The Michigan Tolling Statute for Criminal Sexual Activity: DNA changes the Game

One common misconception in the field of criminal law is the understanding of the statute of limitations (SOL). While many have a general idea of what the SOL is, a clear understanding of what the “clock” for a crime can be the greatest mishap that a retained lawyer can make when dealing with a client that has committed a crime in the past. Today, we are going to examine the statute of limitations in the state of Michigan as it pertains to our state’s criminal sexual conduct (CSC) statute. criminal-justice-attorney-300x225

“The general rule”
The first thing to understand as a general rule in a CSC charge is that 6 years is the baseline for a statute of limitations. In the simplest of terms, the victim has 6 years to bring a charge against the accused for the crime of rape in Michigan. However, the SOL can change dramatically depending upon the age of the alleged victim.

“Minors”
If the party that claims rape was a minor at the time of the allegation, the SOL is tolled. The term “toll” means the SOL will be extended so that one that is the potential victim of such a crime has 10 years to bring report the charge or until they are 21 years of age. Michigan will adhere to the longer time period of 10 years or the age of 21. The public policy behind this is that a minor that has been subjected to a crime such as rape should be given a longer time to decide whether or not they choose to report what occurred. In some cases, the SOL can be extended an even greater amount of time.

“DNA”
When evidence of DNA is found, the state of Michigan feels that a lengthy period of time should be provided for the reporting of a crime of CSC. In Michigan, if DNA is found on the victim, there is no statute of limitations in place until an offender is identified and after such identification the state will allow a 10-year SOL from that point. What does this mean for those that have been accused of a CSC?

“Expert Perspective”
Scott Grabel, of Grabel and Associates is known as the top litigator of CSC defense in the state of Michigan and has developed a reputation for being one of the top criminal defense lawyers in the country. When asked about defending the charge of CSC, Grabel stated, “This may be the toughest crime to defend against. In rape cases, the public takes a presumption that one is guilty prior to reviewing the evidence so the Voir Dire process is essential. While the state of Michigan will afford a longer SOL for minors and those where DNA is found, the longer it takes to identify a defendant or for a minor to come forward the better chance a defendant has to argue there are facts in their favor. There is no question that one who rapes another should not be given a free pass because it is a horrible crime but we also have to remember that many times with later identified defendants’ and minors coming forward, there are tragedies where the innocent are subjected to criminal prosecution. The law in place has the best of intentions to protect victims but sometimes the victim can be the defendant themselves. That makes litigating a CSC a true challenge but when you have an innocent client, there is no other option than to step up to the plate.”

Another top criminal attorney is Ravi Gurumurthy whom practices in Cadillac, Michigan. When asked about the tolling aspect of the SOL, Gurumurthy explained there are pros and cons to it. “The legislature attempts to protect victims and if someone is truly a victim there should be a heightened level of protection. With that said, I recently won a case with an individual that claimed she was raped as a minor. It turns out her claim was false and she did it to extract revenge upon her ex-boyfriend. We won the case but the true victim was the defendant. He will never truly restore his reputation but his freedom is in place. I’m proud to have helped him but at the end of the day, if you have a prosecutor that does not carefully review the facts a claim that should be deemed stale can come back and destroy the life of another. The tolling statute is certainly a double-edged sword.”

One problem that the field of criminal law presents to young practitioners is the fact that a statute of limitations in the academic genre is generally concentrated within the field of civil litigation. Due to a focus on civil litigation and a lack of understanding of the difference between the Attorney-Client Privilege and the Duty of Confidentiality, sometimes, the wrong person gets identified and the law does leave a lot of room to falsely accuse an innocent individual. While a rapist should face conviction, an innocent person should not face a false reputation. Somewhere, hopefully we can all meet in the middle.

Bill Amadeo is a partner at McManus PLLC in Ann Arbor, Michigan and an Associate Attorney at Grabel and Associates. In addition to his duties in the field of litigation, he owns and operates BAT Tutoring in Lansing, Michigan. Bill can be reached at: Amadeo@McManuspllc.com.