Ten Mistakes That Make a Sex Crime Investigation Worse, and the Law Behind Each

Some mistakes made after a sex offense allegation are crimes in their own right, and others create new evidence. Violating the witness statute, tampering with evidence and violating a protective release condition each carry their own consequences under Michigan law, separate from the original allegation.^[4][5][7]

This page lists ten of them. For each it states the rule and the legal consequence, with the source. It explains the law; it is not advice about any person's case, and nothing here assumes that an allegation is true or false.

Mistakes involving the complainant and witnesses

1. Contacting the complaining witness

MCL 750.122 prohibits using threat or intimidation to discourage or attempt to discourage any individual from attending, testifying or giving information at a present or future official proceeding, to influence or attempt to influence testimony, or to encourage or attempt to encourage any individual to avoid legal process, withhold testimony or testify falsely.^[2] It separately prohibits willfully impeding, interfering with, preventing or obstructing the ability of a witness to attend, testify or provide information.^[3]

The statute applies whether or not a proceeding is pending or a subpoena has been served, if the person knows or has reason to know the other person could be a witness at any official proceeding.^[11] A violation is a felony punishable by up to 4 years, by up to 10 years in a criminal case for which the maximum term is more than 10 years or which is punishable by life or any term of years, and by up to 15 years if the violation involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage.^[4]

Whether a particular contact falls within those words is decided afterward, by a prosecutor and a court. The sources reviewed for this guide do not identify any form of contact with a complainant, for any stated purpose, as permitted.

Once a case is charged, a court order can add a second layer: a court may make release conditional on any condition limiting or prohibiting contact with a named person.^[12] See Bond in Michigan CSC cases and, for the general mechanics of these orders, the sister guide's No-contact orders explained.

2. Sending a message through someone else

The witness statutes begin "A person shall not." They are not limited to the accused.^[1][2][3] The same words therefore apply to a relative or friend who carries a message, and a message carried for someone else is still a communication with the person who receives it. Neither statute prevents a person from being charged with any other violation of law arising out of the same transaction.^[13] The family's position is covered in When a family member is accused.

3. Offering money, favors or anything else of value

A person shall not give, offer to give, or promise anything of value to an individual to discourage any individual from attending, testifying or giving information at a present or future official proceeding, to influence any individual's testimony, or to encourage any individual to avoid legal process, withhold testimony or testify falsely.^[1] During a police investigation, a parallel rule in MCL 750.483a(3) covers giving, offering or promising anything of value to any person, or threatening or intimidating any person, to influence a person's statement to a police officer conducting a lawful investigation of a crime or the presentation of evidence to that officer; a violation is a misdemeanor punishable by up to 1 year, or a felony punishable by up to 10 years if it involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage.^[14]

4. Retaliating

Retaliating, attempting to retaliate or threatening to retaliate against a person for having been a witness in an official proceeding is a felony punishable by up to 10 years, where "retaliate" means committing or attempting a crime against any person or threatening to kill or injure any person or to cause property damage.^[15] MCL 750.483a(1)(d) applies the same definition to retaliation against a person for having reported or attempted to report a crime.^[8]

School and workplace processes have their own retaliation rules. The Title IX regulations provide that no school or other person may intimidate, threaten, coerce or discriminate against any individual because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding or hearing under the regulations.^[9] The Elliott-Larsen Civil Rights Act prohibits retaliating or discriminating against a person because the person made a charge, filed a complaint or participated in an investigation under the act.^[10]

Mistakes involving evidence

5. Deleting, editing or hiding messages, images, accounts or devices

A person shall not knowingly and intentionally remove, alter, conceal, destroy, or otherwise tamper with evidence to be offered in a present or future official proceeding.^[5] A violation is a felony punishable by up to 4 years or a fine of up to $5,000, or both, and by up to 10 years or a fine of up to $20,000, or both, if committed in a criminal case for which the maximum term of imprisonment is more than 10 years or which is punishable by life or any term of years.^[5] The court may order that term to be served consecutively to a term imposed for any other crime.^[13]

The statute's verbs are remove, alter, conceal, destroy and tamper; keeping material exactly as it is is none of those, and is the lawful course.^[5] That includes material a person believes is helpful, unhelpful or irrelevant: the statute draws no such distinction.^[5] A Michigan lawyer may not unlawfully alter, destroy or conceal material having potential evidentiary value, or counsel or assist another person to do so.^[16] How messages and images are authenticated and used is explained in Digital evidence in sex crime cases.

