Age of Consent in Michigan: What the Statutes Say

Michigan's age of consent is generally described as 16, but no Michigan statute says so in those words. The criminal sexual conduct (CSC) sections never use the phrase "age of consent"; they define offenses by the age of the other person (the person the statutes call the victim), with lines at 13 and 16, and at 18 for students and school staff.^[1] The benchbook used by Michigan judges, citing two Michigan Supreme Court decisions, states the rule this way: a person under 16 is legally incapable of consenting to a sexual act.^[2]

If you or a young person you know is in immediate danger, call 911.^[7] The National Sexual Assault Hotline is free, confidential and open 24/7 at 800-656-HOPE (4673).^[8] Michigan's VOICES4 hotline takes calls and texts at 855-864-2374.^[9]

This page explains where each age line comes from and what it means legally. It is a description of what the statutes make a crime, not a guide to what is permitted, and it is not legal advice: turning 16 does not take a person outside the CSC statutes, and several other laws use different ages.

Where does the number 16 come from?

The CSC Act makes sexual penetration or sexual contact a crime in listed circumstances, and several of those circumstances are stated as ages: "under 13 years of age" and "at least 13 but less than 16 years of age."^[1] The benchbook, citing the Michigan Supreme Court's decisions in People v Starks and People v Cash, states that consent is inapplicable to all CSC offenses involving a person under 16.^[2] In the Supreme Court's words, a person below the age of consent is conclusively presumed to be legally incapable of giving consent.^[10]

The line is an old one. The benchbook's history of Michigan law records that by 1897 the age of consent had been established at 16.^[11]

The age lines in the CSC sections

"Sexual penetration" and "sexual contact" are defined terms; first- and third-degree CSC involve penetration, and second- and fourth-degree CSC involve contact.^[12] The table shows how the statutes treat each age group. Apart from the position-of-authority provision, which requires that the authority was used to coerce, none of the provisions in the table lists force, coercion or lack of agreement as an element.^{[13][14][6][15]}

Age of the other person	What the CSC sections provide
Under 13	Sexual penetration is first-degree CSC and sexual contact is second-degree CSC. No further circumstance is required.[16][17]
At least 13 but under 16	Sexual penetration is third-degree CSC on proof of age alone, with no minimum age for the accused and no age-gap requirement.[18] It is first-degree CSC if one of six listed circumstances exists: the actor is a member of the same household; is related by blood or affinity to the fourth degree; is in a position of authority and used it to coerce; is a teacher, substitute teacher or administrator of the person's school or district; is other school staff, a non-student volunteer or an assigned government employee who used that status to gain access to or establish a relationship with the person; or is staff or the licensed operator of a child care organization or foster home where the person is a resident, during the residency.[13][19][20]
At least 13 but under 16	Sexual contact is fourth-degree CSC, on age alone, if the actor is 5 or more years older.[6] It is second-degree CSC if one of the same listed relationships exists.[21][22]
At least 16 but under 18, and a student	Sexual penetration is third-degree CSC and sexual contact is fourth-degree CSC where the actor is a teacher, substitute teacher or administrator of the student's school or district, unless the student is emancipated.[15][23] The same applies to other school employees, contractual service providers, non-student volunteers and assigned government employees who use that status to gain access to, or establish a relationship with, the student.[24][25]
At least 16 but under 26, and receiving special education services	Penetration is third-degree CSC and contact is fourth-degree CSC where the actor is a teacher, substitute teacher, administrator, employee or contractual service provider of the school or district providing the services, unless both persons are at least 18 and were lawfully married to each other at the time.[26][27] Non-student volunteers and assigned government employees are covered when they use that status to gain access to, or establish a relationship with, the person.[28][27]
At least 16, and a resident of a child care organization or foster home	Penetration is third-degree CSC and contact is fourth-degree CSC where the actor is an employee, contractual service provider or volunteer of the organization, or the licensed operator of the foster home, and the act occurs during the residency.[29][30]

Each age-based provision, with its maximum sentence, is set out in "statutory rape" in Michigan: age-based CSC charges.

Why 16 is not the whole answer

Three groups of rules apply above 16.

