Criminal Sexual Conduct 1st and 3rd Degree

riminal Sexual Conduct (CSC) in the 1st and 3rd Degree are felonies that require some form of penetration by the accused to the victim. The penetration requires some object be placed in the genital or anal opening of the victim. The object can be a part of the accused body or some foreign object. Criminal Sexual Conduct in the 1st Degree is a felony that can result in life imprisonment. Criminal Sexual Conduct in the 3rd Degree is punishable by a maximum 15 years in prison. The difference between the two are the “aggravating circumstances” present.

If a defendant has put a part of his or her body into the body of another, and one or more of the following is present, then the charge is CSC 1st Degree:
(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 school, nonpublic school, school district, or intermediate school district in which that other person is enrolled.
(v) The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student 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.
(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 physicallyhelpless.
(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).
(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 that 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.
If the defendant has put a part of his or her body into the body of another, and one or more of the following:
(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 school or nonpublic school, and either of the following applies:
(i) The actor is a teacher, substitute teacher, or administrator of that public school, nonpublic school, school district, or intermediate school district. This subparagraph 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.
(ii) The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student 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.
(f) That other person is at least 16 years old but less than 26 years of age and is receiving special education services, and either of the following applies:
(i) The actor is a teacher, substitute teacher, administrator, employee, or contractual service provider of the public school, nonpublic school, school district, or intermediate school district from which that other person receives the special education services. This subparagraph does not apply if both persons are lawfully married to each other at the time of the alleged violation.
(ii) The actor is a volunteer who is not a student 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.

As you can see, most of these charges are related to sex with persons under 16 years old. Be careful and make sure you admit nothing if someone accuses you of one of these charges.

Get the Facts

I often see these high profile cases in the media about a person accused of some crime. It frustrates me how both the media and the public immediately assume that a person is guilty just because they have been arrested and accused of something. We have a Constitution that requires a person be presumed innocent. Sadly, most people nowadays presume a person is a guilty until proven innocence.

This is troubling for two reasons. First, a person can rarely prove he is innocent. Unless there is a good alibi defense or some other affirmative defense, often it comes down to one person’s word against another. If a defendant tries to prove he is innocent, he is then taking on a burden of proof in the eyes of many jurors. The trial then becomes a credibility war; which few defendants can win. Many people charged with crimes are below average intelligence, scared to death, and are not able to articulate their case well enough to convince a skeptical jury.

The second reason is that is makes jurors ineffective at doing their job. The whole concept of an unbiased jury that will decide based on the evidence goes out the window if people are pre-disposed to assume some one is guilty. The whole point of a trial is to ascertain the facts. A person whose mind if half made up can’t do that. If the emotional pull of the charge, (criminal sexual conduct with a miner, murder, robbery etc) already puts a person in state of skepticism towards the defendant the case is already lost.

People don’t understand or appreciate how many people are in prison based on false accusations and juries that believed the lies in spite of the evidence. It is important that we all keep an open mind and remember that the government may someday come after you or a loved one. The Constitution will no longer seem like a worthless piece of paper at that point.

Brief Overview of Constitutional Rights

This will be a short thought on our Constitution and our Bill of Rights. Four of the first 10 Amendments to the Constitution deal exclusively with the rights of the criminally accused. Our Founding Fathers put alot of thought into the power of the state versus the power of the accused in a criminal matter. They understood that an average person could never match the resources of the government when it came to presenting a case. They also understood that a person cannot really prove he is innocent except in rare cases. For these reasons, they gave each of us some very basic protections that need to be strictly enforced. These include:

The right to not testify or make a statement or testify.
The right to an attorney (that the state needs to pay for it for the poor is not in the Constitution but came later via the Warren Court).
The right to a trial of a jury of one’s peers. This is important. These are our fellow citizens the state is going after.
Protection from unreasonable searches and seizures. Without this, the police can just bust down your door and plant evidence at their whim.
Cruel and unusual punishment. I would argue the death penalty and Driver Responsibility fees fall under this category as doe any “three strikes” law).

There are others but these form the foundation. Along with the state’s burden on proving the case beyond a reasonable doubt, these are our basic protections against unfounded accusations. It doesn’t matter if someone is guilty but rather that the state can meet its burden of proof.

I will right another blog on how I think Conservative jurors need to go back to high school to re learn these things.

It can be wise to fight

The majority of people charged with a crime end up taking a plea deal. That means that the prosecutor offers them an opportunity to plea down to a lesser charge or a lesser penalty if they plea guilty and avoid a trial. This can make a lot of sense for some people.

If you are a first time offender and can get a deferred sentence or a diversionary program where you have no permanent record, this can be an enticing offer. If you are not a first time offender but are facing your first felony charge, an opportunity to plea down to a misdemeanor can be a good thing; particularly if you are concerned about getting a job as a convicted felon. Sometimes just staying out of jail is enough to make this worthwhile. Even an innocent person will sometimes take a plea deal to avoid the risk of a lengthy prison sentence if he were to lose at trial.

On the other hand, there are times where people should think long and hard about the consequences of just “pleading out.” For example, if the state’s case isn’t very strong, you may very well get a jury to return a not guilty verdict. It can and does happen. Also, occasionally the prosecutor will make a better offer nearer a trial or may even dismiss the case outright. Having the stomach to hang in there is difficult but can be worth it.

Also, because Michigan tends to punish repeat offenders more severely, avoiding any kind of a record can be to one’s long-term advantage. No one thinks that she will get in trouble again, but if she does, having a clean slate the second time around can be a large bargaining chip. Michigan has a number or crimes that become an automatic felony the third time through. Domestic violence, retail fraud, and drunk driving are three common ones.

