Consent Under Michigan's Criminal Sexual Conduct Law

Michigan's criminal sexual conduct (CSC) statutes do not define consent, and no CSC offense section says that consent is a defense.^[9] The Court of Appeals has described the statute as silent on the point and has read a consent defense into it.^[1] The result runs in two directions: consent is a defense to charges that rest on force or coercion, and it is not available where the charge rests on the other person being under 16, on one of the listed conditions of incapacity, or on the mental health professional provision.^[2][5][6]

If you are in immediate danger, call 911.^[10] The National Sexual Assault Hotline is free, confidential and open 24/7 at 800-656-HOPE (4673).^[11] Michigan's VOICES4 hotline takes calls and texts at 855-864-2374.^[12]

This page explains where consent matters in a CSC case, where it does not, who carries the burden of proof, and how jurors are instructed. The trial-level treatment, including limits on evidence, is in the consent defense. It describes what the statutes make a crime and how courts have read them. It is not legal advice, and nothing on it is a statement that any conduct is lawful.

Where does consent come from if the statute does not mention it?

The CSC sections describe prohibited acts and the circumstances that make them crimes. Lack of consent is not listed as a circumstance in any of them.^[9] In People v Khan, the Court of Appeals wrote that although the statute is silent on the defense of consent, it impliedly comprehends that a willing, noncoerced act between persons of sufficient age who are neither "mentally defective" (a term the statute no longer uses), "mentally incapacitated" nor "physically helpless" is not criminal sexual conduct.^[1]

That sentence contains both halves of the rule. Consent can negate force or coercion.^[2] It cannot be raised where the law treats the person as unable to give it: persons not "of sufficient age" and persons in the listed conditions.^[1][5][6]

When is consent a defense?

In the context of the CSC statutes, consent can be used as a defense to negate the elements of force or coercion.^[2] The provisions that rest on force or coercion are third-degree CSC (sexual penetration) and fourth-degree CSC (sexual contact), and the first- and second-degree provisions that add personal injury or the help of other persons.^{[13][14][15][16][17]} What counts as force or coercion is explained in force or coercion: what the statute lists.

Consent in this sense means actual agreement. The model jury instruction defines it as agreeing to a sexual act "freely and willingly, without being forced or coerced."^[8] The Court of Appeals has also 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, which involved a psychiatrist and a patient, was later vacated in part on other grounds.^[18]

The benchbook, citing a Court of Appeals decision that was later overruled on other grounds, states that the "surprise" form of coercion may be met where a person had permission to engage in one sexual act but surprised the other person by engaging in another, unconsented sexual act.^[19]

Who carries the burden of proof?

The burden stays with the prosecutor.^[4] Two rules work together:

• The prosecutor is not required to prove non-consent as an independent element of the offense. The Court of Appeals reasoned that evidence that an act was accomplished by force or coercion necessarily tends to establish that it was nonconsensual.^[3]
• Once a defendant produces enough evidence to put consent in controversy, the prosecutor bears the burden of disproving consent beyond a reasonable doubt.^[4]

The jury instruction follows the same structure. Jurors are told that if the evidence raises a reasonable doubt as to whether the complainant consented to the act freely and willingly, they must find the defendant not guilty.^[8] A trial court drafting a consent instruction has to take care not to shift the burden of proof to the defendant; the instruction the Court of Appeals approved in People v Ullah did not state that the defendant had the burden of proving or establishing a reasonable doubt.^[20]

Where consent has no legal effect

Basis of the charge	Role of consent
Force or coercion	Consent is a defense; the prosecutor has the burden of disproving it beyond a reasonable doubt once it is in controversy[2][4]
The other person is under 16	Inapplicable: a person under 16 is legally incapable of consenting to a sexual act[5]
The other person is mentally incapable, mentally incapacitated or physically helpless, and the accused knew or had reason to know it	Inapplicable: a person in one of those conditions is presumed legally incapable of consent under the CSC Act[6]
Sexual contact by a mental health professional with a client or patient, during the relationship or within 2 years after it	The statute says the consent of the victim is not a defense[7]
A student aged 16 or 17 and a teacher, substitute teacher or administrator of the student's school or district	The offense is defined by the student's age and enrollment and the actor's role; force or coercion is not among its elements[21]
Persons related by blood or affinity to the third degree	The third-degree provision (penetration) and its fourth-degree counterpart (contact) apply "under circumstances not otherwise prohibited by this chapter" and do not apply if both persons are lawfully married to each other at the time; the only defense written into them is that the other person was in a position of authority over the defendant and used it to coerce the defendant, which the defendant has the burden of proving by a preponderance of the evidence[22][23]

