In reviewing past columns for an idea, having not written a column in nearly a year, I realized that I last wrote about sex crimes in 2006 and because much has changed in this area since then I am devoting today’s column to that topic.
Criminal sexual conduct remains organized into four degrees with first degree being a capital offense, meaning that it carries a maximum penalty of life or any term of years, second and third degree being equivalent lesser felonies with 15-year maximums and fourth degree being a barely-there felony with a two-year maximum; two-year felonies are actually misleading in severity because, although all felony sentences must proceed from the application of mandatory sentencing guidelines, which yields a range within which the minimum sentence must be fixed absent substantial and compelling reasons to depart either upwards or downwards, minimums of one year or less must be served in the county jail such that conviction of a two-year felony rarely results in a prison sentence.
First and third degree involve sexual penetration while second and fourth degree involve sexual contact, and beyond that distinction degree is determined by various factors such as the age and status of the victim, the relationship of the parties, whether there was force or weapons used, injuries inflicted, multiple perpetrators present, etc.
And, there are several crimes which bridge the degrees, namely assault with intent to commit sexual penetration and assault with intent to commit sexual contact, which carry ten and five year maximums respectively, a few other crimes which have survived the organization of sex crimes into degrees of criminal sexual conduct, such as accosting and soliciting a minor for immoral purposes and gross indecency, and a wide array of crimes related to child pornography.
The trend since 2006 has been to modify the cookie-cutter approach to sex offenders, i.e., to stiffen penalties for the worst offenders and soften consequences for the others, including especially the “Romeo and Juliet” scenarios where criminal responsibility is predicated on the victim being below the age of consent, the parties are relatively close in age and the sexual activity was consensual.
Sexual penetration of a child under 13 has always been and continues to be first-degree criminal sexual conduct, however, if the defendant is also over 17, which is almost always the case, we now have the option of charging criminal sexual conduct as enhanced by that age difference, which carries a 25 year mandatory minimum. Because an individual with no significant criminal record who is convicted of first degree criminal sexual conduct would generally not score anywhere near 25 years on sentencing guidelines, indeed such a defendant would more likely be looking at a five to ten year minimum, this is a very big gun and one I’ve yet to actually use, but it’s a clear indication of the legislature’s intent to warehouse the worst offenders.
And, a second such offense by a defendant over 17 against a child under 13 now carries a mandatory sentence of life without parole just like first degree murder.
Sexual penetration of minors over 13 and under 16 remains third degree criminal sexual conduct in the absence of any other aggravating factors, however, defendants who are no more

than four years older than a consenting victim no longer have to register as sex offenders, indeed significant changes have been wrought in the sex offender’s registration act such than some offenders have to register for life, others for 25 years, still others for 15 years and, in the circumstances above, not at all.
Because there are several classes of victims who are protected from sexual assault by corresponding classes of defendants without regard to consent, e.g., students under 18 (or special education students under 26) and teachers, prisoners and corrections officers and mental health clients and counselors up to two years after the termination of those relationships, a frequently asked question of late concerns doctor-patient relationships.
Sexual penetration of/sexual contact with patients by health care professionals is not recognized as criminal sexual conduct per se, presumably because such penetration/contact is an unavoidable part of many legitimate procedures carried out by health care professionals, rather the criminal sexual conduct statute recognizes unethical or unacceptable medical treatment as a type of force or coercion such that sexual penetration of adult patients by health care professionals may be chargeable as third degree criminal sexual conduct predicated on force and sexual contact with adult patients by health care professionals may be chargeable as fourth degree criminal sexual contact predicated on force.
Nothing has changed, however, with respect to the general rule that sentencing for all crimes committed prior to the charging of any one of those crimes, must be concurrent such that multiple counts of criminal sexual conduct involving multiple victims often do nothing to increase the maximum penalty associated with the greatest of those charges, or if they’re all the same a single one of those charges; defendants do receive points on sentencing guidelines for multiple victims, and multiple victims have obvious evidentiary value, but it does not affect the maximum sentence in any way.
Nor has anything changed with respect to the level of difficulty associated with the prosecution of sex crimes due to the natural scarcity of proofs, i.e., of witnesses other than the victim given the selection of private venues and of physical evidence given circumstances where only contact is alleged, condoms are used, reporting is delayed or consent is available as a defense, and due, above all else, to the unfortunate tendency of others to blame the victims.