The Consent Defense in Michigan Criminal Sexual Conduct Cases

Consent is a defense to some Michigan criminal sexual conduct (CSC) charges and not to others. The Court of Appeals has said that in the context of the CSC statutes, consent can be utilized as a defense to negate the elements of force or coercion.^[1] Where the charge rests on the complainant being under 16, or on the complainant being mentally incapable, mentally incapacitated or physically helpless, the benchbook Michigan judges use states that the consent defense is inapplicable.^[3][5]

This page explains what the statutes, the model jury instruction and the cited decisions say. It is not legal advice and is not a recommendation to rely on any defense; whether a defense applies depends on the charge and the evidence in a particular case.

This page explains where the defense comes from, how the jury is instructed, who carries the burden, the charges for which the law rules it out, and how the rape-shield statute limits the evidence. What consent means in the statutes generally is covered in Consent under Michigan CSC law.

Where does the consent defense come from?

From case law, not from the text of the statute. The Court of Appeals observed in People v Khan that the statute is silent on the defense of consent, but that it "impliedly comprehends that a willing, noncoerced act of sexual intimacy or intercourse between persons of sufficient age" who are not incapacitated or helpless is not criminal sexual conduct.^[8]

The quoted sentence carries its own limits: it speaks of a willing, noncoerced act between persons of sufficient age who are not in one of the listed conditions.^[8]

How is the jury instructed?

The model instruction, M Crim JI 20.27, defines consent this way: "A person consents to a sexual act by agreeing to it freely and willingly, without being forced or coerced."^[9]

It tells jurors that it is not necessary to show that the complainant resisted the defendant, or did anything to lessen the danger, to prove that the crime was committed.^[10] It then gives questions that may help them, to be considered with all of the evidence; all but the first are bracketed, to be used where they fit the case:^[10]

• Was the complainant free to leave and not take part in the sexual act?^[11]
• Did the defendant threaten the complainant with present or future injury?^[11]
• Did the defendant use force, violence, or coercion?^[11]
• Did the defendant display a weapon?^[11]

The instruction ends with the standard: if the evidence raises a reasonable doubt as to whether the complainant consented to the act freely and willingly, the jury must find the defendant not guilty.^[9]

The Use Note says four things: consent is an affirmative defense; no evidence of nonconsent need be placed in evidence by the prosecution; the instruction should be given only where there is evidence of consent; and it should not be given where the victim is below the age of consent, but could be given where there is a dispute whether the victim is mentally disabled or was physically helpless.^[10] The instruction and its Use Note do not otherwise list the charges to which it applies.^[10]

Who carries the burden?

The sources describe two steps.

1. Putting consent in issue. In a third-degree force-or-coercion case, the Court of Appeals said the prosecution is not required to prove nonconsent as an independent element of the offense.^[12] The Use Note to the instruction calls consent an affirmative defense and says no evidence of nonconsent need be placed in evidence by the prosecution.^[11]
2. Disproving it. The benchbook states, citing People v Thompson (Court of Appeals, 1982), that once a defendant produces enough evidence to put consent in controversy, the prosecutor bears the burden of disproving consent beyond a reasonable doubt.^[2] The instruction puts it to jurors this way: if the evidence raises a reasonable doubt as to whether the complainant consented freely and willingly, they must find the defendant not guilty.^[10]

In the same case the Court of Appeals said that if the prosecution offers evidence that an act of sexual penetration was accomplished by force or coercion, that evidence necessarily tends to establish that the act was nonconsensual.^[12] The benchbook for judges adds that a court drafting a consent instruction must be mindful not to shift the burden of proof to the defendant.^[12]

Consent and coercion are related but not identical questions. In a case involving a psychiatrist and a patient, the Court of Appeals said that the presence of consent is not necessarily the factual equivalent of the absence of coercion, and that the focus is the validity of the consent; that opinion was later vacated in part on other grounds.^[13]

When does Michigan law rule the defense out?

Type of charge	Is consent a defense?
Force or coercion	Consent can be utilized as a defense to negate the elements of force or coercion.[1]
First-degree CSC while armed with a weapon	The Court of Appeals said in People v Hearn (1980) that the provisions of that subdivision, read together, imply the continuing validity of the consent defense.[14]
Any CSC offense involving a victim under 16	Not a defense. A person under 16 is legally incapable of consenting to a sexual act.[3]
Victim aged 13 to 15 and the actor is a household member, relative, person in authority who used it to coerce submission, or teacher or administrator of the victim's school	Not a defense. These are on the benchbook's list of offenses to which consent may not be raised.[15]
Offenses requiring proof that the complainant was mentally incapable, mentally incapacitated or physically helpless	Not a defense, according to the benchbook: such a person is presumed legally incapable of consent under the CSC Act. Whether the condition existed can itself be disputed.[5][10]
Sexual contact by a mental health professional with a client or patient, during or within 2 years after the professional relationship	Not a defense. The statute says: "The consent of the victim is not a defense to a prosecution under this subdivision."[16]
First-degree CSC based on the commission of another felony	Not a defense if consent is not a valid defense to the underlying felony itself (People v Wilkens, Court of Appeals, 2005).[14]
Student aged 16 or 17 and a teacher or other listed school staff; special-education student aged 16 to 25 and listed staff; resident aged 16 or older of a child care organization or foster home and its staff	Not settled by the sources used for this guide. The statutes define these offenses by age, status and position; the benchbook's lists do not mention them. See below.[4]

Age

For the rule on complainants under 16 the benchbook cites the Michigan Supreme Court's decisions in People v Starks and People v Cash.^[3] The Use Note to the consent instruction says it should not be given where the victim is below the age of consent.^[10] A mistaken belief about age is a separate question; see Mistake of age is not a defense and Age of consent in Michigan.

