The committee has adopted amendments to two jury instructions, M Crim JI 20.2 (Criminal Sexual Conduct in the Second Degree) and M Crim JI 20.13 (Criminal Sexual Conduct in the Fourth Degree) to add “sexual contact” language from MCL 750.520a(q). The amended instructions are effective Oct. 1, 2024.
[AMENDED] M Crim JI 20.2
Criminal Sexual Conduct in the Second Degree
(1) The defendant is charged with the crime of second-degree criminal sexual conduct. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant intentionally [touched (name complainant)’s/made, permitted, or caused (name complainant) to touch (his/her)] [genital area/groin/inner thigh/buttock/(or) breast] or the clothing covering that area.
(3) Second, that when the defendant [touched (name complainant)/made, permitted, or caused (name complainant) to touch (him/her)] it could reasonably be construed as being done for any of these reasons:
(a) for sexual arousal or gratification,
(b) for a sexual purpose, or
(c) in a sexual manner for
(i) revenge or
(ii) to inflict humiliation or
(iii) out of anger.
(4) [Follow this instruction with one or more of the 13 alternatives, M Crim JI 20.3-20.11d, as warranted by the charges and evidence.]
[AMENDED] M Crim JI 20.13
Criminal Sexual Conduct in the Fourth Degree
(1) The defendant is charged with the crime of fourth-degree criminal sexual conduct. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant intentionally [touched (name complainant)’s/made, permitted, or caused (name complainant) to touch (his/her)] [genital area/groin/inner thigh/buttock/(or) breast] or the clothing covering that area.
(3) Second, that when the defendant [touched (name complainant)/made, permitted, or caused (name complainant) to touch (him/her)] it could reasonably be construed as being done for any of these reasons:
(a) for sexual arousal or gratification,
(b) for a sexual purpose, or
(c) in a sexual manner for
(i) revenge or
(ii) to inflict humiliation or
(iii) out of anger.
(4) [Follow this instruction with M Crim JI 20.14a, M Crim JI 20.14b, M Crim JI 20.14c, M Crim JI 20.14d, M Crim JI 20.15, M Crim JI 20.16, or M Crim JI 20.16a, as warranted by the charges and evidence.]
Use Note
Use this instruction where the facts describe an offensive touching not included under criminal sexual conduct in the second degree.
The committee has adopted a new jury instruction, M Crim JI 38.5 (Using the Internet to Disrupt Government or Public Institutions) for crimes charged under MCL 750.543p. The new instruction is effective Oct. 1, 2024.
[NEW] M Crim JI 38.5
Using the Internet to Disrupt Government or Public Institutions
(1) The defendant is charged with the crime of using the Internet to disrupt government or public institutions. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant used [the Internet/a telecommunications device or system/an electronic device or system]1 in a way that disrupted the functioning of [public safety/educational/commercial/governmental] operations. To disrupt operations means to interrupt the normal functioning of those institutions.
(3) Second, that when the defendant disrupted [public safety/educational/commercial/governmental] operations, [he/she] intended to commit the following acts [describe alleged conduct by the defendant that would be a felony.]2
(4) Third, that the defendant acted willfully and deliberately. This means that [his/her] [act was/acts were] intentional and not the result of an accident and that [he/she] considered the pros and cons of committing the act, thought about it, and chose [his/her] actions before [he/she] did it.
(5) Fourth, that the defendant knew or had reason to know that [his/her] actions would [be likely to cause serious injury or death/cause a person to be restrained in order to be
[Select appropriate subparagraph[s] based on the charges and evidence.]3
(a) held for ransom or reward.
(b) used as a shield or hostage.
(c) subject to criminal sexual penetration or criminal sexual contact.
(d) taken outside of this state.
(e) held in involuntary servitude.
(f) used for child sexually abusive activity, including sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity.
(g) concealed from his or her parent or guardian.]
(6) Fifth, that through or by [his/her] action, the defendant intended to intimidate or coerce a civilian population or intended to influence or affect the conduct of government or a unit of government through intimidation or coercion.
Use Notes
1. These terms are defined in MCL 750.145d(9)(f), 750.219a(6)(b), 750.540c(9), 750.543b, 750.543p, and 47 USC 230(f)(1).
2. E.g., if it is alleged that the defendant intended to commit the felony offense of arson of insured property, the court could say, “setting fire to a building so it would be damaged or burned down in order to collect insurance money.”
3. See MCL 750.543b(b) citing the kidnapping statutes, MCL 750.349 and 750.350.
The committee has adopted two new jury instructions, M Crim JI 40.7 (Loitering Where Prostitution Is Practiced) and M Crim JI 40.7a (Loitering Where an Illegal Occupation or Business Is Practiced or Conducted), for “loitering” crimes charged under the disorderly person statute, MCL 750.167. The new instructions are effective Oct. 1, 2024.
