Question as originally presented: I’m scoring two Counts of Assault with Intent to Commit CSC-2nd Degree. Victims were 8 and 13 year old girls. Offender was a 60 plus year old male. I’m wondering if I can score 10 points for OV 10, Exploitation of a vulnerable victim. The 8 year old girl is the step-granddaughter of the grandpa. They were at the house due to being babysat at the time. Defendant forcefully pulled them towards him in the pool and made them touch his privates. A separate occasion, defendant inside the house actually rubbed his privates against the 8 years old’s. Can I score 10 points, calling the defendant who was babysitting them by exploiting either their youth or agedness or even possibly an abuse of authority as he was a babysitter?
“[P]oints should be assessed under OV 10 only when it is readily apparent that a victim was ‘vulnerable,’ i.e., was susceptible to injury, physical restraint, persuasion, or temptation.” People v Cannon, 481 Mich 152, 158 (2008), overruled in part on other grounds in People v Huston, 489 Mich 451, 458 n 4 (2011). Caselaw has identified multiple factors that evidence a victim’s vulnerability, and relevant to your case, those factors include youth or agedness, the existence of a domestic relationship between the victim and the offender, and the offender’s abuse of authority status. People v Barnes, 332 Mich App 494, 502 (2020). “The mere existence of one of these factors does not automatically render [a] victim vulnerable,” and “[t]he absence of one of these factors does not preclude a finding of victim vulnerability[.]” Cannon, 481 Mich at 158-159, n 11. Exploitation of a vulnerable victim is a prerequisite to assessing points under OV 10. Cannon, 481 Mich at 162. “Exploit” means to manipulate a victim for selfish or unethical purposes.” MCL 777.40(3)(b). While the situation you describe is a unique set of facts that has not been considered by binding legal authority, based on the plain language of OV 10 and caselaw construing it, it is likely that these requirements for scoring OV 10 are satisfied. Arguably, the offender in your case manipulated the victims for his own selfish and unethical purposes and the victims were vulnerable due to their young ages and the offender’s much older age, and as a quasi-relative and babysitter it is arguable that the offender abused a domestic relationship or his authority status, which is defined as a situation where “a victim was exploited out of fear or deference to an authority figure, including, but not limited to, a parent, physician, or teacher.” MCL 777.40(3)(d). In an unpublished and therefore nonbinding opinion, the Court has recognized that a babysitter may be a person in a position to abuse authority status. See People v Olman, unpublished per curiam opinion of the Court of Appeals, issued June 12, 2007 (Docket No. 268464), p 4. The youth of a child victim abused by an adult offender is often considered sufficient to score 10 points under OV 10. See, e.g., People v Wilkens, 267 Mich App 728, 742 (2005) (“defendant ‘exploited’ the victim’s youth by manipulating her with clothes and alcohol in exchange for [her participation in] making [a] sexually abusive videotape”); People v Johnson, 474 Mich 96, 103 (2006) (holding a five-year age difference between a defendant and a complainant may justify a score of 10 points for OV 10, and that “[w]here complainant was fifteen years old and defendant was twenty, the court could determine that defendant exploited the victim’s youth in committing the sexual assault”) (quotation marks and citation omitted). Accordingly, while it is ultimately a question of law for the court to decide, we think scoring 10 points in your case is probably appropriate.