Relationship-based provisions. As the table shows, the statutes set the line at 18 for students and school staff, below 26 for special education students and the staff of the school serving them, and at no stated upper age for residents of child care organizations and foster homes.^[3][29] Other provisions state no age at all: the provisions on sexual penetration or contact between persons related by blood or affinity to the third degree, and the provision on sexual contact by a mental health professional with a client or patient during the professional relationship or within 2 years after it.^[31][32][33] These are explained in positions of authority and CSC and teacher and school-employee offenses.

Provisions that do not depend on age. Third-degree CSC also covers penetration accomplished by force or coercion, and penetration of a person the actor knows or has reason to know is mentally incapable, mentally incapacitated or physically helpless.^[14] Those provisions apply to people of every age. See consent under Michigan CSC law.

Other statutes with other ages. The child sexually abusive material statute defines a child as a person less than 18 years of age.^[34] In a 2019 order the Michigan Supreme Court acknowledged a "reasonable argument" that one subsection of that statute, as written, elevates the age of consent in Michigan from 16 to 18, and said the Legislature "may, or may not, wish to" clarify the scheme.^[35] That statute is covered in child sexually abusive material laws and teen sexting and the law. A separate felony covers accosting, enticing or soliciting a child less than 16 for listed purposes.^[36]

Mistake of age is not a defense

Michigan does not recognize a reasonable-mistake-of-age defense. In People v Cash the defendant was convicted of third-degree CSC for intercourse with a 15-year-old who had told him she was 17.^[4] The benchbook used by Michigan judges traces the rule to a 1922 Michigan Supreme Court decision and describes the CSC Act's age offenses as strict liability crimes.^[37] The topic has its own page: mistake of age is not a defense.

There is no close-in-age defense to the charge

The CSC statutes contain no "Romeo and Juliet" defense. The Court of Appeals has said that if the Legislature had intended courts to consider the age difference between the two people, it could have included that consideration in the statutes.^[5]

The one place an age gap appears as an element is fourth-degree CSC: sexual contact with a person aged 13 to 15 is a crime under that provision only if the actor is 5 or more years older.^[6] No comparable rule applies to sexual penetration. Penetration with a person aged 13 to 15 is third-degree CSC whatever the ages of the two people.^[5][18]

The Court of Appeals has applied that rule to minors: the third-degree statute, in the court's words, "does not exclude any class of offenders on the basis of age."^[38] How such cases proceed is covered in when the accused is a juvenile.

Close-in-age relief exists on the registry side only. Under the Sex Offenders Registration Act, a first- or third-degree CSC conviction is not a Tier III offense if the court determines that the victim consented to the conduct, was at least 13 but less than 16, and the individual is not more than 4 years older than the victim.^[39] A court must also grant a petition to end registration on the same showing, and the Court of Appeals has held that a person even one day past the 4-year limit is ineligible.^[40][41] See Michigan's "Romeo and Juliet" provisions.

How age is counted

Michigan uses the birthday rule: a person attains a given age on the anniversary date of his or her birth.^[42] A person is therefore "under 16" until the sixteenth birthday itself.

Marriage and emancipation

The under-16 provisions contain no marriage exception. A person may be charged and convicted under the CSC sections even though the victim is his or her legal spouse; the only limit is that a person may not be charged or convicted solely because the spouse is mentally incapable.^[43] Words that had barred a charge based solely on a spouse being under the age of 16 were removed by 2023 PA 126, effective September 27, 2023.^[44]

The same act removed the marriage exception from the teacher provisions for students aged 16 and 17; the remaining exception is for a student who is emancipated at the time.^[45] For special education students the exception now applies only if both persons are at least 18 and were lawfully married to each other at the time.^[26]

Ages also affect the sentence

The ages of both people can change the penalty as well as the charge. First-degree CSC committed by a person 17 or older against a person under 13 carries a mandatory minimum of 25 years.^[46] For second-degree CSC, lifetime electronic monitoring is mandatory where the contact was committed by a person 17 or older against a person under 13.^[47] See the CSC penalties chart.

What people get wrong

"The age of consent is 16, full stop." Sixteen is the line below which consent has no legal effect. Above it, the school, special education, child care, family and professional provisions still apply.^{[2][3][31][33]}

"If we are close in age, it is not a crime." For sexual penetration with a person aged 13 to 15, the ages of the two people do not matter to the charge.^[5]

"I was told a different age." The actual age governs.^[4]