Defendant appeals as of right his jury trial conviction of fourth-degree criminal sexual conduct (CSC IV), MCL 750.520e. Defendant’s conviction stems from an incident that occurred between the adult victim and defendant, who is the husband of the victim’s maternal aunt. Defendant was charged with sexual contact through force or coercion, MCL 750.520e(l)(b) or, in the alternative, sexual contact with an individual related to defendant by blood or affinity in the third degree, MCL 750.520e(l)(d). The verdict form did not specify under which subsection the jury determined defendant’s guilt. Defendant attacks his conviction under MCL 750.520e(l)(d). We affirm.
I. CONSTITUTIONAL ARGUMENTS
A. VAGUENESS
Defendant first argues that MCL 750.520e(1)(d) is unconstitutionally vague because it “appears to abso lutely preclude any sexual contact between anyone related by ‘blood or affinity to the third degree,’ even if those two people are two consenting adults related by marriage only.” We hold that this statute is not unconstitutionally vague on its face or as applied.
“We review de novo questions involving the constitutionality of statutes.”
People v Piper,
We first note that although defendant’s question presented includes a reference to the freedom of association, he specifically states in his brief on appeal that “impingement on First Amendment freedoms is not involved here .. . .” Therefore, we do not address whether MCL 750.520e(1)(d) is overbroad, impinging on First Amendment freedoms.
Addressing whether MCL 750.520e(1)(d) is vague on its face, we reject defendant’s argument that the term “affinity” does not provide fair notice of what conduct is prohibited. MCL 750.520e(1)(d) prohibits sexual contact between two individuals related by blood or “affin
ity” to the third degree. Although “affinity” is not defined in the statute, in
Bliss v Caille Bros Co,
Affinity is the relation existing in consequence of marriage between each of the married persons and the blood relatives of the other, and the degrees of affinity are computed in the same way as those of consanguinity or kindred. Ahusband is related, by affinity, to all the blood relatives of his wife, and the wife is related, by affinity, to all blood relatives of the husband.
While we have not had occasion to address whether the term “affinity” is unconstitutionally vague in the context of the fourth-degree criminal sexual conduct statute, we have determined the term is not unconstitutionally vague in the first-degree criminal sexual conduct statute.
People v Denmark,
Further, we reject defendant’s argument that MCL 750.520e(1)(d) gives the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed. MCL 750.520e(1)(d) requires that the fact-finder find that a sexual contact occurred. MCL 750.520a(n) clearly defines “sexual contact” to include
the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual manner for:
(i) Revenge.
(ii) To inflict humiliation.
(iii) Out of anger.
Accordingly, while defendant is correct in his assertion that MCL 750.520e(1)(d) precludes sexual conduct between two consenting adults under some circumstances when the adults are related by affinity, this is irrelevant to whether the statute is unconstitutionally vague. MCL 750.520e(1)(d) is not vague on its face because it clearly and plainly sets forth the elements that the prosecutor must prove beyond a reasonable doubt and it does not leave the jury with unstructured and unlimited discretion in finding guilt.
Nor is MCL 750.520e(1)(d) vague as applied in this case. Because defendant’s vagueness challenge does not involve the First Amendment, it must be examined in light of the facts of the case.
People v Howell,
Defendant argues that MCL 750.520e(1)(d) is vague as applied to this case in which the charges were premised on a “consensual encounter between two adults.” As discussed above, the statute does preclude consensual sexual conduct between two adults related by affinity under certain circumstances. But our review of the record reveals that defendant was solely responsible for the sexual conduct giving rise to the charges against him. At the time of the incident, the victim and her daughter were spending the weekend at defendant’s home for a family gathering, which was something the victim normally did. One evening, while
defendant and the victim were watching television, defendant sat beside her and placed her feet on his lap. Defendant began to massage the victim’s feet and calves — something he had done before. However, defendant gradually moved his hands up to the victim’s thighs — something he had not done before.
On the basis of this evidence, we cannot agree with defendant’s assertion that “[t]he record is replete with testimony indicating that Defendant was attempting to follow the law — and not thwart it.” The evidence clearly demonstrates that defendant and the victim were related through marriage. It also shows that defendant touched the victim’s private parts in a way that could reasonably be construed to be for the purpose of sexual arousal. It also shows that defendant solely initiated these acts and the victim, though momentarily shocked, did not respond in kind, but rejected defendant’s advances. We are unpersuaded by defendant’s assertion that “[t]housands of such related individuals have engaged in such sexual contact and have even married and they are not convicted felons.” Defendant’s comment is at once unsupported and irrelevant to our constitutional inquiry. We conclude that MCL 750.520e(1)(d) is not vague as applied in this case.
B. DUE PROCESS
Defendant next argues that MCL 750.520e(1)(d) is unconstitutional because “in the absence of a compelling state interest, it impinges on the exercise of liberty interests protected by the Due Process Clause of the Fourteenth Amendment.” Specifically, defendant argues that MCL 750.520e(1)(d) unconstitutionally prohibits consensual sexual contact between relatives.
We first address whether defendant has standing to raise this constitutional challenge. Defendant asserts, “In this case, most of the activity charged was legal in and of itself. The two people involved were engaged in consensual sexual touching and who were of age to consent.” We conclude that defendant lacks standing to attack the constitutionality of MCL 750.520e(1)(d) on this basis because, contrary to defendant’s assertion, this case does not involve consensual sexual contact. There was no evidence presented that the sexual contact was consensual. Nor did defendant present this theory to the jury. Therefore, defendant is asserting that the statute infringes the constitutional rights of others in circumstances other than those presented in this case. As a general rule, one does not have standing to raise issues involving the violation of the rights of others.
People v Jones,
In addition, defendant did not raise the issue in the trial court and therefore did not preserve it for appellate review. This Court reviews unpreserved claims of constitutional error for plain error that affected defendant’s substantial rights.
People v Corines,
C. STRICT LIABILITY
Defendant next argues that a violation of MCL 750.520e(1)(d) is an unconstitutional strict liability crime because it requires no
mens rea.
Again, defendant failed to preserve this issue because he did not present it to the trial court.
People v Grant,
This Court has held that criminal sexual conduct is a general intent crime, not a specific intent crime.
Piper, supra
at 646. To convict a defendant of CSC IV based on affinity, the prosecutor must prove that the defendant had sexual contact with the complainant. MCL 750.520e(1)(d). The prosecutor also has to prove that the sexual contact was reasonably construed to be for a sexual purpose. MCL 750.520a(n). The statute does not provide for strict liability. See
People v Lardie,
D. FIFTH AMENDMENT
Defendant also argues that charging him with CSC IV based on the dual theories of force and affinity violated his Fifth Amendment
2
right against self-incrimination. However, defendant again failed to present this issue to the trial court and fails to cite specific supporting authority on appeal. As such, we deem the issue abandoned.
People v Weathersby,
II. SELECTIVE ENFORCEMENT
We further reject defendant’s contention that the prosecutor engaged in the selective enforcement of MCL 750.520e(1)(d) on the basis of gender. We review a prosecutor’s charging determination under an “abuse of power” standard to determine if the prosecutor acted contrarily to the Constitution or law.
People v Barks
dale,
III. AMENDMENT OF INFORMATION
Defendant finally argues that the trial court erred in allowing the prosecutor to amend the information to include the MCL 750.520e(1)(d) affinity charge, after a
prior prosecutor had previously amended the information and the trial court entered an order striking that charge. We disagree. We review a trial court’s decision to amend an information for an abuse of discretion.
People v McGee,
A trial court may amend the information at any time during the trial.
Affirmed.