Criminal Sexual Conduct 1st and 3rd Degree

Criminal Sexual Conduct (CSC) in the 1^st and 3^rd Degree are felonies that require some form of penetration by the accused to the victim. The penetration requires some object be placed in the genital or anal opening of the victim. The object can be a part of the accused body or some foreign object. Criminal Sexual Conduct in the 1^st Degree is a felony that can result in life imprisonment. Criminal Sexual Conduct in the 3^rd Degree is punishable by a maximum 15 years in prison. The difference between the two are the “aggravating circumstances” present.

If a defendant has put a part of his or her body into the body of another, and one or more of the following is present, then the charge is CSC 1^st Degree:

(a) That other person is under 13 years of age.
(b) That other person is at least 13 but less than 16 years of age and any of the following:
(i) The actor is a member of the same household as the victim.
(ii) The actor is related to the victim by blood or affinity to the fourth degree.
(iii) The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.
(iv) The actor is a teacher, substitute teacher, or administrator of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled.
(v) The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(c) Sexual penetration occurs under circumstances involving the commission of any other felony.
(d) The actor is aided or abetted by 1 or more other persons and either of the following circumstances exists:
(i) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physicallyhelpless.
(ii) The actor uses force or coercion to accomplish the sexual penetration. Force or coercion includes, but is not limited to, any of the circumstances listed in subdivision (f).
(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon.
(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes, but is not limited to, any of the following circumstances:
(i) When the actor overcomes the victim through the actual application of physical force or physical violence.
(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.
(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, "to retaliate" includes threats of physical punishment, kidnapping, or extortion.
(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes that are medically recognized as unethical or unacceptable.
(v) When the actor, through concealment or by the element of surprise, is able to overcome the victim.
(g) The actor causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
(h) That other person is mentally incapable, mentally disabled, mentally incapacitated, or physically helpless, and any of the following:
(i) The actor is related to the victim by blood or affinity to the fourth degree.
(ii) The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.

If the defendant has put a part of his or her body into the body of another, and one or more of the following:

(a) That other person is at least 13 years of age and under 16 years of age.
(b) Force or coercion is used to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (v).
(c) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
(d) That other person is related to the actor by blood or affinity to the third degree and the sexual penetration occurs under circumstances not otherwise prohibited by this chapter. It is an affirmative defense to a prosecution under this subdivision that the other person was in a position of authority over the defendant and used this authority to coerce the defendant to violate this subdivision. The defendant has the burden of proving this defense by a preponderance of the evidence. This subdivision does not apply if both persons are lawfully married to each other at the time of the alleged violation.
(e) That other person is at least 16 years of age but less than 18 years of age and a student at a public school or nonpublic school, and either of the following applies:
(i) The actor is a teacher, substitute teacher, or administrator of that public school, nonpublic school, school district, or intermediate school district. This subparagraph does not apply if the other person is emancipated or if both persons are lawfully married to each other at the time of the alleged violation.
(ii) The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(f) That other person is at least 16 years old but less than 26 years of age and is receiving special education services, and either of the following applies:
(i) The actor is a teacher, substitute teacher, administrator, employee, or contractual service provider of the public school, nonpublic school, school district, or intermediate school district from which that other person receives the special education services. This subparagraph does not apply if both persons are lawfully married to each other at the time of the alleged violation.
(ii) The actor is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.

As you can see, most of these charges are related to sex with persons under 16 years old. Be careful and make sure you admit nothing if someone accuses you of one of these charges.

Ryan Maesen

Criminal Attorney, Grand Rapids, MI
www.maesenlawfirm.com

 

Criminal Sexual Conduct Degrees

  Michigan has 4 degrees of criminal sexual misconduct. The penalties for these crimes are amont the most serious under Michigan law. If you are facing one of these charges, get a very good attorney immediately. In most cases, these charges are not going to resolved by probation or a slap on the wrist. If the victim is under 17, your entire future is on the the line. Don't take a criminal sexual conduct charge lightly.

  The commentary from The Michigan Model Criminal Jury Instructions distinguish the different degrees as follows:

"The Michigan statute concerning criminal sexual conduct, MCL 750.520a et seq., creates four degrees of the offense. First-degree criminal sexual conduct involves an act of sexual penetration accompanied by one or more aggravating circumstances set forth in MCL 750.520b. Second-degree criminal sexual conduct involves “sexual contact” accompanied by any of the aggravating circumstances for criminal sexual conduct in the first degree or one or more of four additional circumstances relating to sexual contact between state or county corrections officers and inmates, probationers, or pretrial detainees. MCL 750.520c. Third-degree criminal sexual conduct, like criminal sexual conduct in the first degree, requires for conviction an act of sexual penetration accompanied by designated aggravating circumstances, MCL 750.520d, other than those specified for first-degree criminal sexual conduct. Finally, criminal sexual conduct in the fourth degree involves sexual contact aggravated by circumstances not specified for criminal sexual conduct in the second degree. MCL 750.520e.

In sum, first- and third-degree criminal sexual conduct require an act of sexual penetration with “greater” and “lesser” aggravating circumstances respectively, whereas criminal sexual conduct in the second degree and the fourth degree require sexual contact with “greater” and “lesser” aggravating circumstances. Criminal sexual conduct in the first degree is punishable by life or any term of years; criminal sexual conduct in the second degree and criminal sexual conduct in the third degree are punishable by up to 15 years in prison; and criminal sexual conduct in the fourth degree is punishable by up to 2 years in prison.

The statute also creates the offenses of assault with intent to commit criminal sexual conduct involving penetration, a 10-year felony, and assault with intent to commit criminal sexual conduct in the second degree, a 5-year felony. MCL 750.520g."

