Child Sexually Abusive Material Laws in Michigan (MCL 750.145c)

Michigan's statute, MCL 750.145c, does not use the term "child pornography." The offense is "child sexually abusive activity or material," and it applies to depictions of a person under 18 engaging in a listed sexual act.^[1][12][13] The statute has three tiers: producing, distributing or promoting, and possessing. The Michigan Supreme Court has said those tiers show the Legislature did not intend the same maximum penalty for a person who downloads an image for personal use as for a person involved in creating it.^[14]

Suspected child sexual exploitation online can be reported to the CyberTipline of the National Center for Missing & Exploited Children at report.cybertip.org or 1-800-843-5678.^[15] If a child is in immediate danger, call 911. Michigan's VOICES4 hotline takes calls and texts at 855-864-2374.^[16]

This page describes the law only: the definitions, the tiers and penalties, the defenses written into the statute, and the consequences of a conviction.

Key definitions

Term	What the statute says
Child	A person who is less than 18 years of age, subject to an affirmative defense for persons emancipated by operation of law[1]
Child sexually abusive activity	A child engaging in a listed sexual act[12]
Listed sexual act	Sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity; each term has its own statutory definition[17]
Erotic nudity	The lascivious exhibition of the genital, pubic, or rectal area of any person[18]
Child sexually abusive material	Any depiction, however made, including a photograph, film, video, electronic visual image, computer or computer-generated image, or sound recording, which is of a child or appears to include a child engaging in a listed sexual act[13]

Not every image of an unclothed child meets the definition. In People v Riggs, the Court of Appeals said a recording that "merely shows innocent child nudity" is not child sexually abusive material, while also holding that editing otherwise nonoffensive footage can give rise to a violation.^[19]

"Appears to include a child"

A depiction "appears to include a child" if it appears to include, or conveys the impression that it includes, a person under 18 and it meets one of two conditions. Either it was created using a depiction of any part of an actual person under 18, or it was not, but it appeals to the prurient interest, lacks serious literary, artistic, political, or scientific value, and depicts a listed sexual act in a patently offensive way.^[20]

The three tiers and their penalties

Tier	Conduct	Base maximum	Higher maximum
Production, MCL 750.145c(2)	Persuading, inducing, enticing, coercing, causing or knowingly allowing a child to engage in child sexually abusive activity to produce material; arranging for, producing, making, copying, reproducing or financing the activity or material; or attempting, preparing or conspiring to do so[21]	20 years, a fine of up to $100,000, or both[3]	25 years, a fine of up to $125,000, or both[6]
Distribution, MCL 750.145c(3)	Distributing or promoting; financing distribution or promotion; receiving for the purpose of distributing or promoting; or conspiring, attempting or preparing to do so[22]	7 years, a fine of up to $50,000, or both, under subsection (3)(a)[4]	15 years, a fine of up to $75,000, or both[7]
Possession, MCL 750.145c(4)	Knowingly possessing, or knowingly seeking and accessing, the material[23]	4 years, a fine of up to $10,000, or both[23]	10 years, a fine of up to $50,000, or both[23]

These are maximums, not predictions. The sentence in a given case depends on the sentencing guidelines and the judge; see How sentencing guidelines work.

What triggers the higher maximum

The same three triggers apply in every tier: the activity or material involves a prepubescent child; it involves sadomasochistic abuse or bestiality; or it includes a video or more than 100 images.^[6][7][23] Any one of them is enough.^[6]

Second or subsequent offense

MCL 750.145g, which took effect March 17, 2019, sets a mandatory minimum sentence of not less than 5 years for a second or subsequent offense under MCL 750.145c. An offense counts as second or subsequent if, before the conviction, the person had been convicted under MCL 750.145c or of another crime involving a sexual offense against a minor.^[8] MCL 750.145g is sometimes mislabeled online as the "sextortion" statute; it is not.^[8][24]

What the prosecution has to prove about knowledge

In each tier the statute is satisfied if the person knows, has reason to know, or should reasonably be expected to know that the child is a child, or that the material includes a child or appears to include a child, or if the person has not taken reasonable precautions to determine the age of the child.^[25] Expert testimony as to the age of the child is admissible and may be a legitimate basis for determining age if age is not otherwise proven.^[26]

