DRAFT A

SB-0386, As Passed Senate, December 12, 2007

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 386

A bill to amend 1931 PA 328, entitled

"The Michigan penal code,"

by amending sections 520a, 520b, 520c, 520d, and 520e (MCL

750.520a, 750.520b, 750.520c, 750.520d, and 750.520e), sections

520a and 520c as amended by 2006 PA 171, section 520b as amended by

2006 PA 169, and sections 520d and 520e as amended by 2002 PA 714.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 520a. As used in this chapter:

(a) "Actor" means a person accused of criminal sexual conduct.

(b) "Developmental disability" means an impairment of general

intellectual functioning or adaptive behavior which meets all of

the following criteria:

(i) It originated before the person became 18 years of age.

(ii) It has continued since its origination or can be expected

to continue indefinitely.

(iii) It constitutes a substantial burden to the impaired

person's ability to perform in society.

(iv) It is attributable to 1 or more of the following:

(A) Mental retardation, cerebral palsy, epilepsy, or autism.

(B) Any other condition of a person found to be closely

related to mental retardation because it produces a similar

impairment or requires treatment and services similar to those

required for a person who is mentally retarded.

section 85 of the corrections code of 1953, 1953 PA 232, MCL

791.285.

(d) "Intermediate school district" means a corporate body

established under part 7 of the revised school code, 1976 PA 451,

MCL 380.601 to 380.705.

(e) ~~(d)~~ "Intimate parts" includes the primary genital area,

groin, inner thigh, buttock, or breast of a human being.

(f) ~~(e)~~ "Mental health professional" means that term as

defined in section 100b of the mental health code, 1974 PA 258, MCL

330.1100b.

(g) ~~(f)~~ "Mental illness" means a substantial disorder of

thought or mood that significantly impairs judgment, behavior,

capacity to recognize reality, or ability to cope with the ordinary

demands of life.

(h) ~~(g)~~ "Mentally disabled" means that a person has a mental

illness, is mentally retarded, or has a developmental disability.

(i) ~~(h)~~ "Mentally incapable" means that a person suffers from

a mental disease or defect that renders that person temporarily or

permanently incapable of appraising the nature of his or her

conduct.

(j) ~~(i)~~ "Mentally incapacitated" means that a person is

rendered temporarily incapable of appraising or controlling his or

her conduct due to the influence of a narcotic, anesthetic, or

other substance administered to that person without his or her

consent, or due to any other act committed upon that person without

his or her consent.

(k) ~~(j)~~ "Mentally retarded" means significantly subaverage

general intellectual functioning that originates during the

developmental period and is associated with impairment in adaptive

behavior.

(l) ~~(k)~~ "Nonpublic school" means ~~that term as defined in~~

~~section 5 of the revised school code, 1976 PA 451, MCL 380.5~~ a

private, denominational, or parochial elementary or secondary

school.

(m) (l) "Physically helpless" means that a person is

unconscious, asleep, or for any other reason is physically unable

to communicate unwillingness to an act.

(n) ~~(m)~~ "Personal injury" means bodily injury, disfigurement,

mental anguish, chronic pain, pregnancy, disease, or loss or

impairment of a sexual or reproductive organ.

(o) ~~(n)~~ "Public school" means ~~that term as defined in section~~

~~5 of the revised school code, 1976 PA 451, MCL 380.5~~ a public

elementary or secondary educational entity or agency that is

established under the revised school code, 1976 PA 451, MCL 380.1

to 380.1852.

(p) "School district" means a general powers school district

organized under the revised school code, 1976 PA 451, MCL 380.1 to

380.1852.

(q) ~~(o)~~ "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.

(r) ~~(p)~~ "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.

(s) ~~(q)~~ "Victim" means the person alleging to have been

subjected to criminal sexual conduct.

Sec. 520b. (1) A person is guilty of criminal sexual conduct

in the first degree if he or she engages in sexual penetration with

another person and if any of the following circumstances exists:

(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 or 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.

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 physically helpless.

(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.

(2) Criminal sexual conduct in the first degree is a felony

punishable as follows:

(a) Except as provided in subdivisions (b) and (c), by

imprisonment for life or for any term of years.

(b) For a violation that is committed by an individual 17

years of age or older against an individual less than 13 years of

age by imprisonment for life or any term of years, but not less

than 25 years.

years of age or older against an individual less than 13 years of

age, by imprisonment for life without the possibility of parole if

the person was previously convicted of a violation of this section

or section 520c, 520d, 520e, or 520g committed against an

individual less than 13 years of age or a violation of law of the

United States, another state or political subdivision substantially

corresponding to a violation of this section or section 520c, 520d,

520e, or 520g committed against an individual less than 13 years of

age.

