cwsox Posted July 21, 2003 Share Posted July 21, 2003 while some people thinks they know law because of course they watch tv, here is real life: this is just one portion of what one state's statues covering one part of "rape" look like - and this is statute law, not the case law which adds all kinds of meaning to these things - nothing is as simple as what guesses it is - and by the way, even the attorneys who are handling the defense at this point have no idea what their defense will be - the Information has just been received by them and discovery has noty even begun and so to specualte on what the defense will be when no one here has seen that Information nor will be privy to the defense strategy nor has seen what comes up under discovery nor knows what the prosecution will put into evidence is ludicrous. In real life, the research stage of possible defense stratagies has just begun - and then there be pre-trial conferances, etc., at which things will be refined further until trial and in fact a defense is never actually set until the prosecution rests - a multiple of possibilities will be at hand depending on the state's case as presented in court as opposed to infomation that one assumes is true or see on E or ESPN. CubKilla, HSC, and Steff are the closest to real life as posted thus far, and CK is nailing it very good - listen to him. 750.520b Criminal sexual conduct in the first degree; felony. 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. © 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). (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, 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 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 by imprisonment in the state prison for life or for any term of years. History: Add. 1974, Act 266, Eff. Apr. 1, 1975 ;--Am. 1983, Act 158, Eff. Mar. 29, 1984 ;--Am. 2002, Act 714, Eff. Apr. 1, 2003 . Constitutionality: The provision in the criminal sexual conduct statute which permits elevation of a criminal sexual conduct offense from a lesser to a higher degree on the basis of proof of personal injury to the victim in the form of mental anguish is not unconstitutionally vague. People v. Petrella, 424 Mich. 221, 380 N.W.2d 11 (1985). Compiler's Note: Section 2 of Act 266 of 1974 provides: “Saving clause. “All proceedings pending and all rights and liabilities existing, acquired, or incurred at the time this amendatory act takes effect are saved and may be consummated according to the law in force when they are commenced. This amendatory act shall not be construed to affect any prosecution pending or begun before the effective date of this amendatory act.” 750.520c Criminal sexual conduct in the second degree; felony. 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. © Sexual contact 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 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 imprisonment for not more than 15 years. History: Add. 1974, Act 266, Eff. Apr. 1, 1975 ;--Am. 1983, Act 158, Eff. Mar. 29, 1984 ;--Am. 2000, Act 227, Eff. Oct. 1, 2000 ;--Am. 2002, Act 714, Eff. Apr. 1, 2003 . Compiler's Note: Section 2 of Act 266 of 1974 provides: “Saving clause. “All proceedings pending and all rights and liabilities existing, acquired, or incurred at the time this amendatory act takes effect are saved and may be consummated according to the law in force when they are commenced. This amendatory act shall not be construed to affect any prosecution pending or begun before the effective date of this amendatory act.” 750.520d Criminal sexual conduct in the third degree; felony. Sec. 520d. (1) A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exist: (a) That other person is at least 13 years of age and under 16 years of age. (B) Force or coercion is used to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (v). © The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless. (d) That other person is related to the actor by blood or affinity to the third degree and the sexual penetration occurs under circumstances not otherwise prohibited by this chapter. It is an affirmative defense to a prosecution under this subdivision that the other person was in a position of authority over the defendant and used this authority to coerce the defendant to violate this subdivision. The defendant has the burden of proving this defense by a preponderance of the evidence. This subdivision does not apply if both persons are lawfully married to each other at the time of the alleged violation. (e) That other person is at least 16 years of age but less than 18 years of age and a student at a public or nonpublic school, and the actor is a teacher, substitute teacher, or administrator of that public or nonpublic school. This subdivision does not apply if the other person is emancipated or if both persons are lawfully married to each other at the time of the alleged violation. (2) Criminal sexual conduct in the third degree is a felony punishable by imprisonment for not more than 15 years. History: Add. 1974, Act 266, Eff. Apr. 1, 1975 ;--Am. 1983, Act 158, Eff. Mar. 29, 1984 ;--Am. 1996, Act 155, Eff. June 1, 1996 ;--Am. 2002, Act 714, Eff. Apr. 1, 2003 . Compiler's Note: Section 2 of Act 266 of 1974 provides: “Saving clause. “All proceedings pending and all rights and liabilities existing, acquired, or incurred at the time this amendatory act takes effect are saved and may be consummated according to the law in force when they are commenced. This amendatory act shall not be construed to affect any prosecution pending or begun before the effective date of this amendatory act.” 750.520e Criminal sexual conduct in the fourth degree; misdemeanor. Sec. 520e. (1) A person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual contact with another person and if any of the following circumstances exist: (a) That other person is at least 13 years of age but less than 16 years of age, and the actor is 5 or more years older than that other person. (B) Force or coercion is used to accomplish the sexual contact. 