Bond in Michigan Criminal Sexual Conduct Cases

A criminal sexual conduct (CSC) charge in Michigan does not by itself rule out bond. The Michigan Constitution says all persons shall, before conviction, be bailable by sufficient sureties, and then lists four exceptions; the only CSC charge named in them is criminal sexual conduct in the first degree.^[1] The others apply to a murder or treason charge, and to a charge of a "violent felony" when the defendant has a listed violent-felony record or was on bail, probation or parole for a violent felony.^[2] Under the court rule, denial in any of these situations is something the court "may" order, and only on a finding that proof of guilt is evident or the presumption great.^[3][9]

This page covers what is particular to sex-offense cases: the first-degree exception, the trial clock that follows a denial, no-contact and monitoring conditions, the testing order that follows a bindover, and detention after conviction. How bond is set at an arraignment in general, and what bond types and standard conditions look like, is covered in the sister guide's pages on the arraignment and bond conditions.

Can a Michigan judge deny bond in a CSC case?

Only in limited situations. Article 1, section 15 of the Michigan Constitution allows bail to be denied "when the proof is evident or the presumption great" for a person indicted for, or arraigned on a warrant charging, criminal sexual conduct in the first degree, armed robbery, or kidnapping with intent to extort.^[1]

That same provision contains a way out for the defendant: bail is not denied if the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.^[1]

The court rule that carries this out, MCR 6.106(B)(1)(b), is written the same way. A court "may" deny pretrial release to a defendant charged with first-degree CSC if it finds that proof of the defendant's guilt is evident or the presumption great, unless it finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.^[3]

Question	What the constitution and court rule say
Which CSC charge is named?	Criminal sexual conduct in the first degree.[1]
Can bail be denied on a charge that is not named?	Only under the exceptions for a "violent felony" charge: 2 or more prior violent felony convictions from separate incidents within 15 years, or a violent felony alleged to have been committed while on bail, probation or parole for a violent felony.[2]
Is denial automatic?	No. The court rule says the court "may" deny release.[3]
What has to be shown first?	That proof of guilt is evident or the presumption great.[3]
What keeps bail available on a first-degree charge?	A finding by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.[1]
What if bail is denied?	Trial within 90 days of the denial, or a bail hearing if the delay is not attributable to the defense.[4]

First-degree CSC is not the only route to a denial. The same section lets bail be denied, again when the proof is evident or the presumption great, to a person charged with a violent felony who, within the 15 years before the motion for bail, was convicted of 2 or more violent felonies arising out of at least 2 separate incidents, and to a person charged with a violent felony alleged to have been committed while on bail on a prior violent felony charge or on probation or parole for a prior violent felony conviction.^[2] "Violent felony" there means a felony, an element of which involves a violent act or threat of a violent act against any other person.^[2] Those exceptions, and the one for murder or treason, do not contain the clear-and-convincing-evidence clause that the first-degree CSC exception has.^[2] MCR 6.106(B)(1)(a) restates them.^[9]

A court that orders a defendant held states its reasons on the record and on a "Custody Order" form.^[10] It may conduct a custody hearing if the defendant or the prosecutor requests one; the defendant is entitled to be present and to be represented by a lawyer, and both sides may present witnesses and cross-examine.^[10]

The elements of the first-degree offense are set out in First-degree CSC under MCL 750.520b.

What is the 90-day rule when bail is denied?

If a person is denied admission to bail under article 1, section 15, the trial "shall be commenced not more than 90 days after the date on which admission to bail is denied."^[4] If trial has not started within those 90 days and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set the amount of bail.^[4]

Two points follow from the wording. Delay that is attributable to the defense does not trigger the hearing.^[4] And the remedy the constitution gives is a bail hearing at which bail is set; the provision quoted does not say the charge is dismissed.^[4]

What does the court weigh when it sets bail?

MCL 765.6(1) lists four things the court shall consider, and make findings on the record about, in fixing the amount of bail:^[11]

• The seriousness of the offense charged.^[11]
• The protection of the public.^[11]
• The previous criminal record and the dangerousness of the person accused.^[11]
• The probability or improbability of the person accused appearing at the trial.^[11]

How individual judges apply those factors varies by court. The CSC penalties chart sets out the maximum sentence for each degree.

No-contact conditions

A court may make release conditional on the defendant complying with any condition limiting or prohibiting contact with any other named person or persons.^[5] The rule lets the court make that condition effective immediately on entry of the pretrial release order, while the defendant is still in custody, if it determines the condition is reasonably necessary to maintain the integrity of the judicial proceeding or to protect one or more named persons.^[5]

A custody order, too, may restrict or prohibit the defendant's contact with a named person.^[10]

When a judge or district court magistrate releases a defendant on conditions for the protection of named persons under MCL 765.6b, the judge or magistrate informs the defendant that a violation makes him or her subject to arrest without a warrant and may lead to bail being forfeited or revoked and new conditions imposed.^[12]

A bond condition is not the same thing as a personal protection order. The sister guide explains how a no-contact order works and what happens after a violation; the separate civil order available to a person who reports sexual assault is covered in Sexual assault PPOs.

