When a Family Member Is Accused of a Sex Offense in Michigan: What Relatives Can and Cannot Do

Relatives of a person accused of a sex offense may lawfully do several useful things: learn where the case stands, post bail, attend public hearings and help with the cost of a lawyer.^[5][7][9] What the sources do not offer is any lawful role in contacting the complaining witness or other witnesses. Relaying a message for the accused is contact with the person who receives it. Michigan's witness statutes apply to any person, and a violation is a felony.^[1][2][10]

Families are sometimes on both sides of an allegation. If you or a child in the household needs help or is in danger, call 911. The national hotline of the Rape, Abuse & Incest National Network is 800-656-HOPE (800-656-4673).^[11] Michigan's VOICES4 hotline takes calls and texts at 1-855-864-2374, 24 hours a day, and is confidential.^[12]

This page sets out both lists with the source for each item. It is general information, it assumes nothing about whether an allegation is true, and it is not advice about any case.

What families may lawfully do

Find out where the case stands

In a felony case, at the arraignment on the warrant or complaint the court advises the defendant of the right to a lawyer.^[13] In a felony case the magistrate must then set a probable cause conference not less than 7 days or more than 14 days after the arraignment, and a preliminary examination not less than 5 days or more than 7 days after that conference.^[14] The clerk of the court handling the case can confirm dates and locations. The sequence is laid out in the timeline of a felony CSC case, and court contact details for the region are in West Michigan courts for sex offense cases.

Early information can be limited. In a prosecution for criminal sexual conduct, on the request of counsel, the victim or the accused, the magistrate shall order that the names of the victim and the accused and the details of the alleged offense be suppressed until the accused is arraigned on the information, the charge is dismissed, or the case is otherwise concluded, whichever occurs first.^[15]

Help with bail

All persons are bailable before conviction under the Michigan Constitution, with exceptions that include a person charged with first-degree criminal sexual conduct when the proof is evident or the presumption great, unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.^[16] In fixing bail the court must consider the seriousness of the offense, the protection of the public, the accused's previous record and dangerousness, and the probability of appearing at trial.^[17]

Where money bail is required, the court rule allows bail executed by the defendant "or by another who is not a surety approved by the court," secured by a cash deposit or, with the court's consent, designated real property, as an alternative to a surety bond.^[5] A relative who posts bail takes on a stated risk: if the defendant fails to comply with the conditions of release the court may declare the bail forfeited, and if the defendant does not appear and surrender within 28 days after the revocation date the court may enter judgment against the defendant and anyone who posted bail or bond for an amount not to exceed the full amount of the bail, and costs of the court proceedings.^[6]

If the court orders electronic monitoring as a release condition in an assaultive-crime case, the defendant is released only on agreeing to pay the cost of the device and monitoring or to perform community service work instead.^[18] See Bond in Michigan CSC cases.

Attend hearings

Court sittings are public.^[7] Three limits matter to families in these cases:

• A court may, for good cause shown, exclude from the courtroom other witnesses in the case when they are not testifying. A relative who may be called as a witness can therefore be kept out for part of a hearing.^[7]
• The magistrate may close the preliminary examination to the general public in a case charging criminal sexual conduct if the statutory conditions are met.^[8]
• During the trial testimony of a witness covered by MCL 600.2163a, a court that finds it necessary to protect the witness's welfare must order one or more listed arrangements, one of which is to have all persons not necessary to the proceeding excluded during that testimony, with the testimony broadcast by closed-circuit television to the public in another location.^[19]

The complaining witness has rights in the courtroom as well, including the right to be present throughout the trial, subject to sequestration until he or she first testifies.^[20]

Help find or pay for a lawyer

A relative can gather names, make calls and pay. The ethics rules then draw a line: a lawyer shall not accept compensation from someone other than the client unless the client consents after consultation, there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship, and information relating to the representation is protected.^[9] The plea decision, the jury decision and the decision whether to testify belong to the client.^[21]

If the family cannot pay, that does not leave the accused without counsel. In a felony case, at the arraignment on the warrant or complaint the court must advise the defendant of the right to a lawyer at public expense if the defendant wants one and is financially unable to retain one, and the ability to post bond does not make the defendant ineligible for appointment of a lawyer.^[13][22] If the defendant pleads guilty or no contest or is found guilty, the court may impose the expenses of providing legal assistance.^[23] The routes to a lawyer, which include appointed counsel and the State Bar of Michigan's referral service as well as retained counsel, are compared in Do you need a lawyer before charges are filed?

