Breaking down the Michigan bills intended to stop the next Larry Nassar
It’s been three months since Larry Nassar was sent to spend the rest of his life in prison for criminal sexual conduct, after more than 200 women and girls said he sexually abused them. Now, representatives in Michigan’s state House are considering bills they hope will prevent other predators from following in his footsteps.
There are more than 30 bills total, which range from more rigorous medical practice requirements to extending the statute of limitations on criminal sexual conduct prosecutions and lawsuits. Most have bipartisan sponsorship.
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Among the bills being considered, some would have far-reaching impact. One would greatly expand or even eliminate the statute of limitations on criminal sexual conduct cases. Another would create a system to track the reasons for firing school employees and ensure that future prospective employers know why. Yet another would give the governor more power to impeach a member of the State Board of Education or a university board of regents for neglect of duty or corruption.
The House bills are being reviewed by that chamber’s Law and Justice committee, which held two hearings last week and expect to hold at least two more this week, said Chair Rep. Klint Kesto, R-Commerce Twp.
They will consider a package of Senate bills after the House bills, Kesto said, which he expects the full body to vote on sometime in mid-May.
Many of the sexual-assault bills have received support from the Attorney General’s office, the Michigan Catholic Conference, women’s groups and sexual assault prevention groups, among others. The ACLU of Michigan and a Grand Rapids-area physician have raised objections to some measures, including concerns about the due process rights of defendants and that new record-keeping requirements could overburden the medical community.
While weeks of hearings are planned in the House, the Senate Judiciary committee approved their bills in a single day in late February — an action criticized by House leadership.
“I was quite disappointed to see the Senate only gave their package of bills a one-hour hearing and then voted it out,” said House Speaker Tom Leonard. “We need to be deliberative here. This is a big package of legislation that is going to affect our state for years to come.”
Legal experts say the government can’t completely prevent new predators like Nassar, but may be able to stop them earlier or increase enforcement of existing laws. Whether these bills would effectively do that remains to be seen.
Peter Henning, a former federal prosecutor and professor of criminal law at Wayne State University, said some of the bills would inevitably bring unintended consequences. But they may also slow down the next Larry Nassar.
“There are trade-offs in every law,” he said. “That’s a basic policy judgment… that’s what y’all in Lansing get to decide.”
Rep. Rose Mary Robinson, D-Detroit, serves on the House committee reviewing the bills. Most of them, she said, are “an overreaction” and “a waste of time.” She fears the bills requiring enhanced sentences will increase incarceration rates, and will do nothing to stop future perpetrators.
“That is the most naive concept I’ve ever heard,” she said.
Supporters have voiced the need for legislative efforts to protect future victims, but emphasize the importance of tailoring the bills to avoid sweeping unintended effects and to include the widest variety of victims.
“The way (Nassar) operated… is not that dissimilar to how other perpetrators operate in terms of exploiting victims’ vulnerabilities and even take their strengths and turn them into vulnerabilities,” said Kathy Hagenian, executive policy director for the Michigan Coalition to End Domestic and Sexual Violence. “We need to make sure this is a package of bills that goes to the next level of protecting victims of sexual violence.”
Henning and others noted that whatever Nassar-related bills end up on the floor are likely to pass, regardless of content. In the state Senate, about a third of senators are up for re-election. In the House, that number jumps to nearly 80 percent. Even many term-limited legislators are running for other offices. Their voting record will be up for constituents to scrutinize come November.
“I don’t think anyone can vote against them,” Henning said. “The Nassar story has taken on such a powerful narrative now that it’s almost impossible to oppose it. So it’s a matter of trying to fit (the bills) to the proper circumstances.”
In keeping with Bridge’s 2018 mission to make fact-driven policy information available to voters this election year, check out our guide to each of these bills. Learn what’s in them, who has offered testimony and what experts have to say below.
House bills already heard in committee
These bills were heard by the House Law and Justice committee on April 17 and 18. They have not yet been voted out of committee. They will have to be approved and (possibly) revised by the committee, the full House, a Senate committee, the full Senate and Gov. Rick Snyder before becoming law.
Regulating the medical profession
The first three bills would require medical professionals to maintain records of any service involving vaginal or anal penetration for at least 15 years. (In separate instances, victims’ medical records at MSU and with USA Gymnastics were allegedly removed or destroyed.) The bills also require parental consent before vaginal or anal penetration could be done to a minor. Failure to do so could be a felony.
Under current law, it’s already illegal for a medical professional have sex with a female patient under the guise of treatment. One of the other four bills would broaden that law to include patients of all genders and to include sexual contact in addition to penetration. The associated bills would permanently revoke that person’s medical license and expand the time they could be imprisoned for this crime.
