SENATE BILL NO. 1269 September 16, 1998, Introduced by Senators JAYE, NORTH and STILLE and referred to the Committee on Judiciary. A bill to amend 1931 PA 328, entitled "The Michigan penal code," by amending sections 136b, 317, 520b, 520c, and 520d (MCL 750.136b, 750.317, 750.520b, 750.520c, and 750.520d), section 136b as added by 1988 PA 251, sections 520b and 520c as amended by 1983 PA 158, and section 520d as amended by 1996 PA 155. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 136b. (1) As used in this section: 2 (a) "Child" means a person who is less than 18 years of age 3 and is not emancipated by operation of law as provided in section 4 4(1) ofAct No. 293 of the Public Acts of 1968, being section5722.4 of the Michigan Compiled Laws1968 PA 293, MCL 722.4. 6 (b) "Omission" means a willful failure to provide the food, 7 clothing, or shelter necessary for a child's welfare or the 8 willful abandonment of a child. 05187'97 TVD 2 1 (c) "Person" means a child's parent or guardian or any other 2 person who cares for, has custody of, or has authority over a 3 child regardless of the length of time that a child is cared for, 4 in the custody of, or subject to the authority of that person. 5 (d) "Physical harm" means any injury to a child's physical 6 condition. 7 (e) "Serious physical harm" means an injury of a child's 8 physical condition or welfare that is not necessarily permanent 9 but constitutes substantial bodily disfigurement, or seriously 10 impairs the function of a body organ or limb. 11 (f) "Serious mental harm" means an injury to a child's 12 mental condition or welfare that is not necessarily permanent but 13 results in visibly demonstrable manifestations of a substantial 14 disorder of thought or mood which significantly impairs judgment, 15 behavior, capacity to recognize reality, or ability to cope with 16 the ordinary demands of life. 17 (2) A person is guilty of child abuse in the first degree if 18 the person knowingly or intentionally causes serious physical or 19 serious mental harm to a child. Child abuse in the first degree 20 is a felonypunishableAND SHALL BE PUNISHED by imprisonment 21 fornot more than 15 yearsLIFE WITHOUT ELIGIBILITY FOR 22 PAROLE. 23 (3) A person is guilty of child abuse in the second degree 24 if the person's omission causes serious physical harm or serious 25 mental harm to a child or if the person's reckless act causes 26 serious physical harm to a child. Child abuse in the second 05187'97 3 1 degree is a felony punishable by imprisonment for not more than 4 2 years. 3 (4) A person is guilty of child abuse in the third degree if 4 the person knowingly or intentionally causes physical harm to a 5 child. Child abuse in the third degree is a misdemeanor punish- 6 able by imprisonment for not more than 2 years. 7 (5) A person is guilty of child abuse in the fourth degree 8 if the person's omission or reckless act causes physical harm to 9 a child. Child abuse in the fourth degree is a misdemeanor pun- 10 ishable by imprisonment for not more than 1 year. 11 (6) This section shall not be construed to prohibit a parent 12 or guardian, or other person permitted by law or authorized by 13 the parent or guardian, from taking steps to reasonably disci- 14 pline a child, including the use of reasonable force. 15 Sec. 317. (1)Second degree murder--All other kinds of16murder shall beMURDER, OTHER THAN MURDER IN THE FIRST DEGREE, 17 IS murderofIN the second degree., and shall be punished18 (2) EXCEPT AS PROVIDED IN SUBSECTION (3), A PERSON WHO COM- 19 MITS MURDER IN THE SECOND DEGREE IS GUILTY OF A FELONY AND SHALL 20 BE PUNISHED by imprisonmentin the state prisonfor life, or21any term of years, in the discretion of the court trying the22sameWITHOUT ELIGIBILITY FOR PAROLE. 23 Sec. 520b. (1) A person is guilty of criminal sexual con- 24 duct in the first degree if he or she engages in sexual penetra- 25 tion with another person and if any of the following circum- 26 stances exists: 05187'97 4 1 (a) That other person is under 13 years of age. 2 (b) That other person is at least 13 but less than 16 years 3 of age and any of the following: 4 (i) The actor is a member of the same household as the 5 victim. 6 (ii) The actor is related to the victim by blood or affinity 7 to the fourth degree. 