Legislative Analysis
ALLOW PROSECUTION FOR CRIMINAL SEXUAL CONDUCT Phone: (517) 373-8080
http://www.house.mi.gov/hfa
IF SPOUSE IS MENTALLY INCAPACITATED
Analysis available at
House Bill 4202 as reported from committee http://www.legislature.mi.gov
Sponsor: Rep. Laurie Pohutsky
Committee: Criminal Justice
Complete to 4-18-23 (Enacted as Public Act 77 of 2023)
BRIEF SUMMARY: House Bill 4202 would amend the Michigan Penal Code to eliminate a provision
that prohibits prosecuting an individual for committing criminal sexual conduct against their
spouse if the charge is based solely on the spouse’s being legally incapacitated at the time of
the incident.
FISCAL IMPACT: The bill could have an indeterminate impact on the judiciary, corrections, and
penal fines. (See Fiscal Information, below, for a detailed discussion.)
THE APPARENT PROBLEM:
All 50 states have criminalized marital rape since the early 1990s. However, Michigan’s law
contains a loophole. Absent other factors, such as the use of force or violence, an individual
cannot be prosecuted for criminal sexual conduct based solely on the fact that the individual’s
spouse was mentally incapacitated—for instance, by being drugged or given a substance
without their consent that made them incapable of controlling their own conduct (e.g.,
consenting to sex). Drugging or otherwise incapacitating one’s spouse for the purpose of
engaging in a sexual act is a form of intimate partner abuse. As with any incident of domestic
violence, children are often present. About 18% of women survivors of marital rape report that
their children witnessed the assault. 1 How often marital rape happens, and how many cases
involve one spouse drugging the other, is difficult to determine, as it is estimated that fewer
than a third of marital and intimate partner rapes are reported to law enforcement. And many
survivors say they are turned away as soon as they say it was their spouse who drugged and
then raped them. Legislation has been offered to eliminate this loophole in the law.
THE CONTENT OF THE BILL:
House Bill 4202 would eliminate the bar against prosecution for a criminal sexual conduct
(CSC) offense involving a legal spouse solely because the spouse was mentally incapacitated.
Under Michigan law, a person can be charged and convicted for CSC in the first through fourth
degrees or assault with intent to commit CSC in the first through fourth degrees even if the
victim is their legal spouse. However, a person cannot be charged or convicted solely because
their legal spouse is under 16 years of age, mentally incapable, or mentally incapacitated.
Mentally incapable means that a person suffers from a mental disease or defect that
renders them temporarily or permanently incapable of appraising the nature of their
conduct.
1
https://www.psychologytoday.com/us/blog/mind-games/202203/marital-rape-is-criminalized-not-upheld
House Fiscal Agency Page 1 of 3
 Mentally incapacitated means that a person is rendered temporarily incapable of
appraising or controlling their conduct due to the influence of a narcotic, anesthetic, or
other substance administered to that person without their consent or due to any other
act committed upon that person without their consent.
The bill would remove “mentally incapacitated” from the provision described above and
instead provide that a person cannot be charged or convicted for a CSC offense solely because
their legal spouse is under 16 years of age or mentally incapable.
MCL 750.520l
BACKGROUND:
The bill is identical to House Bill 4699 of the 2021-22 legislative session, which was passed
by the House of Representatives.
FISCAL INFORMATION:
House Bill 4202 would have an indeterminate fiscal impact on the state and on local units of
government.
To the extent that its provisions result in an increase in felony convictions, the bill would result
in increased costs related to state prisons and state probation supervision. In fiscal year 2022,
the average cost of prison incarceration in a state facility was roughly $47,900 per prisoner, a
figure that includes various fixed administrative and operational costs. State costs for parole
and felony probation supervision averaged about $5,000 per supervised offender in the same
year. Those costs are financed with state general fund/general purpose revenue.
Any fiscal impact on local court systems would depend on how provisions of the bill affected
court caseloads and related administrative costs. It is difficult to project the actual fiscal impact
to courts due to variables such as law enforcement practices, prosecutorial practices, judicial
discretion, case types, and complexity of cases.
Any increase in penal fine revenue would increase funding for public and county law libraries,
which are the constitutionally designated recipients of those revenues.
ARGUMENTS:
For:
Marital rape is a crime. But an individual who uses drugs, alcohol, or other substances to render
a spouse incapable of consenting to sex or protecting themselves from unwanted sex may get
a slap on the wrist or nothing at all. Because these assaults are committed when a wife or
husband may be unconscious or under the influence of drugs or alcohol, the only clue may be
an unexplained injury or, as some have experienced, finding a video that shows them being
sexually assaulted when incapacitated. Sexual assaults of any kind are underreported and
difficult to prove, and victims are often dismissed. The criminal justice system is even more
unresponsive when a spouse commits the assault. House Bill 4202 would close the existing
loophole in the marital law and bring marital rape in line with other domestic and intimate
House Fiscal Agency HB 4202 as reported from committee Page 2 of 3
 partner violence protections. As of 2022, Michigan was one of 17 states still providing such a
loophole from prosecution under a marital rape law. Eliminating the loophole could go far in
giving the same protections and access to justice to married women and men as are afforded to
others experiencing domestic and intimate partner assaults.
The bill retains the current exemptions from prosecution for marital rape based solely on having
a spouse who is under 16 or mentally incapable.
Against:
No arguments against the bill were raised in House committee.
POSITIONS:
A representative of the Michigan Coalition to End Domestic and Sexual Violence testified in
support of the bill. (3-14-23)
The following entities indicated support for the bill:
• Department of the Attorney General (3-14-23)
• Michigan National Organization for Women (3-21-22)
• Michigan Poverty Law Program (3-14-23)
• Michigan Junior League (3-14-23)
• Prosecuting Attorneys Association of Michigan (PAAM) (3-14-23)
• ACLU of Michigan (3-13-23)
The Criminal Defense Attorneys of Michigan indicated a neutral position on the bill. (3-14-23)
Legislative Analyst: Susan Stutzky
Fiscal Analyst: Robin Risko
■ This analysis was prepared by nonpartisan House Fiscal Agency staff for use by House members in their
deliberations and does not constitute an official statement of legislative intent.
House Fiscal Agency HB 4202 as reported from committee Page 3 of 3


Statutes affected:
House Introduced Bill: 750.520
As Passed by the House: 750.520
As Passed by the Senate: 750.520
House Concurred Bill: 750.520
Public Act: 750.520
House Enrolled Bill: 750.520