for their trial arguing "consent" while lacking any real understanding of what type of evidence legally shows consent. Does your lawyer know the law?
At Prain Law, PLLC, we specifically concentrate on defending those accused of crimes involving assault, including sexual assault and CSC crimes. These are some of the most serious criminal charges a person can face, and a conviction almost always means Prison time. Criminal Defense Attorney Brian J. Prain, has been named Top 10 Criminal Defense Lawyer Under 40 by both the NACDA and AIOCLA, Top 10 Trial Lawyer Under 40 by The National Trial Lawyers, Top 100 by The National Trial Lawyers, Premier 100 by the American Academy of Trial Attorneys, and one of the Nation's Top 1% by the National Association of Distinguished Counsel. Brian can be found in Super Lawyers Magazine and Hour Detroit Magazine. Brian's firm, Prain Law, PLLC has been named by the American Institute of Criminal Law Attorneys as one of the "Ten Best Law Firms" for client satisfaction.
If you are facing a Michigan Criminal Sexual Conduct charge, call Prain Law, PLLC anytime at (248) 731-4543.
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