6. Offering false evidence or making a false report

MCL 750.483a(5)(b) prohibits offering evidence at an official proceeding that the person recklessly disregards as false, with the same penalties as tampering with evidence.^[17] Separately, intentionally making a false report of the commission of a crime to a peace officer, knowing the report is false, is a crime; a false report of a felony is a felony punishable by up to 4 years.^[18][19] The statute's text requires both that the report be made intentionally and that the person know the report is false.^[18]

Mistakes involving statements

7. Treating an informal conversation with police as "off the record"

Under MRE 801(d)(2)(A), a statement made by a party and offered against that party is not hearsay.^[6] Miranda warnings are tied to custodial interrogation, which the U.S. Supreme Court defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of freedom of action in any significant way.^[20] The same opinion says volunteered statements of any kind are not barred by the Fifth Amendment and that general questioning of citizens in the fact-finding process is not affected by its holding.^[21]

The rights themselves are these: the Michigan Constitution provides that no person shall be compelled in any criminal case to be a witness against himself, and a person in custody who states that he or she wants an attorney is entitled to have the interrogation cease until an attorney is present.^[22][23] See When a detective calls.

8. Assuming a call or message is private

Michigan's eavesdropping sections do not prohibit eavesdropping or surveillance, not otherwise prohibited by law, by a peace officer, or the officer's agent, while in the performance of the officer's duties.^[24] The Michigan Court of Appeals and the federal Sixth Circuit have read the statute as not reaching a participant's own recording of a conversation; the Sixth Circuit noted in 2022 that the Michigan Supreme Court had not decided that question.^[25] The evidence rule on a party's own statements makes no exception for a recorded one.^[6] Details are in Pretext phone calls and recorded conversations.

9. Treating a school or workplace process as separate from the criminal case

A college must create an audio or audiovisual recording, or transcript, of any live Title IX hearing, and a school must keep records of each sexual harassment investigation, including that recording or transcript, for seven years.^[26][27] The hearing paragraph of the Title IX regulation contains no sentence about a party's refusal to answer or about what may be inferred from it, and the sources reviewed for this guide do not state how statements made in a school or employer process may be used in a criminal case.^[28] That is a question for a lawyer who knows the facts. See Title IX and criminal charges at the same time and Accused of harassment at work.

Mistakes involving court orders

10. Treating a release condition as flexible

When a judge releases a defendant on conditions for the protection of named persons, the judge must inform the defendant of the specific conditions and that a violation subjects the defendant to arrest without a warrant and possible forfeiture or revocation of bail, in addition to any other penalties that may be imposed if the defendant is found in contempt of court.^[7] A peace officer may make that arrest on reasonable cause to believe the defendant is violating or has violated the condition.^[29]

If the defendant has failed to comply with the conditions of release, the court may issue a warrant, revoke the release order and declare the bail money or surety bond forfeited.^[30] The court rule provides for a release decision to be modified by the court, on a party's motion or on the court's own initiative; it does not provide for modification by agreement between the defendant and the protected person.^[31] A sexual assault personal protection order (PPO) is a separate court order; see Sexual assault PPOs.

A note on the "truthful testimony" defense

MCL 750.122 contains an affirmative defense: the defendant has the burden of proving by a preponderance of the evidence that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce or cause the other person to testify or provide evidence truthfully.^[32] It is a defense "under subsections (1) and (3)" of that statute, raised by a person who has already been charged, with the burden on that person.^[32] The subsection does not name the interference prohibition in subsection (6), a release condition or a PPO, and it is not worded as permission to contact anyone.^[32] This page does not describe any form of contact as permitted.

The rules above are set out step by step in Accused of a sex offense: first steps. When a lawyer becomes available, and at whose expense, is in Do you need a lawyer before charges are filed? The investigation itself is described in How sex crime investigations work.