Dr. Rose Ramirez, a Grand Rapids-area physician, told the committee she was concerned that requiring doctors to keep files for 15 years could be an “onerous” burden on an already highly regulated industry.
“There are so many situations I could imagine where the documentation may not be there even though an appropriate exam was done,” she said. “So I don’t want to see healthcare workers criminalized for that.”
Henning, of Wayne State University, said the legislation could drive up malpractice insurance costs for doctors, especially those who work with children, because it could cause a greater chance of malpractice claims against doctors.
The Michigan Catholic Conference, the Michigan Department of Licensing and Regulatory Affairs, the Michigan Attorney General's office and the American Association of University Women said they supported at least some of these bills. The Michigan Coalition to End Domestic and Sexual Violence said it is still reviewing them but support them in principle.
Both of these bills increase the number of years people can be imprisoned and the fine levied for charges related to child pornography, and feature a tiered punishment system: Repeat offenders can receive harsher punishments. One of the bills creates enhanced penalties for the crime generally, while the other specifically addresses child pornography related to younger children.
Prosecuting assault cases
The first of these bills would make it easier for jurors to hear about prior accusations of sexual assault against a defendant if permitted by the court. For example, if there was a sexual assault charge against someone who had been accused of assault in the past, even if it didn’t go to court, with the judge’s permission the prosecutor could tell jurors the defendant had been accused before.
Jane Anderson, an attorney advisor with AEquitas, a national group that provides resources for prosecutors working on violence against women cases, said this type of legislation can encourage people to speak out.
“Victims are more likely to disclose when they know other people are likely to do so as well,” Anderson said. “If I’m a prosecutor and I can say to a jury there are multiple victims and they don’t know each other and are all reporting the same type of act, I would think that would strengthen case.”
Lore Rogers of the Michigan Domestic and Sexual Violence board testified before the House committee last Wednesday. She said Rachael Denhollander, the first woman to publicly come forward with accusations against Nassar, told her that laws like this were a “key factor” in convincing her to speak out.
“This bill is the single most important piece of legislation that could be passed this year for people like her,” Rogers said.
Anderson said all states already have this ability under federal law, but a state law would make it a little easier to bring into play. Many states already have this type of law, so it wouldn’t be odd for Michigan to follow suit, she said.
The flip side of this type of law is that it could be unfairly prejudicial to the defendant, said Henning, the law professor and former prosecutor.
“This is not outlandish... but for the defense it raises a real challenge,” Henning said. However, it doesn’t lower the burden of proof against a defendant because “the government’s burden is always the same: beyond a reasonable doubt” for the particular charge being prosecuted.
The Michigan State Police, Prosecuting Attorneys Association of Michigan, American Association of University Women and the Michigan Catholic Conference support this bill.
The other bill would expand who can make a “victim impact statement” at an offender’s sentencing to include spouses, parents, siblings, grandparents and others close to the victim. Hagenian, of the Michigan Coalition to End Domestic and Sexual Violence, said her group supports the bill in principle but recommended the committee include language that would allow others to give statements only with the permission of the victim.
Reporting sexual assault
This bill would make it illegal for someone to use their position of authority over another person to prevent them from reporting child abuse or criminal sexual conduct.
Kesto, who sponsored the legislation, referenced a coach who allegedly discouraged one of Nassar’s victims from reporting their abuse. This bill, he said, is intended to say to such people, “You’re part of the problem, you’re acquiescent, you’re assisting, aiding and abetting in these acts.”
Hagenian, who supports the bill in concept, recommended the bill be amended to only apply to people in authority in a professional capacity. Family members and friends should be excluded because they can often serve as a much-needed sounding board when victims are deciding whether or not to report.
“As much as we’re working diligently to change that culture,” Hagendian said, “the reality is sometimes there are very negative consequences” for victims reporting sex crimes.
House bills awaiting committee hearing
Hearings for these bills will take place on April 24 and 25. They will need to be approved and possibly revised by the House Law and Justice committee, the full House, a Senate committee, the full Senate and the governor before becoming law.
Expanding sex education
The first two bills would expand sex ed requirements for students: One would give high school students enrolled in optional sex education classes more information on how to identify and prevent teen dating violence and sexual assault, and the other would give all students in 6th to 12th grade information about sexual assault and harassment.
The third bill would require so-called mandatory reporters—people legally required by law to report suspicions of child abuse or neglect to the state—to receive a training package related to suspected child abuse or neglect.
