Grooming Evidence Makes Proving a Criminal Sexual Conduct Case Easier for State

House Bill 5767 was introduced by Michigan Representative David LaGrand on February 17, 2022. A House Bill does not equate to a law that must be followed, at least not yet. The fact that this Bill was crafted is a clear indication that efforts are being made and will likely continue to be made until it does become law.

The motivation in House 5767 is a ripped from the Headlines of Michigan Politics due to the allegations of Criminal Sexual Conduct of the Michigan House Speaker.  The Representative from Grand Rapids submits that there is hole that needs to be filled in Michigan Criminal Procedure and admissibility of certain evidence, specifically Grooming.

What is Grooming?

Michigan statutory law does not currently define “grooming” and filling this void is one the main purposes of this particular legislation. House Bill 5767 would define grooming as:

a pattern of behavior by an individual with either authority or influence, through age or other means, who engaged in a course of behavior designed to normalize unwanted sexual advances or contact.

The American Bar Association website has an article that discusses grooming wherein it submits that it is an effort to gain the trust of a person or an organization with the intent to sexually assault a minor. It further explains that there are some key or common indicators. For example, it often will include isolation of the victim and can include efforts to control or conceal the relationship. Further, it expresses that these efforts can be made in-person, on the internet, or in an institutional setting.

The U.S. Department of Justice and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking, known as SMART, have yet a different definition, that is more specific.  It defines it as a method that develops trust with the child and the adults so they can obtain alone time. Further, it recognizes that at times physical and verbal threats can be used but the more common plan is a slow building relationship with the intent to take advantage of the perceived relationship.  The efforts are to skew the observations of other adults that may be involved, and to prevent the abused from disclosing or reporting any abuse, and furthermore decrease the reliability of any disclosure.

What is considered grooming behavior?

The theory behind grooming is that there are subtle efforts that become indistinguishable between what is normal and what is intent to sexually assault a minor.  These may include actions of an adult who is too interested in the child, or spends too much alone time with the child, or that the child gets unique opportunities like rides to and from school or activities, or one child is treated better than others, or unnecessary or random presents, or treats one gender differently than the other.  Consistent with the ideology behind grooming the aforementioned list is rather subtle, and because it is subtle it can be misinterpreted.  What may be considered genuinely kind acts can be argued to be the actions of a manipulative and well-planned sexual perpetrator.

Further, there are more physical actions that are also considered behaviors that escalate. For example, if a child is walked in on while in the bathroom, or changing in their room, or tickling or wrestling or massaging, or requests to remove clothing, and introducing any adult or sexual content.  These actions are typically conducted after a long-established effort of the less physical relationship and activities.  It is opined that the prior efforts that lead to this less subtle and physical acts are an effort to change the psychological perspective of those who may notice it and the child who is going through it.

How does this influence the Prosecution of Criminal Sexual Conduct cases?

The first part of the proposed legislation is to define grooming, and the second is to permit prosecutors to admit evidence of grooming to support their case seeking a conviction.  Prosecutors, and the law, permit any evidence that make any relevant issue more or less likely. However, there are limitations regarding what evidence is admissible. The author of the House Bill submits that only focusing on the assault itself is unfair and should be more to allow focus and ultimately evidence of the long history involving grooming.  Similarly, prior concerns of obtaining convictions by prosecutors was voiced when MCL 768.27a was initiated and ultimately passed into law that allows prior allegations, not convictions, of sexual assault against a minor.  Therefore, motivated by the requests of prosecutors, that law was passed to assist in obtaining convictions.  Similarly, here, the belief is that it will assist in obtaining a conviction where grooming evidence is admitted.

How does this impact the Defense of Criminal Sexual Conduct cases?

Overall, I submit the criminal defense attorneys often prefer to have a line of distinction, as it prevents a witness, or proposed expert, from vagueness or non-specificity.  There is also a basic analytical analysis that attorneys are trained to argue.  For example, a hypothetical argument by the prosecution is going to be there is grooming, therefore the sexual assault is more likely true.  Conversely, does the lack of any grooming evidence therefore mean it is less likely?  Furthermore, over-legislating an issue often creates more problems than it was intended to fix.  This proposed legislation falls into that category.

Does there need to be legislation for Grooming?

No. Why? Because evidence of grooming is already admissible evidence when appropriate. The Representative that submitted the bill, who interestingly prior to becoming an elected official in our state government was a defense attorney, has politicized that the allegations against the House Speaker of sexually assaulting a family relative was the motivation to address this ‘issue’, along with other stories around the country that have grabbed attention.  Interestingly, he acknowledged that his bill may not go anywhere, but it did gain media attention, it did gain personal attention and interviews, and did bring the House Speaker’s legal issues to forefront again, and therefore, gives the subtle appearance of other motivations rather than a true desire to fix a significant legal and evidential issue.Gr