Bridget M. McCormack, Chief Justice David F. Viviano, Chief
Justice Pro Tem Stephen J. Markman Brian K. Zahra Richard H.
Bernstein Elizabeth T. Clement Megan K. Cavanagh, SC: 157465
7, 2019, the Court heard oral argument on the application for
leave to appeal the January 11, 2018 judgment of the Court of
Appeals. On order of the Court, the application is again
considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this
we take this opportunity to bring the issues presented in
this case to the attention of the Legislature. While, in our
judgment, the Court of Appeals properly sustained
defendant's conviction under MCL 750.145c(2), see
People v Willis, 322 Mich.App. 579, 586 (2018),
defendant has nonetheless raised pertinent concerns regarding
the breadth of the statute that may warrant further review by
750.145c(2) proscribes child sexually abusive activity and
child sexually abusive material:
A person who persuades, induces, entices, coerces, causes, or
knowingly allows a child to engage in a child sexually
abusive activity for the purpose of producing any child
sexually abusive material, or a person who arranges for,
produces, makes, copies, reproduces, or finances, or a person
who attempts or prepares or conspires to arrange for,
produce, make, copy, reproduce, or finance any child sexually
abusive activity or child sexually abusive material for
personal, distributional, or other purposes if that person
knows, has reason to know, or should reasonably be expected
to know that the child is a child or that the child sexually
abusive material includes a child or that the depiction
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 is guilty of a
purposes of this statute, a "child" is defined as
"a person who is less than 18 years of age, subject to
the affirmative defense created in [MCL 750.145c(7)]
regarding persons emancipated by operation of law." MCL
750.145c(1)(c). "Child sexually abusive activity,"
in turn, "means a child engaging in a listed sexual
act." MCL 750.145c(1)(n). And "listed sexual
act[s]" include "sexual intercourse, erotic
fondling, sadomasochistic abuse, masturbation, passive sexual
involvement, sexual excitement, [and] erotic nudity."
Court of Appeals has previously recognized, MCL 750.145c(2)
"imposes criminal liability [upon] three distinct groups
of 'person[s] . . . .'" People v
Adkins, 272 Mich.App. 37, 40 (2006). The first clause
imposes liability upon a person "who persuades, induces,
entices, coerces, causes, or knowingly allows a child to
engage in a child sexually abusive activity for the purpose
of producing any child sexually abusive material . . .
." MCL 750.145c(2). The second clause imposes liability
upon any person who "arranges for, produces, makes,
copies, reproduces, or finances . . . any child sexually
abusive activity or child sexually abusive material . . .
." Id. The third clause imposes liability on a
person "who attempts or prepares or conspires to arrange
for, produce, make, copy, reproduce, or finance any child
sexually abusive activity or child sexually abusive material
. . . ." Id.
it pertains to the first "group" must a person act
"for the purpose of producing any child sexually abusive
material" in order to violate MCL 750.145c(2). In
contrast, as it pertains to the second and third groups, the
person must act in an effort to facilitate "child
sexually abusive activity or child sexually abusive
material . . . ." Id. (emphasis added). The
Legislature's use of the disjunctive "or" in
the statute is determinative. Mich Pub Serv Co v
Cheboygan, 324 Mich. 309, 341 (1949) ("
'Or' is . . . used to indicate a disunion, a
separation, an alternative."). "[O]r" thus
indicates the Legislature's intention to criminalize not
only efforts to produce child sexually abusive material, but
also efforts to engage in child sexually abusive activity.
See id. Had the Legislature intended to only
proscribe activity that is undertaken with the purpose of
creating child sexually abusive material, it would have said
as much, as it did in setting forth the first group of
violators under MCL 750.145c(2).
the Court of Appeals correctly upheld defendant's
conviction under MCL 750.145c(2). Willis, 322
Mich.App. at 582. Defendant, a 52-year-old man at the time of
the conduct relevant to this case, offered a 16-year-old boy,
i.e., a "child" under MCL 750.145c, money in
exchange for sexual activities. Thus, defendant
"attempt[ed] . . . to arrange for . . . or finance . . .
child sexually abusive activity . . . for personal . . .
purposes . . . ." MCL 750.145c(2).
argues that this interpretation does not accurately reflect
the genuine intentions of the Legislature. More specifically,
he argues that the Legislature did not intend for the statute
to criminalize such a broad range of conduct. Consider, for
example, an 18-year-old and 17-year-old couple who discuss
engaging in sexual intercourse after their high school prom.
The 17-year-old is a "child" for purposes of MCL
750.145c; sexual intercourse is a "listed sexual
act" under MCL 750.145c(1)(i); and thus, it appears
that, under the statute, the 18-year-old could be convicted
of "a felony punishable by imprisonment for not more
than 25 years," MCL 750.145c(2)(b), because he or she
"arrange[d] for . . . child sexually abusive
activity" with a person under 18 years old. We question
whether this was a result the Legislature genuinely sought
when it enacted MCL 750.145c(2), although the conduct
indisputably falls within the purview of the language of this
defendant raises a reasonable argument that MCL 750.145c(2),
as written, elevates the age of consent in Michigan from 16
years old to 18 years old, effectively nullifying several
otherwise important and often-employed criminal statutes of
our state. The relevant age of consent under the criminal
sexual conduct statutes is 16 years old. See MCL 750.520b to
MCL 750.520e. Specifically, "[a] person is guilty of
criminal sexual conduct in the third degree if the person
engages in sexual penetration with another person and if any
of the following circumstances exist: (a) That other person
is at least 13 years of age and under 16 years of age."
