Is Probation Possible for a CSC Conviction in Michigan?

Probation is legally unavailable for two of Michigan's four degrees of criminal sexual conduct (CSC). The probation statute excludes "criminal sexual conduct in the first or third degree."^[1] Second-degree CSC, fourth-degree CSC and assault with intent to commit CSC are not on that excluded list, but where a court grants probation for a registrable offense under the listed-offense provision, the term is not less than 5 years and the order carries conditions that ordinary probation does not.^[1][2][3]

This page explains which convictions are barred, what the law requires of sex-offense probation, and how it can end. Whether a court grants probation in a case where it is legally possible is a matter of the judge's discretion; this page does not predict that.

Which CSC convictions are barred from probation?

MCL 771.1(1) lets a court place a defendant on probation "in all prosecutions for felonies, misdemeanors, or ordinance violations other than murder, treason, criminal sexual conduct in the first or third degree, armed robbery, or major controlled substance offenses."^[1] Even then the statute attaches two findings: the court must determine that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law.^[1]

Conviction	On the list of offenses excluded from probation?	Statutory penalty
First-degree CSC	Yes[1]	Life or any term of years; not less than 25 years where the offender was 17 or older and the victim under 13; life without parole for a person 18 or older with a prior CSC conviction against a child under 13 where this victim was also under 13; at least a 5-year minimum for a second or subsequent offense[7][8][9][10]
Third-degree CSC	Yes[1]	Not more than 15 years; at least a 5-year minimum for a second or subsequent offense[11][10]
Second-degree CSC	No[1]	Not more than 15 years; at least a 5-year minimum for a second or subsequent offense[11][10]
Fourth-degree CSC	No[1]	Not more than 2 years or a fine of not more than $500, or both[12]
Assault with intent to commit CSC	No[1]	Not more than 10 years (intent to commit penetration) or 5 years (intent to commit second-degree CSC)[13]

Being off the excluded list does not mean probation will be granted. The statute says the court "may" place the defendant on probation.^[1] The Legislature has also declared that the granting of probation is a matter of grace requiring the agreement of the probationer.^[14]

Other statutes can still require prison. A second or subsequent offense under the first-, second- or third-degree CSC statutes carries a mandatory minimum sentence of at least 5 years; the earlier conviction may be under one of those statutes or under any similar federal or other-state statute for a criminal sexual offense.^[10][15] That rule is explained in second or subsequent CSC offenses, and the sentencing ranges that judges consider are explained in sentencing guidelines in CSC cases.

Is a delayed sentence available?

A delayed sentence lets the court postpone sentencing for not more than 1 year to give the defendant an opportunity to prove eligibility for probation or other leniency. The statute allows it only "in an action in which the court may place the defendant on probation."^[16] Because first- and third-degree CSC are excluded from probation, that wording does not reach them.^[1][16]

How long does sex-offense probation last?

Ordinary probation is capped at 2 years for an offense that is not a felony and 3 years for a felony, except as the listed-offense section provides.^[17] The listed-offense section, MCL 771.2a(7), sets a different rule: the court may place an individual convicted of a listed offense on probation "for any term of years but not less than 5 years."^[2]

A "listed offense" is any Tier I, Tier II or Tier III offense under the Sex Offenders Registration Act.^[18] Second-degree and fourth-degree CSC are both tiered offenses; which tier depends on the victim's age.^[19][20][21] The tiers are set out in SORA tiers.

The court may exempt two groups from the 5-year scheme: a person who completed youthful trainee probation for a listed offense, and a person convicted solely under the age-based fourth-degree CSC provision who was 17 or older but less than 21 at the time and is not more than 5 years older than the victim.^[22] Youthful trainee status is covered in HYTA and sex offenses.

What conditions does the law require?

