The Difference Between 1st, 2nd, 3rd and 4th Degree Criminal Sexual Conduct

Frequently Asked Question

Q. What is the difference between first degree criminal sexual conduct, second degree criminal sexual conduct, third degree criminal sexual conduct and fourth degree criminal sexual conduct?

A. This post is intended to simplify the difference between each charge. If you have further questions, please don’t hesitate to call. While this may seem very confusing, the attorneys at our office have tremendous experience and can quickly help you determine which charge may apply.

The first step is to determine if the allegation involves penetration. Penetration includes sexual intercourse, anal intercourse, oral sex, or intrusion of any other body part or object into genital or anal openings.

If the allegation includes penetration, it will into the category of 1st degree criminal sexual conduct or 3rd degree criminal sexual conduct.

If any of the following apply, the charge of 1st degree criminal sexual conduct will apply:

• If the complaining witness is younger than 13 years old;

• If the complaining witness is between 13 and 15, but related to the defendant, lives in the defendant’s household or if the defendant is in a position of authority to the complaining witness;

• If the defendant is a teacher, substitute teacher, administrator of the school (in the same district at least) that the complaining witness younger than the age of 16 attends;

• If the defendant is an employee or contract employee of a school within the school district the complaining witness attends;

• If force or coercion was used to complete the penetration or if the complaining witness was incapacitated;

• If there was a weapon used;

• If there was force/coercion and a personal injury;

• If the complaining witness was incapacitated, and there was personal injury;

• If the defendant was in the process of committing another felony; or

• If the defendant was engaged in the medical treatment or examination of the complaining witness for a purpose that was medically recognized as unethical or unacceptable.

If the allegation includes penetration and does not fit in the category of 1st degree criminal sexual conduct, it will be charged as 3rd degree criminal sexual conduct if any of the following apply:

• If the complaining witness is between 13 and under 16 years old;

• If there was force or coercion used;

• If the defendant knew the complaining witness was mentally incapacitated or physically helpless

• If the defendant is related to the complaining witness (to the 3rd degree)

• If the complaining witness is between 16 and 18 years old and is a student in the school or district where the defendant teaches, is a substitute, administrator, employee/contract service provider or serves as a volunteer.

• If the complaining witness is between 16 and 26 and is receiving special education services and the defendant is a teacher, substitute teacher, administrator, employee/contract service provider or volunteer of the district the complaining witness attends.

If penetration is not alleged, but sexual contact is alleged, it will fall in the categories of 2nd degree criminal sexual conduct or 4th degree criminal sexual conduct.

Sexual contact includes contact to the genital area (but not penetration), groin, inner thigh, buttock or breast.

If any of the following apply along with the allegation of sexual contact, the charge of 2nd degree criminal sexual conduct will apply:

• If the complaining witness is younger than 13 years old;

• If the complaining witness is between 13 and 15, but related to the defendant, lives in the defendant’s household or if the defendant is in a position of authority to the complaining witness;

• If the defendant is a teacher, substitute teacher, administrator of the school (in the same district at least) that the complaining witness attends;

• If the defendant is an employee or contract employee of a school within the school district the complaining witness attends;

• If force or coercion was used to complete the penetration or if the complaining witness was incapacitated;

• If there was a weapon used;

• If there was force/coercion and a personal injury;

• If the complaining witness was incapacitated and there was personal injury;

• If the defendant was in the process of committing another felony; or

• If the defendant is engaging in the medical treatment or examination of the complaining witness for a purpose that is medically recognized as unethical or unacceptable.

If the allegation includes penetration and does not fit in the category of 2nd degree criminal sexual conduct, it will be charged as 4th degree criminal sexual conduct if any of the following apply:

• If the complaining witness is between 13 and 16 years old and the defendant is at least 5 years older;

• If there is force or coercion used;

• The defendant knows the complaining witness is mentally incapacitated or physically helpless

• The defendant is related to the complaining witness (to the 3rd degree)

• If the complaining witness is between 16 and 18 years old and is a student in the school or district where the defendant teaches, is a substitute, administrator, employee/contract service provider or serves as a volunteer.

• If the complaining witness is between 16 and 26 years old and is receiving special education services and the defendant is a teacher, substitute teacher, administrator, employee/contract service provider or volunteer of the district the complaining witness attends.

• If the defendant is engaging in medical treatment or examination of the complaining witness in a manner or for a purpose which is medically recognized as unethical or unacceptable.

• If the defendant is a mental health professional and the sexual conduct occurs within two years of treating the complaining witness.