How Michigan courts have drawn the lines between tiers

• Viewing and possessing. In People v Flick, the Supreme Court said it is not the initial viewing that amounts to knowing possession, but the intentional steps taken to gain actual physical control or the power and intention to exercise dominion or control over the depiction.^[27]
• Possessing and distributing. In People v Tombs, the Supreme Court said that "possession is not the same as promotion" and that subsection (3) requires a showing of criminal intent to distribute or promote.^[28]
• Possessing and "making." The statute defines "make" to include intentionally creating a reproduction, copy, or print of the material, but not creating an identical copy within the same digital storage device or the same piece of digital storage media.^[29] The Court of Appeals said in People v Seadorf that simply viewing an image on the internet is not "making" content, while copying a stored image is.^[30] How the production tier applies to copying is a fact-specific question on which both the cases and the statutory definition of "make" bear.^[14][30]
• Number of counts. The Court of Appeals has upheld a separate count for each photograph and each child, even where the photographs came from one session.^[31]
• Other charges. The Court of Appeals has held that convictions for both criminal sexual conduct and child sexually abusive activity arising from the same conduct do not violate double jeopardy.^[32]

Defenses and exemptions written into the statute

• Emancipation. It is an affirmative defense, to be proven by a preponderance of the evidence, that the alleged child was emancipated by operation of law under MCL 722.4(2).^[33]
• Depiction not created from an actual minor. A defendant who intends to offer evidence that a depiction that appears to include a child was not created using any part of an actual person under 18 must file and serve written notice at the arraignment on the information or within 15 days after it, and not less than 10 days before trial, or as the court directs. Failure to give timely notice precludes the defense.^[34] Even then, a depiction not created from an actual minor can still be covered under the three-part test described above.^[20]
• People acting in an official or professional role. The possession subsection does not apply to police officers, employees or contract agents of the Department of Health and Human Services, judicial officers and employees, parties or witnesses in a court proceeding, and licensed physicians, psychologists, limited license psychologists, professional counselors, registered nurses and registered social workers, each acting within the scope of their duties or practice.^[35]
• Technicians and film processors who report. A computer technician or commercial film processor who reports material to a law enforcement agency having jurisdiction has his or her identity kept confidential, subject to disclosure only with his or her consent or by judicial process, and, if acting in good faith, is immune from civil liability for those acts.^[36]

The statute contains no exception for minors who create or share images of themselves or of other minors; that subject is covered in Teen sexting and the law.^[37]

Rules that apply once a case is filed

The image evidence stays with the prosecution. The court must deny a defense request to copy or reproduce pictorial evidence of a child engaging in a listed sexual act if the prosecuting attorney makes it reasonably available, meaning the defendant, defense counsel and any proposed defense expert may inspect, view and examine it at a facility approved by the prosecutor.^[38]

Time limit. A charge under MCL 750.145c may be filed within 10 years after the offense or by the alleged victim's twenty-first birthday, whichever is later.^[39] See Statute of limitations for sex crimes.

Statewide uniformity. A local government may not enact or enforce its own ordinance on this subject.^[40]

An added computer charge. Using the internet or a computer to communicate with any person for the purpose of committing conduct proscribed under MCL 750.145c, where the victim or intended victim is a minor or believed to be a minor, is a separate offense.^[41] See Using a computer to commit a crime.

How devices are lawfully searched and how digital evidence is presented in court are covered in Phone and computer searches and Digital evidence in sex crime cases.

Registration and record consequences

Possession under subsection (4) is a Tier I offense under the Sex Offenders Registration Act; production and distribution under subsections (2) and (3) are Tier II offenses.^[10][11] A Tier I offender must comply for 15 years and a Tier II offender for 25 years.^[42] The act keeps a person who is registered solely because of a single Tier I conviction off the public website, with listed exceptions, and possession under MCL 750.145c(4) is one of those exceptions.^[43] See SORA tiers and Public and non-public registration.

A conviction for a violation or attempted violation of MCL 750.145c cannot be set aside.^[9] See Expunging a sex offense conviction.

State and federal law overlap

Federal law has its own offenses for producing, receiving and distributing child pornography. Federal production carries not less than 15 and not more than 30 years, and federal receipt or distribution carries not less than 5 and not more than 20 years; both ranges are higher with a qualifying prior conviction.^[44][45] Under the dual-sovereignty doctrine, a state offense and a federal offense are not treated as the same offense for federal double jeopardy purposes when prosecuted by different sovereigns.^[46] See Federal child exploitation charges.

What people get wrong

"Possession is always a 4-year offense." A single video places the case in the 10-year tier, and a prior qualifying conviction brings the 5-year mandatory minimum.^[23][8]

"If the person was 16, it was legal." The statute's definition of a child is under 18, regardless of the age of consent for sexual activity.^[1][2]

"Anyone who had it must have shared it." Distribution is a separate tier and requires criminal intent to distribute or promote.^[28]