Can the court order a tether?

Michigan law uses the term "electronic monitoring device"; "tether" is the everyday word. If a defendant charged with a crime involving domestic violence, or any other assaultive crime, is released on protective conditions, the judge or district court magistrate may order the defendant to wear an electronic monitoring device as a condition of release.^[6]

"Assaultive crime" has a statutory definition, and it lists the sections of the Penal Code that define first-, second-, third- and fourth-degree CSC and assault with intent to commit CSC.^[13]

Three further rules are written into the statute:

• In deciding whether to order monitoring, the court shall consider the likelihood that it will deter the defendant from seeking to kill, physically injure, stalk, or otherwise threaten the victim before trial.^[6]
• A defendant in this position is released only if he or she agrees to pay the cost of the device and monitoring, or to perform community service work in place of paying.^[6]
• If the court orders an electronic monitoring device, it shall also impose a condition that the defendant not purchase or possess a firearm.^[14]

With the victim's informed consent, the court may also order that the victim be given a receptor device that signals when the defendant is within a set proximity; the victim may ask the court to end that participation at any time, and the court may not sanction a victim for refusing.^[15] The statute's definition of an electronic monitoring device covers a device that tracks location or monitors blood alcohol content, and the section states that it does not limit a court's authority to order monitoring under other statutes or court rules.^[15]

The practical side of monitoring is described in the sister guide's page on GPS tethers and monitoring on bond.

Testing and sampling orders that come with a CSC charge

Two things that people expect to be bond conditions are in fact separate legal requirements.

DNA sample at arrest

A person arrested for committing or attempting to commit a felony provides a sample for DNA identification profiling.^[16] What happens to that sample if no felony is charged, or the case ends in dismissal or acquittal, is explained in DNA evidence in sex crime cases.

Infection testing after bindover

If a defendant is bound over to circuit court on a listed offense, a list that includes all four CSC degrees and assault with intent to commit CSC, and the district court determines there is reason to believe the violation involved sexual penetration or exposure to a body fluid of the defendant, the district court shall order the defendant to be examined or tested for sexually transmitted infection, hepatitis B infection, hepatitis C infection and HIV.^[17] This order follows the bindover and comes before any verdict; a separate subsection requires the court to order testing upon conviction of a listed offense.^[17][18]

If the defendant is bound over on one of the four CSC degrees or assault with intent to commit CSC and the victim requests it, the court shall order the testing to be done not later than 48 hours after the information or indictment is presented and the defendant is in custody or has been served.^[17] That order includes any follow-up testing that is medically appropriate, the tests are confidentially administered by a licensed physician, the state health department or a local health department, and the court also orders counseling for the defendant.^[18]

At the stage where release conditions are set, the statute requires something smaller: the judge or magistrate hands the person information on sexually transmitted infection and HIV and recommends counseling, which is voluntary.^[18]

Bail after a conviction

The rules change once there is a conviction. A defendant convicted of sexual assault of a minor and awaiting sentence shall be detained and shall not be admitted to bail, and "minor" in that statute means an individual less than 16 years of age.^[7] "Sexual assault of a minor" is defined by a list: first- or second-degree CSC, or third-degree CSC under MCL 750.520d(1)(b) to (e), against a victim under 16; third-degree CSC under MCL 750.520d(1)(a) if the actor is 5 or more years older than the victim; and assault with intent to commit that conduct.^[8] The same no-bail rule applies to a defendant sentenced to imprisonment who has filed an appeal.^[8]

For other CSC convictions the statute is written differently. A defendant convicted of an "assaultive crime," a term whose definition lists all four CSC degrees and assault with intent to commit CSC, and awaiting sentence shall be detained and not admitted to bail unless the trial court finds by clear and convincing evidence that the defendant is not likely to pose a danger to other persons.^[19]

What people get wrong

The common statement is that there is "no bond on a CSC charge." The only CSC charge the constitutional exceptions name is the first degree; that exception depends on proof that is evident or a presumption that is great, and is discretionary under the court rule.^[1][3] The exceptions for a violent-felony charge depend on the defendant's record or release status as well as the charge.^[2]

The opposite mistake is to treat a denial as open-ended. A denial under this provision starts a 90-day period for trial.^[4]

A third is to assume that conditions end when the complainant asks. Under MCR 6.106(H)(2) a release decision is modified by the court, on the motion of a party or on the court's own initiative.^[20] Separately, a crime victim has no authority to decide whether a prosecution goes forward or is dismissed.^[21] Changing a condition is done by asking the court, as described in how to modify or lift a no-contact order. What comes after the bond hearing is laid out in the timeline of a felony CSC case.