When Yes Doesn’t Mean Yes – Understanding Statutory Rape in Michigan

In the most basic terms, statutory rape means consensual sex with a minor child. Michigan does not actually call this “statutory rape” to describe this crime. Instead, Michigan’s rape laws use the phrase criminal sexual conduct as the term for statutory rape.

Michigan’s rape laws are divided into four degrees of criminal sexual conduct. All four degrees can be triggered by the age of at least one of the actors, fitting the generic definition of statutory rape. Regardless of the degree of criminal sexual conduct, the basic idea of statutory rape is preserved under these laws, which is that an individual under the age of consent does not have the capacity to consent and, therefore, cannot give consent.

Thus, even if a person under Michigan’s age of consent is 100% willing and voluntarily agrees to engage in the sex act, they still cannot legally consent.  In this instance, yes does not mean yes.

How are the degrees of Criminal Sexual Conduct different relative to statutory rape?

Digging deeper into each degree, there are some basic differentiating elements. First and third degree Criminal Sexual Conduct require penetration. Second and fourth degree Criminal Sexual Conduct do not require penetration, but do require sexual contact.

The differences between first degree and third degree

There are also differentiating elements within the degrees that require penetration- first and third degree. First degree Criminal Sexual Conduct in Michigan is triggered by age under two circumstances:

  • when one actor is under 13 years old, or
  • When one actor is 13 to 15 years old and the other actor is a family member,
  • member of the same household,
  • has authority over the minor and uses authority to coerce the minor,
  • a teacher at the minor’s school, or
  • the minor’s foster care provider

Third degree Criminal Sexual Conduct in Michigan, the other degree that requires penetration, is different from first degree in that it does apply to an actor who has sex with a minor under the age of 13. Therefore, any sexual penetration with a minor under the age of 13 is first degree criminal sexual conduct. For actors who are accused of “statutory rape,” third degree Criminal Sexual Conduct in Michigan would be the charge if the minor was 13, 14, or 15 years old. Third degree Criminal Sexual Conduct would also be the charge if the minor was 16-18 years old and the other actor was a school employee at the minor’s school.

The differences between second degree and fourth degree

Criminal Sexual Conduct second and fourth degree charges do not require penetration. They do require sexual contact. This is how these degrees are similar. Second and fourth degree are different in the same way that first and third degree are different. Second degree Criminal Sexual Conduct in Michigan is triggered with sexual contact under two circumstances:

  • when one actor is under 13 years old, or
  • When one actor is 13 to 15 years old and the other actor is
  • a family member,
  • member of the same household,
  • has authority over the minor and uses authority to coerce the minor,
  • a teacher at the minor’s school, or
  • the minor’s foster care provider

Fourth degree Criminal Sexual Conduct in Michigan, the other degree that requires sexual contact less than penetration, is different from second degree in that it applies to an actor who has sexual contact with a minor 13 years of age or older as opposed to under the age of 13. Therefore, in terms of statutory rape, any sexual contact less than penetration with a minor under the age of 13 is second degree criminal sexual conduct. Fourth degree Criminal Sexual Conduct in Michigan would be the charge if the minor was 13, 14, or 15 years old and the other actor is at least five years older than the child. Fourth degree Criminal Sexual Conduct would also be the charge if the minor was 16-18 years old and the other actor was a school employee at the minor’s school.

In a discussion on statutory rape, it’s also important to point out that fourth degree Criminal Sexual Conduct is the charge if there is sexual contact with a minor and the actor is related to the minor to the third degree (uncle and niece or nephew). Fourth degree Criminal Sexual Conduct would also be the charge if there was sexual contact and the minor was 16-18 years old and the other actor was a school employee at the minor’s school.

What is the role of presence of consent when defending statutory rape charges?

Consent is not an issue in statutory rape cases because the law implies that minors do not have the capacity to consent to sexual activity. This means that the defense attorney cannot raise consent as a defense in a statutory rape case.  However, this fact may play into both plea negotiations as well as sentencing.

Other defenses may exist in statutory rape cases. The differences Michigan’s Criminal Sexual Conduct degrees are also very important for the defense attorney to understand. The differences can be very subtle. The best Michigan criminal sexual conduct attorney can help determine whether the prosecutor filed the right charge, whether there are defenses to the charge, and how to get the charge dismissed.

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