Age

Because a person under 16 is legally incapable of consenting to a sexual act, consent is inapplicable to all CSC offenses involving a person under 16.^[5] The Michigan Supreme Court has put it this way: there is no issue of consent in such a charge because a person below the age of consent is conclusively presumed to be legally incapable of giving it.^[24] A reasonable mistake about age is not a defense.^[25] The age provisions are set out in age of consent in Michigan and age-based CSC charges.

Incapacity

A person who is mentally incapable, mentally incapacitated or physically helpless is presumed legally incapable of consent under the CSC Act, and a consent defense is inapplicable to the offenses built on those conditions.^[6] "Mentally incapacitated" has, since October 10, 2023, included incapacity from alcohol or another substance without any requirement that the substance was given to the person without consent.^[26][27]

What remains open to dispute in such a case is the condition itself and the accused's knowledge. Third- and fourth-degree CSC, and the first- and second-degree provisions involving personal injury or the help of other persons, require proof that the actor "knows or has reason to know" of the condition.^{[13][28][29][16][17]} That is judged by whether the condition would be apparent to a reasonable person.^[30] A defendant who makes a reasonable mistake about the other person's mental or physical condition may not be criminally liable.^[31] See intoxication, incapacity and consent.

Professional and authority relationships

The fourth-degree statute makes it a crime for a mental health professional to have sexual contact with a client or patient who is not the professional's spouse, during the professional relationship or within 2 years after it, and states that the consent of the victim is not a defense.^[7]

Other provisions are written around a relationship instead of around force. The school provisions for students aged 16 and 17 turn on the student's age and enrollment and the adult's school role.^[21] Second-degree CSC covers sexual contact by a Department of Corrections employee, contractual employee or volunteer with a person the actor knows is under the department's jurisdiction.^[32] These provisions are explained in positions of authority and CSC and teacher and school-employee offenses.

Where a person in authority is accused of using that authority to coerce, apparent agreement does not settle the question. Among the benchbook's examples is a Court of Appeals case in which complainants testified that they only "consented" because they feared that the defendant, a child protective services worker, would otherwise take their children away.^[33]

Marriage and resistance

Marriage does not supply consent. A person may be charged and convicted under the CSC sections even though the victim is his or her legal spouse; the section's one limit is that a person may not be charged or convicted solely because the spouse is mentally incapable.^[34] The section was amended twice in 2023. As amended in July 2023 it also barred a charge based solely on a spouse being under the age of 16; 2023 PA 126, effective September 27, 2023, removed those words.^[35]

Resistance is not required. Under MCL 750.520i, a victim need not resist the actor in a prosecution under the CSC sections.^[36]

Consent and the sex offender registry

Consent can matter after a conviction even where it was no defense to the charge. Under the Sex Offenders Registration Act, first- and third-degree CSC are not Tier III offenses if the court determines that the victim consented to the conduct, was at least 13 but less than 16 at the time, and the individual is not more than 4 years older than the victim.^[37] That rule concerns registration, not guilt. It is explained in Michigan's "Romeo and Juliet" provisions.

What people get wrong

"The prosecutor has to prove the complainant said no." Non-consent is not a separate element. The prosecutor has to prove the charged circumstance, such as force or coercion, and has to disprove consent beyond a reasonable doubt once the defense puts it in controversy.^[4]

"If both people agreed, it cannot be a crime." That is true only where the law recognizes the agreement. It does not for a person under 16, for a person in one of the listed conditions of incapacity, or under the mental health professional provision.^[5][6][7]

"The defendant has to prove consent." The instruction approved by the Court of Appeals directs a not-guilty verdict if the evidence raises a reasonable doubt about consent; it does not state that the defendant has the burden of proving or establishing a reasonable doubt.^[8][20]

Evidence about a complainant's past sexual conduct is tightly restricted in these cases; see Michigan's rape shield law. Other common misunderstandings are collected in myths about Michigan sex-crime cases.