MCL 750.520d(1). Revisiting the previous example, the
18-year-old would not have violated MCL 750.520d if he or she
had not engaged in sexual intercourse with his or her
17-year-old partner. Nonetheless, the 18-year-old could still
be convicted under MCL 750.145c(2) because he or she had
"arrange[d] for . . . child sexually abusive activity .
. . ." In effect, then, the age of consent is no longer
16 years old, but 18 years old, as any sexually listed act
with an individual under 18 years old could result in
criminal liability under MCL 750.145c(2). Similarly,
[a] person who accosts, entices, or solicits a child less
than 16 years of age, regardless of whether the person knows
the individual is a child or knows the actual age of the
child, or an individual whom he or she believes is a child
less than 16 years of age with the intent to induce or force
that child or individual to commit an immoral act, to submit
to an act of sexual intercourse . . . is guilty of a felony
punishable by imprisonment for not more than 4 years . . . .
the relevant age for purposes of the solicitation statute is
16 years old. Therefore, one who entices a 17-year-old to
engage in sexual intercourse would not be criminally liable
under MCL 750.145a. Under MCL 750.145c(2), however, one who
"arranges for" that same 17-year-old to engage in
sexual intercourse could be held criminally liable.
it is somewhat difficult to harmonize the expansiveness of
MCL 750.145c(2) with the rest of Michigan's criminal
sexual conduct scheme. As illustrated above, MCL 750.145c(2)
appears to criminalize behavior that is otherwise permissible
under the criminal sexual conduct statutes. This Court,
however, is bound by statutory language-"[t]he
Legislature is presumed to have intended the meaning it has
plainly expressed, and if the expressed language is clear,
judicial construction is not permitted and the statute must
be enforced as written." Robertson v DaimlerChrysler
Corp, 465 Mich. 732, 748 (2002). And MCL 750.145c(2)
does not require that a person act with the purpose of
producing child sexually abusive material in order to fall
within the second or third groups subject to criminal
liability. Accordingly, defendant's conviction must be
upheld and a denial of defendant's application for leave
to appeal is warranted. Nonetheless, defendant has
highlighted concerns regarding the breadth of MCL
750.145c(2). The Legislature may, or may not, wish to assess
these concerns and possibly clarify and harmonize our child
sexual abuse statutory scheme.
Viviano, J. (dissenting).
case raises two issues: (1) whether, to sustain a conviction
under MCL 750.145c(2), the prosecution must always prove that
the defendant acted for the purpose of producing child
sexually abusive material, and (2) whether the evidence in
this case was sufficient to support defendant's
conviction under that provision. The Court of Appeals
concluded that a defendant may violate MCL 750.145c(2)
without acting for the purpose of producing sexually abusive
materials and that defendant in this case violated the
statute by "arrang[ing] for . . . or . . . attempt[ing]
or prepar[ing] . . . to arrange for . . . child sexually
abusive activity . . . ." MCL 750.145c(2). I agree with
the majority that the Court of Appeals' interpretation
raises the question of whether the Legislature intended MCL
750.145c(2) to raise the age of consent in Michigan from 16
to 18-years-old. Even under the Court of Appeals' broad
interpretation of the statute, however, I disagree with the
Court of Appeals' conclusion that the evidence in this
case was sufficient to sustain defendant's
conviction. Therefore, because I would reverse the
Court of Appeals, I respectfully dissent from the Court's
order denying leave to appeal.
FACTS AND PROCEDURAL HISTORY
encountered the victim in this case, a 16-year-old male, on
August 12, 2015. The victim testified at trial that he was
familiar with defendant because defendant lived in an
apartment complex across the street from where the victim
lived with his grandmother. According to the victim's
testimony, he was outside talking to a neighbor when he saw
defendant, who beckoned him over. Defendant engaged the
victim in conversation, asking how he was doing and how old
he was, and exchanged phone numbers with the victim.
Defendant then asked if the victim wanted to come inside his
apartment and hang out, and the victim agreed to do so.
the victim went inside, defendant locked the door to the
apartment and sat next to the victim on the couch. Then,
defendant began to argue with another person in the apartment
and left the room momentarily. When defendant returned, he
stood next to the victim and showed him a video on his phone
of "two men having sexual intercourse." Defendant
told the victim, "[T]his is what I like to do," and
proceeded to offer the victim $25 if he would allow defendant
to engage in sexual acts with him. The victim refused and
stood to leave, but defendant grabbed him by the shoulder and
pulled him back onto the couch. Defendant then offered the
victim $100 if he would "have sexual intercourse"
with him. When the victim again refused, defendant left the
room once again to talk to the other person in the apartment.
At that point, the victim ran out the front door and found a
neighbor, who called the police after hearing the victim
recount what had occurred.
was charged with two counts of child sexually abusive
activity, one count of distributing obscene material to a
minor, and one count of possession of cocaine (which the
police found when they arrested him). The district court
refused to bind defendant over for trial on the child
sexually abusive activity counts, concluding that the
prosecution was required to show that defendant had acted
with the intent to produce child sexually abusive material.
The court explained:
The Court, having had an opportunity to review the authority
referenced by the People, is of the opinion that the charged
violations in Counts 1 and 2 would, in fact, require some
evidence-competent evidence-that there be a persuasion,
inducement, enticement, coercion causing or knowingly
allowing a child under the age of eighteen to engage in a
sexually abusive activity for the purpose of producing child
sexually abusive material . . . .
the bindover on the remaining counts,  the prosecution
filed a motion to amend the information to reinstate the two
child sexually abusive activity charges. The circuit ...