State high court: Discrepancy in law raises questions about age of consent
The Michigan Supreme Court won’t reconsider a state appeals court ruling that affirmed the conviction of a 52-year-old man who showed his 16-year-old neighbor a pornographic video and offered to pay the teen for sexual acts.
But the high court noted the 2015 case out of Wayne County raised questions regarding whether the current law defining child sexually abusive activity and child sexually abusive material inadvertently increases the age of consent in Michigan from 16 to 18 years old.
The discrepancy, according to the opinion by five justices, could nullify "several otherwise important and often-employed criminal statutes of our state."
“The Legislature may, or may not, wish to assess these concerns and possibly clarify and harmonize our child sexual abuse statutory scheme,” according to the majority opinion released Wednesday.
In January 2018, the Court of Appeals sustained the Wayne County conviction of Kelvin Willis on charges of child sexually abusive activity, distributing obscene material to a minor and possession of less than 25 grams of cocaine.
Willis was alleged to have invited a teen-aged neighbor over to his home, showed the teenager a pornographic video and offered the teen payment for sexual acts, which the child declined, according to the opinion. When officers arrested Willis, they found cocaine in his pocket.
Willis had argued in the Court of Appeals that there was no evidence he intended to create child sexually abusive material, which he saw as a necessary qualifier for a conviction on the charge.
The Court of Appeals and a majority of the Michigan Supreme Court disagreed, noting there were other provisions of the law that indicate “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.”
But, the Supreme Court noted, Willis made a reasonable argument regarding inconsistencies between the age of consent under the laws governing child sexually abusive activity and child sexually abusive material and other criminal statutes governing sexual misconduct.
Willis had argued that the language the Legislature used in the sexually abusive material and activity law was too broad, citing its definition of a child as someone who is 18. That doesn’t comport with the state’s criminal sexual conduct laws that define the age of consent as 16.
The language as is, the majority of justices wrote, "appears to criminalize behavior that is otherwise permissible under the criminal sexual conduct statutes."
Justice David Viviano, joined by Chief Justice Bridget McCormack, dissented from the majority opinion because he felt the evidence in Willis’ case failed to show he “arranged for” sexually abusive activity or materials.
While Viviano agreed the Legislature must address the age of consent inconsistencies apparent in the laws, he said he would have reversed the Court of Appeals opinion sustaining Willis' conviction for insufficient evidence.
“While defendant proceeded to take advantage of the ‘happenstance’ encounter by inviting the victim into his house and seeking to solicit sexual acts, there is no indication that defendant did anything to plan or prepare for the child sexually abusive activity beforehand,” Viviano wrote.