Criminal Sexual Conduct And The Michigan Sentencing Guidelines – Part 2

I have been charged with a sex crime that is not CSC 1^st Degree, are my changes better at avoiding prison?

Most of the time, the answer is usually “yes”.

In 2019, the State of Michigan reported a total of 10,782 sexual assaults resulting in criminal convictions. https://www.michigan.gov/documents/msp/2019_Crime_in_Michigan_Report.

Of that number, less than half involve the most serious charge of Criminal Sexual Conduct 1^st Degree. This means that CSC 2^nd, CSC 3^rd, and CSC 4^th make up the rest of the sexual assault convictions in Michigan.

As we saw with the last blog, the Michigan Sentencing Guidelines can have a dramatic impact on the sentence a defendant receives for CSC 1^st Degree, although mandatory statutory sentences can reduce their influence. Yet, in the case of the lesser CSCs offenses — 2^nd, 3^rd, and 4^th Degrees — one can argue that the Michigan Sentencing Guidelines play an even larger role because these charges do not have mandatory minimum sentences. Most importantly, some of these lesser sex offenses, such as CSC 2 and 4, can end with probation or a much shorter prison sentence.

In this blog, l will look at the issues affecting sentences for these lower-tiered CSCs, including how the Michigan Sentencing Guidelines can produce longer indeterminant prison sentences for defendants.

CSC 2^nd Degree (MCL 750.520c). A CSC 2^nd Degree requires the prosecution to prove “sexual contact” between (1) the defendant and a victim under 13 years of age; (2) a defendant and victim that is 13 to 16 years of age and live in the same household, the actor has a position of authority over the victim, or the actor is a teacher or employee of a school district; or (3) a defendant and an adult victim with an aggravating factor, such as personal injury, multiple offenders, or the crime was committed during the course of another felony. This definition follows the CSC 1^st requirements, with the important exception that there is no requirement of penetration of the victim. This may seem like a subtle difference between the two crimes, but it is significant for sentencing purposes —especially when the maximum possible sentence for CSC 2^nd Degree is fifteen years.

The Michigan Sentencing Guidelines can impact a defendant’s sentence for CSC 2^nd Degree in a number of ways. Based on my previous blog, you already know the Michigan Sentencing Guidelines require the judge to score the defendant’s “Prior Record Variables” (PRVs) and “Offense Variables” (OVs). The lack of mandatory minimum sentences within the CSC 2^nd Degree statute places greater importance on the scoring of a defendant’s PRVs and OVs because together they can — and often do — create a longer recommended mandatory minimum sentence.

The OVs for CSC 2^nd Degree are confusing and redundant to the underlying charge. For example, a person who has sexual contact with a victim 13 to 16 years of age who lives in the same household or is a teacher of the victim is guilty CSC 2^nd Degree. However, the Michigan Sentencing Guidelines (OV10) scores points for exploitation of a domestic relationship or a position of authority. In doing so, the Sentencing Guidelines are seemingly double punishing a defendant because the underlying crime already contemplates the conduct being scored. There are other categories of OVs that seem to punish a defendant for behavior already contemplated by the CSC statute, such as psychological injury to a victim. It is hard to imagine that a victim of a sexual assault would not have some psychological injury. But, the Michigan Sentencing Guidelines by allowing a score for psychological injury can increase a defendant’s recommended sentence.

CSC 3^rd Degree (MCL 750.520d). A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and one of the following elements exists: (1) if the person is at least 13 but less than 16 years of age; (2) force or coercion is used to accomplish the sexual penetration; (3) the actor knows the person is mentally incapacitated or physically helpless; (4) the actor and the victim are related with penetration occurring under circumstances not otherwise prohibited; (5) the person is 16 but less than 18 years of age and a student penetrated by a teacher or employee of the school; or (6) the person is at least 16 years of age but less than 26 years of age and is receiving special education services and is penetrated by a person of authority such as a teacher or employee of the school district.

