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People v. Lino: Michigan Supreme Court Focuses on Constitutionality of Gross Indecency Law

February 2, 2012 Criminal Law and Procedure

The Michigan Supreme Court took up some important issues related to the Michigan Gross Indecency Law in the consolidated cases of People v. Lino and People v. Bashier.

Issues of the Case

There were four issues in these cases:

  • Is the Michigan Gross Indecency Statute unconstitutionally vague?
  • Whether the standard of common sense of the community should be the standard for gross indecency cases
  • Whether oral sex in public is an act of gross indecency
  • Whether the specific conduct on People v. Bashier constitutes gross indecency

People v. Lino

In People v. Lino, the defendant was charged with gross indecency after a police officer observed him giving oral sex to another man in a parked truck. The defendant was charged under MCL 750.338, gross indecency between males.

People v. Bashier

In the case of People v. Bashier, the defendant induced minors to perform certain acts to another man. The acts included physically and verbally abusing the other man. Bashier did not join in or touch anyone but simply watched the events. There was never any direct physical contact between the minors and either Bashier or the other man. The other man would pleasure himself while the minors were doing this. Both men were charged with procuring or attempting to procuring an act of gross indecency between males.

Issues in the Case

The Court declined to find the statute to be unconstitutionally vague. Challenges to laws based on unconstitutional vagueness are common at least one point in a statute’s history. The challenge against the gross indecency statute was important because the gross indecency statute does not actually define what gross indecency is.

Unconstitutional vagueness is where a law either fails to provide notice of the illegal activities, encourages discriminatory or arbitrary enforcement, or where the law is so broad it interferes with a First Amendment freedom.

The Court did not believe the gross indecency statute to be unconstitutionally vague. The Court looked to past cases which had held the conduct at issue in both Lino’s and Bashier’s case to be gross indecency. These cases would have provided notice their behavior was outlawed (in the Court’s opinion, though it’s obviously unlikely either defendant in the case could tell you what those cases said, but that’s how the law works).

These two cases the Court cited to answer the vagueness question also answered the question of whether the specific conduct in both Lino and Bashier’s cases could be gross indecency.

In general, a violation of gross indecency between adults must include a sexual act in public. Private sex acts between adults will not be gross indecency.

Where a minor is involved, however, the acts in private even without technical sex acts could be a violation of the law – there is no public place requirement when a minor is involved.

In Bashier’s case, such acts with minor’s can be grossly indecency even though there was no direct physical sexual contact. This is because the acts were performed for the other man to derive sexual pleasure from. In that sense the acts were still overtly sexual acts. Read more in the case of People v. Drake, which fully discusses this dynamic.

Takeaways from the Case

This case is cited in most other gross indecency cases, mainly to rebut any argument against the constitutionality of the statute. The case summary above is the majority opinion. However, the case goes on extensively in concurring opinions that expand upon the principles above, but are the beyond the scope of this article. The concurring opinions are important in there is a lot of language regarding the issues above.

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This case is cited as People v. Lino and People v. Bashier, 447 Mich. 567 (1994), 527 N.S.2d 434