Third Degree Criminal Sexual Conduct ("CSC 3") is one of the
most serious criminal charges in Michigan. If you or a loved one is accused
of CSC 3, you've likely been researching the
Michigan CSC 3 law, MCL 750.520d. But just reading that statute alone may leave you with many questions.
The purpose of this page is to answer the question "What is First Degree Criminal Sexual Conduct?" This page is the next in our series designed to eliminate confusion about CSC crimes. We're going to answer that question here in simple terms, and you won't find the law just copied and pasted here. This explanation is common-sense. As with any Criminal Sexual Conduct topic, the use of graphic terms may be necessary to fully explain.
PLEASE NOTE: this page does not discuss the Sentence, Sex Offender Registration, and other topics related to CSC 3. If you are seeking more information about those topics, please clickhere to visit Prain Law, PLLC's main page for Third Degree Criminal Sexual Conduct.
To begin with, CSC 3 always contains an act of "sexual penetration," and it includes (but is not limited to) what is often referred to as common-law "rape." Moreover, "Sexual penetration" is more than just sexual intercourse between a man and woman. Sexual penetration is:
- putting any part of your body or some other object into another person's genital or anal opening;
- putting one's penis into another person's mouth;
- touching of another person's genital organs or genital opening with the mouth or tongue (yes, Michigan law says that's "penetration")
*You should be aware that other alleged acts of "sexual contact" (not including actual penetration) are known as either Second Degree Criminal Sexual Conduct or Fourth Degree Criminal Sexual Conduct. If you are a critical thinker, you're probably wondering why these things, called "sexual penetration," that are perfectly legal between consenting adults, can send someone to Prison for up to 15 years. It is true that these acts, between consenting adults are not crimes. But when combined with other circumstances, sexual penetration can become Third Degree Criminal Sexual Conduct.
Each of these circumstances generally haveto do with several topics:
- The alleged victim's age
- The alleged use of "force or coercion" to accomplish sexual penetration
- The alleged victim being in a disabled or helpless state
- The alleged victim and suspect being related
- The alleged victim being a student age 16 to 18
- The alleged victim being age 16 to 26 and receiving special education services
- Situations involving an alleged victim living in a foster home or group home.
You may have heard of these seven things as the Third Degree Criminal Sexual Conduct "multiple variables" under MCL 750.520d.
1) Age: An act that meets the definition of "sexual penetration" by one person, regardless of other circumstances that may exist, on another person who is at least 13 years old but less than 16 years old is Third Degree Criminal Sexual Conduct in Michigan.
That being said, it is important to understand something else: we often hear the question "What is the age of consent for sex in Michigan?" The common answer is "16," and the Michigan 3rd Degree CSC law, MCL 750.520d, is the source of this, because sex with any person under 16 is CSC 3.
But the more correct answer to that question is "It depends," because as you will see below, there are certain circumstances where even having sex with a person over 16 can be a crime. Also note that if the alleged victim is under age 13, the charge is First Degree Criminal Sexual Conduct, MCL 750.520b.
2) Force or Coercion: If an act of sexual penetration (of course, as defined above under Michigan law) is done by using force or coercion, the actor is guilty of Third Degree Criminal Sexual Conduct. Sexual intercourse by force or coercion is what we often hear referred to as "common-law rape."
But interestingly, you won't even see the word "rape" in the Michigan Criminal Sexual Conduct (CSC) laws. That is because what we refer to as "rape" is now but one small member of a larger category of criminal behavior.
Under Michigan law, "force or coercion" includes the following things:
- When the actor overcomes the victim through the actual application of physical force or physical violence.
- 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.
- 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.
- When the actor engages in the medical treatment or examination of the victim in a manner or for purposes that are medically recognized as unethical or unacceptable.
- When the actor, through concealment or by the element of surprise, is able to overcome the victim.
3) Disabled or Helpless State: Whenever there is an act of sexual penetration where the alleged victim is "mentally incapable, mentally incapacitated, or physically helpless. "Mentally incapable" means the alleged victim was suffering from a mental disease or defect that made him or her incapable of appraising either the physical or moral nature of his or her conduct.
