The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by February 1, 2026. Comments may be sent in writing to Christopher M. Smith, Reporter, Committee on Model Criminal Jury Instructions, Michigan Hall of Justice, P.O. Box 30052, Lansing, MI 48909-7604, or electronically to MCrimJI@courts.mi.gov.

PROPOSED

The Committee proposes amending two existing instructions, M Crim JI 11.38 (Felon Possessing Firearm or Ammunition: Nonspecified Felony) and M Crim JI 11.38a (Felon Possessing Firearm or Ammunition: Specified Felony), to account for recent legislative changes to MCL 750.224f. Deletions are in strikethrough, and new language is underlined. The Committee also proposes creating M Crim JI 11.38b (Prohibited Person Possessing Firearm or Ammunition: Misdemeanor Involving Domestic Violence), an entirely new instruction based on the same statute.

[AMENDED] M Crim JI 11.38

Felon Possessing Firearm or Ammunition: Nonspecified Felony

(1) The defendant is charged with possession of [a firearm / ammunition] after having been convicted of a felony. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(12) First, that the defendant knowingly [possessed / used / transported / sold / distributed / received / carried / shipped / purchased¹] [a firearm / ammunition²] in this state.³

(23)Second, that at that time, the defendant had previously been convicted of [name felony].⁴

[Use the following paragraph only if the defendant offers some evidence that more than three years had has passed since completion of the sentence on the underlying offense.:]

(1) (34) Third, that less than three years had passed since [all fines were paid / all imprisonment was served / all terms of (probation / parole) were successfully completed].⁵

Use Notes

1. “Purchase” or receipt of ammunition is not barred under the statute.
2. “Ammunition” Ammunition is defined in MCL 750.224f(910)(a) as “any projectile that, in its current state, may be propelled expelled from a firearm by an explosive.”
3. The prosecutor need not prove that the firearm was “operable.” People v Peals, 476 Mich 636, 656; 720 NW2d 196 (2006).
4. The judge, not the jury, determines whether the charged prior felony offense is a “felony” as defined in MCL 750.224f(910)(b), a “misdemeanor involving domestic violence” as defined in MCL 750.224f(10)(c), or a more serious “specified felony” as defined in MCL 750.224f(10)(d). The jury determines whether the defendant has in fact been convicted of that charged prior felony offense. For prosecutions involving a “specified felony,” use M Crim JI 11.38a. For prosecutions involving a “misdemeanor involving domestic violence,” use M Crim JI 11.38b. The defendant may stipulate that he or she was convicted of a felony an offense to avoid the court identifying that specific felony offense and the prosecutor offering proof of that felony offense. See People v Swint, 225 Mich App 353; 572 NW2d 666 (1997), (citing Old Chief v United States, 519 US 172 (1997)).
5. The judge’s determination of the character of the felony offense as explained in Use Note 4 will determine whether the prohibition extends for three years, or five years, or eight years. Under subsections (1) and (3) of the statute MCL 750.224f, the three-year period applies to crimes defined in subsection (910) (b) as felonies;. Uunder subsections (2) and (4), the five-year ban applies to crimes defined as “specified” felonies in subsection (10)(d). Under subsection (5), the eight-year ban applies to crimes defined in subsection (10)(c) as misdemeanors involving domestic violence.

[AMENDED] M Crim JI 11.38a

Felon Possessing Firearm or Ammunition: Specified Felony

(1) The defendant is charged with possession of [a firearm / ammunition] after having been convicted of a specified felony. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) (12) First, that the defendant knowingly [possessed / used / sold / distributed / received / carried / shipped / transported / purchased¹] [a firearm / ammunition²] in this state.³

(3) (23) Second, that at that time, the defendant had previously been convicted of [name specified felony].⁴

[Use the following paragraphs only if the defendant offers some evidence that more than five years had has passed since completion of the sentence on the underlying offense and that his or her firearm rights have been restored, MCL 28.424.:]

(34)Third, that less than five years had passed since [all fines were paid / all imprisonment was served / all terms of (probation / parole) were successfully completed].⁵

(45)Fourth, that the defendant’s right to [possess / use / transport / sell / purchase / carry / ship / receive / distribute] [a firearm / ammunition] has not been restored pursuant to Michigan law.⁶

