Positions of Authority and Criminal Sexual Conduct in Michigan

Michigan's criminal sexual conduct (CSC) statutes treat authority in two ways. A general provision applies to anyone "in a position of authority over the victim" who "used this authority to coerce the victim to submit."^[2] Separate provisions name particular roles, such as teachers and other school staff, child care and foster care providers, corrections staff and mental health professionals, and attach their own conditions to each.^[4]

If you or a young person you know is 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 what each provision covers and what it does not. 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. The statutes use the word "actor" for the person accused and "victim" for the person alleging the conduct; both terms are defined by accusation, not by proof.^[13]

What does "position of authority" mean?

The CSC definitions section does not define the phrase. The model criminal jury instruction tells jurors: "It is for you to decide whether, under the facts and circumstances of this case, the defendant was in a position of authority."^[1]

The phrase appears in four places as part of an offense, and each time it comes with a second requirement, that the actor used the authority to coerce the person to submit:

• First-degree CSC: sexual penetration with a person at least 13 but under 16.^[2]
• Second-degree CSC: sexual contact with a person at least 13 but under 16.^[14]
• First-degree CSC: sexual penetration with a person who is mentally incapable, mentally disabled, mentally incapacitated or physically helpless.^[3]
• Second-degree CSC: sexual contact with a person in one of those four conditions.^[15]

The phrase also appears as a defense. In a prosecution based on a blood or affinity relationship to the third degree, it is an affirmative defense that the other person was in a position of authority over the defendant and used it to coerce the defendant; the defendant has the burden of proving that by a preponderance of the evidence.^[16][17]

Authority as a form of coercion

Outside those four provisions, authority matters through the element of force or coercion, which applies whatever the person's age. Force or coercion is determined in light of all the circumstances and is not limited to acts of physical violence.^[18] 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.^[19]

The reported cases show the range of relationships involved:

• A high school teacher whose touching of students on school property was held to be an abuse of his authority as a teacher sufficient to constitute coercion.^[19]
• A counselor who used the counseling relationship to place the complainant in a confused and disoriented condition.^[20]
• A teacher of a healing practice who abused his position of authority to constrain a 14-year-old to submit to sexual contact.^[21]
• A child protective services worker whose complainants testified that they only "consented" because they feared he would otherwise take their children away.^[22]

MCL 750.520a through 750.520e do not use the words coach, clergy, employer or supervisor.^[4] A person in one of those roles is reached, if at all, through the general provisions above or through a role-based provision whose terms the person meets. The element itself is explained in force or coercion: what the statute lists.

Provisions that name a role

These provisions do not use the phrase "position of authority." They describe a role and a protected group. First- and third-degree CSC involve sexual penetration; second- and fourth-degree CSC involve sexual contact.^[23]

Setting and actor	Protected person	Added condition in the statute	Offense
Teacher, substitute teacher or administrator of the school or district	Enrolled person at least 13 but under 16	None beyond the role	First degree (penetration)[2]; second degree (contact)[14]
Teacher, substitute teacher or administrator of the school or district	Student at least 16 but under 18	Does not apply if the student is emancipated	Third degree (penetration)[8]; fourth degree (contact)[24]
Other school employee, contractual service provider, volunteer who is not a student, or state, local or federal employee assigned to the school	Enrolled person at least 13 but under 16	The actor used that status to gain access to, or to establish a relationship with, the person	First degree (penetration)[25]; second degree (contact)[26]
Other school employee, contractual service provider, non-student volunteer or assigned government employee	Student at least 16 but under 18	The actor uses that status to gain access to, or to establish a relationship with, the student	Third degree (penetration)[9]; fourth degree (contact)[27]
Teacher, substitute teacher, administrator, employee or contractual service provider of the school or district providing special education services	Person at least 16 but under 26 receiving those services	Does not apply if both persons are at least 18 and were lawfully married to each other at the time	Third degree (penetration)[28]; fourth degree (contact)[29]
Non-student volunteer or assigned government employee at that school or district	Person at least 16 but under 26 receiving special education services	The actor uses that status to gain access to, or to establish a relationship with, the person	Third degree (penetration)[30]; fourth degree (contact)[29]
Employee, contractual service provider or volunteer of a child care organization, or licensed operator of a foster family home or foster family group home	Resident at least 13 but under 16	The act occurs during the period of the residency	First degree (penetration)[31]; second degree (contact)[26]
The same child care and foster care actors	Resident at least 16	The act occurs during the residency	Third degree (penetration)[32]; fourth degree (contact)[33]
Employee, contractual employee or volunteer of the Department of Corrections	Person under the department's jurisdiction	The actor knows the person is under that jurisdiction	Second degree (contact)[6]
Staff or volunteers of a private vendor operating a youth correctional facility; county or corrections staff; staff of a juvenile detention or commitment facility	Person under corrections jurisdiction; county prisoner or probationer; juvenile detained or committed by a court	Knowledge of the person's status (for the juvenile facility, knows or has reason to know)	Second degree (contact)[34]
Mental health professional	Client or patient who is not the professional's spouse	The contact occurs during the professional relationship or within 2 years after it; consent is not a defense	Fourth degree (contact)[7]

