Michigan Penal Code Section 520g (MCL 750.520g): Assault with Intent to Commit Criminal Sexual Conduct

1. Definition and Elements of the Crime

Assault with Intent to Commit Criminal Sexual Conduct under MCL 750.520g generally applies in cases where a complainant is attacked for a sexual purpose but the intended sex act is not completed. The statute comprises two distinct crimes—(1) Assault with Intent to Commit Criminal Sexual Conduct Involving Penetration and (2) Assault with Intent to Commit Criminal Sexual Conduct in the Second Degree.

Assault with Intent to Commit Criminal Sexual Conduct Involving Penetration contains four elements, all of which the prosecution must prove beyond a reasonable doubt:

1. First, the defendant either attempted to commit a battery on the complainant or did an act that would cause a reasonable person to fear or apprehend an immediate battery. (“Battery” in the law means a forceful or violent touching of a person or something closely connected with the person.)
2. Second, the defendant intended to either injure the complainant or to make the complainant reasonably fear an immediate battery.
3. Third, the defendant had the ability to commit a battery, appeared to have the ability, or thought he or she had the ability.
4. Fourth, the defendant intended to commit a sexual act involving criminal sexual penetration.

The defendant need not actually begin to commit the sexual act to be guilty. Likewise, an actual touching or penetration is not required.

Assault with Intent to Commit Criminal Sexual Conduct in the Second Degree contains six elements, all of which the prosecution must prove beyond a reasonable doubt:

1. First, the defendant either attempted to commit a battery on the complainant or did an act that would cause a reasonable person to fear or apprehend an immediate battery.
2. Second, the defendant intended to either injure the complainant or to make the complainant reasonably fear an immediate battery.
3. Third, the defendant had the ability to commit a battery, appeared to have the ability, or thought he or she had the ability.
4. Fourth, the defendant intended to commit a sexual act involving criminal sexual contact. This means that the defendant must have specifically intended to touch the complainant’s genital area, groin, inner thigh, buttock, breast, or the clothing covering those areas or have the complainant touch his or her genital area, groin, inner thigh, buttock, breast, or the clothing covering those areas.
5. Fifth, the defendant specifically intended to do the act involving criminal sexual contact for the purpose of sexual arousal or gratification.
6. Sixth, one of the following:
   1. The complainant was less than 13 years old at the time.
   2. The complainant was 13, 14, or 15 years old at the time, and one of the following:
      1. The defendant and the complainant were living in the same household.
      2. The defendant and the complainant are related by blood or marriage.
      3. The defendant was in a position of authority over the complainant and used that authority to coerce the complainant to submit to the sex act.
      4. Defendant was a teacher or administrator at a school where the complainant was enrolled.
      5. The defendant was an employee, contractual service provider, or volunteer at a school where the complainant was enrolled, and the defendant used his or her status to gain access to or establish a relationship with the complainant.
      6. The defendant was an employee, contractual service provider, or volunteer at a child-care organization that the complainant was attending.
      7. The defendant was a licensed operator of a foster-family home where the complainant resided.
   3. The sex act occurred under circumstances that also involved a felony.
   4. The defendant was assisted by another person and
      1. The defendant knew that the complainant was mentally incapable, mentally incapacitated, or physically helpless, or
      2. The defendant used force or coercion.
   5. The defendant was armed with a weapon.
   6. The complainant suffered personal injury and the defendant used force or coercion.
   7. The complainant suffered personal injury and the defendant knew that the complainant was mentally incapable, mentally incapacitated, or physically helpless.
   8. The complainant was mentally incapable, mentally incapacitated, or physically helpless and
      1. The defendant was related to the defendant, or
      2. The defendant was in a position of authority over the complainant and used that authority to coerce the complainant to submit.
   9. All of the following:
      1. The complainant was under the jurisdiction of the Michigan Department of Corrections.
      2. The defendant was an employee, contractual employee, or volunteer with the Department of Corrections.
      3. The defendant knew that the complainant was under the jurisdiction of the Department of Corrections.
   10. All of the following:
       1. The complainant was under the jurisdiction of the Michigan Department of Corrections.
       2. The defendant was an employee, contractual employee, or volunteer with a private vendor operating a youth correctional facility.
       3. The defendant knew that the complainant was under the jurisdiction of the Department of Corrections.
   11. All of the following:
       1. The complainant was a prisoner or probationer under the jurisdiction of a county.
       2. The defendant was an employee, contractual employee, or volunteer with the county or the Michigan Department of Corrections.
       3. The defendant knew that the complainant was under the county’s jurisdiction.
   12. All of the following:
       1. The defendant knew or had reason to know that a court had detained the complainant in a facility while the complainant was awaiting a trial or hearing or that a court had committed the complainant to a facility as a result of the complainant having been found responsible for committing an act that would be a crime if committed by an adult.
       2. The defendant was an employee, contractual employee, or volunteer with the facility in which the complainant was detained or to which the complainant was committed.

