Bill Text: MI SB0607 | 2017-2018 | 99th Legislature | Introduced

Michigan Senate Bill 607 (Prior Session Legislation)

Introduced

Bill Title: Crimes; criminal sexual conduct; sexual penetration or contact between clergy and certain members of congregation; prohibit under certain circumstances, and disallow consent as a defense.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2017-10-19 - Referred To Committee Of The Whole With Substitute S-1 [SB0607 Detail]

Download: Michigan-2017-SB0607-Introduced.html

SENATE BILL No. 607

October 4, 2017, Introduced by Senators JONES, PAVLOV, CONYERS and HERTEL and referred to the Committee on Judiciary.

A bill to amend 1931 PA 328, entitled

"The Michigan penal code,"

by amending sections 520a, 520d, and 520e (MCL 750.520a, 750.520d,

and 750.520e), section 520a as amended by 2014 PA 64 and sections

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) "Clergy" means the group of individuals ordained or

recognized by a religious or spiritual community as ritual or

spiritual leaders.

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.

(d) ~~(c)~~ "Electronic monitoring" means that term as defined in

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

791.285.

(e) ~~(d)~~ "Intellectual disability" means that term as defined

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

330.1100b.

(f) ~~(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.

(g) ~~(f)~~ "Intimate parts" includes the primary genital area,

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

(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. 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 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 or purports to be a member of the clergy and

either of the following applies:

(i) The sexual penetration occurred during the course of a

meeting in which the other person sought or received religious or

spiritual advice, aid, or comfort from the actor.

(ii) The sexual penetration occurred during a period of time

in which the other person was meeting on an ongoing basis with the

actor to seek or receive religious or spiritual advice, aid, or

comfort in a private setting.

(2) The consent of the victim is not a defense to a

prosecution under subdivision (h).

(3) ~~(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.

(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