Opinion
SC: 165134 COA: 358676
05-12-2023
PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Devin Jon NIEMI, Defendant-Appellee.
Order
On order of the Court, the application for leave to appeal the October 27, 2022 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Zahra, J. (concurring). In this case, the Court of Appeals issued a published opinion holding that
the language of MCL 750.520b(1)(a) establishes that [first-degree criminal sexual conduct] involves at least two people: (1) a person who engages in sexual penetration and (2) the "other person" who is sexually penetrated. "Sexual penetration" is defined as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body[.]" MCL 750.520a(r).[ ]
People v Niemi , ––– Mich App ––––, ––––, 2022 WL 15527653 (2022) (Docket No. 358676), slip op. at 3.
This is a reasonable interpretation of the statute under the facts of this case that unfortunately reveals a gap in the statute that likely is not intended by the Legislature. The statute does not adequately prohibit an adult actor from using the Internet to remotely manipulate a child to perform sex acts upon themselves for the adult's perverse sexual gratification. Immediate legislative action may prevent at least some of this misconduct and would hold those who commit this misconduct criminally liable.
Accordingly, like another similarly situated court of last resort, I respectfully ask the Michigan Legislature to consider amending MCL 750.520b by "includ[ing] provisions similar to those which have been adopted [in many other] jurisdictions." Here are some examples of how other legislative bodies have amended their statutes to address this concern, with the relevant language shown in boldface:
State v Bryant , 670 A.2d 776, 779 (RI, 1996) (citations omitted).
(1) The Wisconsin Legislature approved a change in the legal definition of "sexual intercourse" to include penetration "either by the defendant or upon the defendant's instruction ." Wis. Stat. 940.225(5)(c) ; see also Wis. Stat. 939.22(36).
(2) The New Jersey Legislature included penetration "either by the actor or upon the actor's instruction " in its definition of "sexual penetration." NJ Stat. 2C:14-1(c).
(3) The New Hampshire Legislature defined "sexual penetration" to include conduct that induces the victim to perform penetration "on the actor, on another person, or on himself ." NH Rev. Stat. Ann. 632-A:1(V)(a)(7) (1994 supp.).
(4) The Virginia Legislature explicitly prohibited "caus[ing] [the complainant] to ... penetrate his or her own body " in violation of the statute governing criminal sexual penetration. Va. Code. Ann. 18.2-67.2A (Michie 1950 & 1995 supp.).
(5) The Minnesota Legislature specified that "sexual penetration" includes penetration "of the complainant's body by any part of the complainant ... when effected by a person in a current or recent position of authority, or by coercion, or by inducement if the child is under 14 years of age or mentally impaired." Minn. Stat. 609.341(12)(2)(ii) (1994).
(6) Following the Rhode Island Supreme Court's decision in State v Bryant , the Rhode Island legislature added penetration "of ... the victim's own body upon the accused's instruction " to its definition of sexual penetration. RI Stat. 11-37-1(8) ; see also RI Stat. 11-37-2 (defining first-degree sexual
Bryant , 670 A.2d 776.
assault to include sexual penetration under specified circumstances).