Question as originally presented: I am scoring a person who was found guilty by a jury of 2 counts of CSC 3rd (force or coercion) One count is for penile/vaginal penetration. One count for the defendant putting a dildo in the victim’s anus at the same time while directly stating, “Now you are going to know what it's like to be fucked by two men at the same time.” Can the dildo insertion along with his statement be appropriately scored in OV 7 as sadism? While there was no physical injury, there was certainly great discomfort, suffering, and humiliation as disclosed by the victim in examination by the prosecution and defense.
For purposes of scoring OV 7, sadism is defined as “conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or for the offender’s gratification.” MCL 777.37(3). While no binding authority has directly addressed the conduct your question describes, there is an argument that it would satisfy the statutory definition of sadism. Note that “OV 7 is scored on the basis of [a] defendant’s conduct and his intent, not whether the victim felt sufficiently threatened,” but the fact that the victim testified that she suffered and was humiliated may support the conclusion that the defendant’s action was intended to produce suffering and humiliate the victim. People v Urban, 321 Mich App 198, 217 (2017), aff’d in part, vacated in part on other grounds 504 Mich 950 (2019).
Further, actual physical abuse is not necessary to score a defendant’s conduct under OV 7. People v Mattoon, 271 Mich App 275, 276, 278 (2006). “While humiliation may have a physical component, there does not have to be physical abuse in order to produce humiliation. Emotional or psychological abuse can certainly have that effect as well. If the Legislature intended to limit the applicability of OV 7 to cases where there is physical abuse, then instead of defining ‘sadism’ to be ‘conduct’ that produces pain or humiliation, it would have said ‘physical abuse’ that subjects the victim to pain or humiliation.” Id. at 277-278.
The following are examples of OV 7 scores upheld in the context of a CSC crime: in People v Sykes, unpublished per curiam opinion of the Court of Appeals, issued October 27, 2011 (Docket No. 299568), p 4, the Court upheld the scoring of OV 7 for sadism where “[i]n one of the rapes at issue, not only were there six penetrations but defendant threatened to ‘blow [the victim’s] motherfucking head off’ such that she was ‘scared to death’ and thought she was going to die. In light of the number of penetrations, the location of the penetrations, the injury to the victim, the biting of the victim, and defendant’s laughter as the victim screamed for help, the scoring of this variable was supported by the evidence. Taken in isolation, any one of these factors might not escalate the crime to extreme brutality beyond that which might be associated with any rape. However, laughing at the victim’s screams while inflicting such brutality is one marker of sadism. The description of the lengthy assaults by the victim established that defendant’s actions were aimed at humiliating her for his sexual gratification.” In People v Carpenter, unpublished per curiam opinion of the Court of Appeals, issued September 23, 2008 (Docket No. 277861), p 2, the Court upheld the scoring of OV 7 for sadism or conduct designed to substantially increase the fear and anxiety that the victim suffered where the victim was brought to an unknown location, defendant took her clothes off, tied her to a bed, repeatedly hit and threatened her, which “constituted humiliation,” and also increased the fear and anxiety she suffered; further, the defendant admitted that use of a spatula to hit the victim’s butt was sexual confirming it was for his own gratification. Note that unpublished opinions are not binding authority. MCR 7.215(C)(1).
While both of these cases involved more conduct than one statement and more evidence specifically relevant to the definition of sadism in OV 7, they do not definitively determine whether the statement by the defendant in your case would be sufficient to constitute sadism under OV 7. Ultimately, whether OV 7 should be scored on the basis of the conduct that occurred in your case is an unresolved question of law for the court to decide.
Note that there are four categories for which OV 7 may be scored 50 points: (1) sadism, like you mentioned, and (2) if the victim was treated with torture, (3) excessive brutality, or (4) conduct that is similarly egregious to torture, excessive brutality or sadism designed to substantially increase the fear and anxiety a victim suffered during the offense. These other categories for scoring OV 7 in addition to “sadism” have all been defined separately by the Court. For a detailed discussion of published caselaw interpreting these other categories, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Section 2.19(B). Conduct that satisfies at least one of those categories can be scored under OV 7.