Force or Coercion Under Michigan's Criminal Sexual Conduct Law

In Michigan's criminal sexual conduct (CSC) statutes, "force or coercion" is much wider than physical violence. MCL 750.520b(1)(f) lists five forms: actual physical force or violence, a threat of present force, a threat of future retaliation, medical treatment or examination carried out in an unethical or unacceptable way, and overcoming a person through concealment or surprise.^[1] The statute says force or coercion "includes, but is not limited to" those five.^[2]

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 each listed form, how Michigan courts have read them, which CSC degrees depend on force or coercion, and what the law says about resistance and consent. 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 "force or coercion" appear in the CSC statutes?

Michigan divides criminal sexual conduct into degrees. First and third degree involve sexual penetration; second and fourth degree involve sexual contact.^[13] Force or coercion is one of several circumstances that can make an act a crime, and what accompanies it decides the degree.

Degree	Act	How force or coercion fits	Maximum penalty in the statute
First degree, MCL 750.520b	Sexual penetration	Force or coercion is used and the actor causes personal injury; or the actor uses force or coercion and is aided or abetted by one or more other persons[6][14]	Life or any term of years[15]
Second degree, MCL 750.520c	Sexual contact	The same two circumstances, applied to sexual contact[7]	15 years[16]
Third degree, MCL 750.520d	Sexual penetration	Force or coercion is used to accomplish the penetration[4]	15 years[17]
Fourth degree, MCL 750.520e	Sexual contact	Force or coercion is used to accomplish the contact[5][18]	2 years, a fine of up to $500, or both[19]

The step from third degree to first degree, and from fourth to second, turns on what else is proved. "Personal injury" means bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ.^[20] The individual degrees are explained in the guides to first-degree CSC, second-degree CSC, third-degree CSC and fourth-degree CSC.

Force or coercion is not the only route to a charge. Other provisions rest on the age of the other person, on incapacity, or on a family or professional relationship, and those provisions do not depend on force. See age-based CSC charges and intoxication, incapacity and consent.

The five forms the statute lists

1. Physical force or violence

The first form is when the actor "overcomes the victim through the actual application of physical force or physical violence."^[1] The Michigan Supreme Court explained in People v Carlson that the prohibited force is force used against a person either to induce submission or to seize control of the person in a manner that facilitates the act without regard to that person's wishes.^[21]

2. A threat of present force

The second form is coercing a person to submit by threatening to use force or violence, where the person believes the actor has the present ability to carry out the threat.^[1]

3. A threat of future retaliation

The third form is coercing a person to submit by threatening to retaliate in the future against that person or any other person, where the person believes the actor has the ability to carry out the threat. The statute says "to retaliate" includes threats of physical punishment, kidnapping, or extortion.^[1]

4. Unethical or unacceptable medical treatment or examination

The fourth form applies when the actor engages in the medical treatment or examination of a person "in a manner or for purposes that are medically recognized as unethical or unacceptable."^[1] The Court of Appeals has said "medical treatment" in this provision is read broadly to include forms of health care beyond those practiced by medical doctors.^[22] This provision, and the separate felony for sexual contact or penetration under a pretext of medical treatment, are covered in sexual conduct by health and mental health professionals.

5. Concealment or surprise

For penetration offenses, the fifth form is when the actor, "through concealment or by the element of surprise, is able to overcome the victim."^[1] The fourth-degree statute words its version differently: it covers sexual contact that the actor "achieves" through concealment or by the element of surprise.^[5]

The benchbook used by Michigan judges, citing a Court of Appeals decision that was later overruled on other grounds, states that the element of surprise 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.^[23] In another case the court found coercion by concealment or surprise where the defendant disguised himself and took advantage of the complainant mistaking him for her fiance.^[24]

The list is not complete

Each CSC section that uses the phrase says force or coercion "includes, but is not limited to" the listed circumstances.^{[2][4][7][18]} Michigan appellate courts have described several situations that fall within the phrase without an explicit threat or a physical struggle:

• The Court of Appeals has said the existence of force or coercion is determined in light of all the circumstances and is not limited to acts of physical violence.^[25]
• A finding of force or coercion may be based on a showing that the defendant's actions were sufficient to create a reasonable fear of dangerous consequences.^[26]
• Force or coercion may exist where the defendant's conduct leads a person to reasonably believe there is no practical choice, because of a history of child sexual abuse or for some other similarly valid reason.^[27]
• A person in a position of authority can coerce through that position. The benchbook used by Michigan judges describes a complainant as being in a position of special vulnerability and subjugation where the defendant is in a position of authority over that person.^[28]

These are fact-specific rulings. In another decision, People v McGill, the Court of Appeals cautioned that the conduct it found coercive toward a 13-year-old will not always satisfy the element, and that each case must be examined on its own facts to determine whether force or coercion is present.^[29] How authority relationships are treated is explained in positions of authority and CSC.

How much force is "force"?

Michigan courts have separated the force the statute prohibits from the physical contact involved in the act itself. In People v Carlson the Supreme Court described the prohibited force as force used to induce submission or to seize control of the person so that the act is accomplished without regard to the person's wishes.^[21] Under that decision the force need not be so great as to overcome the complainant.^[21]

Is resistance required?

No. MCL 750.520i says: "A victim need not resist the actor in prosecution under sections 520b to 520g."^[3] The model criminal jury instructions include an instruction telling jurors that the prosecutor does not have to show that the complainant resisted.^[3]

A related rule concerns proof. The testimony of the complainant does not have to be corroborated in a CSC prosecution.^[30] That rule is explained in one-witness cases and corroboration.

How consent relates to force or coercion

The Court of Appeals has described the statute as silent on the defense of consent and has read it as impliedly recognizing one.^[31] In the context of the CSC statutes, consent can be used as a defense to negate the elements of force or coercion.^[8]

The prosecutor is not required to prove non-consent as a separate element.^[32] Once the defense produces enough evidence to put consent in controversy, the prosecutor bears the burden of disproving consent beyond a reasonable doubt.^[9] The model jury instruction defines consent as agreeing to a sexual act "freely and willingly, without being forced or coerced."^[33]

The Court of Appeals has also observed that the presence of consent is not necessarily the factual equivalent of the absence of coercion, and that the inquiry is into the validity of the consent. That opinion was later vacated in part on other grounds.^[34] The subject is covered in consent under Michigan CSC law and, from the trial perspective, in the consent defense.

What people get wrong

"Force means violence." Violence is one of five listed forms, and the list is expressly open-ended.^[1][2]

"If there was no struggle, there is no case." The statute says a victim need not resist.^[3]

"A threat only counts if it is a threat of immediate harm." The statute separately covers threats to retaliate in the future, against the person or anyone else.^[1]

"Any accusation of pressure is enough." The prosecutor has to prove the charged circumstance, and the Court of Appeals has said each case is examined on its own facts to decide whether force or coercion is present.^[29] Where consent is put in issue, the prosecutor carries the burden of disproving it beyond a reasonable doubt.^[9]

For how these cases are investigated and tried, see how sex-crime investigations work and what happens at a CSC trial.