Assault With Intent to Commit Criminal Sexual Conduct in Michigan (MCL 750.520g)

Michigan's Criminal Sexual Conduct Act makes an assault committed with the intent to commit criminal sexual conduct (CSC) a felony in its own right. MCL 750.520g has two tiers: assault with intent to commit CSC involving sexual penetration, punishable by up to 10 years, and assault with intent to commit CSC in the second degree, punishable by up to 5 years.^[1][2]

This page explains the elements of each tier, what "assault" and "intent" mean here, the penalties, and how the offense relates to an attempt.

What does MCL 750.520g say?

The section is two sentences long, one for each offense.^[1][2]

Subsection	Offense	Label	Maximum	Guidelines class
MCL 750.520g(1)	Assault with intent to commit criminal sexual conduct involving sexual penetration	Felony	10 years[1]	Class D crime against a person[6]
MCL 750.520g(2)	Assault with intent to commit criminal sexual conduct in the second degree	Felony	5 years[2]	Class E crime against a person[6]

These are two of the six substantive offenses in the Act.^[7] The completed offenses are covered in the pages on first-degree, second-degree, third-degree and fourth-degree CSC.

Elements of assault with intent to commit sexual penetration

The benchbook that Michigan judges use, citing the Michigan Supreme Court's decision in People v Nickens, gives two elements: the person committed an assault, and the person had the intent to commit criminal sexual conduct involving sexual penetration.^[8]

Two points follow from that short list.

• No aggravating circumstance is needed. The benchbook quotes Nickens: "Nothing in MCL 750.520g(1) requires the existence of an aggravating circumstance or that the assault is made with an improper sexual purpose or intent."^[8]
• No touching or penetration is needed. The model jury instruction tells jurors that an actual touching or penetration is not required, and that the prosecutor must prove that the defendant committed the assault and intended to commit criminal sexual penetration.^[3]

"Sexual penetration" has its statutory meaning: sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body.^[9] See sexual penetration vs. sexual contact.

Elements of assault with intent to commit second-degree CSC

This tier has more elements. The benchbook, citing the Court of Appeals decisions in People v Evans and People v Lasky, lists four:^[4]

1. The person committed an assault.^[4]
2. The assault involved an aggravating circumstance, or the person "intended to do some act which would have given rise to an aggravating circumstance".^[4]
3. There was a "specific intent to touch the victim's genital area, groin, inner thigh, buttock, breast, or clothing covering those areas".^[4]
4. The touching was "for the purpose of sexual arousal or sexual gratification".^[4]

The circumstances listed in the second-degree CSC statute include a person under 13, a weapon, and personal injury together with force or coercion.^[10][11] They are set out in full on the second-degree CSC page.

What counts as an "assault"?

As the benchbook summarizes Nickens, an assault can occur in one of two ways. One is an attempted-battery assault: an attempt to commit a battery, meaning an intentional, unconsented and harmful or offensive touching of the person of another or of something closely connected with the person. The other is an apprehension-type assault: an illegal act that places another person in reasonable apprehension of being immediately battered.^[8]

What does "intent" mean here?

The four degrees of CSC are described by the benchbook as most often general intent crimes. Assault with intent to commit CSC involving sexual penetration is different: it is a specific intent crime.^[12] The second-degree form likewise requires a specific intent to touch.^[4]

Intent is something a jury decides from the evidence as a whole. How that is argued on either side is discussed in defenses to sex-crime charges and intoxication of the accused.

Penalties and other consequences

• Prison. Not more than 10 years under subsection (1) and not more than 5 years under subsection (2).^[1][2] A court may not set a minimum sentence above two-thirds of the statutory maximum.^[13]
• Mandatory minimums. The 5-year minimum in MCL 750.520f applies to a second or subsequent offense under the first-, second- or third-degree statutes; MCL 750.520g is not among the sections it names.^[14] A conviction under MCL 750.520g against a child under 13 is, however, one of the prior convictions that can lead to life without parole on a later first-degree conviction.^[15]
• Fine. The benchbook states that these statutes do not authorize a fine.^[16]
• Probation. The probation statute excludes first- and third-degree CSC; assault with intent to commit CSC is not on the excluded list.^[17] See probation and CSC convictions.
• Jail and parole rules. A person serving a jail sentence under MCL 750.520g cannot be given work or school release privileges, apart from leaving for medical, substance abuse, mental health or psychological treatment.^[18] For a crime committed on or after December 15, 1998, a person imprisoned for the offense comes under the parole board's jurisdiction only after serving a period equal to the minimum sentence the court imposed.^[19]
• Registry. Assault with intent to commit sexual penetration is listed as a Tier III offense, subject to the registry statute's exception for certain consensual conduct with a person aged 13 to 15.^[20] Assault with intent to commit second-degree CSC is Tier I if the victim is 18 or older, Tier II if the victim is 13 to 17, and Tier III if the victim is under 13.^[21][22][20] See registry tiers.

The full comparison with other offenses is in the penalties chart.

How is this different from attempted CSC?

They are separate routes. Assault with intent is a named offense inside the Criminal Sexual Conduct Act with its own penalties.^[1][2] An attempt is not: the CSC statutes have no separate attempt provision, and an attempt to commit a crime is punished under the general attempt statute, MCL 750.92.^[5]

That statute sets its penalties by the seriousness of the offense attempted. Where the offense attempted is punishable by imprisonment for life, or for 5 years or more, the attempt is a felony punishable by imprisonment in the state prison for not more than 5 years or in the county jail for not more than 1 year.^[5] How the attempt statute applies to each CSC degree is a question for the lawyers and the court in a given case; this library does not state it as a settled rule.

The two can overlap in practice, because one kind of assault is itself an attempted battery.^[8] Which charge the prosecuting attorney authorizes is a charging decision; see who decides to charge a sex crime.

Assault with intent as a lesser offense

A jury may convict of a lower offense only if it is necessarily included in the one charged; it may not convict of a "cognate" lesser offense.^[23] The benchbook states that assault with intent to commit CSC involving sexual penetration is a necessarily included lesser offense of first-degree and third-degree CSC, and that assault with intent to commit second-degree CSC is a necessarily included lesser offense of second-degree CSC.^[24] This is one way the offense reaches a verdict form even when it was not the lead charge. Plea negotiations are a separate subject, covered in plea bargains in CSC cases.

Time limits

An indictment for a violation or attempted violation of MCL 750.520g may be found and filed within 10 years after the offense is committed or by the alleged victim's 21st birthday, whichever is later.^[25] If evidence of the offense contains DNA determined to be from an unidentified individual, the indictment against that individual may be filed at any time, and after the individual is identified, within 10 years after identification or by the alleged victim's 21st birthday, whichever is later.^[26] Any period during which the party charged did not usually and publicly reside in Michigan is not counted.^[27] See the statute of limitations for sex crimes.

What people get wrong

"Nothing happened, so there is no sex offense." For the penetration tier, an actual touching or penetration is not required.^[3]

"It is the same as attempted CSC." Assault with intent is defined and punished in MCL 750.520g; attempts are punished under MCL 750.92.^[1][5]

"Both tiers have the same elements." The penetration tier needs no aggravating circumstance. The second-degree tier does, along with a specific intent to touch for sexual arousal or gratification.^[8][4]