[NEW] M Crim JI 40.7
Loitering Where Prostitution Is Practiced
(1) The defendant is charged with the crime of loitering where acts of prostitution were taking place. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that acts of prostitution were allowed or being committed at [provide location where prostitution was being performed].
An act of prostitution is sexual conduct with another person for a fee or something of value.
(3) Second, that the defendant was present at that location and the defendant knew or learned that prostitution was allowed or being committed there.
(4) Third, that the defendant remained at [provide location of illegal conduct] without a lawful purpose1 knowing that prostitution was allowed or being committed there.
Use Note
1. Lawful purposes could include, among other things, gathering information to report illegal conduct to the police or attempting to dissuade persons engaging in illegal conduct from continuing their illegal activity.
The committee has adopted three new jury instructions, M Crim JI 41.3 (Placing Eavesdropping or Surveillance Devices), M Crim JI 41.3a (Placing Eavesdropping or Surveillance Devices for a Lewd or Lascivious Purpose), and M Crim JI 41.3b (Transmitting Images or Recordings Obtained by Surveillance or Eavesdropping Devices), for crimes charged under the eavesdropping-device statute, MCL 750.539d. The new instructions are effective Oct. 1, 2024.
[NEW] M Crim JI 41.3
Placing Eavesdropping or Surveillance Devices
(1) The defendant is charged with the crime of placing an eavesdropping or surveillance device. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt.
(2) First, that the defendant [installed/placed/used] a device for observing, recording, photographing, eavesdropping on, or transmitting the sounds or events1 of others2 at or in a private place.3
A private place is one where a person could reasonably expect to be safe from casual or unwanted intrusion or surveillance. It does not include a place where the public or a substantial group of the public has access.
(3) Second, that the defendant did not have permission or consent to observe, record, photograph, eavesdrop on, or transmit sounds or events involving [(identify complainant(s) if possible)/the person or persons entitled to privacy at (provide location of device)].
Use Notes
Use M Crim JI 41.3a in cases where the defendant is the owner or principal occupant of the premises where an eavesdropping device was alleged to have been placed. Questions regarding whether a defendant has status as an “owner or principal occupant” appear to be legal questions decided by the court.
1. MCL 750.539d(1)(a).
2. The Committee on Model Criminal Jury Instructions believes that the statute does not encompass recording conversations or events under MCL 750.539a(2) where the person recording them is a participant because Michigan appears to be a one-party consent state. See Sullivan v. Gray, 117 Mich App 476; 324 NW2d 58 (1982), cited in Lewis v. LeGrow, 258 Mich App 175; 670 NW2d 675 (2003), and Fisher v. Perron, 30 F4th 289 (6th Cir 2022).
3. Private place is defined in MCL 750.539a(1).
[NEW] M Crim JI 41.3a
Placing Eavesdropping or Surveillance Devices for a Lewd or Lascivious Purpose
(1) The defendant is charged with the crime of placing an eavesdropping or surveillance device for a lewd or lascivious purpose. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant [installed/placed/used] a device for observing, recording, photographing, eavesdropping on, or transmitting the sounds or events in a residence.
(3) Second, that the location that the device could observe, record, photograph, or eavesdrop was a private place in or around the residence.1
A private place is one where a person could reasonably expect to be safe from casual or unwanted intrusion or surveillance.
(4) Third, that the defendant did not have permission or consent to observe, record, photograph, eavesdrop on, or transmit sounds or events involving [(identify complainant(s) if possible)/the person or persons entitled to privacy at (provide location of device)].
(5) Fourth, that the defendant installed, placed, or used the device for a lewd or lascivious purpose.
A lewd or lascivious purpose means that the device was placed to observe or record [(identify complainant)/a person] under indecent or sexually provocative circumstances.
Use Note
This instruction should only be given when the defendant is the owner or principal occupant of the residence where an eavesdropping device was alleged to have been placed. Questions regarding whether a defendant has status as an “owner or principal occupant” appear to be legal questions decided by the court.
1. Private place is defined in MCL 750.539a(1).
[NEW] M Crim JI 41.3b
Transmitting Images or Recordings Obtained by Surveillance or Eavesdropping Devices
(1) The defendant is charged with the crime of transmitting images or recordings obtained by surveillance or eavesdropping devices. To prove this charge, the prosecutor must prove both of the following elements beyond a reasonable doubt:
(2) First, that the defendant intentionally distributed, disseminated, or transmitted a recording, photograph, or visual image of [identify person or complainant] so that the recording, photograph, or visual image could be accessed by other persons.
(3) Second, that the defendant knew or had reason to know the recording, photograph, or visual image of [identify person or complainant] that [he/she] transmitted was obtained using a device for eavesdropping1 that had been placed or used in a private place.2
A private place is one where a person could reasonably expect to be safe from casual or unwanted intrusion or surveillance. It does not include a place where the public or a substantial group of the public has access.
Use Notes
1. MCL 750.539d(1)(a) describes these devices as “any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.”
2. Private place and surveillance are defined in MCL 750.539a(1) and (3).