 

In future blogs, I will discuss each degree in more depth and give examples of the aggrevating circumstances mostly commonly handled in my practice.

 

For more information, see www.maesenlawfirm.com

Ryan Maesen Criminal Defense Attorney, Grand Rapids, MI

Quitclaim and Warranty Deeds

  The two most common types of deeds in use are the standard warranty deed and the quitclaim deed. While both are effective, there are important differences that should be understood.

   Warranty deeds use the word "warrants" in the first paragraph of the deed. This warrants that the seller has good title with no other adverse claims against the title. This protects the buyer in that the seller is liable for the cost of removing any adverse claim to title. This type of deed is most commonly used when some one is buying or selling real estate. It offers the greatest protection to the buyer and is what title insurance companies require to issue a policy.

   A quitclaim deed uses the word "quitclaims" and only conveys the interest the seller holds. As a practical matter, most people selling their home have a good and clean title. This type of deed is often used when adding or removing family members from a home. In that case, the parties involved know the title is good and simply want an efficient way to transfer their home among family.

For more information on real estate legal issues, please see my website at www.maesenlawfirm.com

Ryan Maesen

Criminal Law FAQ and Answers

  Here are some frequently asked questions for those facing criminal charges. The answers I am writing are general in nature. Each case is unique.

Will I end up in jail or prison?

For most people, this is the scariest question. The good news is that for most people, the answer is no. If you are facing a misdemeanor or a non violent felony and you don't have a long criminal record, you likely will not go to jail. However, there is always that risk. Also, because your final sentence is up the judge, don't trust a cop or prosecutor that tells you to just confess or plea to avoid jail. They don't get to make that call.

How will a charge or conviction affect me down the road?

There is a separate blog posted that deals with some of the consequences of a criminal conviction. You need to be especially careful with sex crimes, felonies, and misdemeanors involving theft or dishonesty.

Are there options available for juvenille or first time offenders?

Yes, but these vary from county to county and court to court. Generally, a youthful first time offender can get a much better deal than an adult. The law doesn't do much for a first time offender other than you can't have prior convictions held against you at sentencing. Also, being convicted more than once for the same crime can sometimes increase the maximum penalty. Examples include drunk driving and retail fraud.

What is a diversionary program and can I qualify?

A diversionary program is a program in which the accused pleads guilty to a lesser charge (or sometimes the original charge) and then, if he or she completes a probationary period, the charge is dismissed and there is no public record of a conviction. These programs are not easy to qualify for. Generally, if you are not a first time offender or over 21, don't count of these. But there are exceptions.

Can I ever get this of my record?

Michigan allows for the expungement of one crime if 5 years have passed since the conviction. A subsequent conviction of any crime makes one ineligible for expungement. There are exceptions for some minor misdemeanors.

Did the police act properly?

This question needs a careful analysis on a case by case basis. A person does have constitutional rights that the police must follow in gathering evidence but a full discussion is beyond the scope of this blog. Generally if the evidence is gathered improperly, it is not admissable against the accused.

What if I have already confesssed or made a statement?

Don't worry. It may not be admissible for a variety of reasons. Like most evidence related issues, a case by case analysis is required.

Is my case winnable?

To lose your case, the prosecution must be able to prove its case beyond a reasonable doubt. That means they need alot of good evidence. Even if you are guilty, you may still be acquitted if the evidence simply isn't strong enough or their witnesses are believable. Many cases are winnable if the accused is willing to fight it hard enough and long enough.


Can I afford a good attorney?

Hiring a good attorney is expensive. To fully fight your case, your attorney is going to have to put in alot of time and effort and spend money on his business to provide you the best possible outcome. You do get what you pay for. Many people decided it is not worth it. That is a personal choice. Look long and hard at the long term outcome of losing and then decide.

Why Defend Criminals Part III

  Defending those accused of a crime is a tremendous uphill battle. Even if the prosecution has a weak case, they will rarely admit a mistake and proceed with charges even if they know a jury will likely find against them.

   I don't know why this is. Maybe ego or hubris. Sometimes they justify it by saying "we already spent taxpayer money on this, we have to see it through." It would seem more sensible to cut their loses instead of wasting more money that will go nowhere. Not to mention saving the time of the jurors that have to come in and hear a pointless trial when they would rather be anywhere else.

   However, even if an attorney has a weak case, there is still an uncertainty of a jury. I once had a Wyoming jury convict a man I know was innocent. It still haunts me. The evidence in that case was insane, but somehow justice was not done. On the other hand, I have had juries return a not guilty verdict when I was pretty certain my client was guilty. Our system is designed so that a jury must acquit if the evidence is not strong enough, even if the jurors personally feel the person probably did it. Probably isn't good enough. That was the intent of our founding fathers. A guilty man going free is far better than an innocent man convicted. Anyone who doesn't understand this needs to sit at the loney table in the courtroom and watch and prosecutor and an endless stream of cops accuse him or her of committing some heinous deed.

    It is critical than the accused have someone who can care about him and guide him through the tough times. For first time offenders, the entire family often suffers along with the accused. There is tremendous fear. No one knows what will happen. The long term consequences of a conviction can ruin a life. It is very much worth fighting for. Because I know how these people feel, I know what they need to hear and a I know what they need to see from their attorney. They need someone to act as both a sword and shield. Even when they are guilty, they need to have their rights protected and their dignity left in tact. A person may committ a crime in a moment but that shouldn't erase a lifetime of being a good citizen. A person is not the act she has been accused of. And we all need to remember that. God forbid you even get charged with something you didn't do, you will be glad there are people they can and will lay it down for you.

Ryan Maesen, Criminal Attorney, Grand Rapids, MI
www.maesenlawfirm.com
   
    

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