Use Notes

1. “Purchase” or receipt of ammunition is not barred under the statute.
2. “Ammunition” Ammunition is defined in MCL 750.224f(910)(a) as “any projectile that, in its current state, may be propelled expelled from a firearm by an explosive.”
3. The prosecutor need not prove that the firearm was “operable.” People v Peals, 476 Mich 636, 656; 720 NW2d 196 (2006).
4. The judge, not the jury, determines whether the charged prior felony offense is a “felony” as defined in MCL 750.224f(910)(b), a “misdemeanor involving domestic violence” as defined in MCL 750.224f(10)(c), or a more serious “specified felony” as defined in MCL 750.224f(10)(d). The jury determines whether the defendant has in fact been convicted of that charged prior felony offense. For prosecutions involving a “nonspecified felony,” use M Crim JI 11.38. For prosecutions involving a “misdemeanor involving domestic violence,” use M Crim JI 11.38b. The defendant may stipulate that he or she was convicted of a felony an offense to avoid the court identifying that specific felony offense and the prosecutor offering proof of that felony offense. See People v Swint, 225 Mich App 353; 572 NW2d 666 (1997), (citing Old Chief v United States, 519 US 172 (1997)).
5. The judge’s determination of the character of the felony offense as explained in Use Note 4 will determine whether the prohibition extends for three years, or five years, or eight years. Under subsections (1) and (3) of the statute MCL 750.224f, the three-year period applies to crimes defined in subsection (910)(b) as felonies;. Uunder subsections (2) and (4), the five-year ban applies to crimes defined as “specified” felonies in subsection (10)(d). Under subsection (5), the eight-year ban applies to crimes defined in subsection (10)(c) as misdemeanors involving domestic violence.
6. This paragraph is to be given when the court determines that some evidence relating to restoration was admitted at trial. See People v Henderson, 391 Mich 612; 218 NW2d 2 (1974), (addressing the burden of going forward and the burden of proof where a defendant submits evidence that he or she was licensed to carry a concealed weapon).

[NEW] M Crim JI 11.38b

Prohibited Person Possessing Firearm or Ammunition: Misdemeanor Involving Domestic Violence

(1) The defendant is charged with possession of [a firearm / ammunition] after having been convicted of a misdemeanor involving domestic violence. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant knowingly [possessed / used / sold / distributed / received/ carried / shipped / transported / purchased]¹ [a firearm / ammunition²] in this state.³

(3) Second, that at that time, the defendant had previously been convicted of [name specified misdemeanor involving domestic violence].⁴

[Use the following paragraph only if the defendant offers some evidence that more than eight years had passed since completion of the sentence on the underlying offense:]

(4) Third, that less than eight years had passed since [all fines were paid / all imprisonment was served / all terms of (probation / parole) were successfully completed].5

Use Notes

Although MCL 750.224f(5) prohibits the “purchase” or “receipt” of ammunition, MCL 750.224f(7) does not indicate the penalty for this conduct.

1. Ammunition is defined in MCL 750.224f(10)(a) as “any projectile that, in its current state, may be expelled from a firearm by an explosive.”
2. The prosecutor need not prove that the firearm was “operable.” People v Peals, 476 Mich 636, 656; 720 NW2d 196 (2006).
3. The judge, not the jury, determines whether the charged prior offense is a “felony” as defined in MCL 750.224f(10)(b), a “misdemeanor involving domestic violence” as defined in MCL 750.224f(10)(c), or a more serious “specified felony” as defined in MCL 750.224f(10)(d). The jury determines whether the defendant has in fact been convicted of that charged prior offense. For prosecutions involving a “nonspecified felony,” use M Crim JI 11.38. For prosecutions involving a “specified felony,” use M Crim JI 11.38a. The defendant may stipulate that he or she was convicted of an offense to avoid the court identifying that specific offense and the prosecutor offering proof of that offense. See People v Swint, 225 Mich App 353; 572 NW2d 666 (1997) (citing Old Chief v United States, 519 US 172 (1997)).
4. The judge’s determination of the character of the offense as explained in Use Note 4 will determine whether the prohibition extends for three years, five years, or eight years. Under subsections (1) and (3) of MCL 750.224f, the three-year period applies to crimes defined in subsection (10)(b) as felonies. Under subsections (2) and (4), the five-year ban applies to crimes defined as “specified” felonies in subsection (10)(d). Under subsection (5), the eight-year ban applies to crimes defined in subsection (10)(c) as misdemeanors involving domestic violence.

