First-Degree Criminal Sexual Conduct in Michigan (MCL 750.520b)

First-degree criminal sexual conduct (CSC) is the most serious offense in Michigan's Criminal Sexual Conduct Act. A person commits it by engaging in sexual penetration with another person when any one of the circumstances listed in MCL 750.520b(1) exists.^[1][2] It is a felony punishable by imprisonment for life or for any term of years, with mandatory minimum terms in some cases.^[4][5][6]

This page sets out every listed circumstance in the statute's terms, then the penalty provisions that follow them.

What must the prosecutor prove?

Two things: an act of sexual penetration, and at least one listed circumstance. "Sexual penetration" means 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; emission of semen is not required.^[9] The definition is examined in sexual penetration vs. sexual contact.

The benchbook that Michigan judges use describes criminal sexual conduct as most often a general intent crime.^[10]

The circumstances in MCL 750.520b(1)

Subsection (1) has eight lettered subdivisions. One is enough.

(a) The other person is under 13

The statute's words are: "That other person is under 13 years of age."^[2] A reasonable mistake about age is not a defense in Michigan; see mistake of age.^[11]

(b) The other person is at least 13 but under 16, and a listed relationship exists

For a person "at least 13 but less than 16 years of age", any one of six relationships makes the offense first degree:^[12]

1. The actor is a member of the same household as the victim.^[12]
2. The actor is related to the victim by blood or affinity to the fourth degree.^[12]
3. The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.^[12]
4. The actor is a teacher, substitute teacher, or administrator of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled.^[12]
5. The actor is an employee or contractual service provider of that school or district, a volunteer who is not a student in any public or nonpublic school, or an employee of the state, a local unit of government or the United States assigned to provide any service to the school or district, and the actor uses that employee, contractual, or volunteer status to gain access to, or to establish a relationship with, the other person.^[13]
6. The actor is 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, and the sexual penetration occurs during the period of that residency.^[13]

Without one of these relationships, penetration with a person aged 13 to 15 is third-degree CSC.^[14] "Same household" has been read to mean a family unit residing under one roof for any time other than a brief or chance visit.^[15] Relationship "by affinity" is relationship through marriage: a husband is related by affinity to all the blood relatives of his wife, and a wife to those of her husband.^[16] The fourth degree of blood relationship reaches first cousins.^[17] See CSC involving relatives and household members, position of authority and teacher-student sexual conduct laws.

(c) Another felony

"Sexual penetration occurs under circumstances involving the commission of any other felony."^[18] The Court of Appeals has required a direct interrelationship between the felony and the penetration, which does not necessarily mean the penetration occurred during the felony.^[19]

(d) The actor is aided or abetted by one or more other persons

This subdivision applies where the actor is aided or abetted by 1 or more other persons and either the actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless, or the actor uses force or coercion to accomplish the sexual penetration.^[20]

(e) A weapon

"The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon."^[21] The Court of Appeals has said the actor need not have the weapon in hand, so long as he has knowledge of its location and it is reasonably accessible.^[22]

(f) Personal injury and force or coercion

"The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration."^[23] The subdivision lists five forms of force or coercion: actual physical force or violence; a threat of force or violence that the victim believes the actor has the present ability to carry out; a threat to retaliate in the future against the victim or any other person, which the victim believes the actor has the ability to carry out; medical treatment or examination in a manner or for purposes medically recognized as unethical or unacceptable; and overcoming the victim through concealment or by the element of surprise.^[24] The list is introduced by "includes, but is not limited to".^[25] See force or coercion under the CSC law.

"Personal injury" means bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ.^[26] Bodily injuries need not be permanent or substantial.^[27] "Mental anguish" has been defined as extreme or excruciating pain, distress, or suffering of the mind.^[28]

(g) Personal injury and an incapable, incapacitated or helpless victim

"The actor causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless."^[29] Since October 10, 2023, "mentally incapacitated" has meant being rendered temporarily incapable of appraising or controlling one's conduct due to the influence of a narcotic, anesthetic, alcohol, or other substance, or due to any act committed without the person's consent; the earlier wording, limited to a substance administered without the person's consent, was removed by 2023 PA 65.^[30][31] See incapacitation, intoxication and consent.

