State of Michigan: Section 750.145c
My question involves criminal law for the state of: Michigan
I am being charged with MCL 750.145c(2)
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Quoting MCL 750.145c(2)
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, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, 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.
My plea bargain charge is a lesser charge, MCL 750.145c(4)
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Quoting MCL 750.145c(4)
A person who knowingly possesses any child sexually abusive material is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $10,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know 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.
According to the definition included in this Section, the definition of Child Sexually Abusive Activity is...
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(l) "Child sexually abusive activity" means a child engaging in a listed sexual act.
The definition of a Listed Sexual Act is...
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"Listed sexual act" means sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity.
This case involves a picture of an underage child allegedly sending a 17 year old male a picture of her exposed breasts, one arm by her side, the other holding up the camera, while in her bed.
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Quoting Sexual Intercourse
"Sexual intercourse" means intercourse, real or simulated, whether genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between a human and an animal, or with an artificial genital.
This picture obviously did not include her engaging in sexual intercourse.
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Quoting Erotic Fondling
"Erotic fondling" means touching a person's clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breasts, or if the person is a child, the developing or undeveloped breast area, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved. Erotic fondling does not include physical contact, even if affectionate, that is not for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.
One arm was by her side, while another was holding up the mobile phone, so I believe she could not have possibly been engaging in this listed sexual act.
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Quoting Sadomasochistic Abuse
"Sadomasochistic abuse" means either of the following:
(i) Flagellation or torture, real or simulated, for the purpose of real or simulated sexual stimulation or gratification, by or upon a person.
(ii) The condition, real or simulated, of being fettered, bound, or otherwise physically restrained for sexual stimulation or gratification of a person.
No questions asked. She did not engage in any of these listed sexual acts.
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"Masturbation" means the real or simulated touching, rubbing, or otherwise stimulating of a person's own clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breasts, or if the person is a child, the developing or undeveloped breast area, either by manual manipulation or self-induced or with an artificial instrument, for the purpose of real or simulated overt sexual gratification or arousal of the person.
Do not see how she could have been engaging in this listed sexual act.
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Quoting Passive Sexual Involvement
"Passive sexual involvement" means an act, real or simulated, that exposes another person to or draws another person's attention to an act of sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, sexual excitement, or erotic nudity because of viewing any of these acts or because of the proximity of the act to that person, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.
This is the only one questionable to me. If someone can re-define this for me, to make me able to understand it more easily, please do.
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Quoting Sexual Excitement
"Sexual excitement" means the condition, real or simulated, of human male or female genitals in a state of real or simulated overt sexual stimulation or arousal.
According to multiple web definition websites, genitals do not include breasts. And they would have to prove to be stimulated correct? I do not think this was a listed sexual act that was engaged.
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Quoting Erotic Nudity
"Erotic nudity" means the lascivious exhibition of the genital, pubic, or rectal area of any person. As used in this subdivision, "lascivious" means wanton, lewd, and lustful and tending to produce voluptuous or lewd emotions.
Breasts do not fall under genital area, public area, or rectal area of the person, so I do not believe she engaged in this listed sexual act.
Is there a case, based on technicalities of the law? Please reply with your opinion.
Thanks!
Re: State of Michigan: Section 750.145c
The Court of Appeals decided this issue as follows:
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Quoting People v Heim, 206 Mich App 439; 522 NW2d 675 (1994)
Subsection one of this statute, M.C.L. § 750.145c(1); M.S.A. § 28.342a(1), defines “child sexually abusive activity” and “child sexually abusive material,” as well as the relevant terms that are a part of these two definitions. In light of these definitions, the statute expressly prohibits persuading a child to engage in erotic nudity, which may mean the display of a female breast, in order to make a developed or undeveloped photograph that appeals to prurient interests. The language used to prohibit the act is not so vague that a person of common intelligence must necessarily guess at its meaning. See People v. Munn, 198 Mich.App. 726, 727, 499 N.W.2d 459 (1993). Certainly, the language provides fair notice that taking photographs of a sixteen-year-old girl's exposed breasts for the purpose of making pornographic materials is a prohibited act.
Re: State of Michigan: Section 750.145c
I think your guilt or innocence lies in this one fact. Did you ask her to take these picture's or did she just send them to you to impress you. If you text messaged a yes to her asking if you wanted the pic, then by the law you are guilty. Consult an attorney.