If you have been accused of Sexual Assault, there may be a period of time when you are wondering what is going to happen. You might be wondering “Is the person who accused me of Sexual Assault going to be the one to decide whether or not I face criminal charges?”
The short and simple answer to that question is: No, but they may play an important role in that decision. Read on to find out why...
Whether you are guilty or innocent of a Sexual Assault crime is a question of how the Criminal Sexual Conduct laws apply to the facts at issue. As you can imagine, the facts themselves are often in dispute. But one thing is for certain - the mere fact that someone has been accused of a Sexual Assault does not make them guilty of anything.
Someone claiming to be the victim of a Sexual Assault could file a civil lawsuit asking for money on their own and/or go to law enforcement and initiate a complaint seeking possible criminal charges.
Under the Michigan Penal Code, the group of criminal offenses based on Sexual Assault allegations are called Criminal Sexual Conduct (CSC). Michigan Criminal Sexual Conduct charges are broken down into four separate "Degrees":
- First Degree CSC, MCL 750.520b, based on alleged "sexual penetration" and punishable by up to LIFE
- Second Degree CSC, MCL 750.520c, based on alleged "sexual contact" and punishable by up to 15 years
- Third Degree CSC, MCL750.520d, based on alleged sexual penetration and punishable by up to 15 years.
- Fourth Degree CSC, MCL 750.520e, based on alleged sexual contact and punishable by up to two years.
Michigan has other Sexual Assault related charges and Sex Crimes, such as Assault with Intent to Commit Sexual Penetration, but the above are the four basic Degrees of CSC in Michigan.
If someone claiming to be the victim of Sexual Assault contacts law enforcement to make a report, the appropriate law enforcement agency will conduct an investigation. This may involve:
- Interviews of the accuser and any other individuals who may have information
- Conducting of a Forensic Interview of an alleged child victim, for example at Kids Talk of Wayne county or CARE House of Oakland and Macomb Counties
- performing a "SANE" examination, including what is commonly known as a “Rape Kit“ to gather DNA and other biological or trace evidence
- Visiting the alleged scene or other locations to take photos or gather any physical evidence
- Interrogating the suspect, and so on...
RELATED: click here to learn what you should do if you are under investigation for Sexual Assault.
At the completion of the investigation, the "Officer in Charge" (the Officer taking ultimate responsibility for the investigation) will submit their report and other information about the results of their investigation to the Prosecutor's Office for the County along with a request, if appropriate, that the accused be charged with certain Criminal Sexual Conduct or other Sex Crimes charges.
At the Prosecutors Office, one or more Assistant Prosecuting Attorneys in the Warrants Division will review the case and make a judgment whether or not they believe there is sufficient evidence to formally bring CSC charges. This standard of evidence is called “probable cause.“ This stage may involve the Prosecutor contacting the Officer in Charge and requesting that they conduct additional investigation.
If the Prosecutor determines that there is sufficient probable cause, they may sign off on a Warrant authorizing certain Criminal Sexual Conduct charges. There might be multiple individual charges (or “Counts”) and more than one Degree of Criminal Sexual Conduct might be charged, depending on the evidence.
In deciding whether to move forward with charges in this manner, the Prosecutor's Office will reach out to the alleged victim (either themselves or through a Victim Advocate employed by their Office to determine whether they wish to go forward with the process. This may involve a series telephone conversations, in person meetings, or other communications. Although the ultimate decision is not up to the alleged victim, the Prosecutors Office wants to make sure that the alleged victim understands the Court process they will undergo, including:
- That, after being arraigned, depending on the degree of Criminal Sexual Conduct charge, the accused Defendant may be released back into the community on Bond while the case is pending, with or without posting of money Bail.
- That, as the alleged victim, they are entitled to be made aware of all Court hearings in the case.