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by February 1, 2026. Comments may be sent in writing to Christopher M. Smith, Reporter, Committee on Model Criminal Jury Instructions, Michigan Hall of Justice, P.O. Box 30052, Lansing, MI 48909-7604, or electronically to MCrimJI@courts.mi.gov.

PROPOSED

The Committee proposes a new instruction, M Crim JI 15.18b (Moving Violation in a Work Zone or School Bus Zone Causing Death or Injury), for the offense of committing a moving traffic violation in a work zone or school bus zone that results in death or injury, as defined in MCL 257.601b. This instruction would serve as a companion to M Crim JI 15.18a, which applies to offenses committed before certain statutory changes took effect on April 2, 2025. The proposed new instruction would apply to offenses committed on or after that date.

[NEW] M Crim JI 15.18b

Moving Violation in a Work Zone or School Bus Zone Causing Death or Injury [Use for Acts Occurring on or After April 2, 2025]

(1) [The defendant is charged with the crime / You may consider the lesser charge¹] of committing a moving traffic violation in a [work / school bus] zone that caused [the death of / an injury to] a person. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant operated a motor vehicle.² To operate means to drive or have actual physical control of the vehicle.

(3) Second, that, while operating the motor vehicle, the defendant committed a moving violation by [describe the moving violation that carries a 3 or more point penalty under MCL 257.320a].

(4) Third, that when [he / she] committed the violation, the defendant was in a [work / school bus] zone:

[Select from the following:]

(a) A work zone is a portion of a street or highway that is open to vehicular traffic, adjacent to a [barrier / berm / lane / shoulder] where [construction / maintenance / public utility work / reconstruction / repair / resurfacing / surveying] is being conducted by one or more individuals, and is between a “work zone begins” sign and [an “end road work” sign / the last temporary traffic control device before the normal flow of traffic resumes].³

(b) A work zone is a portion of a street or highway that is open to vehicular traffic, adjacent to a [barrier / berm / lane / shoulder] where [construction / maintenance / public utility work / reconstruction / repair / resurfacing / or surveying] is being conducted by one or more individuals, and is between a “begin work convoy” sign and an “end work convoy” sign.

(c) If construction, maintenance, surveying, or utility work activities were conducted by a work crew using a moving or stationary vehicle exhibiting a rotating beacon or strobe light, a work zone is a portion of a street or highway that is open to vehicular traffic, adjacent to a [barrier / berm / lane / shoulder] where [construction / maintenance / public utility work /reconstruction / repair / resurfacing / surveying] is being conducted by one or more individuals, and is between the following points:

(i) 150 feet behind the rear of the vehicle or the point from which the beacon or strobe light is first visible on the street or highway behind the vehicle, whichever is the point closest to the vehicle, and

(ii) 150 feet in front of the front of the vehicle or the point from which the beacon or strobe light is first visible on the street or highway in front of the vehicle, whichever is the point closest to the vehicle.

(d) A “school bus zone” is the area within 20 feet of a school bus that has stopped and is displaying two alternately flashing red lights at the same level.⁴

(5) Fourth, that by committing the moving violation, the defendant caused [the death of (name deceased) / (name injured person) to suffer an injury5]. To cause [the death of (name deceased) / such injury to (name injured person)], the defendant’s moving violation must have been a factual cause of the [death / injury], that is, but for committing the moving violation, the [death / injury] would not have occurred. In addition, the [death / injury] must have been a direct and natural result of committing the moving violation.

(6) Fifth, that the [death / injury] was not caused by the negligence of [(name deceased) / (name injured person)] in the work zone or school bus zone.

Negligence is the failure to use ordinary care like a reasonably careful person would do under the circumstances. It is up to you to decide what a reasonably careful person would or would not do.6 ]⁷

Use Notes

1. Use when instructing on this crime as a lesser offense.
2. The term motor vehicle is defined in MCL 257.33.
3. The term work zone is defined in MCL 257.79d.
4. A school bus zone is defined in MCL 257.601b(5)(c) and does not include the opposite side of a divided highway per MCL 257.682(2).
5. The word injury is not statutorily defined.
6. This definition of negligence is drawn generally from M Civ JI 10.02 (Negligence of Adult – Definition).
7. Read this paragraph only where the defense has introduced evidence of negligence by the deceased or injured person. This appears to be an affirmative defense.

