Detroit Sex Crimes Attorney - Definition of "Sexual Penetration"

First Degree Criminal Sexual Conduct in Michigan is about the most serious criminal charge a person can face besides First-Degree Murder. Not only is the maximum penalty LIFE in Prison for Michigan Criminal Sexual Conduct 1st Degree charges ("CSC 1"), but it also includes a mandatory minimum of 25 years in Prison if the alleged victim is under 13 years old. Michigan Third Degree Criminal Sexual Conduct charges are similar but slightly less serious, carrying a maximum of 15 years in Prison, but CSC 3 also puts you on the Michigan Sex Offender Registry (SORA) for Life as a Tier 1 Offender.

In this article, Detroit Sex Crimes Attorney Brian J. Prain takes a look at the definition of Sexual Penetration in Michigan Criminal Sexual Conduct laws. The Michigan definition of Sexual Penetration includes the things most people would assume are included, but also includes some things that we don't typically think of as "penetration."

Criminal Sexual Conduct in Michigan is broken down into four "Degrees" (click each link below to visit our Main Page for each Degree of CSC):

RELATED: Click here to read about Detroit Sex Crimes Attorney Brian J. Prain's impressive record of verdicts of NOT GUILTY of Criminal Sexual Conduct.

Of course, there are plenty of other Michigan Sex Crimes, such as Assault With Intent to Commit Sexual Penetration, and you can visit our Sex Crimes Main Page for more information about them.

What separates the Degrees of Criminal Sexual Conduct in Michigan are the different types of facts surrounding the alleged Sexual Assault that make up each Degree. At the most basic level is the question whether it involves alleged "Sexual Penetration" and/or only "Sexual Contact" under Michigan law. Where the allegation includes "Sexual Penetration," the charge would be either Criminal Sexual Conduct 1st Degree or Criminal Sexual Conduct 3rd Degree. On the other hand, where the allegation involves "Sexual contact," but without penetration, then the charge would either be Criminal Sexual Conduct 2nd Degree or Criminal Sexual Conduct 4th Degree.

Therefore, in order to understand why a person is charged with either Criminal Sexual Conduct 1st Degree or Criminal Sexual Conduct 3rd Degree, one must understand the Michigan definition of Sexual penetration.

First, the term "Sexual Penetration" is actually defined right in the beginning section of the Michigan CSC laws, MCL 750.520a(r):

...(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.

Second, there are the Michigan Criminal Jury Instructions, which tell us exactly how a Judge would read the definition to a Jury if you were on trial for CSC 1 or CSC 3 in Michigan. For this reason, this is the more important version of the definition to know. The Michigan Criminal Jury Instructions for CSC cases define "Sexual Penetration" as follows:

  • (a) entry into the Complainant’s [genital opening / anal opening] by the defendant’s [penis / finger / tongue / some other object]. Any entry, no matter how slight, is enough. It does not matter whether the sexual act was completed or whether semen was ejaculated.
  • (b) entry into the Complainant’s mouth by the defendant’s penis. Any entry, no matter how slight, is enough. It does not matter whether the sexual act was completed or whether semen was ejaculated.
  • (c) touching of the Complainant’s [genital openings / genital organs] with the defendant’s mouth or tongue.
  • (d) entry by [any part of one person's body / some object] into the genital or anal opening of another person's body. Any entry, no matter how slight, is enough. It is alleged in this case that a sexual act was committed by [XYZ person]. It does not matter whether the sexual act was completed or whether semen was ejaculated.

As you can see, the Michigan Definition of Sexual Penetration includes even alleged oral sex - not our typical definition of "penetration." And, it includes even things that fall short of what most people typically think of as oral sex. What is important to know is that when it comes to the Michigan CSC laws, there is common-sense, and then there is the law - and they are not the same thing, and the "Early 2021 Update" directly below illustrates this point perfectly...