Conditions in every probation order

Every sentence of probation must include conditions that the probationer not violate any criminal law, not leave the state without the consent of the court, report to the probation officer monthly or as often as the officer requires, and pay restitution. If the probationer is required to be registered under the Sex Offenders Registration Act, complying with that act is itself a required condition.^[23]

The student safety zone

For listed-offense probation, the court shall order the individual not to reside within a student safety zone, not to work within one, and not to loiter within one. A student safety zone is the area that lies 1,000 feet or less from school property.^[3]

The statute carves out exceptions:^[4]

• The residence condition is not imposed on a person not more than 19 years of age who attends secondary or postsecondary school and resides with a parent or guardian; that person must instead be ordered not to initiate or maintain contact with a minor within the zone, apart from schoolmates in conjunction with school attendance.^[4]
• The residence condition is not imposed on a person who was residing within the zone on January 1, 2006; the court instead orders no contact with minors within the zone.^[4]
• The work condition is not imposed on a person who only intermittently or sporadically enters a student safety zone for purposes of work; the court must instead order that person not to initiate or maintain contact with any minors in the course of that work within the zone.^[4][24]

The statute contains further exceptions for special-education students, people who were working in the zone on January 1, 2006, and hospital or hospice patients.^[4]

People often say registrants "cannot live within 1,000 feet of a school." The registration act's own student-safety-zone sections were repealed effective March 24, 2021.^[25] The 1,000-foot rule described here is a probation condition under MCL 771.2a and applies to people on probation for a listed offense.^[3] See residency and school-zone rules.

Conditions the court may add

As a condition of probation the court may require, among other things, up to 12 months in the county jail, mental health treatment, mental health or substance abuse counseling, house arrest, electronic monitoring, community service, and conditions reasonably necessary for the protection of one or more named persons. The court may also impose other lawful conditions as the circumstances of the case require or warrant.^[26]

The statute does not list conditions specific to sex offenses, such as a particular treatment program. What a given probation order contains is set by the sentencing court, and practice varies by court.

Jail as a probation condition has its own limit in these cases. A person housed in jail while serving any part of a sentence for first-, second- or third-degree CSC, assault with intent to commit CSC, or an offense under MCL 750.145c cannot be granted day-parole privileges such as release for work, except to leave for medical treatment, substance abuse treatment, mental health counseling or psychological counseling.^[27]

Can probation end early?

The general probation statute lets a probationer become eligible for early discharge after completing half of the original probation period.^[28] That rule is closed to people convicted of second-degree CSC, fourth-degree CSC or a listed offense: each "is not eligible for reduced probation under this section."^[5]

What happens on a violation?

A probationer accused of violating a condition is entitled to a written copy of the charges and to a probation revocation hearing. If a probation order is revoked, the court may sentence the probationer in the same manner and to the same penalty as it might have done if the probation order had never been made.^[14] For second-degree CSC, the statutory maximum is 15 years.^[11]

Revocation is itself limited by a 2021 law on technical violations. Probation orders are revocable subject to MCL 771.4b, and a court may not revoke probation for a technical violation unless the probationer has already been sanctioned for 3 or more technical violations and commits a new one. For a person on felony probation, temporary jail for a technical violation is capped at 15 days for a first violation, 30 for a second and 45 for a third. A violation of a criminal law, a violation of a court order to have no contact with a named individual, and absconding are not technical violations.^[29]

One kind of violation leaves the judge no choice. The registration act says the court "shall revoke the probation of an individual placed on probation who willfully violates this act."^[6] A willful registration violation is also a separate crime, with penalties described in failure to register penalties.^[30]

General probation-violation procedure is covered in the sister guide: probation violations.

Does lifetime electronic monitoring apply on probation?

The Court of Appeals has read the lifetime monitoring statutes as applying "only to persons who have been released on parole or from prison, or both."^[31] Ordinary electronic monitoring, by contrast, is one of the conditions a court may attach to any probation order.^[26] See lifetime electronic monitoring.

What people get wrong

• "Probation is possible for any first offense." Not for first- or third-degree CSC, which the probation statute excludes.^[1]
• "Fourth-degree CSC is a misdemeanor, so probation is a year or two." If the conviction is for a listed offense, the term is not less than 5 years unless the court applies one of the statutory exemptions.^[2][22]
• "Probation means no registry." Registration follows from conviction of a listed offense, not from the type of sentence, and complying with the registration act is a required probation condition for anyone who must register.^[32][23]

For the registry itself, start with the sex offender registry explained. For the degrees of CSC that remain eligible for probation, see second-degree CSC and fourth-degree CSC.