Third-Degree Criminal Sexual Conduct in Michigan (MCL 750.520d)

Third-degree criminal sexual conduct (CSC) is sexual penetration with another person under one of the circumstances listed in MCL 750.520d(1): among them force or coercion, a victim the actor knows or has reason to know is incapacitated or helpless, and a person aged 13 to 15.^[1] It is a felony punishable by imprisonment for not more than 15 years, and it is one of the offenses for which probation is not available.^[6][8]

This page sets out all seven circumstances in the statute's terms, then the penalty and the recent changes to the law.

What must the prosecutor prove?

An act of sexual penetration and 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.^[11] See sexual penetration vs. sexual contact.

If an aggravating circumstance from the first-degree statute is also present, such as personal injury together with force or coercion, the same act can be charged as first-degree CSC.^[12][13]

The seven circumstances in MCL 750.520d(1)

(a) The other person is at least 13 and under 16

"That other person is at least 13 years of age and under 16 years of age."^[1] Nothing else is in the subdivision: no force, no age for the actor, no age difference. The Court of Appeals has observed that if the Legislature had intended courts to consider the age differential, "it could have included this consideration in the criminal sexual conduct statutes."^[14] The benchbook states that a person under 16 is legally incapable of consenting to a sexual act, so consent is inapplicable.^[15] See age-based CSC charges, the age of consent and Michigan's "Romeo and Juliet" provisions, which concern the registry and not the charge.

(b) Force or coercion

"Force or coercion is used to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (v)."^[1] Those five are actual physical force or violence; a threat of force the victim believes the actor can presently 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.^[16]

The Michigan Supreme Court has described the prohibited force as force used to induce the victim to submit, or to seize control of the victim in a manner that facilitates penetration without regard to the victim's wishes.^[17] The Court of Appeals has said force or coercion is determined in light of all the circumstances and is not limited to acts of physical violence.^[18] See force or coercion. Consent can be raised to negate force or coercion; see the consent defense.^[19]

(c) A mentally incapable, mentally incapacitated or physically helpless victim

"The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless."^[1] The three conditions are defined terms:

• Mentally incapable: the person suffers from a mental disease or defect that renders the person temporarily or permanently incapable of appraising the nature of his or her conduct.^[20]
• Mentally incapacitated: the 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 the person's consent.^[21]
• Physically helpless: the person is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act.^[22]

The middle definition changed on October 10, 2023. Before 2023 PA 65, it covered only a substance "administered to that person without his or her consent" and did not name alcohol.^[23] The model jury instructions now include optional language that it does not matter if the complainant voluntarily consumed the drugs or alcohol.^[24] The "knows or has reason to know" element is judged by whether the incapacity would be apparent to a reasonable person.^[25] See incapacitation, intoxication and consent.

(d) Relatives to the third degree

The other person "is related to the actor by blood or affinity to the third degree and the sexual penetration occurs under circumstances not otherwise prohibited by this chapter."^[2] Three more sentences in the subdivision matter:

• It is an affirmative defense that the other person was in a position of authority over the defendant and used this authority to coerce the defendant to violate the subdivision.^[2]
• The defendant has the burden of proving that defense by a preponderance of the evidence.^[2]
• The subdivision does not apply if both persons are lawfully married to each other at the time of the alleged violation.^[2]

The Michigan Supreme Court has held that persons related by adoption who do not otherwise share a common ancestor are not related "by blood" for this subdivision.^[26] See CSC involving relatives and household members.

(e) Students aged 16 and 17 and school staff

The other person "is at least 16 years of age but less than 18 years of age and a student at a public school or nonpublic school", and either of two things applies:^[3]

• The actor is a teacher, substitute teacher, or administrator of that public school, nonpublic school, school district, or intermediate school district. This does not apply if the other person is emancipated at the time.^[3]
• The actor is an employee or contractual service provider of the school or district in which the person is enrolled, 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 status to gain access to, or to establish a relationship with, the other person.^[27]

Until September 27, 2023, the teacher provision also did not apply "if both persons are lawfully married to each other". 2023 PA 126 removed those words.^[10] The Court of Appeals has said prosecution is not foreclosed where the act occurs before or after school, on a weekend, or during the summer.^[28] See teacher-student sexual conduct laws.

(f) Special-education students aged 16 to 25

The other person "is at least 16 years old but less than 26 years of age and is receiving special education services", and either of two things applies:^[4]

• The actor is a teacher, substitute teacher, administrator, employee, or contractual service provider of the school or district from which the person receives the special education services. This does not apply if both persons are not less than 18 years of age and were lawfully married to each other at the time.^[4]
• The actor is 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 status to gain access to, or to establish a relationship with, the other person.^[29]

(g) Residents of child care organizations and foster homes

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; the other person is at least 16 years of age; and the sexual penetration occurs during that residency.^[5]

What is the penalty?

Provision	What it says
Maximum term, MCL 750.520d(2)	Imprisonment for not more than 15 years[6]
Mandatory minimum, MCL 750.520f	At least 5 years for a second or subsequent offense[7]
Probation, MCL 771.1(1)	Not available: the statute excludes criminal sexual conduct in the first or third degree[8]
Fine	The statute authorizes none[6][30]

A court may not set a minimum sentence above two-thirds of the statutory maximum.^[31] For sentencing-guidelines purposes third-degree CSC is a Class B crime against a person.^[32] For a crime committed on or after December 15, 1998, a person imprisoned for third-degree CSC comes under the parole board's jurisdiction only after serving a period equal to the minimum sentence the court imposed.^[33] See sentencing guidelines for CSC, second or subsequent offenses and probation and CSC convictions.

Because a delayed sentence is available only in an action in which the court may place the defendant on probation, that option is tied to the same exclusion.^[34]

Third-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.^[35] A Tier III offender must comply for life.^[36] See registry tiers and petitions for removal.

How long can the charge be brought?

The answer depends on when the offense is alleged to have happened. For an offense committed on or after April 2, 2025, an indictment may be found and filed within 15 years after the offense or by the alleged victim's 42nd birthday, whichever is later.^[37] For an offense before that date, the 2018 rules apply: 15 years or the 28th birthday if the victim was under 18, and 10 years or the 21st birthday otherwise.^[38] See the statute of limitations for sex crimes.

What people get wrong

"Third degree is a minor charge because of the number." It is a penetration offense with a 15-year maximum and no probation.^[39][6][8]

"Michigan has a close-in-age defense." The age subdivision contains no age-gap wording.^[1][14]

"Marriage is a defense to the teacher-student provision." Those words were removed on September 27, 2023.^[10] For special-education students the marriage exception now applies only where both persons are at least 18.^[4]

"A second conviction is treated like the first." A second or subsequent offense under MCL 750.520f must carry a minimum sentence of at least 5 years.^[7]