MICHIGAN EX REL WAYNE CTY. PROSECUTING ATTORNEY v. Duck

STATE OF MICHIGAN ex rel WAYNE COUNTY PROSECUTING

ATTORNEY v DIZZYDUCK 20, 1993, Docket Nos. April 136610. Submitted at Detroit. January 18,1994, Decided appeal sought. at 9:20 A.M. Leave to Michigan, The State of Wayne County on the relation of the Prosecuting Attorney, brought Wayne an action in the Circuit against Duck, Dizzy Court an adult entertainment establish- ment; Boyce Maxwell; Eight and Greenfield Restaurant Inc., Company, seeking, pursuant seq.; to MCL 600.3801 et seq., MSA 27A.3801 et to have the defendants’ establishment premises declared padlocked. prose- a nuisance and the The alleged following cutor that the activities that occurred at the Dizzy dancing, "lap Duck were dancing,” abatable: nude Room,” "Fantasy assignation prostitution. court, The Kaufman, J., Richard request padlock C. declined the premises, enjoining but entered an order those activities that it lap dancing found to assignation constitute a nuisance: prosecutor The thereafter moved that the trial contempt court find the lap dancing defendants in because the continuing Dizzy motion, at the Duck. The court denied the clarify but issued an including order to its earlier order following language prohibition against lap dancing: in the "and purpose where the main of contact is for masturbation of the penis.” prosecutor appealed male from the trial court’s orders, original ap- and amended and the defendants cross pealed. appeals were consolidated. Appeals The Court of held: dancing 1. Nude where there is no contact between the dancer and the customer does not constitute or a activity assignation related of lewdness or and is not abatable 600.3801; under MCL MSA 27A.3801. "prostitution,” 600.3801; 2. The term as used in MCL MSA 27A.3801, performance refers to the of sexual intercourse for hire. "lewdness,” 600.3801; 3. The term as used in MCL MSA References 2d, 192, 326, 1, 2, 356; Am Jur Nuisances Prostitution 6. §§ §§ Nuisances; See ALR Index under Prostitution. similar 27A.3801, of a nature acts those sexual refers to fellatio, cunnilingus, intercourse, sexual intercourse: anal for hire. done performed and where on another masturbation lap does correctly determined 4. The trial court purpose of the it is done lewdness unless not constitute aspects of properly what ascertained masturbation. The court enjoined nuisance lap dancing an abatable the constituted aspects. those Room,” "Fantasy mastur- activity in the that occurred 5. The watching a by himself while performed on a customer bation masturbated, the dancer, come within does not who sometimes performed no masturbation There was definition of lewdness. conduct, does not which The dancer’s for hire on the customer. performed on dancing materially that was the nude differ from 600.3801; 27A.3801. stage, MSA under MCL is not abatable aspects of the correctly what determined 6. The trial court "lewdness, assignation Dizzy Duck constituted activities at the 600.3801; 27A.3801 and were prostitution” MSA under MCL or thus abatable. choosing to its discretion 7. The trial court did not abuse closing the establishment. enjoin than the nuisance rather only Where, case, constitute activities in this the abatable operate to can continue portion and the business of the conduct may limit enjoined, court the trial abatable conduct with the prohibited enjoining remedy the instance to its in the first conduct. Affirmed. J., dissenting, establishes Corrigan, stated that evidence lewdness, prostitution, or a house of that the Duck was 600.3801; and should be assignation MSA 27A.3801 under MCL majority padlocked. of the trial court and The conclusion scope and the regarding is too narrow of abatable conduct inadequate remedy to cure the the trial court is fashioned dancing, nuisances, assignation, lap including proven acts of dancing, in the for hire that occurred and masturbation nude properly the conduct Fantasy is defined as Prostitution Room. female, engage activity persons, in sexual male and who of all morality regulate is intended to The statute as a business. on-stage regard remedy with to a nuisance not foreclose does distinguish There is no need of masturbation. exhibitions in order to resolve from acts of lewdness acts of subject regulation dancing under the case. Nude this case, where, substantially connected to it is as in this statute specific prostitution. more order The trial court’s related remedy dancing adequately lap regarding did not receiving offering or includes the proven Prostitution harms. fee, body, intercourse, vaginal in return for a for acts of intercourse, fellatio, masturbation, cunnilingus, physi- anal person’s genitals, pubic area, cal contact with a buttocks or breasts, and does not exclude other acts of sexual conduct pay. offered or received for Lewdness should not be limited to sexual acts other than sexual intercourse done for hire. The Fantasy activities in the Room amounted to lewd live conduct associated with Manual stimulation of oneself in presence activity proscribed by of another for hire is performed statute it because is a sex act of whatever nature money. physical participants Actual contact between the is not required. Dancing — — Lewdness, Assignation, 1. Nuisance Nude or Pros- titution. Nude where there is no contact between the dancer and the customer does not constitute or a related activity assignation of lewdness or and is not abatable under (MCL 600.3801; the nuisance abatement statute MSA 27A.3801). — — 2. Nuisance Words and Phrases "Prostitution.” "prostitution” The term as used in the nuisance abatement performance statute refers to the of sexual intercourse for hire (MCL 27A.3801). 600.3801;MSA — — 3. Nuisance Words and Phrases "Lewdness.” The term "lewdness” as used in the nuisance abatement statute refers to those sexual acts of a nature similar to sexual inter- intercourse, fellatio, cunnilingus, course: anal and masturba- performed (MCL 600.3801; tion on another where done for hire 27A.3801). MSA — Injunctions — — 4. Nuisance Abatement of Nuisances Pad- locking of Premises. It enjoin is not an abuse of discretion for a court to conduct that constitutes a nuisance that occurs in a business establishment closing rather than the business where the abatable activities only portion constitute a of the conduct at the business and the operate business can continue to with the abatable conduct (MCL 27A.3801). enjoined 600.3801; MSA Kelley, Attorney Frank J. General, Thomas L. Casey, General, O’Hair, Solicitor John D. Prosecut- ing Attorney, Special Opera- Solak, Chief, Andrea Larry Prosecuting tions, Attorney, Roberts, and L. Assistant plaintiff.

