The Michigan Court of Appeals in People v. Brown discusses the Michigan Gross Indecency Law. In this case, the Court of Appeals affirms the rule that for a conviction under this law the gross indecency must be in public.
What is Gross Indecency Law in Michigan?
In this case, the defendants were charged with gross indecency between female persons, in addition to soliciting and accosting. The gross indecency between female law is MCL 750.338a. The law states that it is a felony for “any female person who, in public or in private, commits or is a party to the commission of, or any person who procures or attempts to procure the commission by any female person of any act of gross indecency with another female person.”
This felony is punishable by up to 5 years in prison, a $2,500.00 fine, or both.
What Happened in This Case
An undercover police officer visited a massage parlor in Ferndale. The officer paid for two women (the defendants) to give him a massage. They went to another room. Once in the room, the women indicated they would perform cunninlingus on each other for an additional fee, which the officer paid. Then one woman performed cunninlingus on the other.
There is no statutory definition of gross indecency. However, prior case law held that oral sex between males constitutes gross indecency. The statute in this case (MCL 750.338a) relates to females, though it is otherwise identical to the statute relating to males discussed in the prior case. Therefore, the Court here had no problem finding that oral sex between females could constitute gross indecency as well.
Argument on Appeal
However, the defendants were not arguing their acts were not gross indecency. The defendants argument was that the acts did not occur in a public place, and therefore they cannot be guilty of gross indecency. The Court noted that an act of gross indecency is insufficient for a conviction unless the act was performed in a public place.
The Court further noted that the issue is not simply whether the act was in public, but whether the act was in a place where there was a “possibility that the unsuspecting public could be exposed to or view the act.”
In addition, the Court observed that an act committed in public leads to a presumption of strong evidence of a violation of the statute. Theoretically however, an act of gross indecency could be committed in public without violation of the statute where there is no chance the act could be seen.
The Court’s Decision
While the Court observed that an act committed in a public place leads is strong evidence of gross indecency, it nevertheless cautioned that each case is unique and the particular facts of the case are important.
In this case, the defendants were in a commercial establishment where members of the public were welcome and invited. However, it was not determined in the trial court whether the defendant’s were in a place where an unsuspecting member of the public might stumble upon these indecent acts.
A factual finding that defendants were not in such a location would beat the gross indecency case. The Court observed that the record of the trial court was devoid of a finding of whether the defendants were in a place where members of the public could possibly view the acts.
Therefore, the Court remanded the case back to the trial court for a determination on the location issue.
Takeaways From the Case
The takeaway is the analysis of the location issue for a finding of guilt of gross indecency. Whether the two persons were committing some act is not the end of the analysis. It must be determined, factually, whether the persons were in such a location where an unsuspecting member of the public might see them. The Court also left open the possibility that two people could be in a public place, committing an act of gross indecency, but not be guilty of the crime because they were in a place where no unsuspecting member of the public might see them.
Sam Bernstein is an Ann Arbor Criminal Attorney.
ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.
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