Michigan Sentencing Guidelines in Criminal Sexual Conduct Cases

Michigan's sentencing guidelines produce a recommended range for the minimum sentence in a felony case. In a criminal sexual conduct (CSC) case the judge must score the guidelines and consider that range, but the range is advisory, and a mandatory minimum written into a statute overrides it.^[1][2]

This page explains how the range is built, which scoring factors carry the most weight in sex cases, and where the judge's discretion begins and ends. It does not predict any sentence. The numbers on a grid describe a recommendation, not an outcome.

What do the guidelines actually control?

When a person is convicted of a felony for the first time and the offense may be punished by imprisonment in a state prison, the court does not fix a definite term. It fixes a minimum term, and the maximum is the maximum penalty provided by law.^[8] The guidelines speak only to the minimum.^[1]

Two statutory limits sit on top of the guidelines. First, a court may not impose a minimum sentence, including a departure, that exceeds two-thirds of the statutory maximum.^[9] Second, if a statute mandates a minimum sentence, the court must impose a sentence in accordance with that statute, and doing so is not a departure.^[2]

Mandatory minimums come first. First-degree CSC committed by a person 17 or older against a child under 13 carries life or any term of years, but not less than 25 years.^[3] A person convicted of a second or subsequent offense under the first-, second- or third-degree statutes must receive a mandatory minimum of at least 5 years.^[10] The earlier conviction may be under one of those three statutes or under any similar federal or other-state statute for a criminal sexual offense.^[11] A person 18 or older convicted of first-degree CSC against a child under 13 must be sentenced to life without the possibility of parole if previously convicted of first-, second-, third- or fourth-degree CSC or assault with intent to commit CSC against a child under 13, or of a substantially corresponding federal or other-state offense against a child under 13.^[12] Where one of these statutes applies, the court must sentence in accordance with it.^[2] See mandatory minimum sentences for CSC.

How is the recommended range calculated?

The statute sets out three steps.^[13]

1. Score the offense variables (OVs) that apply to the offense category and total the points to find the offense variable level.^[13]
2. Score the prior record variables (PRVs) and total the points to find the prior record variable level.^[13]
3. Find the offense class, go to the sentencing grid for that class, and read the recommended minimum range at the intersection of the two levels. The grid shows the range in months or life.^[13]

If the person is sentenced as a habitual offender, the upper limit of the range is increased by 25% for a second felony, 50% for a third and 100% for a fourth or subsequent felony.^[14]

What crime class is each CSC offense?

All CSC offenses are "crimes against a person" under the guidelines. The class of each offense is fixed by statute.^[4]

Offense	Guidelines class	Statutory maximum
First-degree CSC (MCL 750.520b)	A	Life[4]
Third-degree CSC (MCL 750.520d)	B	15 years[4]
Second-degree CSC (MCL 750.520c)	C	15 years[4]
Assault with intent to commit sexual penetration (MCL 750.520g(1))	D	10 years[15]
Assault with intent to commit second-degree CSC (MCL 750.520g(2))	E	5 years[15]
Fourth-degree CSC (MCL 750.520e)	G	2 years[4]

Two points in that table are easy to miss. Third-degree CSC sits in a more serious class (B) than second-degree CSC (C), although both carry a 15-year maximum.^[4] And fourth-degree CSC, which the Penal Code labels a misdemeanor punishable by up to 2 years, is scored under the felony guidelines as a Class G offense.^[16][4]

Related offenses have their own classes. Possessing child sexually abusive material is Class F, and producing it is Class B.^[17] Accosting a child for immoral purposes is Class F.^[18] For using a computer to commit a crime under MCL 750.145d, the offense category and variable levels are based on the underlying offense.^[17] Those offenses are explained in child sexually abusive material laws and using a computer to commit a crime.

Which offense variables are scored in a CSC case?

For all crimes against a person, the court scores offense variables 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 19 and 20.^[19] Five of them are described below.

