Criminal Sexual Conduct - Can My Charges Be Increased to First Degree?

Criminal Sexual Conduct charges under Michigan law are confusing to say the least. The basic Michigan Criminal Sexual Conduct (CSC) charges are broken-down into four degrees of CSC, each of which contains multiple variables, meaning multiple facts that can justify a particular degree of CSC. The penalties for CSC in Michigan range from probation eligible cases all the way up to LIFE in Prison, even with a 25 year mandatory minimum in the case of First Degree CSC on a minor under age 13 by someone over age 17, as well as lifetime electronic monitoring (tether) and Sex Offender Registration.

If you are facing Michigan Criminal Sexual Conduct charges, you should make an effort to learn as much as you can because in this predicament, knowledge is power. The problem is, there is such a wealth of bad and inaccurate information out there in the public and on the internet, and part of our goal here at Prain Law is to clear up all of the confusion regarding Sex Crimes in Michigan. If you're making an effort to learn all you can about CSC charges, you've probably heard about CSC charges being increased to a higher degree even after a person is charged and after they've already been to Court. Here, you will learn the facts about when and how your charges could be increased, and what happens next.

Let's deal with the most basic question first: Can my Criminal Sexual Conduct charges be increased to a higher degree even when I've already been charged and been to Court? The simple answer is, "Yes, possibly." The document used to charge a person with a felony is called the Complaint (in District Court) or the Information (once the case is in Circuit Court). The Court Rule that says that your Sexual Assault charges can be amended is Michigan Court Rule 6.112(H):

"Amendment of Information or Notice of Intent to Seek Enhanced Sentence. The court before, during, or after trial MAY permit the prosecutor to amend the information or the notice of intent to seek enhanced sentence unless the proposed amendment would unfairly surprise or prejudice the defendant. On motion, the court must strike unnecessary allegations from the information."

When you hear people say "They can't up your charges after you go to Court," you can send them the link to this article. They're wrong. There are many ways that this can happen in a Criminal Sexual Conduct case, but for this article, let's look at two simple examples of how and when this could occur. These are the most common scenarios:

  1. Defendant is charged with Criminal Sexual Conduct Third Degree, which means they are accused of some form of unlawful "sexual penetration" and are facing up to 15 years in Prison. At the conclusion of the Preliminary Examination testimony, the Prosecution asks the Judge to increase the charge to Criminal Sexual Conduct First Degree, based on some alleged, additional fact or "multiple variable" that increases the severity of circumstances around the sexual penetration. If the Judge agrees, as the case goes forward to Circuit Court, the accused now faces up to LIFE in Prison, possible mandatory 25 year minimum, lifetime Sex Offender Registration, and mandatory lifetime tether.
  2. Defendant is charged with Criminal Sexual Conduct Fourth Degree, which means they are accused of some form of unlawful "sexual contact" and are facing up to 2 years in Prison. Defendant waives his Preliminary Exam, the case goes to Circuit Court, and a trial date is set. Thirty days before trial, the Prosecution files a "Motion to Amend the Information," seeking to add an additional charge (or "Count") of Criminal Sexual Conduct, Second Degree, based on some new claim of an additional sexual touching. If the Judge allows it and the Motion is granted, the accused now faces not just up to 2 years in Prison for the original Fourth Degree CSC charge, but also up to 15 years in Prison and potentially much more severe Sex Offender Registration consequences and even possible mandatory lifetime tether on the new Second Degree CSC charge. With the stakes being much higher, the accused must re-evaluate his decision to go to trial versus taking a plea deal.

These are only two out of many different possibilities. Amendments to the charges are allowed at any time. Notice that both of these scenarios involve the accused now facing massively different consequences, yet they occur at different times in the case - the first scenario happens early on in District Court, and the second occurs near the end of the case in Circuit Court. The first scenario involved the original charge simply being increased to a higher degree. The second scenario involved keeping the original charge and adding another one.

Your Criminal Sexual Conduct Defense Lawyer must scrutinize the facts of your case so they can inform you whether or not such an increase is possible in your CSC case, and if so, at what stage. You must have a full knowledge of how this affects every decision made in your defense. There are often many competing interests.

It may seem like you're left blowing in the wind, always subject to a harsher penalty at every twist and turn. However, notice that the Rule says the charges CANNOT be changed if "the proposed amendment would unfairly surprise or prejudice the defendant." The Michigan Court of Appeals reaffirmed that this is the rule in a 2003 ruling called People v. McGee. This opens up a lot of argument against increased charges by a good CSC Defense Attorney. Just because the Prosecution asks to increase your CSC charges to a higher degree or add additional charges does not mean they will always be allowed to. At Prain Law, PLLC, we have successfully defeated Prosecutors' attempts to increase CSC charges that our clients are facing.

Here are a few other factors to consider when it comes to the issue of increasing Criminal Sexual Conduct charges to a higher degree or adding CSC charges under Michigan law:

  • If the Prosecution successfully adds additional CSC charges, you are entitled to a remand to District Court for another Preliminary Examination if the new charges have elements (necessary facts) that are different from the original charges and if they are added after you are arraigned in Circuit Court (this would be scenario number 2, above). The Michigan Court of Appeals said this in 1983 in the case of People v. Price.
  • However, in the above scenario, you would not be entitled to go back for Preliminary Exam on an added CSC charge if the testimony at the original Preliminary Exam would support the new charge to the point where your CSC Defense lawyer would not have changed the questioning, and the Prosecutor suggested additional questioning. The Michigan Supreme Court said this in 1993 in the case of People v. Hunt.
  • If you waived your original Preliminary Examination, there is no absolute right to a Preliminary Examination on a new (added) Criminal Sexual Conduct charge unless the new charge would cause you unfair surprise or prejudice in your defense. The Court of Appeals said this in People v. McGee.
  • After you've been bound over to Circuit Court, if the Prosecution dismisses and then re-charges a CSC count, you only have a right to go back to District Court for Preliminary Exam on the new count if you argue that there is insufficient evidence to support the new charge. This may require your Defense Attorney to file a special Motion.
If you or someone you know is facing a Michigan CSC charge, contact PrainLaw, PLLC anytime at (248) 731-4543.
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