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People v. Jones: Can Sex Between Married Couples Violate the Michigan Gross Indecency Law?

November 2, 2016 Criminal Law and Procedure

The Court of Appeals in People v. Jones tackled the issue of whether the Michigan Gross Indecency law applies to heterosexual intercourse between married couples.

What Happened in the Case of People v. Jones

The defendant was a prisoner in Jackson. Defendant and his wife (also a defendant) had sex in a full capacity public visiting room using their three minor children as physical shields for privacy.

The defendants were bound over for trial following a preliminary examination. Defendants argued in a motion to quash the gross indecency statute did not apply to them because they were a heterosexual married couple. The circuit court agreed with the argument, and remanded the case back to the district court on charges of indecent exposure. The prosecution appealed.

Gross Indecency Law in Michigan

In Michigan, it is a felony for any man or woman to commit an act of gross indecency with another man or woman. This felony is punishable by up to 5 years in prison, a $2,500 fine, or both. MCL 750.338b.

The statute does not specifically state what acts constitute gross indecency. Higher courts have found acts of gross indecency in sexual intercourse, masturbation, oral sex, touching the genitals, and other acts where a person derived sexual pleasure without sexual touching. This is not an exhaustive list of which acts constitute gross indecency. An act is grossly indecent in the eyes of the community. However, as discussed below, it is not just the act which constitutes a violation of the gross indecency laws.

Arguments by the Defense

The Defendants relied on a former case called People v. Danielac. The Danielac case held as a matter of law that intercourse between husband and wife is not grossly indecent.

The Court’s Decision

The Court disagreed with the Danielac case, which it believed was wrongly decided. The circumstances surrounding an act at issue, the Court said, is what’s important.

Sex between a married couple is not gross indecency in and of itself, just as the other acts that can be the basis of a gross indecency criminal charge will not necessarily lead to a violation of the gross indecency law simply because they were performed. Courts and juries must look to the circumstances surrounding the act – namely, was the act performed in a place where an unsuspecting member of the public might stumble across the acts being performed.

Having sex in a public visiting room surrounded by many people along with your three minor children makes the sexual act grossly indecent.

However, it should be noted that courts have found some acts in private to be violations of gross indecency laws. For example, a sexual act with a minor in private would be grounds for a conviction of gross indecency. This was the holding in People v. Bashier. Nevertheless, otherwise legal sexual acts must be performed in public for a violation of the gross indecency law.

Lessons from the Case

In this case regarding the gross indecency law, the Court emphasizes the act itself is not gross indecency if the act is between consenting adults. The circumstances of the act is elevates the act to a criminal act. The circumstances surrounding the act must be analyzed – where was the act, who could see it, etc.

The Court makes clear that sex is not grossly indecency. It’s sex where other people case see it that makes the act a violation of the gross indecency statute.

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Sam Bernstein is an Ann Arbor Criminal Attorney.

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

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This case is cited as: People v. Jones, 563 N.W.2d 719 (Mich. Ct. App. 1997)