The four corrections and detention circumstances appear only in the second-degree statute.^[6] Penalties for each degree are in the CSC penalties chart.

Schools

The school provisions draw a line between two groups. A teacher, substitute teacher or administrator is covered by the role itself.^[8] Other employees, contractual service providers, volunteers who are not students, and government employees assigned to the school are covered when they use that status to gain access to, or to establish a relationship with, the student.^[9] The Court of Appeals has held that prosecution under the teacher provision is not foreclosed where a sexual penetration by a substitute teacher occurs before or after school, on a weekend or during the summer, while a person who was only a former substitute teacher at the time did not qualify.^[35][36] Details are in teacher and school-employee offenses.

Child care organizations and foster homes

The CSC sections borrow their definitions from the child care licensing act. A "child care organization" is an organization whose principal function is receiving minor children for care, maintenance, training and supervision; the definition lists child caring institutions, child placing agencies, children's camps, child care centers, day care centers, nursery schools, foster homes and group homes, among others.^[37] A foster family home is the private home of an individual licensed to provide 24-hour care for 1 to 4 minor children placed in foster care, and a foster family group home is licensed for more than 4 but fewer than 7.^[38]

Mental health professionals and medical treatment

"Mental health professional" is defined by the Mental Health Code as an individual trained and experienced in the area of mental illness or developmental disabilities who is a physician, a psychologist, a registered professional nurse, a licensed master's social worker, a licensed professional counselor, or a licensed marriage and family therapist.^[39] Separately, medical treatment or examination carried out in a manner or for purposes medically recognized as unethical or unacceptable is one of the listed forms of force or coercion.^[40] A different statute makes it a felony to induce a patient to engage in sexual contact or penetration by misrepresenting that it is necessary or beneficial to the patient's health.^[41] See sexual conduct by health and mental health professionals.

Family and household relationships

Relatives by blood or affinity and members of the same household are covered by their own provisions, which do not contain the requirement that authority was used to coerce.^[2][3] See CSC involving relatives and household members.

Reporting duties that attach to these roles

Many of the same roles carry a duty to report suspected child abuse. Michigan's list of mandated reporters includes physicians, nurses, psychologists, licensed professional counselors, social workers, school administrators, school counselors, teachers, members of the clergy and regulated child care providers.^[42] For reporting purposes, "child abuse" includes sexual abuse or sexual exploitation by a teacher, a teacher's aide, a member of the clergy, or an individual 18 or older who is involved with a youth program.^[43] Any person, including a child, who has reasonable cause to suspect child abuse may report it.^[44]

Since September 27, 2023 it has also been a misdemeanor to intentionally use a professional position of authority over another person to prevent, or attempt to prevent, that person from reporting criminal sexual conduct to a Title IX coordinator at a college or university.^[45] See mandated reporters of child abuse.

Professional and registry consequences

A conviction also has licensing consequences that are separate from the sentence. For a certified teacher, conviction of criminal sexual conduct in any degree leads to summary suspension of the teaching certificate.^[46] A disciplinary subcommittee has to permanently revoke the license of a health professional convicted of first-, second- or third-degree CSC if the violation occurred while the person was acting within the health profession.^[47] See professional licenses and employment.

The Sex Offenders Registration Act uses a related concept, "custodial authority," which includes an actor who was a member of the same household, a relative to the fourth degree, a person in a position of authority who used it to coerce, or a teacher, substitute teacher or administrator of the person's school.^[48]

What people get wrong

"Sixteen is the age of consent, so a 16- or 17-year-old student is outside these laws." The school provisions apply to students at least 16 but under 18, and other provisions reach older people in special education and residential care.^[5]

"Holding a position of authority is enough by itself." Under the general provisions the prosecutor also has to prove the authority was used to coerce.^[2][3] The role-based provisions work differently: each states its own conditions, set out in the table above.^[8][9]

"Sexual contact by corrections staff is a fourth-degree offense." It is in the second-degree statute, a felony with a maximum of 15 years.^[6][49]