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by February 1, 2026. Comments may be sent in writing to Christopher M. Smith, Reporter, Committee on Model Criminal Jury Instructions, Michigan Hall of Justice, P.O. Box 30052, Lansing, MI 48909-7604, or electronically to MCrimJI@courts.mi.gov.

PROPOSED

The Committee proposes two new instructions, M Crim JI 11.45 (Engaging in Computer-Assisted Shooting) and M Crim JI 11.45a (Providing or Offering to Provide Animals, Equipment, or Facilities for Computer-Assisted Shooting), to address the crimes set forth in MCL 750.236a and MCL 750.236b. These instructions are entirely new.

[NEW] M Crim JI 11.45

Using Computer Assistance for Shooting an Animal

(1) The defendant is charged with the crime of computer-assisted shooting of an animal. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant used a [firearm / bow / crossbow]¹ to kill an animal. It does not matter whether the animal was located in Michigan.

(3) Second, that the defendant used a computer or any other device, equipment, or software to remotely control the aiming and discharge of the [firearm / bow / crossbow].²

Use Notes

1. Use “firearm” if the defendant is charged with violating MCL 750.236a(1)(a). Use “bow” or “crossbow” if the defendant is charged with violating MCL 750.236b(1)(a).
2. MCL 750.236a(2)(a) and MCL 750.236b(2)(a) define computer-assisted shooting identically.

[NEW] M Crim JI 11.45a

Providing or Offering to Provide Animals, Equipment, or Facilities for Computer-Assisted Shooting

(1) The defendant is charged with the crime of providing or offering to provide animals, equipment, or facilities for computer-assisted shooting. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant
1. [Select from the following according to the charges and evidence:]

(a) provided or offered to provide an animal to serve as a target for computer-assisted remote shooting.

(b) provided or offered to provide equipment specifically designed or adapted for computer-assisted shooting. Such equipment does not include general-purpose computers, software,¹ devices for accessing the Internet,² cameras, fencing, building materials, or [firearms / bows / crossbows].³ The equipment must be specially designed or adapted to aim and discharge a [firearm / bow / crossbow] remotely at an animal.

(c) provided or operated facilities for computer-assisted remote shooting that are equipped to facilitate computer-assisted shooting of animals, including real estate and buildings, hunting blinds, and offices or rooms that have equipment specifically designed or adapted for computer-assisted shooting.

2. It does not matter whether or not the defendant was going to be paid for providing the [animal / equipment / facilities].

(3) Second, that the defendant intended to provide the [animal / equipment / facilities] to facilitate the killing of [the / an] animal by a [firearm / bow / crossbow] that could be aimed and discharged remotely using a computer or any other device, equipment, or software.

Use Notes

1. Under MCL 750.236a(1)(c)(ii) and MCL 750.236b(1)(c)(ii), a person is not prohibited from providing or offering to provide “[g]eneral-purpose computer software, including an operating system and communications programs.”
2. Under MCL 750.236a(1)(c)(iii) and MCL 750.236b(1)(c)(iii), a person is not prohibited from providing or offering to provide “[g]eneral telecommunications hardware or networking services for computers, including adapters, modems, servers, routers, and other facilities associated with internet access.”
3. Use “firearm” if the defendant is charged with violating MCL 750.236a(1)(b)-(d). Use “bow” or “crossbow” if the defendant is charged with violating MCL 750.236b(1)(b)-(d).

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by February 1, 2026. Comments may be sent in writing to Christopher M. Smith, Reporter, Committee on Model Criminal Jury Instructions, Michigan Hall of Justice, P.O. Box 30052, Lansing, MI 48909-7604, or electronically to MCrimJI@courts.mi.gov.

PROPOSED

The Committee proposes amending M Crim JI 20.10 (Personal Injury- Complainant Mentally Incapable, Mentally Incapacitated, or Physically Helpless), M Crim JI 20.11 (Sexual Act with Mentally Incapable, Mentally Disabled, Mentally Incapacitated, or Physically Helpless Person by Relative or One in Authority), and M Crim JI 20.22 (Complainant Mentally Incapable, Mentally Incapacitated, or Physically Helpless) to reflect a recent change to the statutory definition of “mentally incapacitated.” See MCL 750.520a(k), as amended by 2023 PA 65. Deletions are in strikethrough, and new language is underlined.

[AMENDED] M Crim JI 20.10

Personal Injury-Complainant Mentally Incapable, Mentally Incapacitated, or Physically Helpless

(1) [Second / Third], that the defendant caused personal injury to [name complainant].

