Criminal Sexual Conduct And The Michigan Sentencing Guidelines – Part 1

I have been charged with sexual assault; will I go to prison? This is a difficult question to answer and varies based on a number of circumstances. In Michigan, a sex crime, which historically was known as rape, is called “Criminal Sexual Conduct.” CSCs are divided into four different levels based on the severity of conduct by the defendant. As you might expect, the more egregious the defendant’s alleged actions are, the higher the criminal charge and likely the more time in prison. The most serious is CSC 1st Degree (MCL 750.520b), and the least serious being CSC 4th Degree (MCL 750.520e).

While the degree of CSC can certainly impact a prison sentence a defendant receives, sentencing judges are required to evaluate the defendant and his crime within the framework of the Michigan Sentencing Guidelines. The result is a “recommended” sentence the judge can rely upon or deviate from. There are several unique aspects of the Michigan Sentencing Guidelines related to CSCs and the resulting sentence a defendant ultimately receives.

This blog explores the influence the Michigan Sentencing Guidelines can have on a defendant’s sentence for CSC 1st Degree. In Part II, I will explore the issues of the Michigan Sentencing Guidelines on the other types of CSC.

Indeterminate Sentencing and Truth-in-Sentencing. Before concentrating on the unique sentencing issues of CSC 1^st Degree, it is necessary to understand the basic operation of Michigan’s indeterminate sentencing scheme and the role of the State’s truth-in-sentencing statute. An indeterminate sentencing scheme requires a defendant to be sentenced to a range — a minimum sentence and a maximum sentence. The minimum sentence is generally determined by using the Michigan Sentencing Guidelines, which includes several variables that will be discussed later in this blog. The maximum sentence is set by statute. For example with CSC 1^st Degree, the maximum sentence is life in prison. Thus, an example of an indeterminate sentence for CSC First Degree could be imprisonment of ten years (the minimum) to life (the statutory maximum).

Another fundamental issue affecting the prison sentences of defendants is the idea of truth-in-sentencing. In Michigan, truth-in-sentencing laws require a defendant to serve the minimum imposed sentence before becoming eligible for parole, the only way to be released from prison. Quite simply, truth-in-sentencing means that if a defendant is sentenced to ten to twenty-five years in prison, then he or she must serve at least ten years before becoming eligible for release. There is no such thing as early release.

These fundamentals of sentencing policy affect all felony cases in Michigan. How much time you might be facing with your charges will be impacted by these fundamental ideas along with the CSC 1^st Degree statute and the Michigan Sentencing Guidelines.

Criminal Sexual Conduct 1^st Degree (MCL 750.520b). The statutory elements of CSC 1^st Degree have been expanded over the years to make it easier for prosecutors to charge and penalize those who commit a sexual assault, particularly those involving younger victims. Historically, a charge of CSC 1^st Degree required the prosecutor to prove: 1) sexual penetration of a victim; 2) through force or coercion. Sexual penetration through force or coercion remains a viable method for establishing CSC 1^st Degree.

In the early 2000s, the CSC 1^st Degree statute was amended at the height of the tough-on-crime political climate. The amended law now allows for the conviction of CSC 1^st Degree by establishing the victim is under 13 years of age, or the victim is between 13 and 16 years of age, and the defendant resides with the victim, is related by blood to the victim, the defendant is in a position of power over the victim, or the defendant is a teacher or employee of a school district abusing their position of authority over the victim.

The maximum sentence a defendant faces for a conviction of CSC 1^st Degree is life in prison. The minimum sentence for a defendant sentenced for CSC 1^st Degree varies based on the facts of a particular situation. However, by statute the defendant is not eligible for probation and must receive a prison sentence, The possible scenarios for proving a CSC 1^st Degree now contain several mandatory sentencing provisions. For example, a person who is 17 years of age or older, guilty of CSC 1^st Degree for sexual penetration of a victim under 13 years, must be sentenced to a minimum sentence of 25 years in prison. In such a case, the defendant’s indeterminant sentence would be 25 years to life. The use of mandatory sentences is a situation that is unique to CSC 1^st Degree.

