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People v. Drake: Can it Be Gross Indecency Without Sex?

February 1, 2009 Criminal Law and Procedure

The Michigan Court of Appeals in People v. Drake focuses on the Michigan Gross Indecency Law. Specifically, the Court looks into the question of whether gross indecency is limited to certain traditional sexual acts or includes other sexual acts.

The Court concluded that the gross indecency law is not limited to certain traditional sexual activities. Sexual gratification can come in forms beyond just the “traditional” or easily identified sexual activities. The question to answer is whether there has been an overt sexual act.

What Happened in the Drake Case

In this case, the defendant had been running a “contest” with several minor girls. The minor girls were given money, alcohol, and cigarettes in exchange for providing defendant with urine, feces, tampons, spitting on him, and beating him. There was no sexual touching, and defendant did not touch himself in front of the girls. Everyone kept their clothes on. However, the girls testified that defendant got high off the activity and liked it.

What Michigan Gross Indecency Law Says

Michigan law provides it is a felony for any male person to commit an act of gross indecency with a female person, and vice versa for females committing an act of gross indecency with a male. Violation of this law is a felony punishable by up to 5 years in prison. MCL 750.338b. Other sections of the law prohibit gross indecency between males and between females, though the punishments are all the same.

So What is an Act of Gross Indecency?

As you can see in the statute above, the legislature did not define what exactly gross indecency is. The Courts have been left to figure it out. Previous court cases have found acts of gross indecency in sexual intercourse, oral sex, masturbation, or the touching of another person’s private parts. These could be labeled your so called “traditional” or easy to identify sex acts. Defendant in this case argued that he did not commit an act of gross indecency because him and the girls did not engage in any of these acts.

The Court’s Ruling

The Court found that defendant’s acts could constitute gross indecency. The Court reasoned that gross indecency is not limited to the acts of oral sex, masturbation, intercourse, and touching of the private parts. While gross indecency could more easily be inferred from these activities, there may be other activities that constitute gross indecency.

Whether an act can be of gross indecency depends on whether the activity is sexual in nature. The sexual nature of the activity must be overt, meaning it is open an perceivable. The sexual nature of an activity can be derived from the totality of the circumstances.

The Takeaway from the Case

We learn from this case that there is no exhaustive list of activities that can constitute gross indecency. Gross indecency is not limited to the main sex acts, but can be found in sexual activities of other kinds. The activity must be analyzed on a case by case basis. But we know that a person could be found guilty or made to stand trial for gross indecency even where the person was not having sex or engaging in one of the more traditional sex acts.

Get in Touch

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a Criminal Lawyer in Ann Arbor and Ypsilanti.

ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108

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Michigan Sex Crimes Attorney

We are ready to defend you against charges of sex crimes, including gross indecency, sexual assault, and indecent exposure. Being charged with a sex crime can make your like feel it has been turned upside down. We won’t let that happen. ArborYpsi Law will be with you every step of the way, fighting your case, advocating for you, and working to protect your future.

Michigan Indecent Exposure

ArborYpsi Law has written several articles on the law of indecency exposure in Michigan. The gross indecency laws are similar to indecent exposure laws but there are differences too. To learn more about these criminal laws, read on:

This case is cited as: People v. Drake, 633 N.W.2d 469 (Mich. Ct. App. 2001).