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HB-5531, As Passed House, March 14, 2006

SUBSTITUTE FOR

HOUSE BILL NO. 5531

A bill to amend 1931 PA 328, entitled

"The Michigan penal code,"

by amending sections 520a and 520c (MCL 750.520a and 750.520c), as

amended by 2002 PA 714, and by adding section 520n.

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) "Developmental disability" means an impairment of general

intellectual functioning or adaptive behavior which meets 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) Mental retardation, cerebral palsy, epilepsy, or autism.

(B) Any other condition of a person found to be closely

related to mental retardation because it produces a similar

impairment or requires treatment and services similar to those

required for a person who is mentally retarded.

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

791.285.

(d) ~~(c)~~ "Intimate parts" includes the primary genital area,

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

(e) ~~(d)~~ "Mental health professional" means that term as

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

330.1100b.

(f) ~~(e)~~ "Mental illness" means a substantial disorder of

thought or mood which significantly impairs judgment, behavior,

capacity to recognize reality, or ability to cope with the ordinary

demands of life.

(g) ~~(f)~~ "Mentally disabled" means that a person has a mental

illness, is mentally retarded, or has a developmental disability.

(h) ~~(g)~~ "Mentally incapable" means that a person suffers

from a mental disease or defect which renders that person

temporarily or permanently incapable of appraising the nature of

his or her conduct.

(i) ~~(h)~~ "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.

(j) ~~(i)~~ "Mentally retarded" means significantly subaverage

general intellectual functioning which originates during the

developmental period and is associated with impairment in adaptive

behavior.

(k) ~~(j)~~ "Nonpublic school" means that term as defined in

section 5 of the revised school code, 1976 PA 451, MCL 380.5.

(l) ~~(k)~~ "Physically helpless" means that a person is

unconscious, asleep, or for any other reason is physically unable

to communicate unwillingness to an act.

(m) (l) "Personal injury" means bodily injury, disfigurement,

mental anguish, chronic pain, pregnancy, disease, or loss or

impairment of a sexual or reproductive organ.

(n) ~~(m)~~ "Public school" means that term as defined in

section 5 of the revised school code, 1976 PA 451, MCL 380.5.

(o) ~~(n)~~ "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.

(p) ~~(o)~~ "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.

(q) ~~(p)~~ "Victim" means the person alleging to have been

subjected to criminal sexual conduct.

Sec. 520c. (1) A person is guilty of criminal sexual conduct

in the second degree if the person engages in sexual contact 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 by blood or affinity to the fourth

degree to the victim.

(iii) The actor is in a position of authority over the victim

and the actor 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.

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

contact. Force or coercion includes, but is not limited to, any of

the circumstances listed in sections 520b(1)(f)(i) to (v).

(e) The actor is armed with a weapon, or any article used or

fashioned in a manner to lead a person 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 the sexual contact. Force or

coercion includes, but is not limited to, any of the circumstances

listed in section 520b(1)(f)(i) to (v).

(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.

(i) That other person is under the jurisdiction of the

department of corrections and the actor is an employee or a

contractual employee of, or a volunteer with, the department of

corrections who knows that the other person is under the

jurisdiction of the department of corrections.

(j) That other person is under the jurisdiction of the

department of corrections and the actor is an employee or a

contractual employee of, or a volunteer with, a private vendor that

operates a youth correctional facility under section 20g of 1953 PA

232, MCL 791.220g, who knows that the other person is under the

jurisdiction of the department of corrections.

(k) That other person is a prisoner or probationer under the

jurisdiction of a county for purposes of imprisonment or a work

program or other probationary program and the actor is an employee

or a contractual employee of or a volunteer with the county or the

department of corrections who knows that the other person is under

the county's jurisdiction.

(l) The actor knows or has reason to know that a court has

detained the victim in a facility while the victim is awaiting a

trial or hearing, or committed the victim to a facility as a result

of the victim having been found responsible for committing an act

that would be a crime if committed by an adult, and the actor is an

employee or contractual employee of, or a volunteer with, the

facility in which the victim is detained or to which the victim was

committed.

(2) Criminal sexual conduct in the second degree is a felony

punishable by as follows:

(a) By imprisonment for not more than 15 years.

(b) In addition to the penalty specified in subdivision (a),

the court shall sentence the defendant to lifetime electronic

monitoring under section 520n if the violation involved sexual

contact committed by an individual 17 years of age or older against

an individual less than 13 years of age.

Sec. 520n. (1) A person convicted under section 520b or 520c

for criminal sexual conduct committed by an individual 17 years old

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

sentenced to lifetime electronic monitoring as provided under

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

791.285.

(2) A person who has been sentenced under this chapter to

lifetime electronic monitoring under section 85 of the corrections

code of 1953, 1953 PA 232, MCL 791.285, who does any of the

following is guilty of a felony punishable by imprisonment for not

more than 2 years or a fine of not more than $2,000.00, or both:

(a) Intentionally removes, defaces, alters, destroys, or fails

to maintain the electronic monitoring device in working order.

(b) Fails to notify the department of corrections that the

electronic monitoring device is damaged.

agent for the cost of the monitoring.

(3) This section does not prohibit an individual from being

charged with, convicted of, or punished for any other violation of

law that is committed by that individual while violating this

section.

(4) A term of imprisonment imposed for a violation of this

section may run consecutively to any term of imprisonment imposed

for another violation 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