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What is sexual assault 3rd degree

61-8B-5. Sexual assault in the third degree

(a) A person is guilty of sexual assault in the third degree when:

(1) The person engages in sexual intercourse or sexual intrusion with another person who is mentally defective or mentally incapacitated; or

(2) The person, being sixteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is less than sixteen years old and who is at least four years younger than the defendant and is not married to the defendant.

(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one year nor more than five years, or fined not more than ten thousand dollars and imprisoned in a state correctional facility not less than one year nor more than five years.

Title 11
Criminal Offenses

Chapter 37
Sexual Assault

§ 11-37-6. Third degree sexual assault.

(a) Definitions. For purposes of this chapter, “position of authority” means and includes, but is not limited to, any person who is acting in the place of a parent and charged with any of a parent’s rights, duties, or responsibilities to a person under the age of eighteen (18) years, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a person under the age of eighteen (18) years, either independently or through another, no matter how brief, at the time of the act.

(b) A person is guilty of third-degree sexual assault if:

(1) He or she is over the age of eighteen (18) years and engaged in sexual penetration with another person over the age of fourteen (14) years and under the age of consent, sixteen (16) years of age; or

(2) He or she is over the age of eighteen (18) years and engaged in sexual penetration or sexual contact with another person over the age of fourteen (14) years and under the age of eighteen (18) years, under circumstances whereby:

(i) The accused has supervisory or disciplinary power over the victim by virtue of the accused’s legal, professional, or occupational status; or

(ii) The accused is otherwise acting in a position of authority with respect to the victim.

(iii) It shall not be a violation of subsection (b)(2) of this section if the parties are:

(A) Engaging in sexual penetration or contact consensually;

(B) Between the ages of sixteen (16) and twenty (20) years; and

(C) No more than thirty (30) months apart in age.

History of Section.
P.L. 1979, ch. 302, § 2; P.L. 1988, ch. 219, § 1; P.L. 2022, ch. 153, § 1, effective June 27, 2022; P.L. 2022, ch. 154, § 1, effective June 27, 2022.

Perhaps no charge, except murder, creates more fear in a defendant than a criminal sexual conduct (CSC) charge. To be convicted of one of these charges is to labeled by many people in society as a sexual predator or a child molester. There are four categories of sexual assault charges in Michigan. A person convicted of CSC charges in the first, second and third degree will almost certainly be sentenced to prison time. The vast majority of people convicted of CSC in the fourth degree usually spend some time in jail.  People convicted for these crimes also have to register as a sex offender in Michigan. This article will deal with the differences between the four categories. This blog post will clearly explain the differences between differences between 1st 2nd 3rd Degree Sexual Assault. 

In order to figure out what type of a criminal sexual assault charges a person might be facing, a determination must be determined to see if there was penetration. Penetration does not mean only sexual intercourse, it also includes oral sex, an intrustion of any part of the human body into anal or genital openings. 

If an allegation of sexual assault includes any type of penetration, it will fall into 1st degree or 3rd degree CSC. 

     §707-732  Sexual assault in the third degree.  (1)  A person commits the offense of sexual assault in the third degree if the person:

     (a)  Recklessly subjects another person to an act of sexual penetration by compulsion;

     (b)  Knowingly subjects to sexual contact a person who is less than fourteen years old or causes such a person to have sexual contact with the actor;

     (c)  Knowingly engages in sexual contact with a person who is at least fourteen years old but less than sixteen years old or causes such a person to have sexual contact with the actor; provided that the actor is:

          (i)  No less than five years older than the minor; and

         (ii)  Not legally married to the minor;

     (d)  Knowingly subjects to sexual contact a person who is mentally incapacitated or physically helpless, or causes such a person to have sexual contact with the actor;

     (e)  Knowingly subjects to sexual contact a person who is mentally defective, or causes such a person to have sexual contact with the actor; provided that the actor is negligent in not knowing of the mental defect of the victim;

     (f)  While employed:

          (i)  In a state correctional facility;

         (ii)  By a private company providing services at a correctional facility;

        (iii)  By a private company providing community-based residential services to persons committed to the director of public safety and having received notice of this statute;

         (iv)  By a private correctional facility operating in the State; or

          (v)  As a law enforcement officer as defined in section 710-1000,

          knowingly subjects to sexual contact, or causes to have sexual contact: an imprisoned person; a person confined to a detention facility; a person committed to the director of public safety; a person residing in a private correctional facility operating in the State; a person in custody; a person who is stopped by a law enforcement officer; or a person who is being accompanied by a law enforcement officer for official purposes; provided that this paragraph shall not be construed to prohibit a law enforcement officer from performing a lawful search pursuant to a warrant or an exception to the warrant clause; or

     (g)  Knowingly, by strong compulsion, has sexual contact with another person or causes another person to have sexual contact with the actor.

     Paragraphs (b), (c), (d), (e), and (f) shall not be construed to prohibit practitioners licensed under chapter 453 or 455 from performing any act within their respective practices.

