Bill Text: MI SB0990 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Crimes; criminal sexual conduct; law enforcement officer engaging in sexual penetration or sexual contact with an individual in the officer's custody while in the line of duty; prohibit. Amends secs. 520a, 520b, 520c, 520d & 520e of 1931 PA 328 (MCL 750.520a et seq.).
Spectrum: Partisan Bill (Democrat 13-0)
Status: (Introduced - Dead) 2020-06-25 - Referred To Committee On Judiciary And Public Safety [SB0990 Detail]
Download: Michigan-2019-SB0990-Introduced.html
SENATE BILL NO. 990
June 25, 2020, Introduced by Senators HERTEL,
IRWIN, CHANG, MCMORROW, ALEXANDER, BAYER, MCCANN, GEISS, POLEHANKI, BRINKS,
WOJNO, HOLLIER and ANANICH and referred to the Committee on Judiciary and
Public Safety.
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), section 520a as amended by 2014 PA 64, section 520b as amended by 2014 PA 23, and sections 520c, 520d, and 520e as amended by 2012 PA 372.
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 that 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) Intellectual disability, cerebral palsy, epilepsy, or
autism.
(B) Any other condition of a person that produces a similar
impairment or requires treatment and services similar to those required for a
person described in this subdivision.
(c) "Electronic monitoring" means that term as
defined in section 85 of the corrections code of 1953, 1953 PA 232, MCL
791.285.
(d) "Intellectual disability" means that term as
defined in section 100b of the mental health code, 1974 PA 258, MCL 330.1100b.
(e) "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.
(f) "Intimate parts" includes the primary genital
area, groin, inner thigh, buttock, or breast of a human being.
(g) "Law enforcement officer" means that term as
defined in section 2 of the Michigan commission on law enforcement standards
act, 1965 PA 203, MCL 28.602.
(h) (g) "Mental health professional" means
that term as defined in section 100b of the mental health code, 1974 PA 258,
MCL 330.1100b.
(i) (h) "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.
(j) (i) "Mentally disabled" means that a
person has a mental illness, is intellectually disabled, or has a developmental
disability.
(k) (j) "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.
(l) (k) "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.
(m) (l) "Nonpublic
school" means a private, denominational, or parochial elementary or
secondary school.
(n) (m) "Physically helpless" means that a
person is unconscious, asleep, or for any other reason is physically unable to
communicate unwillingness to an act.
(o) (n) "Personal injury" means bodily
injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or
loss or impairment of a sexual or reproductive organ.
(p) (o) "Public school" means 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.
(q) (p) "School district" means a general
powers school district organized under the revised school code, 1976 PA 451,
MCL 380.1 to 380.1852.
(r) (q) "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.
(s) (r) "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.
(t) (s) "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:exist:
(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.
(vi) The actor is an
employee, contractual service provider, or volunteer of a child care
organization, or a person licensed to operate a foster family home or a foster
family group home in which that other person is a resident, and the sexual
penetration occurs during the period of that other person's residency. As used
in this subparagraph, "child care organization", "foster family
home", and "foster family group home" mean those terms as defined
in section 1 of 1973 PA 116, MCL 722.111.
(vii) The actor is a law enforcement officer
and the sexual penetration occurs while the victim is being detained by or is
in the custody of the actor.
(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 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.
(c) For a violation that is committed by an individual 18
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:exist:
(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 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.
(vi) The actor is an
employee, contractual service provider, or volunteer of a child care
organization, or a person licensed to operate a foster family home or a foster
family group home in which that other person is a resident and the sexual
contact occurs during the period of that other person's residency. As used in
this subdivision, "child care organization", "foster family
home", and "foster family group home" mean those terms as
defined in section 1 of 1973 PA 116, MCL 722.111.
(vii) The actor is a law enforcement officer
and the sexual contact occurs while the victim is being detained by or is in
the custody of the actor.
(c) Sexual contact 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 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).
(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.
(g) The actor is an employee, contractual service provider,
or volunteer of a child care organization, or a person licensed to operate a
foster family home or a foster family group home, in which that other person is
a resident, that other person is at least 16 years of age, and the sexual
penetration occurs during that other person's residency. As used in this
subdivision, "child care organization", "foster family
home", and "foster family group home" mean those terms as defined
in section 1 of 1973 PA 116, MCL 722.111.
(h) The actor is a law enforcement officer, that other person
is at least 16 years of age, and the sexual penetration occurs while the other
person is being detained by or is in the custody of the actor.
(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.
(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 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.
(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 must 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 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.
(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.
(h) The actor is an employee, contractual service provider,
or volunteer of a child care organization, or a person licensed to operate a
foster family home or a foster family group home, in which that other person is
a resident, that other person is at least 16 years of age, and the sexual
contact occurs during that other person's residency. As used in this
subdivision, "child care organization", "foster family
home", and "foster family group home" mean those terms as
defined in section 1 of 1973 PA 116, MCL 722.111.
(i) The actor is a law enforcement officer, that other person
is at least 16 years of age, and the sexual contact occurs while the other
person is being detained by or is in the custody of the actor.
(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 90 days after the date it is enacted into law.