What the law prohibits

Contact with the complaining witness or other witnesses

MCL 750.122 begins "A person shall not." It prohibits three things, by anyone:^[1][2][3]

• giving, offering or promising 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 testimony, or to encourage any individual to avoid legal process, withhold testimony or testify falsely;^[1]
• doing any of those things by threat or intimidation, or attempting to;^[2]
• willfully impeding, interfering with, preventing or obstructing the ability of a witness to attend, testify or provide information, or attempting to.^[3]

The statute applies regardless of whether an official proceeding is pending or the individual has been subpoenaed, if the person knows or has reason to know the other person could be a witness at any official proceeding.^[4] A violation is a felony punishable by up to 4 years; by up to 10 years when committed 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 when it involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage.^[10]

During the police investigation, MCL 750.483a(3) separately prohibits giving or promising anything of value, or threatening or intimidating any person, to influence a person's statement to a police officer conducting a lawful investigation of a crime.^[24] Retaliating against a person for having reported a crime, or for having been a witness in an official proceeding, is also an offense; in both statutes "retaliate" means committing or attempting to commit a crime against any person, or threatening to kill or injure any person or to cause property damage.^[25][26]

MCL 750.122(4) states an affirmative defense "under subsections (1) and (3)," for which the defendant has the burden of proof 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.^[27] That is all it says. It is something a person already charged must prove in court; it is not worded as permission for anyone to contact a complainant or witness, it does not name the interference prohibition in subsection (6), and it does not mention release conditions or protection orders.^[27]

Relaying messages for the accused

A court may make release conditional on any condition limiting or prohibiting contact with a named person.^[28] A defendant who violates a protective release condition is subject to arrest without a warrant and may have bail forfeited or revoked.^[29] Relaying a message is contact: the message reaches the person the order protects. This page does not treat any message passed through a relative or friend as outside a no-contact condition; what a particular order says is a question about that order for the defendant's lawyer.

A relative who carries the message is in a separate position: the witness statutes apply to that relative directly, and neither statute prevents a person from being charged with any other violation of law arising out of the same transaction.^[1][30] The court rule provides for a release decision to be modified by the court, on a party's motion or the court's own initiative; it does not provide for modification by the people involved.^[31]

Handling evidence

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.^[32] 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, when 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.^[32] The statute says "a person," so its words are not limited to the accused and make no exception for someone acting on another's behalf.^[32] Its verbs are remove, alter, conceal, destroy and tamper; leaving messages, accounts, devices and belongings exactly as they are is none of those, and is the lawful course.^[32]

Offering evidence at an official proceeding that the person recklessly disregards as false is prohibited by the same subsection.^[33]

Conversations inside the family

Under the Rules of Evidence, a party's own statement offered against that party is not hearsay, and the rule is not limited to statements made to police.^[34] The statutory privilege quoted in this guide covers communications between attorneys and their clients, clergy and members of their churches, and physicians and patients.^[35] That section does not list conversations with parents, siblings or friends; other privilege statutes, such as those concerning spouses, were not reviewed for this guide. The state's standards for appointed counsel list, as one purpose of the first client interview, advising clients not to discuss the circumstances of the arrest or allegations with cellmates, law enforcement, family or anybody else without counsel present.^[36]

A relative can give support without knowing the details, and questions about the facts are for the accused person's lawyer.

When the complainant is also a family member

Where the complaining witness is a child or another relative in the same household, more than one system may be involved. When Children's Protective Services becomes aware that a child is the victim of suspected sexual abuse, it must seek the assistance of and cooperate with law enforcement within 24 hours.^[37] Police involvement does not stop the department from proceeding with its own investigation.^[38]

The witness statutes contain no exception for family members, and their words apply to any individual who could be a witness, including a child who has made a statement.^[1][2][3][4] See CPS investigations of sexual abuse, When a child discloses sexual abuse and CSC involving relatives and household members.

What people commonly get wrong

"If the family works it out, the case ends." The Sexual Assault Benchbook, citing the Court of Appeals, states that a crime victim may not determine whether a prosecution should go forward or be dismissed.^[39] In one case where a complainant later said earlier sworn testimony was untrue, the Court of Appeals held it was for the jury to decide which account was the truth.^[40]

"Only the defendant is covered by the no-contact rules." A release condition is imposed on the defendant, but the witness statutes say "a person shall not."^{[28][1][2][3]}

"An arrest means registration." The registration act requires an individual convicted of a listed offense to register before sentencing; the sources reviewed contain no duty to register on an arrest or charge alone.^[41]

Other organizations that assist accused people and their families are listed in Resources for people accused and registrants. The rules that apply to the accused person are in Accused of a sex offense: first steps.