HB-5421, As Passed House, March 14, 2006

SUBSTITUTE FOR

HOUSE BILL NO. 5421

     A bill to amend 1931 PA 328, entitled

"The Michigan penal code,"

by amending section 520b (MCL 750.520b), as amended by 2002 PA 714.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     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:

     (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 or nonpublic school in which that other

person is enrolled.

     (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)(i) to (v)  (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,

House Bill No. 5421 (H-2) as amended March 14, 2006

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  which  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  in the state prison 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 [

House Bill No. 5421 (H-2) as amended March 14, 2006

] 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 17

years of age or older against an individual less than 13 years of

age and accomplished while 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 or through force and coercion, by imprisonment

for life without the possibility of parole if the person was

previously convicted of violating section 520b, 520c, 520d, or

520e.

     (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.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted.

     Enacting section 2. This amendatory act does not take effect

unless all of the following bills of the 93rd Legislature are

enacted into law:

     (a) House Bill No. 5422.

     (b) House Bill No. 5531.