Those long ago guilty pleas can come back to bite you later on. Think long and hard about the merits of the state’s case before accepting any plea offer.

Ryan Maesen

Consecutive Sentencing Part I

There is some confusion out there regarding the difference between consecutive sentencing and concurrent sentencing. This issue comes up most frequently arises when a person:

  • pleads guilty or is convicted of multiple felonies
  • commits a felony while on probation or parole
  • commits a new crime while on bond or while incarcerated

Consecutive sentencing is when a person must complete one prison or jail sentence before beginning to serve time on the next one. For example, if someone is serving a 3 year sentence for and then gets a convicted of something else, the sentence on the new crime would not begin until the 3 years is up. This obviously can add a lot of time to one’s time in prison. That is why most defendants prefer concurrent sentences.

Concurrent sentences allow a person to serve multiple sentences at the same time, getting credit for all of them at once. Fortunately, this is the norm in Michigan. However, there are certain instances when consecutive sentencing does occur.

The first is when the legislature makes it mandatory as part of a statute and the second is when the judge has discretion to sentence a defendant consecutively. Not surprisingly, the legislature has been steadily adding provisions whereby consecutive sentencing is becoming more common.

The next part of this blog will discuss mandatory consecutive sentencing. That blog will be followed by one discussing discretionary consecutive sentencing.

Sentencing Guidelines – An Overview

A person charged with a felony is going to hear their attorney talk about “sentencing guidelines” and because this often creates a lot of fear and confusion, I thought it would be helpful to offer a brief overview on what exactly sentencing guidelines are and how sentencing works in Michigan.

The first thing to understand is that the number your attorney (or judge, prosecutor, or probation officer) uses when describing sentencing guidelines refers to the range of months that judge must sentence you to for the minimum portion of your sentence. The maximum is set by the statute and your attorney doesn’t have much say at all what happens on the back end of a sentence. A defendant is at the mercy of the Department of Corrections and the parole board. However, most inmates are paroled as soon they are eligible to it is important to work hard to get the minimum number (the sentencing guidelines range) down to the lowest amount possible.

For example, if a particular person’s sentencing guidelines are 51-80 months and the person is convicted of a 15 year felony, the maximum sentence is 15 years and the minimum part will be between 51-80 months. The judge has the discretion to sentence the defendant to some term between 51-80 months before the defendant is eligible for parole. So the final sentence may be 60 months to 180 months or 5-15 years.

People often get confused when they hear their attorney say the guidelines are 10-23 months on a ten year felony and think that the person will be out in 23 months at the latest. That is NOT the case. The 23 months is the maximum for the minimum portion of the sentence. The judge could set the minimum as low as 10 months or as high as 23 but it will be a set number within that range.

Some crimes have mandatory minimum terms and some require life in prison. There is another tricky category that sets the penalty at “life of any term of years.” In those cases, the judge can set the maximum wherever she feels fit; often a chilling proposition. In many cases, however, there is a plea agreement to a lesser charge that removes this possibility. I have also had clients that are convicted of a crime that has “life or any term of years” get a maximum sentence of only 5 years, so it isn’t necessarily a “death sentence.”

In a future blog, I will discuss the factors that go into determining a person’s sentencing guideline range.

It can pay to fight

The majority of people charged with a crime end up taking a plea deal. That means that the prosecutor offers them an opportunity to plea down to a lesser charge or a lesser penalty if they plea guilty and avoid a trial. This can make a lot of sense for some people.

If you are a first time offender and can get a deferred sentence or a diversionary program where you have no permanent record, this can be an enticing offer. If you are not a first time offender but are facing your first felony charge, an opportunity to plea down to a misdemeanor can be a good thing; particularly if you are concerned about getting a job as a convicted felon. Sometimes just staying out of jail is enough to make this worthwhile. Even an innocent person will sometimes take a plea deal to avoid the risk of a lengthy prison sentence if he were to lose at trial.

On the other hand, there are times where people should think long and hard about the consequences of just “pleading out.” For example, if the state’s case isn’t very strong, you may very well get a jury to return a not guilty verdict. It can and does happen. Also, occasionally the prosecutor will make a better offer nearer a trial or may even dismiss the case outright. Having the stomach to hang in there is difficult but can be worth it.

Also, because Michigan tends to punish repeat offenders more severely, avoiding any kind of a record can be to one’s long-term advantage. No one thinks that she will get in trouble again, but if she does, having a clean slate the second time around can be a large bargaining chip. Michigan has a number or crimes that become an automatic felony the third time through. Domestic violence, retail fraud, and drunk driving are three common ones.

Those long ago guilty pleas can come back to bite you later on. Think long and hard about the merits of the state’s case before accepting any plea offer.

Voluntary Dismissals

Lately, a large percentage of prospective criminal clients have been calling in and asking if we can get their case dismissed. They seem dismayed when I tell them the truth which is: “maybe, but don’t count on it.”

I am not sure why many defendants are suddenly thinking that the prosecutor’s office will just walk away from a case. Perhaps they feel that the prosecutor will “see the light” and just give up. While that does occasionally happen, it is fairly rare. And when it does happen, it usually happens right before the trial begins, as in the day before or the day of.

Even if the facts are weak, many prosecutors will hold out and see if the defendant pleads guilty to something. Many people cave into the pressure and just want to get it over with. The best bet if you are innocent is prepare a vigorous defense and send the message that you are not going down without a fight. Then, and only then, they may decide to save themselves the trouble and their office the money and voluntarily dismiss the case.

But then again, don’t count on it.

Ryan Maesen
Grand Rapids Criminal Attorney