MCL 750.520b(2)(b), anyone convicted of CSC, First Degree, where the victim is under the age of thirteen and the defendant is 17 years of age or older, shall be "imprisonment for life or any term of years, but not less than 25 years." The defendant, represented by Lansing attorney Michael Faraone, in People v Tumura, Docket No. 296721 (September 22, 2011), challenged her 25-year mandatory minimum sentence as being cruel and unusual, at least as the sentence was applied to her case. The Court of Appeals, in an opinion written by Judge Jane Markey, and joined by Judges Deborah Servitto and Kirsten Frank Kelly, affirmed the sentence.
The Court reviewed the factors set forth by the Michigan Supreme Court in People v Bullock: one, the severity of the sentence imposed and the gravity of the offense; two, a comparison of the penalty to penalties for other crimes under Michigan law; and three, a comparison between Michigan’s penalty and penalties imposed for the same offense in other states. The Court ruled that the defendant's arguments failed on all three factors. First, the Court held "Statutory rape, a strict-liability offense, has been upheld as a matter of public policy because of the need to protect children below a specific age from sexual intercourse. The public policy has its basis in the presumption that the children’s immaturity and innocence prevents them from appreciating the full magnitude and consequences of their conduct."
Second, comparing the penalty to other penalties under Michigan law, the Court found, "The perpetration of sexual activity by an adult with a pre-teen victim is an offense that violates deeply-ingrained social values of protecting children from sexual exploitation. Even when there is no palpable physical injury or overtly coercive act, sexual abuse of children causes substantial long-term psychological effects, with implications of far-reaching social consequences. The unique ramifications that ensue from sexual offenses against a child preclude a purely qualitative comparison of sentences for other offenses to assess whether the mandatory 25-year minimum sentence is unduly harsh in contrast to other offenses."
Finally, in comparing Michigan's penalty to those of other states for similar conduct, the Court found at least 18 other states that imposed the identical penalty for CSC cases against children. Therefore, the Court concluded that Tumura's claim of a cruel and unusual punishment for having sexual intercourse with her 12-year-old student did not violate either the Michigan or United States Constitutions.