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 that threat. (iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute that threat. As used in this subparagraph, “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 are medically recognized as unethical or unacceptable. (v) When the actor achieves the sexual contact through concealment or by the element of surprise. © The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless. (d) That other person is related to the actor by blood or affinity to the third degree and the sexual contact occurs under circumstances not otherwise prohibited by this chapter. It is an affirmative defense to a prosecution under this subdivision that the other person was in a position of authority over the defendant and used this authority to coerce the defendant to violate this subdivision. The defendant has the burden of proving this defense by a preponderance of the evidence. This subdivision does not apply if both persons are lawfully married to each other at the time of the alleged violation. (e) The actor is a mental health professional and the sexual contact occurs during or within 2 years after the period in which the victim is his or her client or patient and not his or her spouse. The consent of the victim is not a defense to a prosecution under this subdivision. A prosecution under this subsection shall not be used as evidence that the victim is mentally incompetent. (f) That other person is at least 16 years of age but less than 18 years of age and a student at a public or nonpublic school, and the actor is a teacher, substitute teacher, or administrator of that public or nonpublic school. This subdivision does not apply if the other person is emancipated or if both persons are lawfully married to each other at the time of the alleged violation. (2) Criminal sexual conduct in the fourth degree is a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $500.00, or both. History: Add. 1974, Act 266, Eff. Apr. 1, 1975 ;--Am. 1983, Act 158, Eff. Mar. 29, 1984 ;--Am. 1988, Act 86, Eff. June 1, 1988 ;--Am. 1994, Act 213, Eff. Oct. 1, 1994 ;--Am. 1996, Act 155, Eff. June 1, 1996 ;--Am. 2000, Act 227, Eff. Oct. 1, 2000 ;--Am. 2000, Act 505, Eff. Mar. 28, 2001 ;--Am. 2002, Act 714, Eff. Apr. 1, 2003 . Compiler's Note: Section 2 of Act 266 of 1974 provides: “Saving clause. “All proceedings pending and all rights and liabilities existing, acquired, or incurred at the time this amendatory act takes effect are saved and may be consummated according to the law in force when they are commenced. This amendatory act shall not be construed to affect any prosecution pending or begun before the effective date of this amendatory act.” Quote Link to comment Share on other sites More sharing options...
Bmr31 Posted July 21, 2003 Share Posted July 21, 2003 But law and order is my favorite show! BY the way, i have both education and intelligence and if i had to choose id take intelligence any day, so preach on brotha Quote Link to comment Share on other sites More sharing options...
southsider2k5 Posted July 21, 2003 Share Posted July 21, 2003 That's all right, I watch reruns of Ally McBeal. Quote Link to comment Share on other sites More sharing options...
Steff Posted July 21, 2003 Share Posted July 21, 2003 CW.. something is wrong there. He's charged with 3rd degree punishable by 4 years to life, or probation of 20 years to life. What you posted says this.. (2) Criminal sexual conduct in the third degree is a felony punishable by imprisonment for not more than 15 years CK said these are state statues.. is what you posted Colorado statue? Quote Link to comment Share on other sites More sharing options...
cwsox Posted July 21, 2003 Author Share Posted July 21, 2003 CW.. something is wrong there. He's charged with 3rd degree punishable by 4 years to life, or probation of 20 years to life. What you posted says this.. (2) Criminal sexual conduct in the third degree is a felony punishable by imprisonment for not more than 15 years CK said these are state statues.. is what you posted Colorado statue? great question Steff No these are the Michigan statutes - I said the statute in one state - just as an example these are not the Colorado statutes although if I get a minute I will find those the basic 4 tier stage is typical however thus my example - petentration applies in 2 instances, and one CSC4, is a misdeamenor and I hope the youngins out there notice that a felony includes sexual relations with a person under the age of 16 and that is in every state I think - can be as mutual as all hell and if one party is uinder 16, it is a felony "rape" charge Quote Link to comment Share on other sites More sharing options...
Steff Posted July 21, 2003 Share Posted July 21, 2003 CW.. something is wrong there. He's charged with 3rd degree punishable by 4 years to life, or probation of 20 years to life. What you posted says this.. (2) Criminal sexual conduct in the third degree is a felony punishable by imprisonment for not more than 15 years CK said these are state statues.. is what you posted Colorado statue? great question Steff No these are the Michigan statutes - I said the statute in one state - just as an example these are not the Colorado statutes although if I get a minute I will find those the basic 4 tier stage is typical however thus my example - petentration applies in 2 instances, and one CSC4, is a misdeamenor and I hope the youngins out there notice that a felony includes sexual relations with a person under the age of 16 and that is in every state I think - can be as mutual as all hell and if one party is uinder 16, it is a felony "rape" charge OK.. whew. I thought I posted the wrong stuff earlier. I did post the rape shield law as it pertains to Colorado already. I didn't post all the statues because there is so much to it, but I think I posted the link. Quote Link to comment Share on other sites More sharing options...
cwsox Posted July 21, 2003 Author Share Posted July 21, 2003 the Colorado statues are here colorado search for statutes when I have tried to search all I am getting are the Colorado Rules of Evidence so I suspect the statutues are copywrighted per their arrangement with Lexis Quote Link to comment Share on other sites More sharing options...
IlliniKrush Posted July 21, 2003 Share Posted July 21, 2003 I'm not going to act like i know everything because ya TV has been my main info source for this stuff, as i'm sure it is for a lot of people That post shed a lot of light on how deep some of this stuff goes...interesting. Lots of things to consider in preparing a defense Quote Link to comment Share on other sites More sharing options...
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