"Mentally incapacitated" means they were unable to understand or control what they were doing because of drugs or alcohol, or because of something done to them without their consent. Finally, "physically helpless" means that the alleged victim was unconscious, asleep, or physically unable to communicate that he or she did not want to take part in the alleged act.
As you can see, the possibilities here are almost endless, but the Prosecution must prove that the accused "knew or should have known" the alleged victim was in such a condition. This is also a good time to point out that the Michigan CSC 3 law does not make a distinction based on gender; any act of "sexual penetration" that meets these definitions is 3rd Degree CSC. It is important to know that if these circumstances exist and an injury is allegedly caused, the charge will likely be CSC 1.
4) Alleged Victim and Suspect Being Related: The fourth category of circumstances that makes an otherwise lawful act of sexual penetration Third Degree Criminal Sexual Conduct is where the alleged victim and suspect are related by blood or affinity "to the third degree." This includes: parents and children, brothers and sisters, grandparents and grandchildren, and aunts/uncles and nieces/nephews.
The fact that sexual penetration occurs between people related in that way alone is enough, without any other facts. It could be totally consensual, but it is still a crime under the Michigan CSC laws. Thus, CSC 3 includes what is often referred to as "incest."
There are 2 exceptions to this law: where the two people are married and where the alleged victim is in a position of authority over the accused and used that authority to coerce the accused into the sexual act. As for the second one, it is the accused's job to prove this by a preponderance of the evidence. Once again, this can be increased to First Degree Criminal Sexual Conduct if the alleged victim is "mentally incapable, mentally disabled, mentally incapacitated, or physically helpless."
5) Alleged Victim as Student, Age 16 - 18: Even though we often hear it said that the "age of consent in Michigan is 16," that doesn't automatically mean that just because a participant in a sexual act is 16, no criminal charges can be filed. When sexual penetration occurs with a student who is at least 16 years of age but less-than 18 years of age, particular attention must be paid to the relationship between the student and the other person.
If that other person works for the school district as an employee or volunteer, either directly or on a subcontracted basis and uses that status to gain access to the student and establish the relationship with that student, they can be charged with Third Degree Criminal Sexual Conduct, even if it was consensual. This includes teachers, administrators, cafeteria employees, custodians, hallway supervisors, supply delivery workers; the list is literally endless. We see this often on the news here in Michigan - even female teachers are being sent to Prison for sex with young male students.
6) Special Education Between Ages 16 - 26: As we referred to earlier, sexual penetration with even those well over age 16 can still land someone in Prison. One such way is where a person who is at least 16 but less than 26 is receiving special education services.
This occurs in two ways:
- Where the accused is a teacher, substitute teacher, administrator, employee, or contractual service provider of the public school district, or intermediate school district that provides the special education services; and
- Where the accused is a volunteer in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
The bottom line is that someone working at a school may land themselves a Third Degree CSC charge if they engage in sexual penetration with a person receiving special education services at that school.
7) Alleged Victim in Foster or Group Home: The final way a person can be guilty of Criminal Sexual Conduct in the Third Degree under MCL 750.520d is sexual penetration during a time when the alleged victim is at least 16 years old and lives in a child care organization, foster home, or group home, and the accused works or volunteers at that child care organization, foster home, or group home (including "licensed").
Note that these facts can also be CSC 1 if the person is under age 16. By this point, you'll realize that many charges of Third Degree Criminal Sexual Conduct can easily become First Degree Criminal Sexual Conduct (a LIFE offense) with just a slight change in facts. That's all the more reason to get the best Michigan Criminal Defense Attorney working for you.
About the author: Criminal Defense attorney Brian J. Prain practices throughout the Metro Detroit area and has been nationally ranked as a Top 10 Criminal Defense Lawyer Under 40 by the NACDA, Top 100 Criminal Defense Attorney, and Top 40 Trial Lawyer Under 40 (Michigan) by The National Trial Lawyers. Brian has attended the famed Gerry Spence Trial Lawyers College in Dubois, Wyoming, and has been featured in both Super Lawyers and Hour Detroit Magazine.