(h) A vulnerable person and a relative or person in authority

This subdivision applies where the other person is mentally incapable, mentally disabled, mentally incapacitated, or physically helpless, and the actor either is related to the victim by blood or affinity to the fourth degree, or is in a position of authority over the victim and used this authority to coerce the victim to submit.^[3] "Mentally disabled" means the person has a mental illness, is intellectually disabled, or has a developmental disability.^[32]

Penalties under MCL 750.520b(2)

Situation	Sentence the statute provides
Any first-degree conviction not covered by the next two rows	Imprisonment for life or for any term of years[4]
Committed by an individual 17 or older against an individual less than 13	Life or any term of years, but not less than 25 years[5]
Committed by an individual 18 or older against an individual less than 13, where the person was previously convicted of a violation of MCL 750.520b, 520c, 520d, 520e or 520g against an individual less than 13, or of a substantially corresponding federal or other-state offense against an individual less than 13	Life without the possibility of parole[6]
Second or subsequent offense under MCL 750.520f	A mandatory minimum of at least 5 years[33]

The age thresholds differ: 17 for the 25-year minimum and 18 for life without parole.^[5][6] The details of each provision are in mandatory minimum sentences in CSC cases and second or subsequent CSC offenses. How a judge sets the minimum term in other cases is covered in sentencing guidelines for CSC.

Lifetime electronic monitoring

"In addition to any other penalty imposed under subdivision (a) or (b), the court shall sentence the defendant to lifetime electronic monitoring".^[7] In People v Comer the Michigan Supreme Court held that monitoring "must be imposed for all defendants convicted of CSC-I except where the defendant has been sentenced to life without the possibility of parole". The defendant in that case had pleaded guilty under the other-felony circumstance, and the Court declined to read the age wording of MCL 750.520n(1) as a limit on first-degree cases.^[34] Monitoring tracks the person's movement and location from release on parole or from prison until death.^[35] Because it is part of the sentence, a court taking a guilty or no-contest plea must first tell the defendant about it.^[36][37] See lifetime electronic monitoring.

Consecutive sentences

Under subsection (3), the court "may order a term of imprisonment imposed under this section to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction."^[38] For multiple penetrations to be part of the same transaction, the Court of Appeals has said they must be part of a continuous time sequence, not merely a continuous course of conduct.^[39] See consecutive sentences in CSC cases.

No probation and no fine

The probation statute excludes criminal sexual conduct in the first degree.^[8] MCL 750.520b does not authorize a fine; the Michigan Supreme Court vacated a $500 fine imposed under it.^[40] See probation and CSC convictions.

Parole

For a crime committed on or after December 15, 1998, a person imprisoned for first-degree CSC comes under the parole board's jurisdiction only after serving a period equal to the minimum sentence the court imposed.^[41] A prisoner sentenced under the 25-year provision can be paroled only for life.^[42] Medical parole is not available to a person convicted of first-degree CSC.^[43] See prison, parole and treatment.

Other consequences that attach to a first-degree charge

• Bail. Bail may be denied when the proof is evident or the presumption great, unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.^[44] See bond in CSC cases.
• No time limit. An indictment may be found and filed at any time.^[45] See the statute of limitations.
• Registry. First-degree CSC is listed as a Tier III offense under the Sex Offenders Registration Act unless the registry statute's exception for certain consensual conduct with a person aged 13 to 15 applies, and a Tier III offender must comply for life.^[46][47] See registry tiers.

How counts and lesser offenses work

A single penetration accompanied by more than one aggravating circumstance "may give rise to only one criminal charge for purposes of trial, conviction, and sentencing."^[48] Where several circumstances are alleged for one act, jurors need not all agree on which circumstance accompanied the act, as long as all agree that the prosecutor proved at least one beyond a reasonable doubt.^[49]

A jury may not convict of an uncharged "cognate" lesser offense even though the crime is divided into degrees.^[50] The benchbook states that assault with intent to commit CSC involving sexual penetration is a necessarily included lesser offense of first-degree CSC.^[51] See assault with intent to commit CSC.

What people get wrong

"First degree always means violence." Subdivision (a) requires only that the other person is under 13, and subdivision (b) turns on age and relationship.^[2][12]

"The 25-year minimum is the sentence." It is a floor; the statute keeps the maximum at life or any term of years.^[5][52]

"Lifetime monitoring is only for cases with a child under 13." The age condition is written into the second-degree statute.^[53] For first degree, the Michigan Supreme Court held in People v Comer that monitoring must be imposed on every conviction other than a sentence of life without parole.^[34]