EARLY 2021 UPDATE: On February 18, 2021, the Michigan Court of Appeals issued a ruling that seems to expand the definition of "sexual penetration" in the Michigan Criminal Sexual Conduct laws beyond even what many experienced Attorneys familiar with the above legal definition from the Jury Instructions would include. In an Unpublished Opinion in the case of People v. Hall (Deonte DeQuinn), No. 347290, a panel of the Michigan Court of Appeals considered whether the Defendant's conviction for CSC 1st Degree, MCL 750.520b, should stand where the allegation was that the Defendant put his penis in-between the Complainant's "butt cheeks," but did not insert it into her "anal cavity" (again, this is another situation where something is being deemed "sexual penetration" when no part of the body was actually "penetrated" in the usual sense.

Even many Attorneys would argue that this alleged act could only meet the definition of "sexual contact," supporting a conviction for CSC 2nd Degree, MCL 750.520c, at best. However, this panel of the Court of Appeals disagreed and upheld the conviction, finding that this met the definition of "sexual penetration." Quoting an earlier ruling in People v. Anderson, No. 345601 from 2020, the Court of Appeals stated:

"First, this Court has already concluded that the 􏰋genital opening􏰌 of a female includes the labia. We see no reason why the Legislature would define 􏰋genital opening􏰌 broadly, but restrict 􏰋anal opening􏰌 to the anal canal. Second, the defining difference between a sexual penetration and sexual contact is the intrusion into the victim􏰏s body, rather than the unwanted touching of sensitive areas of the body. The statute broadly prohibits sexual intrusions of all types, regardless of the cavity entered. In this sense, the statute protects a person􏰏s bodily integrity and there can be no question that defendant􏰏s conduct in this case sufficiently intruded upon the victim􏰏s bodily integrity to qualify it in the same class as other recognized sexual penetrations."

Importantly, an Unpublished Opinion of the Court of Appeals is not binding law, such that other Courts, including Trial Courts must follow it, but it is strong support (i.e. "persuasive authority") for how the Court of Appeals would apparently rule if they were presented with another case having similar facts. The bottom-line is, "sexual penetration" under Michigan CSC laws is much more than common-sense, and the definition seems to be expanding. However, if this question goes to the Michigan Supreme Court, the Supreme Court gets the final word, so People v. Hall may not be the "law" for too long...

RELATED: Being investigated for Criminal Sexual Conduct in Michigan? Click here to learn how to AVOID JAIL.

RELATED: Click here to learn about the Criminal Sexual Conduct Court Process in Michigan.

If you or someone you know is being accused of Criminal Sexual Conduct in Michigan, get in touch immediately with Detroit Criminal Sexual Conduct Attorney Brian J. Prain and start building your plan of attack. When you talk to Brian, you'll immediately see he's not your average Defense Lawyer - Brian has proven again and again that he has the drive, the skills, and the knowhow to take you from nightmare to NOT GUILTY. Among many other awards, Brian has been named one of the 2019 21 Best Criminal Defense Lawyers in Detroit by Expertise.com, one of D Business Magazine's Top Lawyers, 2019, awarded in Super Lawyers Magazine, named one of the Top 100 Criminal Defense Attorneys by The National Trial Lawyers, one of the Top 10 Criminal Defense Attorneys by the National Academy of Criminal Defense Attorneys, and much, much more. Just read Brian's Google reviews to read the stories of some of the lives Brian has saved.

For Criminal Sexual Conduct defense, don't do anything until you contact Prain Law, PLLC at (248) 731-4543 or via email using our Contact Form.

Categories:

Contact Prain Law, PLLC

Schedule a Free & Confidential Consultation
  • Please enter your name.
  • This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please select an option.
  • Please select an option.
  • Please enter a message.

Prain Law, PLLC is focused only on the types charges featured on our website. This helps us deliver the decisive, effective advocacy for which our clients know us. We only serve individuals currently under investigation or who have a current case pending in court. Our firm does not represent injury victims, defendants who have already taken a plea or have been sentenced, or those seeking to expunge a criminal record. We do not respond to anyone who is not involved in a pending investigation or who has a court case for a type of charge we do not handle, but we wish you the very best of luck.