for the Dizzy Duck Opinion Court Rubin), (by the defen- L. for Carl Rubin Rubin & dants. Sawyer Jr., P.J., and Holbrook,

Before: JJ. Corrigan, Wayne out of the action arises J. This

Sawyer, complaint County defendants’ to have Prosecutor’s under MCL nuisance declared a establishment pad premises and the 600.3801; MSA 27A.3801 Although that some trial court found locked. Dizzy a Duck constituted at the of the activities request prosecutor’s nuisance, it declined premises. padlock Instead, trial court en a joined it found to constitute those activities appeals prosecutor and defen now nuisance. appeal.1 dants cross registered by

"Dizzy name Duck” is an assumed Company, Eight Restaurant Greenfield defendant incorpora- Boyce Maxwell is Defendant Inc. tor, owner-operator. agent, president, resident Dizzy located establishment Duck is a small pay patrons fee an entrance Detroit, where entertainment, such admission, offers adult which dancing. nude concerning testimony gave police an officers Six subsequent investigation raid on undercover the Dizzy employees Duck. Four and were dancers testified; three of them were also immunity. granted There were four activities dancing,” dancing, "lap investigated: nude were prostitu- assignation "Fantasy Room,” and the tion. stage dancing, Concerning there was the nude group nude danc- female and for individual area separate they appeal, did not file a Although did cross defendants court’s they of the trial appeal, seek modification nor do on cross brief does, however, argue that appeal some extent on Their brief order. overly broad. the trial court’s order Opinion op the Court ing. plexiglass There was also a shower enclosure stage patrons on "shower dances” where would pay see a extra to dancer shower. song, For a fee for one or for two $20 $30

songs, employees perform "lap the female would a During lap dance” for a customer. these dances a legs dancer would straddle a customer’s move legs groin herself while about customer’s area holding pair onto either the or a customer Although handles mounted on the wall. some touching by patrons observed, of dancers an employee security hired for it testified that was a supposed "get rule that customers not were too friendly” during lap with their hands dances.

The women also solicited to take the men back Fantasy Room, to the cluded area of the in a which was more se-

building. upwards For a fee placed opposite $65, customers would be where a room they dancers, one of the other see could each through plexiglass partition. The women masturbate, would then dance and sometimes encouraged while the men watched. The women along the men to masturbate with them while in Fantasy the sperm Room. Evidence technicians found samples fantasy from taken room plexiglass partition. walls testimony by police There was also officers premises that while on the the dancers would solicit for acts of to occur off the premises. One the dancers also testified that Dizzy solicitation occurred at explained Duck and she had done so herself. She paid manager enough if the dancers their money, get they away anything,” "could in- cluding leaving with a customer. Another em- ployee security who was hired for testified that the prohibited prostitution rules of the prostitution. However, solicitation for there was Dizzy Opinion Court of the knew his about the owner that some evidence prostitution soliciting because at least for dancers’ complaints himto about made one of the dancers different treatment letting leave certain women in with customers. dancing lap that found

The trial court occurring assignation at the were they Dizzy abatable nuisances Duck, were and that seq. seq.; 27A.3801 et MSA et under MCL 600.3801 to this effect on order trial an court entered lap dancing September 26, the 1990, which ordered provided assignation The order also abated. inspections Dizzy periodic reasonable compli- by police to ensure officers Duck ance. Detroit prosecutor 1990, Then, the on November find defendants the trial court moved that dancing continuing contempt lap the because Dizzy the The trial court denied at the Duck. contempt However, the trial court went on motion. including clarify the follow- its earlier order lap prohibition against ing language in danc- the ing: purpose of is for "and where the main contact penis.” The of the male trial court masturbation including amended order above entered an language. appeal, prosecutor essentially advances

On arguments: trial too nar- two court was row its conclusion what activities constituted a nuisance under court statute and that trial Dizzy Duck rather should have closed enjoining merely than those activities that consti- disagree tute a nuisance. We those both propositions. question turn first to the

