Criminal Sexual Conduct Defense
There are several defenses to charges of Criminal Sexual Conduct, no matter the degree. Below are a list of some of those defenses that can be successfully argued when fighting for your life and your freedom.
Consent is a defense to some Criminal Sexual Conduct cases. A willing, noncoerced act of sexual intercourse (sexual penetration) between persons of sufficient age who are neither mentally defective, or incapacitated nor physically helpless will NOT be charged with Criminal Sexual Conduct.
Consent ONLY APPLIES when the individuals involved in the sexal act are sixteen (16) years old or older. The exception to that rule is when the accusations involve a person in a “Position of Authority”, such as a teacher or doctor, then the age increases to over eighteen (18) years old. The law does NOT recognize Consent by a child. (See below)
The defense of consent, for the accused, is a very common, powerful defense. Blank Law, PC has been involved in 100s of cases in which the consent defense has been used successfully. If the defense of consent applies to your case, Nicole knows very effective arguments to make the defense of consent work for you. Once consent is proven, the state’s case against you is over.
AGE OF CONSENT IN MICHIGAN
In Michigan the age of consent is 16. There are NO exceptions. Individuals who are 15 years old or younger in Michigan are not able to legally consent to sexual activity. An adult who engaged in such activity may face statutory rape charges.
Anyone who engages in sexual penetration with someone who is 15 years old or younger, can be charged and convicted of First Degree Criminal Sexual Conduct and/or Third Degree Criminal Sexual Conduct. Sexual penetration refers to: 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.
Anyone who engages in sexual activity with someone who is 15 years old or younger, can be charged and convicted of Second Degree Criminal Sexual Conduct and/or Fourth Degree Criminal Sexual Conduct. Consent is NOT a defense. Sexual activity refers to: Sexual touching.
Michigan legislation is clear that those who have not reached the statutorily designated age (16) are not able to give consent to sexual activity.
JURY INSTRUCTION – CONSENT
Michigan has a special Criminal Jury Instruction (the law that is read to a jury) for Consent as a defense to Criminal Sexual Conduct charges. This instruction is read at every jury trial involving Criminal Sexual Conduct accusations, regardless of what degree.
CJI 20.27: A person consents to a sexual act by agreeing to it freely and willingly, without being forced or coerced. It is not necessary to show that the accuser resisted the accused to prove that this crime was committed. Nor is it necessary to show that the accuser did anything to lessen the danger to himself / herself. In deciding whether or not the accuser consented to the act, you should consider all of the evidence. It may help you to think about the following questions (a) Was the accuser free to leave and not take part in the sexual act? (b) Did the defendant threaten the accuser with present or future injury? (c) Did the defendant use force, violence, or coercion? (d) Did the defendant display a weapon? (e) Name any other relevant circumstances. If you find that the evidence raises a reasonable doubt as to whether the accuser consented to the act freely and willingly, then you must find the accused not guilty.
CONSENT SHOULD NEVER BE ASSUMED:
You cannot assume consent. Consent must be a meeting of the minds for all those involved. There must be a clear understanding regarding the intent of each person prior to engaging in sexual activity/penetration.
“NO MEANS NO” is a saying we are all familiar with and understand. If at any time your partner says “No”, you must immediately STOP what you are doing. Oftentimes during a sexual encounter it is difficult to simply stop in the middle of sexual activity, but you must. The consequences for not stopping when your partner says NO are life changing.
You should NEVER assume that your partner wants to engage in sexual activity because you had a prior sexual relationship with your partner. Nor should you assume that just because your partner consented to certain sexual activities before, that your partner consents to those same sexual activities this time. Communication is going to be a very important tool in avoiding the strict penalties of Criminal Sexual Conduct charges.
Not to ention, just because a person dresses in a certain way, is flirtatious or befriends you on social media, you CAN NOT assume that that person has consented to sexual activity of any kind.
**Always remember, CONSENT can be WITHDRAWN by either party at any point.
BLANK LAW, PC EXAMPLES – CONSENT
Blank Law, PC has represented a number of clients that have found themselves in these exact scenarios. For example, in the middle of engaging in sexual activity, i.e. “hooking up” in a car, an accuser said “No”. Our client thought she was just saying NO as part of foreplay. After she said NO, our client inserted his finger into her vagina. That client was charged with Third Degree Criminal Sexual Conduct. Third Degree Criminal Sexual Conduct carries a mandatory-minimum of ONE year in prison.