8 (iii) The actor is in a position of authority over the 9 victim and used this authority to coerce the victim to submit. 10 (c) Sexual penetration occurs under circumstances involving 11 the commission of any other felony. 12 (d) The actor is aided or abetted by 1 or more other persons 13 and either of the following circumstances exists: 14 (i) The actor knows or has reason to know that the victim is 15 mentally incapable, mentally incapacitated, or physically 16 helpless. 17 (ii) The actor uses force or coercion to accomplish the 18 sexual penetration. Force or coercion includes but is not 19 limited to any of the circumstances listed in subdivision (f)(i) 20 to (v). 21 (e) The actor is armed with a weapon or any article used or 22 fashioned in a manner to lead the victim to reasonably believe it 23 to be a weapon. 24 (f) The actor causes personal injury to the victim and force 25 or coercion is used to accomplish sexual penetration. Force or 26 coercion includes but is not limited to any of the following 27 circumstances: 05187'97 5 1 (i) When the actor overcomes the victim through the actual 2 application of physical force or physical violence. 3 (ii) When the actor coerces the victim to submit by threat- 4 ening to use force or violence on the victim, and the victim 5 believes that the actor has the present ability to execute these 6 threats. 7 (iii) When the actor coerces the victim to submit by threat- 8 ening to retaliate in the future against the victim, or any other 9 person, and the victim believes that the actor has the ability to 10 execute this threat. As used in this subdivision, "to retaliate" 11 includes threats of physical punishment, kidnapping, or 12 extortion. 13 (iv) When the actor engages in the medical treatment or 14 examination of the victim in a manner or for purposes which are 15 medically recognized as unethical or unacceptable. 16 (v) When the actor, through concealment or by the element of 17 surprise, is able to overcome the victim. 18 (g) The actor causes personal injury to the victim, and the 19 actor knows or has reason to know that the victim is mentally 20 incapable, mentally incapacitated, or physically helpless. 21 (h) That other person is mentally incapable, mentally dis- 22 abled, mentally incapacitated, or physically helpless, and any of 23 the following: 24 (i) The actor is related to the victim by blood or affinity 25 to the fourth degree. 26 (ii) The actor is in a position of authority over the victim 27 and used this authority to coerce the victim to submit. 05187'97 6 1 (2)CriminalEXCEPT AS PROVIDED IN SUBSECTION (3), 2 CRIMINAL sexual conduct in the first degree is a felony punish- 3 able by imprisonment in the state prison for life or for any term 4 of years. 5 (3) IF A PERSON IS CONVICTED OF VIOLATING THIS SECTION AND 6 THE VICTIM OF THE VIOLATION WAS LESS THAN 18 YEARS OF AGE WHEN 7 THE VIOLATION WAS COMMITTED, AND THE PERSON WAS PREVIOUSLY CON- 8 VICTED OF VIOLATING THIS SECTION, SECTION 520C, 520D, OR 520E, OR 9 A LAW OF THE UNITED STATES, OF ANOTHER STATE, OR OF A LOCAL UNIT 10 OF GOVERNMENT OF ANOTHER STATE SUBSTANTIALLY CORRESPONDING TO 11 THIS SECTION OR SECTION 520C, 520D, OR 520E, AND THE VICTIM OF 12 THE PREVIOUS VIOLATION WAS LESS THAN 18 YEARS OF AGE WHEN THAT 13 VIOLATION WAS COMMITTED, THE PERSON SHALL BE SENTENCED TO IMPRIS- 14 ONMENT FOR LIFE WITHOUT ELIGIBILITY FOR PAROLE. 15 Sec. 520c. (1) A person is guilty of criminal sexual con- 16 duct in the second degree if the person engages in sexual contact 17 with another person and if any of the following circumstances 18 exists: 19 (a) That other person is under 13 years of age. 20 (b) That other person is at least 13 but less than 16 years 21 of age and any of the following: 22 (i) The actor is a member of the same household as the 23 victim. 24 (ii) The actor is related by blood or affinity to the fourth 25 degree to the victim. 05187'97 7 1 (iii) The actor is in a position of authority over the 2 victim and the actor used this authority to coerce the victim to 3 submit. 4 (c) Sexual contact occurs under circumstances involving the 5 commission of any other felony. 6 (d) The actor is aided or abetted by 1 or more other persons 7 and either of the following circumstances exists: 8 (i) The actor knows or has reason to know that the victim is 9 mentally incapable, mentally incapacitated, or physically 10 helpless. 