Governor Granholm poses with advocates as she signs the bill into law.
MPLP's Rebecca Shiemke at the far right.

Effective March 25, 2010, Michigan law offers specific protection against sexual assault by way of a civil protection order. 2010 PA 19 fills a gap in current PPO law for individuals who have been or fear sexual assault, but fail to qualify for a PPO because:

• They never shared an intimate domestic relationship as required by MCL 600.2950, or
• They could not show that respondent engaged in two or more unconsented contact that constitutes stalking as required by MCL 600.2950a.

Standards for Issuance of Sexual Assault PPO

Criminal Conviction

1. If the PPO petition alleges and the court finds that the respondent has been convicted of either:
• An assault against the petitioner in violation of the Criminal Sexual Conduct Act. The Act includes MCL 750.520b, 750.520c, 750.520d, 750.520e, [Criminal Sexual Conduct in the first, second, third and fourth degree] and 750.520g [attempted CSC 1-3].
• The furnishing of obscene materials to a minor petitioner in violation of MCL 750.142, or a like offense described in a substantially similar law of another jurisdiction.
2. Relief shall be granted if the petition includes the above allegation.
3. The court must authorize some protective injunctive relief.
4. This provision is likely to be helpful to sexual assault victims who fear unwanted contact with convicted offenders who have served their maximum sentences, or whose conditions of parole or probation do not include any restrictions on contact with the victim.

Threat of Sexual Assault

1. Where the petitioner has been subjected to, threatened with, or placed in reasonable apprehension of sexual assault by the respondent.
2. "Sexual assault" is defined as "an act, attempted act, or conspiracy to engage in an act of criminal conduct as defined in . . . MCL 750.520b, 750.520c, 750.520d, 750.520e, [Criminal Sexual Conduct in the first, second, third and fourth degree] and 750.520g [attempted CSC 1-3] or an offense under a law of the United States, another state, or a foreign country, or tribal or military law that is substantially similar to an offense listed in this subdivision."
3. The court may only grant relief if the petition alleges facts demonstrating that the respondent has perpetrated or threatened sexual assault against the petitioner.
4. Evidence that respondent furnished obscene material to a minor petitioner in violation of MCL 750.142 constitutes evidence of a threatened sexual assault against the minor petitioner.
5. If this burden of proof is met, a PPO may be granted even if the respondent has not been charged with, or convicted of, a crime against the petitioner.
6. This provision is likely to be helpful to victims in cases where a reported assault is not prosecuted, where prosecution is delayed or the victim is too frightened, intimidated, or embarrassed to report the assault to the police.

Relief Available

1. The relief available, at MCL 600.2950a(3), includes all the provision provided in the domestic relationship PPO statute, with some additions that reflect the needs of survivors of sexual assault.
2. The additional restrains are:
• (b) threatening to sexually assault, kill, or physically injure petitioner or a named individual.
• (m) engaging in conduct that is prohibited under MCL 750.411s [governing unlawful posting of a message through electronic media. [See discussion below for more information].
• (n) any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence or sexual assault.

Procedure for Obtaining

1. The procedures for obtaining a sexual assault PPO are substantially similar to those for obtaining other PPOs.
2. Except, Michigan's rape shield law (MCL 750.520j) apply in sexual assault PPO proceedings to protect victims of sexual assault from irrelevant and unwarranted intrusions into their sexual history.
3. MCL 750.520j limits the admissibility of evidence of a victim's sexual conduct as follows:

• (1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted, unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:

       (a) Evidence of the victim's past sexual conduct with the actor.
       (b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
4. These provisions apply to any hearing on:
• A petition for a sexual assault PPO,
• An alleged violation of a sexual assault PPO, or
• A motion to modify or terminate a sexual assault PPO.
  
5. Before offering such evidence, a motion and offer of proof must be made within the following timelines:
• In hearings on a petition requesting a PPO, or contempt hearings on an alleged violation of a PPO, the respondent must file the motion and offer of proof at least 24 hours before the hearing.
• In cases where the respondent has filed a motion to terminate or modify the PPO, the motion and offer of proof regarding the admissibility of the victim's sexual conduct must be filed at the same time as the motion to modify or terminate the PPO.

Other Provisions

Sexual assault PPOs will be subject to the following provisions that are currently applicable to domestic relationship and anti-stalking PPOs:

• No fees will be charged for filing a PPO petition. MCL 600.2529(1)(a), for a motion to dismiss, modify or terminate a PPO or to show cause for a violation of a PPO. MCL 600.2529(1)(e).
• Unemancipated minor children cannot seek a PPO against a parent. Parents cannot seek a PPO against their unemancipated minor children.
• A PPO may not be filed against a respondent less than 10 years old.
• Prisoners may not petition for sexual assault or anti-stalking PPOs under MCL 600.2950a (31).
• Issuance of PPOs involving respondents under age 18 is subject to provisions of the Probate Code, MCL 712A.1 to 712A.32. Respondents under age 17 who violate a PPO are subject to the dispositional alternatives listed in MCL 712A.18.
• A PPO may be issued ex parte upon a showing of specific facts that immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice or that the notice will precipitate adverse action before a PPO can be issued. Ex parte PPOs are valid for not less than 182 days.
• Motions to terminate or modify ex parte PPOs must be filed within 14 days of after service or receipt of actual notice, unless good cause is shown after a longer period has elapsed.
• Courts may not issue mutual protection orders unless each party petitions the court separately.
• Sexual assault PPOs will be entered into the LEIN system, and are effective and immediately enforceable anywhere in Michigan when signed by a judge.
• Respondents violating a PPO after service are subject to immediate warrantless arrest and contempt sanctions. If the respondent has not been served, police officers called to the scene of an alleged violation may serve the respondent with the PPO and give the respondent an opportunity to comply. If the respondent does not comply, the police may make a warrantless arrest and contempt charges may be brought.
• Federal full faith and credit requirements imposed under 18 USC 2265 - 2266 will apply to make Michigan sexual assault PPOs enforceable in other U.S. jurisdictions after they have been served on the respondent. Note that other states' civil protection orders against domestic violence, sexual assault, and stalking are enforceable in Michigan under MCL 600.2950h-m.

• Federal firearms restrictions that are applicable to domestic relationship PPOs under 18 USC 922(g)(8) do not apply to anti-stalking or sexual assault PPOs, because these restrictions apply only to PPOs issued for the protection of an intimate partner. However, state firearms restrictions apply to all three types of PPOs under MCL 28.422 (governing eligibility for a pistol license) and 28.422b, 28.425b (governing eligibility for concealed weapon licenses)

Cyberstalking prohibited by Anti-Stalking PPO

1. Petitioners may also request a PPO enjoining or restraining the respondent from engaging in acts prohibited by MCL 750.411s.
2. This cyberstalking statute prohibits the posting of messages through electronic media that:
• the perpetrator knows or should know could cause the victim to be subjected to two or more unconsented contacts,
• the perpetrator intends to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested,
• gives rise to conduct that would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and causes the victim in fact to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
3. This provision addresses actions that are intended to cause others to engage in behavior that would be stalking if done by the perpetrator of the messages.
4. Example: the posting of photographs or video of the victim on an internet website, with sexually suggestive messages and contact information encouraging others to contact the victim.