The term “duress” is defined as coercion through the use of force or the threat of violence. Duress is used as a criminal defense when an individual has committed a crime in order to escape physical or emotional harm or injury. An individual who can successfully prove that they committed a crime under duress has the effect of absolving the defendant of any liability.
The defense of duress is rare and it is very complicated to establish. In order for a defense of duress to be adequate and effective, you must have an experienced attorney who knows how to apply the defense of duress to Criminal Sexual Conduct cases.
JURY INSTRUCTION – DURESS
Michigan has a special Criminal Jury Instruction (the law that is read to a jury) for Duress as a defense to Criminal Sexual Conduct charges. This instruction is read at every jury trial involving Criminal Sexual Conduct accusations, regardless of what degree.
CJI 7.6: The accused says that [he / she] is not guilty because someone else’s threatening behavior made [him / her] act as [he / she] did. This is called the defense of duress. The accused is not guilty if [he / she] committed the crime under duress. Under the law, there was duress if [four / five] things were true: (a) One, the threatening behavior would have made a reasonable person fear death or serious bodily harm; (b) Two, the accused actually was afraid of death or serious bodily harm; (c) Three, the accused had this fear at the time [he / she] acted; (d) Four, the accused committed the act to avoid the threatened harm. In deciding whether duress made the accused act as [he / she] did, think carefully about all the circumstances as shown by the evidence. Think about the nature of any force or threats. Think about the background and character of the person who made the threats or used force. Think about the accused’s situation when [he / she] committed the alleged act. Could [he / she] have avoided the harm [he / she] feared in some other way than by committing the act? Think about how reasonable these other means would have seemed to a person in the accused’s situation at the time of the alleged act. The state must prove beyond a reasonable doubt that the accused was not acting under duress. If [he / she] fails to do so, then you must find the accused not guilty.
INSANITY OR MENTAL INCAPACITY DEFENSE
If the accused is charged with a Sexual Assault charge and the accused has a mental disease or defect at the time of the act, it may relieve him/her from being criminally liable for the crime of Criminal Sexual Conduct. If a person mentally challenged person is not able to understand the sexual activity as “consented” to, this may relieve that person from being criminally liable for a Sexual Assault charge.
In order to use “Insanity” as a defense we must give notice to the state that we intend on using this defense.
There are several steps that must be done prior to deciding to use the defense of Insanity. For example, you will have to be evaluated by a medical expert. A medical expert will need to be hired to testify on your behalf. Your medical records may be required. A witness may be useful.
The state will ultimately have an opposing expert denying any of the rationale testified to by our expert. That is why it is so important that you have a lawyer who knows how to handle an Insanity defense and knows her way around the courtroom. There are several hurdles the accused must go through in order to effectuate a solid insanity defense. Blank Law, PC is prepared to successfully go through all of those hurdles with you.
Michigan allows for an “Alibi” defense. An Alibi defense means that you were not present at the time and place that the accuser claims he/she was Sexually Assaulted, you were somewhere else.
An “Alibi” defense is very, very powerful. A solid Alibi defense can mean the difference between going to prison for life or enjoying your freedom in life. An Alibi defense will tremendously assist in negotiating with the police and/or state during the investigative stage, prior to being charged. A solid Alibi defense, during a trial, will be the best defense for a Not Guilty verdict.
The laws for an ALIBI defense are very specific:
MCL 768.20 provides, in pertinent part: (1) If a defendant in a felony case proposes to offer in his defense testimony to establish an alibi at the time of the alleged offense, the defendant shall at the time of arraignment on the information or within 15 days after that arraignment but not less than 10 days before the trial of the case, or at such other time as the court directs, file and serve upon the prosecuting attorney a notice in writing of his intention to claim that defense. The notice shall contain, as particularly as is known to the defendant or the defendant’s attorney, the names of witnesses to be called on behalf of the defendant to establish that defense. The defendant’s notice shall include specific information as to the place at which the accused claims to have been at the time of the alleged offense. (2) Within 10 days after the receipt of the defendant’s notice but not later than 5 days before the trial of the case, or at such other time as the court may direct, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal which shall contain, as particularly as is known to the prosecuting attorney, the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal to controvert the defendant’s defense at the trial of the case.
An accused does not have to testify in his/her trial in order to present an Alibi defense. The accused can have witnesses testify and present evidence at trial to support an alibi defense.
