On Saturday, the Michigan Supreme Court issued an order granting leave for an appellant that had been plea-convicted of sexually assaulting a 12-year old victim back in 1994. Twenty years later, in 2014, the Wayne County Circuit Court granted defendant's motion to be removed from Michigan's sex offender registry.

The Michigan Court of Appeals reversed the Wayne Circuit Court, reinstating the CSC-II convict's lifetime registration requirement. At the time of his conviction for groping and fondling the breasts of a then-12-year old girl, the defendant was 19-years old and thus, eligible for Holmes Youthful Trainee status.

This particular defendant successfully completed a 3-year probationary term and his conviction was dismissed back in 1997. His registration requirements under the sex offender registration act [SORA], however, lived on and follow him to this day.

No one is going to shed a tear for any convicted felon that took advantage of a young girl. Nevertheless, the Michigan Supreme Court, in its order granting leave to appeal, instructed the appellate lawyers to brief the following long list of issues:

• Whether placement on the SORA amounts to "punishment"; 
• Does it matter whether the plea-convicted felon attained trainee status; 
• Whether the SORA registration requirement violates a trainee's constitutional due process when a conviction is removed based on successful completion of probation; 
• Whether application of the civil regulatory scheme contained in the SORA violates the due process of a trainee, even if the SORA requirements are not considered "punishment";
• Whether the requirements of SORA that were instituted after defendant's conviction amount to ex-post-facto punishment and are therefore unconstitutional; and finally,
• Whether lifetime SORA registration constitutes "cruel and unusual" punishment in violation of the Eighth Amendment to the Unites States Constitution.

With that many questions directed to be briefed, the ultimate opinion in this case will be an outright referendum on the constitutionality of the SORA. Such a referendum has been a long time in the making; the Michigan Supreme Court was patient in order to select its case wisely.

We will watch and monitor this case. Oral argument will occur yet this term, after the briefs have been filed; an opinion likely will be issued sometime in June, just prior to the conclusion of the High Court's term.

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Post #513

Around the turn of the century, Michigan's so-called "rape" laws underwent a sea-change.  The Legislature re-wrote the law of sexual assaults into what is now classified as "criminal sexual conduct" [CSC].

There are numerous facets to this law, including the ages of the accused and the victim; their relationship; the use of force; and many other factors.  Once convicted under the CSC statutes, a defendant then faces the onerous registration requirements under the Sex Offender Registration Act.

Recently, our law firm was involved in two CSC cases that were headed for jury trials; one in Genesee County and one in Oakland County.  Each case resolved with plea agreements that preserved our clients' freedoms, but also included punishments that were justified under the circumstances.

The case in Genesee County involved date rape and resolved with hard-bargained plea and sentencing agreements that reduced the degree of the charges from CSC 3rd to CSC 4th.  The sentencing agreement featured a no-jail guarantee.  The only way these agreements were reached was because our lawyers were prepared to try the case; and the accused had a good defense.

Our Oakland County case was not as strong.  The accused wanted to utilize a defense that his young victim looked years older than she actually was.  When a victim is between the ages of 13 and 16, however, the Michigan Supreme Court long-ago held that an accused's reasonable mistake in the age of the victim is not a defense.

In fact, this defendant had no defense, even though no force was used and the evidence showed that the young victim pursued the relationship with the accused and "consented" to sexual contact.  If convicted, he also missed the 4-year "Romeo and Juliet" age-gap that would have afforded him the opportunity to convince the judge that he should not be placed on the sex-offender registry.

Between our client's willingness to push the matter to trial, the reasonable approach of the judge, the open-mindedness of the prosecutor to resolve the matter short of trial and, perhaps most importantly, the victim and her family's unwillingness to take the matter to trial, our client was offered a no-prison guarantee on his sentence, with any jail term suspended on condition he successfully completed probation.  A very good result under such tough circumstances.

Sexual assaults are horrible crimes that, when reported, often make the victim pay.  They frequently go to trial.  Most often, such cases become an exercise in damage control.

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