The defendant need not actually begin to commit the sexual act to be guilty. Likewise, an actual touching is not required.

2. Examples

A man and a woman are making out. The man says he wants to have sex. The woman says no. Regardless, the man takes off his pants and starts pulling down the woman’s pants. The woman is able to get away before any sexual contact or penetration occurs.

A man is babysitting his girlfriend’s 12-year-old daughter. They’re sitting on the couch together watching television. He begins tickling the daughter. Then he moves his hand under her pants. Before he can go any further, he hears his girlfriend pull into the driveway, and he pulls his hand away from the daughter.

3. Related Offenses

Other similar or related offenses include:

1. Second-degree criminal sexual conduct, MCL 750.520c.
2. Third-degree criminal sexual conduct, MCL 750.520d.

4. Defenses to Assault with Intent to Commit Criminal Sexual Conduct

Defenses in assault with intent to commit criminal sexual conduct cases usually take one of two forms: (1) failure to prove the elements or (2) consent.

Consider the example of the man who wanted to take things further than just making out. He might argue that the incident never happened. Or he might argue that the activity with the woman was consensual and that he honored her wishes when she said no. There’s unlikely to be physical evidence or eyewitnesses to corroborate the woman’s allegations. A he-said-she-said case like this will usually hinge on whether the woman is believable, or whether she has some ulterior motive for accusing the man of assault.

Now take the boyfriend babysitting the 12-year-old. Consent will not be a defense given the girl’s young age (the age of consent in Michigan is 16). The boyfriend might claim that the incident never happened. If the daughter has displayed attention-seeking behavior in the past, the boyfriend would likely argue that the accusations are a ruse. Or the boyfriend might claim that any touching toward the daughter’s crotch was accidental and not for the purpose of sexual arousal or gratification. As with every case, context will dictate the viability of any defense.

5. Penalties

Assault with Intent to Commit Criminal Sexual Penetration is a felony punishable by up to 10 years in prison. If convicted, you’ll also have to register as a sex offender for the rest of your life.

Assault with Intent to Commit Criminal Sexual Conduct in the Second Degree is a felony punishable by up to 5 years in prison. Sex offender registry consequences vary. If the victim was 18 years or older, you’ll have to register for 15 years. If the victim was between 13 and 17 years old, you’ll have to register for 25 years. If the victim was less than 13 years old, you’ll have to register for the rest of your life.

6. Criminal Defense for Assault with Intent to Commit Criminal Sexual Conduct Cases

Although not punished as harshly as criminal sexual conduct, assault with intent to commit criminal sexual conduct is still a very serious felony that can put you in prison and on the sex offender registry for the rest of your life. If you’re under investigation for or have been charged with assault with intent to commit criminal sexual conduct, you need to hire an experienced criminal defense attorney as soon as possible. Grabel & Associates has been in business for more than 20 years and has handled hundreds of sexual assault cases. Our highly respected attorneys know what it takes to obtain the best result in your case.

For more information about assault with intent to commit criminal sexual conduct and to talk about your case, contact Grabel & Associates at (800) 342-7896.