(2) “Personal injury” means bodily injury, disfigurement, chronic pain, pregnancy, disease, loss or impairment of a sexual or reproductive organ, or mental anguish. “Mental anguish” means extreme pain, extreme distress, or extreme suffering, either at the time of the event or later as a result of it.

(3) Here are some things you may think about in deciding whether (name complainant) suffered mental anguish:

(a) Was (name complainant) upset, crying, or hysterical during or after the event?

(b) Did (he / she) need psychological treatment?

(c) Did the incident interfere with (name complainant)’s ability to work or lead a normal life?

(d) Was (name complainant) afraid that (he / she) or someone else would be hurt or killed?

(e) Did (he / she) feel angry or humiliated?

(f) Did (he / she) need medication for anxiety, insomnia, or other symptoms?

(g) Did the emotional effects of the incident last a long time?

(h) Did (name complainant) feel scared afterward about the possibility of being attacked again?

(i) Was the defendant (name complainant)’s parent?

(4) These are not the only things you should think about. No single factor is necessary. You must think about all the facts and circumstances to decide whether (name complainant) suffered mental anguish.]*1

(5) [Third / Fourth], the prosecutor must prove that [name complainant] was [mentally incapable / mentally incapacitated / physically helpless]2 at the time of the alleged act. (a) [Choose one or more of (6a), (7b), or (8c):]

(6a)“Mentally incapable” means that [name complainant] was suffering from a mental disease or defect that made [him / her] incapable of appraising either the physical or moral nature of [his / her] conduct.

(7b)“Mentally incapacitated” means that [name complainant] was unable to understand or control what [he / she] was doing because of [drugs or alcohol given to (him / her) / something done to (him / her)] without [his / her] consent.[drugs / alcohol / (identify intoxicant) / something done to (him / her) without (his / her) consent]. [It does not matter if (name complainant) voluntarily consumed the (drugs / alcohol / [identify intoxicant]).]3

(8c)“Physically helpless” means that [name complainant] was unconscious, asleep, or physically unable to communicate that [he / she] did not want to take part in the alleged act.

(96)[Fourth / Fifth], that the defendant knew or should have known that [name complainant] was [mentally incapable / mentally incapacitated / physically helpless] at the time of the alleged act.

Use Notes

*Paragraphs (3) and (4) are discretionary. If used, both paragraphs must be given together. The factors listed are taken from People v Petrella, 424 Mich 221, 270-271, 380 NW2d 11 (1985).

Use this instruction in conjunction with M Crim JI 20.1, Criminal Sexual Conduct in the First Degree; M Crim JI 20.2, Criminal Sexual Conduct in the Second Degree; or M Crim JI 20.18, Assault with Intent to Commit Criminal Sexual Conduct in the Second Degree (Contact).

(1) Paragraphs (3) and (4) are discretionary. If used, both paragraphs must be given together. The factors listed are taken from People v Petrella, 424 Mich 221, 270-271; 380 NW2d 11 (1985).

(2) MCL 750.520a provides the definitions of mentally incapable, mentally incapacitated, and physically helpless.

(3) This sentence does not need to be read where the consumption of an intoxicating substance is not at issue.

[AMENDED] M Crim JI 20.11

Sexual Act with Mentally Incapable, Mentally Disabled, Mentally Incapacitated, or Physically Helpless Person by Relative or One in Authority

(1) [Second / Third], that [name complainant] was [mentally incapable / mentally disabled / mentally incapacitated / physically helpless]¹ at the time of the alleged act.

[Choose one or more of (2a), (3b), (4c), or (5d):]

(1) a) “Mentally incapable” means that [name complainant] was suffering from a mental disease or defect that made [him / her] incapable of appraising either the physical or moral nature of [his / her] conduct.

(2) b) “Mentally disabled” means that [name complainant] had a mental illness, was intellectually disabled, or had a developmental disability. “Mental illness” is a substantial disorder of thought or mood that significantly impairs judgment, behavior, or the ability to recognize reality and deal with the ordinary demands of life. “Intellectual disability” means significantly subaverage intellectual functioning that appeared before [name complainant] was eighteen 18 years old and impaired two or more of [his / her] adaptive skills.¹² “Developmental disability” means an impairment of general thinking or behavior that originated before the age of eighteen 18, had continued since it started or can be expected to continue indefinitely, was a substantial burden to [name complainant]’s ability to function in society, and was caused by [intellectual disability as described / cerebral palsy / epilepsy / autism / an impairing condition requiring treatment and services similar to those required for intellectual disability].