Creating school office policies
The first bill would require public schools to maintain records about why an employee leaves or is fired. If the former employee disagrees with the record, they would be allowed to submit a written statement explaining their side of the story. If that person wants to work for a public school again, the prospective employer could view the record.
Other bills would strongly encourage universities to develop a “campus sexual assault improvement plan” and implement that plan over the course of five years and includes a matching grant fund program; would create an office of “higher education sexual assault ombudsman” within universities’ department of civil rights; and would amend the Student Safety Act to include sexual assault.
Reporting sexual assault and misconduct
These bills would make all K-12 and university coaches, athletic volunteers and all university employees mandatory reporters for child abuse and neglect; would prohibit schools from expelling students who report being sexually assaulted for something they did during an assault-related incident; would make the identity of sexual misconduct victims suing anonymously exempt from state public records laws; and would require law enforcement officials to report any sexual misconduct allegations they’ve received against licensed health professionals to the state Department of Licensing and Regulatory Affairs in the hopes police can determine when there are multiple investigations into the same person.
Changing higher ed leadership
This bill would amend existing law to allow the governor to remove members of the State Board of Education or the Board of Regents for the University of Michigan, Michigan State University or Wayne State University for “gross neglect of duty or for corrupt conduct in office,” even while the legislature is still in session. This reflects the widespread criticism of MSU board members, who were slow to act once accusations against Nassar first surfaced.
These bills have already been approved by the Senate. They’re awaiting a hearing by the House Law and Justice Committee. They’ll need to be approved and revised by the committee, the full House and the governor in order to become law.
Michigan Attorney General Bill Schuette wrote a letter of support for all these bills.
These bills would increase the prison sentence and fine for those who intentionally possess or access child pornography that included sadomasochism, beastiality, a prepubescent child or numbered more than 100 images.
The ACLU of Michigan expressed concern over these bills when they came before the state Senate Judiciary committee, writing in a statement that people with Autism may accidentally download child pornography without understanding what they have done, and these bills may unduly punish them.
Reporting sexual assault
These bills would make K-12 athletic volunteers, university employees and bus drivers mandatory reporters of child abuse or neglect to the Department of Health and Human Services. It could be a felony if they fail to report, and the bills would specifically increase employee penalties.
The ACLU of Michigan also opposed these bills, warning that victims may not want to undergo what can be an “intrusive” experience of law enforcement investigations.
“We do not want to silence survivors,” Kimberly Buddin, policy counsel for the ACLU of Michigan, wrote in a statement. “We also do not want to create an environment that forces people to choose between facing potential criminal penalties over avoidable or unnecessary long term collateral consequences on a family.”
Suing the state for an employee's assault
It's not unusual for governments to hold themselves immune from lawsuits for the actions of a rogue employee.
“You can only sue the state when it agrees to be sued,” said Henning of Wayne State. “It’s called sovereign immunity. The government is immune from a claim against it."
Under current Michigan law, there are already some exemptions to this rule. These bills would expand those exemptions to make it possible to sue the state if you were sexually abused by a state employee, and make it possible for that employee or agency to be sued in civil court.
These new exemptions “certainly would cover what Nassar did, but Nassar pleaded guilty. They had him on criminal sexual conduct,” Henning said. “Those are fairly modest changes.”
Extending the statute of limitations
These bills would greatly expand the time that victims have to seek criminal charges against someone who sexually assaulted them. As the Nassar cases showed, assault victims are often reluctant to come forward, sometimes waiting years. Many of the women who testified against Nassar said they only worked up the courage to come forward after other women had done so.
Currently, victims of second- and third-degree criminal sexual conduct have 10 years to seek criminal charges.
Under one bill, if someone was the victim of second degree criminal sexual conduct while they were under the age of 18, there would be no limit on when they can seek charges. If they were the victim of third degree criminal sexual conduct while under the age of 18 they would have at least 30 years to seek charges or any time DNA evidence is obtained.
Another of the bills would give people who were sexually assaulted as minors until age 48 to file for damages, and would apply retroactively to any sexual assaults that happened after 1996. The final bill would eliminate the statute of limitations completely for sexual misconduct against minors in lawsuits brought against the state.
Anderson, of AEquitas, said expanding the statute of limitations is one way to acknowledge the fact that many victims don't come forward until much later due to the trauma caused by sexual assault.
The ACLU of Michigan also opposed these bills, arguing that lawmakers should be careful when extending statutes of limitations for crimes, noting that those accused of crimes (even heinous crimes) retain constitutional rights.
“(Statutes of limitations) were enacted to ensure the ripeness of a lawsuit and protect constitutional rights such as due process—pillars of our legal system,” Buddin of the ACLU wrote in a statement.
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