However, if the defendant is guilty of CSC 1^st Degree because the victim was penetrated through force or coercion and is older than 13, then his maximum sentence could still be life, but there is no minimum sentence requirement by the statute. Instead, the only requirements are that the defendant receive a prison sentence, and the sentencing judge must consider the defendant’s mandatory minimum sentence under the Michigan Sentencing Guidelines.

Michigan Sentencing Guidelines. A trial judge is required to consider the Michigan Sentencing Guidelines for every defendant sentenced for the commission of a felony. MCL 769.34. Before 2015, the sentencing judge was required to sentence a defendant by following the Sentencing Guidelines or explain on the record a substantial and compelling reason for failing to do so. In the post-2015-world, a sentencing judge must still consider the Michigan Sentencing Guidelines but is not bound to follow them. People v. Lockridge, 498 Mich. 358 (2015). Lockridge described the Michigan Sentencing Guidelines as “advisory.” This means that a judge must consider a defendant with the Michigan Sentencing Guidelines but may deviate from the recommended sentence it produces.

The mechanics of the Sentencing Guidelines in all felony cases involve “objective” measurements of two basic sets of variables: (1) the defendant’s criminal history through “Prior Record Variables”, known as “PRVs”; and (2) the actual current crime committed through “Offense Variables”, known as “OVs”. Once the defendant is scored for his PRVs and OVs, then these scores are plotted on a sentencing grid that produces a range of recommended sentences.

The Lockridge Decision reduced the importance of the Michigan Sentencing Guidelines, although most sentencing judges follow them in some sense. The Sentencing Guidelines can be critical to the amount of time a CSC Degree 1^st Degree defendant receives—mainly when the conviction occurs due to sexual penetration of a victim through force and coercion.

Understanding Prior Record Variables. Each PRV represents a statement about the defendant’s prior criminal record. Categories for juvenile and adult misdemeanors and felonies are scored for the defendant being sentenced. For a defendant being sentenced for CSC 1^st Degree, his PRV score can impact a recommended minimum sentence by as much as fifteen years on the appropriate sentencing grid.

Understanding Offense Variables. The impact of OVs on a defendant’s sentence for CSC 1^st Degree is equally, if not more, significant to determining a recommended minimum sentence in a particular case. The following is a non-exhaustive list of OVs to be scored by the sentencing judge in a CSC 1^st Degree case:

♦ Aggravated Use of a Weapon

♦ Lethal Potential of the Weapon

♦ Physical Injury to the Victim

♦ Psychological Injury to the Victim

♦ Intent to Kill/Injure the Victim

♦ Aggravated Physical Abuse of the Victim

♦ Victim Asported or Held Captive

♦ Number of Victims

♦ Exploitation of Victims

♦ Sexual Penetration

♦ A pattern of Criminal Behavior or Number of Contemporaneous Acts

The importance of OVs is that they can – and often do – drive a defendant’s minimum sentence higher. The more egregious the facts of a particular crime, the higher the score for OVs, and the higher the defendant’s recommended sentence. In the case of a CSC 1^st Degree, the impact of OVs on a CSC 1^st Degree defendant’s recommended sentence can be — like the PRVs — as much as fifteen years or more being added to a defendant’s sentence.

Summary. The Michigan Sentencing Guidelines are a tool that every sentencing judge is required by statute to calculate before sentencing a defendant. There is no doubt that the Sentencing Guidelines streamlined the sentencing process used across the State. However, the Sentencing Guidelines are problematic because they purport to be based on objective criteria that can be easily manipulated, which leads to longer sentences for the criminally convicted. When dealing with CSC 1^st Degree — a potential life offense — the Michigan Sentencing Guidelines can dramatically increase a defendant’s required minimum sentence.

If you have been charged with CSC 1^st Degree, then your potential sentence will be affected by the Michigan Sentencing Guidelines and the facts of your case. You must hire competent counsel that understands the interplay between all of these sentencing factors or face the prospects of a longer prison sentence.

If you have been charged with CSC 1^st Degree, then call Mark Satawa to find out your options and the challenges you face.