(3) C “Mentally incapacitated” means that [name complainant] was unable to understand or control what [he / she] was doing because of [drugs, alcohol or another substance given to (him / her) / something done to (him / her)] without [his / her] consent.[drugs / alcohol / (identify intoxicant) / something done to (him / her) without (his / her) consent]. [It does not matter if (name complainant) voluntarily consumed the (drugs / alcohol / [identify intoxicant]).]³

(4) d) “Physically helpless” means that [name complainant] was unconscious, asleep, or physical incapable physically unable to communicate that [he / she] did not want to take part in the alleged act.

[Choose the appropriate option according to the charge and the evidence:]

(5) ((2)[Third / Fourth], that the defendant and [name complainant] were related to each other, either by blood or marriage, as [state relationship, e.g., first cousins].²⁴

(6) (63) [Third / Fourth], that at the time of the alleged act, the defendant was in a position of authority over [name complainant], and used this authority to coerce [name complainant] to submit to the sexual acts alleged. It is for you to decide whether, under the facts and circumstances of this case, the defendant was in a position of authority.

Use Notes

Use this instruction in conjunction with M Crim JI 20.1, Criminal Sexual Conduct in the First Degree; M Crim JI 20.2, Criminal Sexual Conduct in the Second Degree; or M Crim JI 20.18, Assault with Intent to Commit Criminal Sexual Conduct in the Second Degree (Contact).

(1) MCL 750.520a provides the definitions of developmental disability, intellectual disability, mental illness, mentally disabled, mentally incapable, mentally incapacitated, and physically helpless.

12. The court may provide the jury with a definition of adaptive skills where appropriate. The phrase is defined in MCL 330.1100a(3), and means skills in 1 one or more of the following areas:

(a) Communication.

(b) Self-care.

(c) Home living.

(cd) Social skills.

(e) Community use.

(f) Self-direction.

(fg) Health and safety.

(h) Functional academics.

(i) Leisure

(hj) Work.

(3) This sentence does not need to be read where the consumption of an intoxicating substance is not at issue.

(4) 24. The following are relatives of a person to the fourth degree of consanguinity:

First degree of consanguinity:

Parents

Children

Second degree of consanguinity:

Brothers and Ssisters

Grandchildren

Grandparents

Third degree of consanguinity:

Great Ggrandchildren

Great Ggrandparents

Aunts and Uuncles

Nephews and Nnieces

Fourth degree of consanguinity:

Great-great Ggrandchildren

Great-great Ggrandparents

Grand Aaunts and Uuncles

First Ccousins

Grand Nnephews and Nnieces

[AMENDED] M Crim JI 20.22

Complainant Mentally Incapable, Mentally Incapacitated, or Physically Helpless

(1) [Fifth / Sixth], that [name complainant] was [mentally incapable / mentally incapacitated / physically helpless] at the time of the alleged act.¹

[Choose one or more of (a), (b), or (c):]

(a) “Mentally incapable” means that [name complainant] was suffering from a mental disease or defect that made [him / her] incapable of appraising either the physical or moral nature of [his / her] conduct.

(b) “Mentally incapacitated” means that [name complainant] was unable to understand or control what [he / she] was doing because of [drugs or alcohol given to (him / her) / something done to (him / her)] without [his / her] consent [drugs / alcohol / (identify intoxicant) / something done to (him / her) without (his / her) consent]. [It does not matter if (name complainant) voluntarily consumed the (drugs / alcohol / [identify intoxicant]).]²

(c) “Physically helpless” means that [name complainant] was unconscious, asleep, or physically unable to communicate that [he / she] did not want to take part in the alleged act.

(2) [Sixth / Seventh], that the defendant knew or should have known that [name complainant] was [mentally incapable / mentally incapacitated / physically helpless] at the time of the alleged act.

Use Notes

Use this instruction in conjunction with M Crim JI 20.17, Assault with Intent to Commit Criminal Sexual Conduct Involving Penetration.

(1) MCL 750.520a provides the definitions of mentally incapable, mentally incapacitated, and physically helpless.

(2) This sentence does not need to be read where the consumption of an intoxicating substance is not at issue.