CSC Cases and HYTA

1) The Defendant must plead guilty, according to MCL 762.11(1).  A Defendant who is convicted at trial is ineligible for HYTA status.  The statute also does not provide for HYTA status for Defendants that plead no contest;

2) The Defendant must not have a prior conviction or adjudication for an offense which requires SORA registration, pursuant to MCL 762.11(3)(a).  This applies to persons that have a prior sex offense as an adult or juvenile.

3) Pursuant to MCL 762.11(3)(b) the Defendant has the burden to prove by clear and convincing evidence that he or she is not likely to engage in further listed sexual offenses.  Different Judges in Michigan have different practices and procedures when it comes to this determination.  In most cases it is necessary to have a psychological evaluation by an professional with training and expertise in evaluating sex offenders.  The Court and/or the Prosecution may accept a prepared report of the expert, or request an evidentiary hearing in which the expert would be subject to testify under oath.  If the Defendant is indigent, his or her lawyer should request funds from the County to hire an expert.  The Court may also want to hear from the Defendant to make its determination about his or her propensity to reoffend.

4) The Defendant is ineligible for HYTA if he or she is convicted of a capital offense (an offense that carries a maximum possible sentence of life in prison).  Criminal Sexual Conduct 1st degree is an example of an offense that is not HYTA eligible.  See MCL 762.11(3)(c)(i);

5) The Defendant is ineligible for HYTA if he or she is convicted of Criminal Sexual Conduct 2nd Degree.  See MCL 762.11(3)(c)(ii);

6) The Defendant is ineligible for HYTA if force or coercion was used to accomplish sexual penetration or sexual touching.  See MCL 762.11(3)(c)(iii) and MCL 762.11(3)(c)(iv).  The Court must be satisfied that the victim consented to the sexual penetration or sexual touching (setting aside the fact that the victim was too young to legally give his or her consent);

7) The Defendant is ineligible for HYTA if he or she has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.  See MCL 762.11(3)(c)(iii);

8) Teachers, employees of schools, volunteers for agencies, and others that gain access to the minor or disabled victim based upon or related to work or volunteer work are generally not HYTA eligible.  See MCL 762.11(3)(c)(iii) and MCL 762.(3)(c)(iv).

9) The victim cannot be younger than 13 years of age.  See MCL 762.11(3)

10) The Defendant cannot be more than 5 years older than the victim.

With HYTA the Court is not bound by the sentencing guidelines.  The only limitations of the Court are those that are a matter of law (such as the maximum possible sentence).  In imposing a sentence pursuant to HYTA the Court has the following options: probation without jail; probation with a jail sentence; a flat prison sentence in “HYTA prison”.  A Defendant who violates his or her probation while on HYTA status risks the revocation of that status and incarceration – including prison.

There are Prosecutors and Courts that sometimes will agree to HYTA without sex offender registration as part of a plea bargain, sentence bargain, and/or Cobbs agreement.  However, with this in mind, Prosecutors and Courts are still obligated to follow the law.  The Defendant has the burden of establishing by clear and convincing evidence that he or she will not reoffend.  Sometimes an expert needs to be retained by the Defense to meet this burden.

The information in this blog is intended to provide general information concerning Criminal Sexual Conduct laws in Michigan and seeking a resolution involving HYTA.  These laws are subject to change, and this blog is not intended to be a substitute for retaining an experienced criminal defense attorney.  Indeed, the interlie of CSC laws, SORA, and HYTA in Michigan are often very complex and require the assistance of an experienced criminal defense lawyer.  If you or a loved one is charged with a sex offense, or a violation of probation while on probation of a sex offense, hiring the right criminal defense lawyer may be one of your most important decisions.