Generally speaking, sexual assault crimes occur when there is sexual contact or sexual penetration without consent. On one end of the spectrum, there are sex crimes that are committed without consent against a person by the use of violence or a weapon. These are obvious and easy to define. On the other end of the spectrum, there are sex crimes that are committed without consent because one of the parties is incapable of legally giving consent. These are sometimes less obvious, but nevertheless easy to define. But sex crimes that do not involve violence, and where the parties are legally able to give consent, are much more difficult to define because they rise and fall on whether “consent” was freely and willingly given.
A person is unable to legally give consent to sex for many reasons, but the most common reasons we see in our criminal defense practice are age, incapacitation/intoxication, mental disability/defect or relationship. A person that is too young cannot legally give consent to have sex. A person that is too drunk or under the influence of drugs cannot legally give consent to have sex, regardless their age. Under some circumstances, a person with intellectual or mental disabilities cannot legally give consent to have sex, regardless of their age. And finally, regardless of age under certain circumstances a person cannot legally give consent to have sex with their teacher, child care provider, therapist, close relatives and other persons in positions of authority.
In Michigan, the age of consent for sex is 16, but there are many exceptions, some of which are noted above. But broadly, this means that before you are 16, you are not legally able to give consent to have any sort of sex or sexual contact. So, even if a person seems ready, willing and able to have sex, if that person is under the age of 16 they cannot legally agree to it. If you engage in sexual contact with a person under 16, you are putting yourself in legal jeopardy no matter how much the other person seems to be consenting.
Another thing that comes up relative to the age of consent in Michigan is the issue of nude pictures. It is illegal under federal and state law to create, distribute or possess nude or sexually explicit pictures of a person who is under the age of 18. This creates a situation where in Michigan, a person is legally able to consent to sex when they are 16 but consensual or not, cannot be a subject of sexually explicit photos until they are 18.
“Consent” to sex is defined as agreeing to it freely and willingly, without being forced or coerced. Because usually there are just two people in a room when there is a sexual interaction going on, most cases do not have third-party witnesses to talk about whether consent was given. Instead, consent can be shown by looking to the circumstances of the interaction, like what people said and did and by looking at the relationship between the two people involved.
If you are charged with a CSC or other sex offense, the criminal defense lawyers at Willey & Chamberlain have a lot of experience conducting investigations and presenting defenses that show consent was given. The criminal defense lawyers at Willey & Chamberlain are also quite experienced in child pornography cases, at both the state and federal level. Call us today for help: contact us