Variable	What it measures	Points
OV 4	Serious psychological injury to a victim requiring professional treatment	10 or 0[20]
OV 8	Victim moved to a place or situation of greater danger, or held captive beyond the time necessary to commit the offense	15 or 0[21]
OV 10	Exploitation of a vulnerable victim	15, 10, 5 or 0[22]
OV 11	Criminal sexual penetrations	50, 25 or 0[5]
OV 13	Continuing pattern of criminal behavior	50 or 25 in the categories most relevant to sex cases[23]

OV 4: psychological injury

Ten points are scored if the serious psychological injury may require professional treatment; the fact that treatment has not been sought is not conclusive.^[24]

OV 10: exploitation of a vulnerable victim

Fifteen points apply where predatory conduct was involved. Ten points apply where the offender exploited a victim's physical disability, mental disability, youth or agedness, or a domestic relationship, or abused his or her authority status. Five points apply where the offender exploited a difference in size or strength, or a victim who was intoxicated, under the influence of drugs, asleep or unconscious.^[22]

"Predatory conduct" means pre-offense conduct directed at a victim, or at a law enforcement officer posing as a potential victim, for the primary purpose of victimization. The statute also says that the mere existence of one of the listed factors does not automatically equate with victim vulnerability.^[25]

OV 11: criminal sexual penetrations

OV 11 is scored at 50 points if two or more criminal sexual penetrations occurred, 25 points for one and 0 for none.^[5] The court does not score the one penetration that forms the basis of a first- or third-degree CSC offense.^[6]

OV 12 and OV 13: other acts

OV 12 covers contemporaneous felonious criminal acts: 25 points for three or more involving crimes against a person, 10 for two and 5 for one. An act counts only if it occurred within 24 hours of the sentencing offense and has not and will not result in a separate conviction, and conduct scored in OV 11 is not scored again.^[26]

OV 13 is scored at 50 points where the offense was part of a pattern of felonious criminal activity involving three or more sexual penetrations against a person or persons under 13, but only if the sentencing offense is first-degree CSC.^[23] In scoring OV 13, all crimes within a 5-year period, including the sentencing offense, are counted regardless of whether the offense resulted in a conviction.^[27]

What does the grid look like for first-degree CSC?

The Class A grid has six prior record levels and six offense variable levels. Its recommended minimum ranges run from 21 to 35 months in the lowest cell to 270 to 450 months or life in the highest.^[28] The offense variable levels on that grid change every 20 points, with the top level beginning at 100 points.^[28]

Those figures are the grid's recommendations only. Where the 25-year mandatory minimum applies, the court must impose a sentence in accordance with that statute whatever the grid shows.^[3][2] This page does not reproduce the grids for Classes B through G.

How much discretion does the judge have?

A court may depart from the guidelines range if the departure is reasonable and the court states on the record the reasons for the departure.^[29] A departure may not be based on gender, race, ethnicity, alienage, national origin, legal occupation, lack of employment, the type of legal representation or religion. It also may not rest on a characteristic already taken into account in the range unless the court finds from the record that the characteristic was given inadequate or disproportionate weight.^[30]

At the low end of the grids there is a separate rule. If the upper limit of the recommended range is 18 months or less, the court must impose an intermediate sanction unless it states on the record reasonable grounds to sentence the person to a county jail for not more than 12 months or to prison.^[31] Since March 24, 2021, an intermediate sanction means probation or any other lawful sanction other than imprisonment in a county jail, state prison or state reformatory.^[32] Whether probation is legally available at all depends on the offense: it is not available for first- or third-degree CSC.^[33] See probation and CSC convictions.

Judges also have a limited role before sentencing. A judge may not initiate or take part in plea negotiations, but at a party's request may state on the record the sentence that appears appropriate on the information then available; that preliminary evaluation does not bind the court.^[34] If the court later says it cannot sentence as it stated, the court must give the defendant the opportunity to affirm or withdraw the plea, unless the defendant committed misconduct after the plea was accepted and the court does not allow withdrawal for good cause.^[35] Plea bargains in CSC cases covers that process.

What people get wrong

• "The guidelines tell you the sentence." They recommend a range for the minimum term only, and the range is advisory.^[1]
• "A good guidelines score can beat a mandatory minimum." Where a statute mandates a minimum, the court must impose it.^[2]
• "Fourth-degree CSC is a misdemeanor, so the felony guidelines do not apply." It is listed in the guidelines as a Class G crime against a person.^[4]
• "Only convictions count." OV 13 counts crimes within a 5-year period regardless of whether they resulted in a conviction.^[27]

The sentence a court announces is also only part of the picture. Whether terms run one after another is covered in consecutive sentences in CSC cases; what a minimum and maximum mean in practice is covered in prison, parole and treatment; and the monitoring and registration that can follow are covered in lifetime electronic monitoring and the sex offender registry explained. The statutory maximums for every degree are in the CSC penalties chart.