CSC Fourth Degree Defense In Michigan

Why the Word Misdemeanor Is Misleading Here

MCL 750.520e(2) states that fourth degree criminal sexual conduct is a misdemeanor punishable by imprisonment for not more than two years or a fine of not more than $500, or both. Read alone, that sounds like a charge resolved quickly in district court.

The complication sits in a different act. The Code of Criminal Procedure defines a felony at MCL 761.1(f) as a violation for which the offender may be punished by imprisonment for more than one year, or an offense expressly designated a felony. Two years is more than one year. So the Penal Code’s label and the Code of Criminal Procedure’s definition point in opposite directions, and the procedural definition is the one that governs how the case is actually handled.

The practical consequence is that a fourth degree charge proceeds through circuit court with felony procedure, not through the fast district court track the word misdemeanor suggests. Anyone deciding how seriously to take the charge based on that one word is reading half the law.

What Makes a Charge Fourth Degree?

Fourth degree requires sexual contact plus one of the circumstances at MCL 750.520e(1). The first is an age provision with a built in gap requirement: the complainant is at least 13 and under 16, and the actor is 5 or more years older. That age difference is an element. Where the gap is smaller, this circumstance does not apply.

The remaining circumstances are force or coercion, defined the same way as in the more serious sections; knowledge or reason to know that the complainant is mentally incapable, mentally incapacitated, or physically helpless; a relationship by blood or affinity to the third degree; a student aged 16 or 17 where the actor is a teacher, administrator, school employee or contractor who used that status; and a resident aged 16 or older of a child care organization or foster home where the actor works.

One circumstance is unique to this section. Under MCL 750.520e(1)(e), a mental health professional commits fourth degree criminal sexual conduct where the contact occurs during, or within two years after, the period in which the complainant is that professional’s client or patient and is not the professional’s spouse. The statute is explicit that consent is not a defense to a prosecution under this subdivision, and equally explicit that such a prosecution may not be used as evidence that the complainant is mentally incompetent.

Like the third degree provision it mirrors, the blood or affinity circumstance at MCL 750.520e(1)(d) carries a statutory affirmative defense where the other person was in a position of authority over the defendant and used it to coerce, provable by a preponderance of the evidence, and it does not apply to people lawfully married to each other at the time.

Registration Can Still Reach Life

This is the most consequential thing to understand about a fourth degree charge, and the reason it should never be treated as the minor version of a CSC case. Fourth degree is the only degree that appears in all three registration tiers, and the tier is set by the complainant’s age rather than by the degree.

Those tiers come from MCL 28.722 and the reporting periods from MCL 28.725. The spread is the point: the same charge, with the same two year maximum, can produce a 15 year obligation or a lifetime one. It is entirely possible for a fourth degree conviction to carry lifetime registration while a second degree conviction involving an adult complainant carries 25 years, even though second degree is the far more serious offense on paper.

One provision does work in the other direction. MCL 750.520f, which sets a five year mandatory minimum for a second or subsequent conviction, names the first, second, and third degree sections. Fourth degree is not among them.

How a Fourth Degree Case Is Defended

Fourth degree cases turn on the same purpose element that governs every contact charge. Under MCL 750.520a(q) the touching must be one that can reasonably be construed as for sexual arousal or gratification, done for a sexual purpose, or in a sexual manner. Physical evidence rarely establishes that, so these cases are usually carried by context and by the account the complainant gave.

The circumstances give a second line of challenge, and several are unusually concrete. The five year age gap is arithmetic. Whether someone held a professional or school role, and whether the two year window in the mental health provision had closed, are questions answered by records rather than recollection.

Hackett examines the timeline, the evidence and what it can genuinely show, how the complainant was interviewed and whether the questioning was suggestive, and whether the accounts have held together. Given how much registration turns on the complainant’s age, establishing that age precisely is among the first things worth doing.

If you are under investigation or have been charged, do not speak to police without a lawyer present. Every conversation with this office is confidential.