The maximum punishment for a conviction of CSC 3^rd Degree is fifteen years in prison. However, and importantly, CSC 3 is NOT eligible for probation. If convicted, the defendant must be sentenced to incarceration. The only exception to this is narrow – some “Romeo and Juliet” offenders can receive probation if the complainant is 13 years old or older, the act was consensual, and less than a 4 year difference exist in the age of the complainant and the defendant.

Once again the CSC 3^rd Degree statute and the Michigan Sentencing Guidelines seem to be redundant in regulating certain conduct. The statute, MCL 750.320d, places an emphasis on punishing persons, like parents and school teachers, for abusing their positions of authority. Yet, the Michigan Sentencing Guidelines score points for a number of behaviors that are already contemplated by the CSC 3^rd Degree statute. For example, consider the following list of OVs to be scored:

• (OV1) Aggravated use of a weapon
• (OV2) Lethal use of a weapon
• (OV3) Physical injury to the victim
• (OV4) Psychological injury to the victim
• (OV7) Aggravated physical abuse
• (OV8) Asportation or captivity of the victim
• (OV10) Exploitation of a vulnerable victim

If the defendant pointed a firearm at a victim to accomplish the sexual penetration of his victim, then the Michigan Sentencing Guidelines would score him points for the aggravated use of a weapon (OV1), and additional points because of the lethal potential of the gun (OV2). If the defendant’s conduct was worse, such as touching the victim with the gun or discharging it, then he would receive more points and therefore more time under the Michigan Sentencing Guidelines. The same is true for the remainder of OVs on the above list. If penetration of the victim occurs through force or coercion, there is most certainly going to be physical injury (OV3), and psychological injury (OV4) to the victim. Aggravated physical abuse to the victim (OV7) scores points for any conduct designed to increase the anxiety of the victim, a common occurrence when force or coercion is used to complete the crime. Likewise, the asportation or captivity of a victim (OV8) and exploitation of a vulnerable victim (OV10) most certainly exists when a familial or student-teacher relationship often forms the elements of the underlying crime — in this case a CSC 3^rd Degree.

By scoring each of these OVs, a defendant’s recommended sentence is going to increase. The inherent unfairness of adding prison time for behavior already contemplated by the CSC statute is a problem for defendants.

CSC 4^TH Degree (MCL 750.520e). The least severe criminal sexual conduct charge is for CSC 4^th Degree. There are a number of ways to prove a defendant guilty of CSC 4^th Degree when he has sexual contact with the victim. The proofs for the CSC 4^th are similar to a CSC 3^rd, although there is a significant difference—no penetration. The proofs for a CSC 4^th do not require any evidence of penetration but rather that the defendant had “sexual contact” with the victim.

A charge of CSC 4^th Degree is a “high court misdemeanor”. Don’t be fooled. If it looks like a duck, quacks like a duck, and swims like a duck, then it is a duck. Similarly, misdemeanors are supposed to carry a penalty of one year or less in jail, and not be subject to the Michigan Sentencing Guidelines. In contrast, CSC 4^th Degree carries a maximum penalty of two years, is subjected to the Guidelines, and can result in a prison sentence. So for all intents an purposes, CSC 4^th is a felony, and the Guidelines can, and do, impact the defendant’s sentence.

Summary. CSCs and their resulting sentences vary greatly. How to predict a possible sentence in a given situation requires extensive understanding of the Michigan Sentencing Guidelines, which repeatedly escalate sentences based on the conduct of the offender. There may be other considerations we have not discussed, such as a defendant’s status as a habitual offender, that can affect a possible sentence in a particular situation.

To be able to properly evaluate a defendant’s prison exposure or the merits of a plea offer, counsel must understand the relationship between CSCs and the Michigan Sentencing Guidelines as well as any other relevant factor that may aggravate or mitigate a possible sentence. Don’t rely on advice from friends, family, or even a court-appointed attorney. If you are facing a CSC charge, then call Mark Satawa to find out how the Michigan Sentencing Guidelines will affect the time in prison you might be facing.