This section contains the nature of the case and procedural background.

This concerns a January 23, 2000, incident involving two students of the same high school, about six months apart in age. D was charged with third-degree criminal sexual conduct 'using force or coercion to accomplish the sexual penetration,' in violation of MCL 750.520d(1)(b). D was brought before the district court for a preliminary examination. The complainant was a sixteen-year-old tenth grader. She had known D between eighteen and twenty-four months. About two weeks before the January 23, 2000, incident, D had driven the complainant to the parking lot of a Meijer store, where consensually he digitally penetrated her and she manually masturbated him. On January 23, D telephoned the complainant after school to ask if she wanted to 'hang out.' She agreed. He picked her up in an automobile and drove her to the parking lot of a YMCA. The complainant allowed the defendant to unbutton her blue jeans and to digitally penetrate her. The complainant testified, 'D started making out again, the same stuff, and then wanted to have sex with me, and I said no. He asked me why. I just said because I don't want to.' After an interval, D repeated his request that they have sexual intercourse. The complainant again said 'no,' explaining that she 'didn't want to.' 'D asked me if he could just stick [it] in once, and I said no.' He essentially repeated the question several times, and she would not answer him 'because I didn't want to answer him anymore.' She acknowledged that she did not physically restrain or push him away and then said, 'He stuck it in anyways and kept moving and asked me if I was enjoying it, and I said I didn't want to do it.' When asked how he got it in, she said, 'He got on top of me and put it in.' P moved that D be bound over for trial. D argued that the lack of consent by a complainant is not the same thing as force or coercion by a defendant. P disagreed and said that when an individual is in a situation where he's not going to take no for an answer, and he wanted what he wanted, and he took it from her without her permission when she said no, that amounts to force or coercion. The district court held there was 'insufficient evidence of overcoming the victim through the use of physical force that rises to the level required by this statute. The court held that there had to be some evidence that D used physical force to overcome her. There's no indication he pushed, or held her down, or forced her legs apart; there's no indication he did anything to force her other than to get on top of her. There's no indication of any fear or physical resistance on her part, and even though it's not necessary that the prosecution show resistance, there is no indication of any, and that enters into my judgment as a factor as to whether or not there was force. P appealed, and the circuit court affirmed the judgment of the district court. The circuit court stated there is no evidence that by getting on top of her, she was rendered helpless or that D used superior strength to overcome her. There is no evidence that D forced Complainant's legs apart or placed her body in a position to receive him. This may have happened, but there is no evidence of it in the record, leaving only speculation for the Court to draw such a conclusion. The Court of Appeals reversed, holding that when a victim refuses to engage in sexual activities and the defendant ignores the refusal and penetrates the victim anyway, sufficient evidence exists to satisfy the force or coercion requirement. D appealed.

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