Sexual Penetration vs. Sexual Contact Under Michigan's CSC Law

Every charge under Michigan's Criminal Sexual Conduct Act starts from one of two defined acts. First- and third-degree criminal sexual conduct (CSC) require "sexual penetration"; second- and fourth-degree CSC require "sexual contact".^[1] Both terms are defined in MCL 750.520a, and the definitions are wider than the everyday meaning of the words.^[2][3]

This page gives each definition in the statute's terms, explains the "sexual purpose" element that applies to contact, and shows how the distinction changes the charge. The language is clinical because the statute's is.

What is "sexual penetration"?

MCL 750.520a(r) reads: "'Sexual penetration' means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required."^[2]

Four features of that sentence matter.

• It lists four named acts and then a general clause. Sexual intercourse, cunnilingus, fellatio and anal intercourse are named; "any other intrusion" covers the rest.^[2]
• "However slight." The model jury instruction tells jurors that any entry, no matter how slight, is enough, and that it does not matter whether the sexual act was completed.^[6]
• Any body part or any object. The instruction's options for the jury include entry by a finger, a tongue or a named object.^[6]
• No emission requirement. The statute says emission of semen is not required.^[2]

Where the "genital opening" begins

The use note to the model instruction, citing the Court of Appeals decision in People v Bristol, states that the genital opening begins at the labia majora, so penetration of the genital opening is accomplished if a body part or object goes into the labia majora, no matter how slightly.^[7]

Oral acts

The two oral acts named in the definition are treated differently. The use note explains that where fellatio is alleged, the jury must be instructed that proof of penetration, however slight, is necessary; cunnilingus is described as an act for which oral contact is sufficient by definition.^[8]

What is "sexual contact"?

MCL 750.520a(q) reads: "'Sexual contact' includes the intentional touching of the victim's or actor's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual manner for: (i) Revenge. (ii) To inflict humiliation. (iii) Out of anger."^[3]

The definition has three working parts.

1. An intentional touching

The touching must be intentional.^[3]

2. Of intimate parts, or the clothing over them

"Intimate parts" includes the primary genital area, groin, inner thigh, buttock, or breast of a human being.^[4] The definition covers the intimate parts of "the victim's or actor's" body, and it covers the clothing covering the immediate area of those parts.^[3] Skin-to-skin contact is therefore not needed.

3. A sexual purpose or sexual manner

The touching counts only if it "can reasonably be construed as being" one of the following:^[3]

• for the purpose of sexual arousal or gratification;^[3]
• done for a sexual purpose; or^[3]
• done in a sexual manner for revenge, to inflict humiliation, or out of anger.^[3]

The last group matters. A touching does not have to be motivated by desire to be sexual contact; a touching in a sexual manner done to humiliate, out of anger or for revenge is inside the definition.^[3]

How is the "sexual purpose" element judged?

Objectively. The statute asks whether the touching "can reasonably be construed" as being for a listed purpose.^[3] The Court of Appeals has said that when determining whether touching could be reasonably construed as being for a sexual purpose, the conduct should be "viewed objectively" under a "reasonable person" standard.^[5]

Separately, the benchbook states that criminal sexual conduct is most often a general intent crime.^[9] The two assault offenses are the exception; see assault with intent to commit CSC.

Touching in the course of medical care is addressed in the statute's list of force or coercion, which includes medical treatment or examination "in a manner or for purposes that are medically recognized as unethical or unacceptable".^[10] The Court of Appeals has read "medical treatment" broadly, to include forms of health care beyond those practiced by medical doctors.^[11] See sexual conduct by health and mental health professionals.

The two definitions compared

	Sexual penetration	Sexual contact
Defined in	MCL 750.520a(r)[2]	MCL 750.520a(q)[3]
Core act	Intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, into the genital or anal openings[2]	Intentional touching of intimate parts or of the clothing covering the immediate area of those parts[3]
Purpose element in the definition	None stated in the definition[2]	Must be reasonably construable as being for sexual arousal or gratification, a sexual purpose, or done in a sexual manner for revenge, humiliation or anger[3]
Degrees that use it	First and third[1]	Second and fourth[1]
Maximum without a first- or second-degree circumstance	15 years (third degree), with a mandatory minimum of at least 5 years for a second or subsequent offense[12][13]	2 years or a fine of up to $500, or both (fourth degree)[14]
Maximum with one	Life or any term of years (first degree), with a minimum of 25 years where the actor is 17 or older and the victim under 13, and life without parole for certain repeat offenses[15][16][17]	15 years (second degree), with a mandatory minimum of at least 5 years for a second or subsequent offense[18][13]

How the distinction changes a case

It sets the degree. The benchbook explains that certain circumstances may escalate a sexual penetration offense from third degree to first degree and a sexual contact offense from fourth degree to second degree.^[19] The act decides which ladder the case is on. The circumstances are listed on the pages for first, second, third and fourth degree.

It affects the number of counts. Separate acts of penetration can be charged as separate offenses, while a single penetration accompanied by more than one aggravating circumstance may give rise to only one charge for purposes of trial, conviction and sentencing.^[20]

A contact offense is not automatically "inside" a penetration charge. A judge or jury may not convict of a cognate lesser offense even where the crime is divided into degrees.^[21] The Court of Appeals has also said that because first- and second-degree CSC each require proof of a fact that the other does not, convictions of both on the same facts do not violate double jeopardy.^[22]

It affects what else follows. Probation is excluded for the two penetration degrees.^[23] The limitation periods and registry tiers also differ by degree; see the statute of limitations, registry tiers and the penalties chart.

What people get wrong

"Penetration means intercourse." The definition includes oral acts and any other intrusion, however slight, by any part of the body or any object.^[2]

"If the act was not completed, it is only an attempt." The model instruction says it does not matter whether the sexual act was completed.^[6]

"Touching through clothing does not count." The definition of sexual contact names the clothing covering the immediate area of intimate parts.^[3]

"It was done out of anger or to humiliate, so it was not sexual." A touching in a sexual manner for revenge, to inflict humiliation, or out of anger is within the definition.^[3]

"What matters is what the accused says he or she intended." The test is whether the touching can reasonably be construed as sexual, viewed objectively.^[5]

Other defined terms that appear alongside these two, such as "force or coercion", "personal injury" and "mentally incapacitated", are explained in force or coercion, incapacitation, intoxication and consent and the legal glossary.