Blank Law, PC will review every detail of that Alibi defense with you. It is imperative that the times and dates the accuser claims she was Sexually Assaulted match the accuser’s Alibi. Photographs, witnesses, pay stubs, emails, texts, flight information, video footage, etc., are all examples of information that will be useful in confirming your Alibi.
STATUTE OF LIMITATIONS DEFENSE
In Michigan, the statute of limitations provides a maximum period of time after a violation of a crime (Criminal Sexual Conduct) in which the prosecution has to charge you with a crime.
If the prosecution attempts to charge you with a Sexual Assault crime after the applicable time period has passed, your case can be dismissed. The Michigan Statute of Limitations is always evolving. While some crimes have no statute of limitations, others have concrete statute of limitations. In certain instances, the statute of limitations may be tolled, or suspended, if you leave the state of Michigan, which grants the state additional time to commence a legal action.
STATUTE OF LIMITATIONS
ARE THERE TIME LIMITS FOR WHEN THE STATE CAN CHARGE ME WITH A CRIMINAL SEXUAL CONDUCT CHARGE?
- First Degree Criminal Sexual Conduct: NO STATUTE OF LIMITATIONS
- Second Degree Criminal Sexual Conduct, Third Degree Criminal Sexual Conduct and Fourth Degree Criminal Sexual Conduct, or Sexual Assault: within 10 years after the offense is committed or by the accuser’s 21st birthday, whichever is later. If DNA evidence is used, within 10 years after the individual is identified or by the accuser’s 21st birthday, whichever is later.
A GENERAL LIST OF FELONY CRIMES – NO STATUTE OF LIMITATIONS
Murder: none; kidnapping, extortion, assault with intent or conspiracy to murder: 10 yrs.; others: 6 yrs.; if victim was under age 18 for any degree of sexual conduct or assault with intent to commit sexual conduct or any sexually abusive activity or material to minor: 10 yrs. or when the victim turns 21 yrs. old, whichever is later; if DNA evidence obtained: none until offender identified, then 10 yrs. after identification or when the accuser turns 21, whichever is later.
The Statute of Limitations defense is a very detailed defense. In order to effectively argue a Statute of Limitations defense, precision and experience must play a role. Calculating the Statute of Limitations for Criminal Sexual Conduct cases is unique. There are several nuances that may apply in Criminal Sexual Conduct cases.
Blank Law, PC has years of experience dealing with the Statute of Limitations arguments in Michigan. Nicole has successfully argued and won a number of Statute of Limitations arguments. Nicole’s years of experience with sex cases and Statute of Limitations issues, are exactly what you need when being investigated and/or charged with a Sex Crime.
INTOXICATION – NO LONGER A DEFENSE
Intoxication is no longer a defense to a criminal sexual conduct charge. First Degree Criminal Sexual Conduct, Second Degree Criminal Sexual Conduct, Third Degree Criminal Sexual Conduct and Fourth Degree Criminal Sexual Conduct are all general-intent crimes for which the defense of voluntary intoxication is not available.
IMPORTANT TO REMEMBER
Oftentimes poor decisions are made when drugs and alcohol are involved. It is your responsibility, sober or not, to make sure that the person you decide to be intimate with is on the same page as you once you begin to engage in sexual activity.
A person (accuser) who is under the influence of drugs and/or alcohol cannot give consent. Alcohol consumption or use of other drugs can render a person incapable of giving consent. If the accuser was using alcohol or drugs and was allegedly raped, the accuser will not get in trouble under the law. The person (accuser) who is sexually assaulted while under the influence is considered to be a “vulnerable person” and therefore the law comes down on the person who knew or should have known that the accuser was under the influence and NOT able to consent to Sexual Relations.
BLANK LAW, PC EXAMPLE – INTOXICATION
Blank Law, PC has represented several clients who have found themselves in this predicament. Our client was in college. He met a girl at a party. They had both been drinking at the party, excessively. They left the party together and continued to drink at his dorm. While our client changed his clothes, the accuser fell asleep. Our client got in bed with the accuser. Our client remembered her waking up, moaning and moving his hand onto her private parts (butt and vagina). Next, they had sexual intercourse (penetration).
The next day, one of the accuser’s friends asked her about what she did the night before and the accuser claimed she was raped (sexually assaulted) by our client, but not to tell anyone. The accuser’s friend told her mom. The accuser’s mom called the police. Our client was charged with Third Degree Criminal Sexual Conduct.
Intoxication, of both our client and the accuser, was NOT a defense to non consentual sex.