11 (ii) The actor uses force or coercion to accomplish the 12 sexual contact. Force or coercion includes but is not limited to 13 any of the circumstances listed in sections 520b(1)(f)(i) to 14 (v). 15 (e) The actor is armed with a weapon, or any article used or 16 fashioned in a manner to lead a person to reasonably believe it 17 to be a weapon. 18 (f) The actor causes personal injury to the victim and force 19 or coercion is used to accomplish the sexual contact. Force or 20 coercion includes but is not limited to any of the circumstances 21 listed in section 520b(1)(f)(i) to (v). 22 (g) The actor causes personal injury to the victim and the 23 actor knows or has reason to know that the victim is mentally 24 incapable, mentally incapacitated, or physically helpless. 25 (h) That other person is mentally incapable, mentally dis- 26 abled, mentally incapacitated, or physically helpless, and any of 27 the following: 05187'97 8 1 (i) The actor is related to the victim by blood or affinity 2 to the fourth degree. 3 (ii) The actor is in a position of authority over the victim 4 and used this authority to coerce the victim to submit. 5 (2)CriminalEXCEPT AS PROVIDED IN SUBSECTION (3), 6 CRIMINAL sexual conduct in the second degree is a felony punish- 7 able by imprisonment for not more than 15 years. 8 (3) IF A PERSON IS CONVICTED OF VIOLATING THIS SECTION AND 9 THE VICTIM OF THE VIOLATION WAS LESS THAN 18 YEARS OF AGE WHEN 10 THE VIOLATION WAS COMMITTED, AND THE PERSON WAS PREVIOUSLY CON- 11 VICTED OF VIOLATING THIS SECTION, SECTION 520B, 520D, OR 520E, OR 12 A LAW OF THE UNITED STATES, OF ANOTHER STATE, OR OF A LOCAL UNIT 13 OF GOVERNMENT OF ANOTHER STATE SUBSTANTIALLY CORRESPONDING TO 14 THIS SECTION OR SECTION 520B, 520D, OR 520E, AND THE VICTIM OF 15 THE PREVIOUS VIOLATION WAS LESS THAN 18 YEARS OF AGE WHEN THAT 16 VIOLATION WAS COMMITTED, THE PERSON SHALL BE SENTENCED TO IMPRIS- 17 ONMENT FOR LIFE WITHOUT ELIGIBILITY FOR PAROLE. 18 Sec. 520d. (1) A person is guilty of criminal sexual con- 19 duct in the third degree if the person engages in sexual penetra- 20 tion with another person and if any of the following circum- 21 stances exist: 22 (a) That other person is at least 13 years of age and under 23 16 years of age. 24 (b) Force or coercion is used to accomplish the sexual 25 penetration. Force or coercion includes but is not limited to 26 any of the circumstances listed in section 520b(1)(f)(i) to (v). 05187'97 9 1 (c) The actor knows or has reason to know that the victim is 2 mentally incapable, mentally incapacitated, or physically 3 helpless. 4 (d) That other person is related to the actor by blood or 5 affinity to the third degree and the sexual penetration occurs 6 under circumstances not otherwise prohibited by this chapter. It 7 is an affirmative defense to a prosecution under this subdivision 8 that the other person was in a position of authority over the 9 defendant and used this authority to coerce the defendant to vio- 10 late this subdivision. The defendant has the burden of proving 11 this defense by a preponderance of the evidence. This subdivi- 12 sion does not apply if both persons are lawfully married to each 13 other at the time of the alleged violation. 14 (2)CriminalEXCEPT AS PROVIDED IN SUBSECTION (3), 15 CRIMINAL sexual conduct in the third degree is a felony punish- 16 able by imprisonment for not more than 15 years. 17 (3) IF A PERSON IS CONVICTED OF VIOLATING THIS SECTION AND 18 THE VICTIM OF THE VIOLATION WAS LESS THAN 18 YEARS OF AGE WHEN 19 THE VIOLATION WAS COMMITTED, AND THE PERSON WAS PREVIOUSLY CON- 20 VICTED OF VIOLATING THIS SECTION, SECTION 520B, 520C, OR 520E, OR 21 A LAW OF THE UNITED STATES, OF ANOTHER STATE, OR OF A LOCAL UNIT 22 OF GOVERNMENT OF ANOTHER STATE SUBSTANTIALLY CORRESPONDING TO 23 THIS SECTION OR SECTION 520B, 520C, OR 520E, AND THE VICTIM OF 24 THE PREVIOUS VIOLATION WAS LESS THAN 18 YEARS OF AGE WHEN THAT 25 VIOLATION WAS COMMITTED, THE PERSON SHALL BE SENTENCED TO IMPRIS- 26 ONMENT FOR LIFE WITHOUT ELIGIBILITY FOR PAROLE. 05187'97 10 1 Enacting section 1. This amendatory act does not take 2 effect unless Senate Bill No. ________ or House Bill No. ________ 3 (request no. 05187'97 a) of the 89th Legislature is enacted into 4 law. 05187'97 Final page. TVD