     (2)  Sexual assault in the third degree is a class C felony. [L 1986, c 314, pt of §57; am L 1987, c 181, §11; am L Sp 2001 2d, c 1, §§2, 7; am L 2002, c 36, §§2, 3; am L 2003, c 62, §1; am L 2004, c 10, §15 and c 61, §5; am L 2009, c 11, §74; am L 2021, c 22, §3 and c 239, §3]

 

Case Notes

 

  Sexual assault in the fourth degree under §707-733(1)(a) not an included offense of sexual assault in the third degree under subsection (1)(b) as defined by §701-109(4).  83 H. 308, 926 P.2d 599 (1996).

  Where age of victim is element of sexual offense, the specified state of mind is not intended to apply to that element; defendant thus strictly liable with respect to attendant circumstance of victim’s age in a sexual assault.  83 H. 308, 926 P.2d 599 (1996).

  Sexual assault in the third degree, in violation of subsection (1)(b), is not, and cannot be, a “continuing offense”; each distinct act in violation of this statute constitutes a separate offense under the Hawaii Penal Code.  84 H. 1, 928 P.2d 843 (1996).

  Circuit court did not err in instructing the jury on the lesser included offense of sexual assault in the third degree where, although testimony indicated that there were incidents of sexual penetration between complainant and defendant, which would support a conviction for sexual assault in the first degree, a rational juror could have inferred that there was “sexual contact” prior to the penetration, i.e., that there was “touching” of “the sexual or other intimate parts” of complainant, such as complainant’s genitalia, buttocks, or other intimate parts, or that complainant touched defendant’s “sexual or other intimate parts”.  124 H. 90, 237 P.3d 1156 (2010).

  Insufficient evidence existed in the record to support defendant’s conviction of sexual assault in the third degree under subsection (1)(b) where defendant’s conduct of tossing minor back and forth between defendant and minor’s father in the pool occurred “a day or two before” the massage and the subsequent massage did not turn defendant’s conduct in the pool into a criminal offense.  125 H. 1, 249 P.3d 1141 (2011).

  Substantial evidence existed in the record to support defendant’s conviction of sexual assault in the third degree under subsection (1)(b) where minor’s testimony that defendant touched minor’s buttocks during the late night massage constituted the touching of an “intimate part” of minor’s body and was credible evidence of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion that defendant knowingly subjected minor, who was eleven years old at the time, to sexual contact.  125 H. 1, 249 P.3d 1141 (2011).

  There was overwhelming and compelling evidence tending to show defendant guilty beyond a reasonable doubt of two counts of sexual assault in the third degree, where defendant subjected victim to sexual contact by placing defendant’s hand and mouth on victim’s breast, respectively, by strong compulsion, and did so knowingly as to each element of the offense.  126 H. 267, 270 P.3d 997 (2011).

  “Mentally defective”.  5 H. App. 659, 706 P.2d 1333 (1985).

  Based on §701-109(4)(a), fourth degree sexual assault under §707-733(1)(a) is a lesser included offense of third degree sexual assault under subsection (1)(e).  85 H. 92 (App.), 937 P.2d 933 (1997).

  Third degree sexual assault committed in violation of subsection (1)(e) not a continuous offense; defendant’s convictions of five counts of that offense, each based on a separate sexual contact thus did not violate §701-109(1)(e).  85 H. 92 (App.), 937 P.2d 933 (1997).

  Placement of the elemental attendant circumstances after the state of mind in the enumerated elements instruction was not error; when read and considered as a whole, the instructions adequately informed the jury of the prosecution’s burden to prove that complainant did not consent to the acts alleged and was not married to defendant at the time, and that defendant was aware of both circumstances when defendant acted.  97 H. 140 (App.), 34 P.3d 1039 (2000).

  Although criminal sanctions are clearly directed only at adult conduct under subsection (1)(b) and §707-730(1)(b), there is no legislative history that supports a conclusion that only adults were intended to be prohibited from the proscribed sexual conduct; when the legislature amended subsection (1) and §707-730(1) in 2001, and could have, but did not include language allowing consensual sexual conduct between, for example, two thirteen year olds, the legislative intent was to maintain the existing prohibitions against such conduct.  121 H. 92 (App.), 214 P.3d 1082 (2009).

  Section 707-730(1)(b) and subsection (1)(b), as applied to private consensual acts between two persons, including minors, did not violate minor’s right to privacy as the State has at least a significant interest in regulating the sexual activities of children under the age of fourteen; in addition, there is no fundamental personal privacy right for minors under the age of fourteen to engage in sexual activities with other children under the age of fourteen; this applies to young boys, as well as to young girls, and is not strictly dependent on an age differential between the children.  121 H. 92 (App.), 214 P.3d 1082 (2009).

  State’s exercise of prosecutorial discretion in the case was not constitutionally infirm where defendant failed to meet the burden of demonstrating that defendant was prosecuted based on an arbitrary classification; defendant was prosecuted under §707-730 and this section based on allegations that defendant was significantly older than child #1, had initiated the prohibited sexual activities with child #1 and child #2, and had engaged in multiple instances of prohibited sexual contact with more than one child.  121 H. 92 (App.), 214 P.3d 1082 (2009).

 

 

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