(d) In addition to any other penalty imposed under subdivision

(a) or (b), the court shall sentence the defendant to lifetime

electronic monitoring under section 520n.

(3) The court may order a term of imprisonment imposed under

this section to be served consecutively to any term of imprisonment

imposed for any other criminal offense arising from the same

transaction.

Sec. 520c. (1) A person is guilty of criminal sexual conduct

in the second degree if the person engages in sexual contact with

another person and if any of the following circumstances exists:

(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 by blood or affinity to the fourth

degree to the victim.

(iii) The actor is in a position of authority over the victim

and the actor used this authority to coerce the victim to submit.

(iv) The actor is a teacher, substitute teacher, or

administrator of the public or 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.

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 physically helpless.

(ii) The actor uses force or coercion to accomplish the sexual

contact. Force or coercion includes, but is not limited to, any of

the circumstances listed in section 520b(1)(f).

(e) The actor is armed with a weapon, or any article used or

fashioned in a manner to lead a person 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 the sexual contact. Force or

coercion includes, but is not limited to, any of the circumstances

listed in section 520b(1)(f).

(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.

(i) That other person is under the jurisdiction of the

department of corrections and the actor is an employee or a

contractual employee of, or a volunteer with, the department of

corrections who knows that the other person is under the

jurisdiction of the department of corrections.

(j) That other person is under the jurisdiction of the

department of corrections and the actor is an employee or a

contractual employee of, or a volunteer with, a private vendor that

operates a youth correctional facility under section 20g of the

corrections code of 1953, 1953 PA 232, MCL 791.220g, who knows that

the other person is under the jurisdiction of the department of

corrections.

(k) That other person is a prisoner or probationer under the

jurisdiction of a county for purposes of imprisonment or a work

program or other probationary program and the actor is an employee

or a contractual employee of or a volunteer with the county or the

department of corrections who knows that the other person is under

the county's jurisdiction.

(l) The actor knows or has reason to know that a court has

detained the victim in a facility while the victim is awaiting a

trial or hearing, or committed the victim to a facility as a result

of the victim having been found responsible for committing an act

that would be a crime if committed by an adult, and the actor is an

employee or contractual employee of, or a volunteer with, the

facility in which the victim is detained or to which the victim was

committed.

(2) Criminal sexual conduct in the second degree is a felony

punishable as follows:

(a) By imprisonment for not more than 15 years.

(b) In addition to the penalty specified in subdivision (a),

the court shall sentence the defendant to lifetime electronic

monitoring under section 520n if the violation involved sexual

contact committed by an individual 17 years of age or older against

an individual less than 13 years of age.

Sec. 520d. (1) A person is guilty of criminal sexual conduct

in the third degree if the person engages in sexual penetration

with another person and if any of the following circumstances

exist:

(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).

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 ~~the~~ either of the following applies:

(i) The actor is a teacher, substitute teacher, or

administrator of that public or school, nonpublic school, school

district, or intermediate school district. This ~~subdivision~~

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.

(2) Criminal sexual conduct in the third degree is a felony

punishable by imprisonment for not more than 15 years.

Sec. 520e. (1) A person is guilty of criminal sexual conduct

in the fourth degree if he or she engages in sexual contact with

another person and if any of the following circumstances exist:

(a) That other person is at least 13 years of age but less

than 16 years of age, and the actor is 5 or more years older than

that other person.

(b) Force or coercion is used to accomplish the sexual

contact. 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 that threat.

(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

that threat. As used in this subparagraph, "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 which are

medically recognized as unethical or unacceptable.

(v) When the actor achieves the sexual contact through

concealment or by the element of surprise.

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 contact 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.

Senate Bill No. 386 (H-2) as amended November 26, 2007

(e) The actor is a mental health professional and the sexual

contact occurs during or within 2 years after the period in which

the victim is his or her client or patient and not his or her

spouse. The consent of the victim is not a defense to a prosecution

under this subdivision. A prosecution under this subsection shall

not be used as evidence that the victim is mentally incompetent.

(f) That other person is at least 16 years of age but less

than 18 years of age and a student at a public or school[ or] nonpublic

school, ~~and the~~ [ ]

and either of the following applies:

(i) The actor is a teacher, substitute teacher, or

administrator of that public or school, nonpublic school, school

district, or intermediate school district. This ~~subdivision~~

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.

Senate Bill No. 386 (H-2) as amended November 26, 2007

(g) 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.

(2) Criminal sexual conduct in the fourth degree is a

misdemeanor punishable by imprisonment for not more than 2 years or

a fine of not more than $500.00, or both.

Enacting section 1. This amendatory act takes effect [July]

1, 2008.