There are 3 different types of conduct in Michigan that constitute Child Sexually Abusive Activity:
First, pursuant to MCL 750.145c(2), creating child sexually abusive material through knowingly persuading, inducing, enticing, coercing, causing, or allowing a child to engage in child sexually abusive activity, or the producing, making, or financing of any child sexually abusive activity or material. This offense carries a possible penalty of up to 20 years in prison, or a fine of not more than $100,000, or both. Under the Michigan Sex Offenders Registration Act, this is a Tier II listed offense.
Second, pursuant to MCL 750.145c(3), distributing, promoting, or financing the distribution or promotion of any child sexually abusive materia l. This offense carries a possible penalty of up to 7 years in prison, or a fine of not more than $50,000, or both. Under the Michigan Sex Offenders Registration Act, this is a Tier II listed offense.
Third, pursuant to MCL 750.145c(4) the possession of anychild sexually abusive material. This offense carries a possible penalty of up to 4 years in prison, or a fine of not more than $10,000, or both. Under the Michigan Sex Offenders Registration Act, this is a Tier I listed offense. "Possession" also includes watching an electronic video image.
These offenses apply if the Defendant knows, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or a depiction of constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child. Hence, in many instances ignorance of the age of the child is not a viable defense.
Often a person charged with one of these offenses is also charged under MCL 750.145d when the offense involves the use of the internet, a computer, or both. According to Michigan's Internet and Computer Solicitation Crime, MCL 750.145d(1)(a) punishes a person who uses the internet, a computer, computer program, computer network, or computer system to communicate with any person for the purpose of committing, attempting to commit, conspiring to commit, or soliciting another person to commit conduct proscribed under any of the following statutes if the alleged victim or allegedly intended victim is a minor or is believed by that person to be a minor: Accosting, Enticing, or Soliciting a Minor for Immoral Purposes or Encouraging a Minor to Commit an Immoral Act (MCL 750.145a); Child Sexually Abusive Activity (MCL 750.145c); Recruiting or Inducing a Minor to Commit a Felony (MCL 750.157c); Kidnapping (MCL 750.349); Kidnapping Child under 14 Years (MCL 750.350); CSC 1st Degree (MCL 750.520c); CSC 2nd Degree (MCL 750.520c); CSC 3rd Degree (MCL 750.520d); CSC 4th Degree (MCL 750.520e); Assault with Intent to Commit Sexual Conduct (MCL 750.520g); and Dissemination of Sexually Explicit Matter to a Minor (MCL 722.675). The penalty for Internet and Computer Solicitation is largely based upon the penalty for the underlying offense, and is outlined in MCL 750.145d(2). Furthermore, the sentencing Judge has the discretion to impose consecutive sentences pursuant to MCL 750.145d(3) under Michigan's Internet and Computer Solicitation Crime, and order the Defendant to reimburse the state or local government for the cost of prosecution upon conviction under MCL 750.145d(8).
Many of these offenses are discovered and prosecuted after an inidividual takes his or her computer to be serviced due to a computer virus, software or hardware glitch and the images are discovered on the hard drive. Sometimes these offenses are discovered by someone processing film and reported to the police. Sometimes these offenses are reported by a family member who accidentally discovers the materials in their home and calls law enforcement.
It is important to note that a "child" is defined by this act (MCL 750.145c(6)) as an individual under the age of 18 years, even though the age of legal consent is 16 years. Hence, an individual who had a consentual sexual relationship with a 17 year old could be prosecuted for video recording the sexual act. Minors who participate in "sexting" and forwarding those sexual images to other people could possibly be prosecuted as well. Michigan law is not limited to depictions of sexual acts; ordinary nudity of a child that has been enhanced to depict something lewd is not protected by the First Amendment and can be prosecuted asChild Sexually Abusive Activity. Mere preparation to engage in Child Sexually Abusive Activity by having a lewd communication with an officer posing online as a child can be prosecuted as well. A nude photograph of a child taken at a birth, baptism, bris, or otherwise innocent depiction is not intended for prosecution as Child Sexually Abusive Activity.
There are a few exceptions to possessing Child Sexually Abusive Materials: Police Officers, Child Protective Services Workers, Judicial Officers, Judicial Employees acting within the scope of his or her duties; A party or a witness in a criminal or civil proceeding acting within the scope of that proceeding; A physician, psychologist, counselor, or registered nurse under the public health code acting within the scope of his or her licensed practice; a social worker registered in Michigan under the public health code acting within the scope of practice for which he or she is registered.
Affirmative defenses to the crime of Child Sexually Abusive Activity include under MCL 750.145c if the alleged child is emancipated. Also, pursuant to MCL 750.145c(7) it is a possible defense that the depiction that appears to include a child was not, in fact, created using a depiction of any part of an actual person under the age of 18 years. The Defense has a duty to provide proper notice of this defense to the Prosecution in order to argue this defense at trial. Other possible defenses at trial include, but are not limited to, lack of intent and/or knowledge, the image is not lewd and/or sexual, acting within the professional scope of the aforementioned duties, and reasonable doubt.
This type of accusation requires experienced legal representation because many prospective jurors presume the worst based upon the nature of the allegation. Any offenses alleging the exploitation of a minor elicit strong negative feelings that can cloud and poison the judgment of a normally fair minded juror. Great care must be undertaken in the jury selection process and the presentation of the trial.
Child Sexually Abusive ActivityandMichigan's Internet and Computer Solicitation Crime cases are treated very serious in Michigan, and incarceration is likely (and sometimes is mandatory) even for a first time offender. It is recommended that you first exercise your right to remain silent and second hire a skilled criminal defense lawyer as soon as possible after your arrest for the following reasons:
- You have a better chance of receiving a reasonable bail or bond through effective legal representation; 2. The lawyer can prepare the case for preliminary examination to work for possible dismissal, lay the groundwork for possible motions, develop testimony to impeach witnesses, and develop defenses for trial. 3. If you want to fight the case at trial, you need a skilled criminal defense attorney to prepare and conduct the trial to give you the best chance of winning. 4. If you plan to plead guilty, the Defense lawyer can work to achieve the best result through possible plea bargains, possible Cobbs agreements, persuasive lawyering to present all sentencing options including programs the reduce incarceration, and proper scoring of the Michigan Sentence Guidelines. Every case is different, and whether or not the factors in this paragraph apply depends upon your history, the facts of the allegation, the Prosecutor's office, and the Judge assigned to the case. Sometimes in life you only have one opportunity to obtain the right result. Hiring the right criminal defense lawyer may be one of the most important decisions you make for yourself and your family. There are many lawyers who claim to do more than what they are able - just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at Hilf & Hilf, PLC – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right.