- That at certain stages of the case, such as the Preliminary Examination in District Court (assuming the defendant decides to hold the Preliminary Exam instead of "waiving" it) they will be under Subpoena, a mandatory Court Order, requiring them to appear and testify under oath to their allegations of Sexual Assault. The same is true if there is a Trial. In these hearings, and any other type of “evidentiary hearing“ where their testimony is required, they will have to undergo a potentially rigorous cross-examination by the Criminal Sexual Conduct Defense Attorney representing the accused. Unless special statutes are invoked, this occurs in a Court room open to the public and even potentially subject to media coverage.
- That the Prosecutors Office may offer the accused Defendant a plea deal whereby they give up their right to Trial in exchange for some degree of certainty about what will happen to them in terms of their criminal record, their sentence, potential Sex Offender Registration (SORA), and any other consequences, such as a professional license, or standing in the community.
- That prior to offering a plea deal to the Defendant, the alleged victim has the right under the Crime Victim Rights Act to express their input to the Prosecutors Office. The Prosecutors Office does not have to follow their wishes, but just like the decision to bring charges in the first place, the alleged victim's input will be given some degree of weight. Just how much weight it is given depends on factors such as the facts and evidence, policies of the Prosecutors Office, the strength of the case (i.e., likelihood of a conviction in the event of a Trial), and others. This is important, because as we often hear in the media, alleged victims and their families are sometimes disappointed when they feel the Prosecutors Office is offering a plea deal that they believe is "too good." Although the alleged victim has a right to be heard, a Prosecutor nevertheless has a special ethical responsibility to seek justice, and not merely to convict someone.
- That IF there is a conviction for Criminal Sexual Conduct or some other charge by way of a Jury verdict or plea deal, they have the right to have their wishes known with regard to what Sentence they feel the Defendant should receive, as well as the right to make a Victim Impact Statement, either in writing or verbally.
RELATED: Will I be released on Bond for First Degree Criminal Sexual Conduct?
RELATED: Will I know what my sentence will be before accepting a plea deal in a Criminal Sexual Conduct case?
Now, circling back to the main question above, even if the Prosecutors Office decides to move forward and authorize a Warrant for charges of Criminal Sexual Conduct, it still has to pass muster with the judicial branch of our government.
The Prosecutor signs the Warrant and returns it to the Officer in Charge. Then, that officer appears before a Judge or Magistrate of the District Court for a hearing called a “Swear-To.” Usually, this involves only the Officer and the Judge / Magistrate. The Officer is placed under oath, and gives a recitation of the case and what the investigation revealed, followed by a request to issue the Warrant.
After considering the testimony of the Officer, the Judge / Magistrate, makes their own legal determination of whether the evidence amounts to the required standard of probable cause.
Probable cause is a low standard of proof, so it is not inherently difficult to satisfy it. In fact, a Defendant can even be convicted of Criminal Sexual Conduct by a Jury at Trial based just on the accusers word alone. Every Jury in a Michigan Criminal Sexual Conduct case is read a standard Jury Instruction (20.25) which tells them that:
"To prove this charge, it is not necessary that there be evidence other than the testimony of [the accuser], if that testimony proves guilt beyond a reasonable doubt." [Click here to learn more about this rule of law.]
When and if the Judge or Magistrate finds the required probable cause, he or she signs the Warrant. A warrant is a Court Order directing any peace officer to take the Defendant into custody and bring them before the Court to be dealt with according to law - in other words, to begin the legal Court procedure of the actual Criminal Sexual Conduct case.
Some people wisely hire a CSC Defense Attorney as soon as they find out a police investigation is underway. At Prain Law PLLC, we specifically concentrate on defending those accused of Criminal Sexual Conduct and only a limited number of other, similar charges. We are frequently hired during the investigation stage. Sometimes, charges are not filed at all. But if in their discretion, the Prosecutor does bring charges, then by taking the right steps, we are often able to avoid our client being arrested and are instead offered the courtesy of allowing them to “walk-in” on their own volition for their Arraignment. This can also help them to be released with a lower Bail amount, and less restrictive Bond conditions.
From there on out, it’s in the hands of the Attorney to give you the best possible defense to the Criminal Sexual Conduct charges...