Authority and school settings

For 13- to 15-year-olds, the benchbook's list of charges to which consent may not be raised includes those where the actor is in a position of authority and used it to coerce submission, or is a teacher, substitute teacher or administrator of the school where the victim is enrolled.^[15]

The benchbook's lists stop at victims under 16.^[4] For older complainants the statutes define further offenses, and this page states only their elements:

• Students aged 16 or 17, teachers. Sexual penetration is third-degree CSC where the other person is at least 16 but less than 18 and a student at a public or nonpublic school, and the actor is a teacher, substitute teacher, or administrator of that school or district. The subparagraph does not apply if the other person is emancipated at the time of the alleged violation.^[17]
• Students aged 16 or 17, other staff. For an employee or contractual service provider of the school or district in which the student is enrolled, a volunteer who is not a student, or a government employee assigned to provide any service to the school, the statute adds an element: the actor uses that status to gain access to, or to establish a relationship with, the student.^[18]
• Special-education students aged 16 to 25. A parallel provision covers a person at least 16 but less than 26 who is receiving special education services, with an exception where both persons are not less than 18 and were lawfully married to each other at the time.^[19][20]
• Residents aged 16 or older. Another covers an employee, contractual service provider or volunteer of a child care organization, or a person licensed to operate a foster family home or foster family group home, in which the other person is a resident, where the other person is at least 16 and the penetration occurs during the residency.^[21]
• Sexual contact. The fourth-degree statute has matching provisions for sexual contact.^[22]

None of these provisions lists force or coercion as an element, and none says anything about consent.^{[17][18][21][22]} The benchbook's lists of offenses to which consent may not be raised do not include them, and the consent instruction's Use Note speaks only of a victim "below the age of consent."^[4][10] The sources used for this guide therefore do not state whether consent can be raised to these charges, and this page does not state a rule either way. See Teacher-student sexual conduct laws and Position of authority and CSC.

Incapacity

Whether the condition existed can be disputed. The instruction's Use Note says it could be given where there is a dispute whether the victim is mentally disabled or was physically helpless.^[10] Where the statutory language requires that the actor knows or has reason to know of the condition, that is determined by a reasonable-person, objective standard, not by the defendant's subjective perception and evaluation of the victim's condition.^[23]

"Mentally incapacitated" changed on October 10, 2023. It now means that a person is rendered temporarily incapable of appraising or controlling the person's conduct due to the influence of a narcotic, anesthetic, alcohol, or other substance, or due to any act committed upon that person without consent.^[24] The earlier wording covered a substance "administered to that person without his or her consent."^[25] A description of the law that requires the substance to have been administered without the person's consent reflects the former wording.^[25] See Incapacitation, intoxication and consent.

Marriage

Marriage is not a defense under the statute. A person may be charged and convicted even though the victim is his or her legal spouse, though not solely because the spouse is mentally incapable.^[26]

How does the rape-shield law limit evidence of consent?

The rape-shield statute applies whether or not consent is raised. Under MCL 750.520j, in prosecutions under MCL 750.520b to 750.520g, evidence of specific instances of the victim's sexual conduct, and opinion and reputation evidence of it, is not admitted except in two categories and only to the extent the judge finds the evidence material to a fact at issue and that its inflammatory or prejudicial nature does not outweigh its probative value.^[6]

The category that bears on consent is evidence of the victim's past sexual conduct with the actor.^[7] The Michigan Supreme Court has read "past" to mean conduct that occurred before the evidence is offered at trial.^[27]

The statute sets a procedure:

• The defendant files a written motion and offer of proof within 10 days after the arraignment on the information.^[28]
• The court may order an in camera hearing (a hearing in private) to determine whether the proposed evidence is admissible.^[28]
• The U.S. Supreme Court has said that failure to comply with the notice-and-hearing requirement "may in some cases justify even the severe sanction of preclusion."^[29] The Michigan Court of Appeals has since held that a trial court erred by excluding evidence solely for lack of notice, without exercising its discretion in light of the particular circumstances of the case.^[29]

The Michigan Rules of Evidence have no Rule 412. The counterpart is MRE 404(a)(2)(C): in a criminal-sexual-conduct case, the defendant may offer evidence of the alleged victim's past sexual conduct with the defendant, and of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.^[30] The Michigan Supreme Court has said a trial court should always favor exclusion of evidence of a complainant's sexual conduct where exclusion would not unconstitutionally abridge the defendant's right to confrontation.^[31] The details are in Michigan's rape-shield law.

Related rules

• Resistance. A victim need not resist the actor in a prosecution under MCL 750.520b to 750.520g.^[32]
• Corroboration. The testimony of a victim need not be corroborated in prosecutions under those sections.^[33]
• Force or coercion is not only physical violence. The statute says force or coercion "includes, but is not limited to" listed circumstances, among them threats to retaliate in the future and overcoming the victim through concealment or by the element of surprise.^[34][35] See Force or coercion under Michigan CSC law.

What people get wrong

"The prosecutor has to prove there was no consent in every case." The Court of Appeals has said nonconsent is not an independent element; as the benchbook states it, the prosecutor's burden to disprove consent arises once the defendant produces enough evidence to put it in controversy.^[12][2]

"If they agreed, it can't be a crime." The sources say otherwise for a complainant under 16, for offenses requiring proof of one of the incapacity conditions, and for the mental health professional provision.^[3][5][16]

"Raising consent lets the defense go into the complainant's past." The rape-shield statute applies in prosecutions under MCL 750.520b to 750.520g, with two listed categories of evidence and a judge's findings required for each.^[6][7] The other defenses and their limits are summarized in Defenses to sex crime charges.