We of what conduct is 600.3801; under the abatable 27A.3801 declares as statute. MCL MSA nuisances, alia, inter build- ings purpose assignation lewdness, used "for the prostitution.” The trial court two found Opinion of the Court within at the activities Duck come the stat- ute: soliciting lap dancing acts of where "the main purpose of contact is for mastur- penis.” prosecutor argues bation of the male lap that all dancing, general, the nude and the Fantasy Room activities are all abatable Indeed, conduct under prosecutor statute. seems suggest "designed to conduct to any is commercialize sex” under abatable the statute. court, Like the trial we disagree. question

The whether nude dancing is abatable it is is The easily Supreme answered: not. Court considered the applicability nuisance statute in State ex Wayne to adult movie theaters rel Co Prosecutor v Corp, Diversified Theatrical 396 Mich 244; (1976), 240 NW2d 460 it concluding that did not. The Court reached the conclusion that to applies prosti abatement statute only houses of tution: in We are applying accord decisions these only abatement statutes of houses meaning "lewdness, The of words assignation prostitution” or light in of history is clear purpose of these meaning statutes and that cannot expanded be

properly by judicial construction. [Id. at 250.]

We see no meaningful basis to distinguish between live entertainment and film. As Diversiñed makes clear, the focus is not on whether the entertain obscene, ment be may judged be but whether it prostitution constitutes or related activities. Nude dancing, where there is no contact between the customer, dancer and the simply does not consti tute a or related activity of lewdness or assignation.2 Accordingly, like the adult films at meaning "assignation” The of the terms "lewdness” and as used the statute will be discussed more detail infra. Opinion of the Court dancing Diversified, not abatable nude

issue under the Saginaw ex rel statute. See also State Prosecuting Attorney Investments, Inc, v Bobenal (live (1981) nude 16; 314 111 Mich NW2d statute). as under the not lewd abatable lap dancing

However, whether the issue Fantasy or constitute Room activities easily. disposed quite may as not be lewdness The nuisance abatement not define statute does "prostitution” meaning or "lewd- either accept very prosecutor urges us ness.” not. of those terms. We do broad definition College Dictionary, Revised Random House (1984), "prostitution” "the as act or defines Edition engaging practice in sexual intercourse (5th Dictionary Similarly, money.” ed), Law Black’s "prostitution” "performing an act of defines offering agreeing hire, or intercourse for or sexual to any perform an act sexual intercourse Corpus Juris for hire.” Secun- unlawful sexual act offering practice "the of a female dum it as defines body her indiscriminate intercourse an usually CJS, hire. Prostitution and men,” 73 p2, Offenses, § 250. Related give defini- Court did a somewhat broader This prostitution in ex Co State rel Macomb tion of App Prosecuting Attorney Mesk, 111; v 123 Mich (1983), concluding prostitution that 333 184 NW2d person of stimulation another included "manual reaching payment money.” at 118. In Id. for the of upon a conclusion, Court relied the Mesk Appeals in of of the North Carolina Court decision App Hurley, 433, v 48 NC rel Gilchrist State ex (1980), prostitu- defined 269 646 which 443; SE2d "vaginal intercourse, anal inter- tion to include cunnilingus, masturbation, course, physical fellatio, pubic person’s genitals, with a contact in Mesk area, decision buttocks or breasts.” App 258 Opinion the Court notwithstanding, overly we that as view an broad prostitution. Rather, definition think we accepted commonly definition is that which was performance intended: of sexual intercourse for hire.3 inquiry

However, our does not end there. The just nuisance abatement statute addresses not prostitution, but as well. lewdness definition This is somewhat more difficult to reach. in As noted supra Diversified, 250, 13, at n the term "lewd generally being ness” has been viewed as broader "prostitution.” Nevertheless, than term as the Supreme Court in made clear both Diversified and Wayne Prosecuting Attorney rel State ex Co v Levenburg, 406 Mich 466; 280 NW2d 810 (1979), term must "lewdness” be defined a manner that is consistent with the rule of noscitur may Thus, a sociis.4 while "lewdness” have a meaning "prostitution,” broader than its definition by is nevertheless limited reference to the defini "prostitution.” Wayne tion of See also State ex rel Prosecuting Attorney Co Bennis, v 200 Mich 670; 504 731 (1993). NW2d mean, course, Legislature This does not could not Rather, broadly. choose to define more in the absence of a definition, statutory word. See (1991). accepted "dictionary” we use the definition of the Troncoso, People App 567, 573; 187 Mich 468 NW2d 287 fact, we note that the criminal statutes refer to "prostitution” both seq.; and "lewdness.” See MCL 750.448 et MSA seq. Legislature cognizant 28.703 et narrow This reflects that the meaning "prostitution” of the word and it therefore included give coverage "lewdness” to to sexual acts done for hire other than just sexual intercourse. (5th Dictionary ed), 956, p Black’s Law defines this to mean: meaning It is from known its associates. of a word is or may accompanying from be known words. Under the doc- sociis,” meaning questionable

trine of "noscitur a words phrases may or meaning statute be ascertained reference phrases of words or associated with it. 466-467, Levenburg, supra See also at n 8. Opinion the of Court meaning determining "lewdness,” of the we

In Levenburg, supra 464-465, at the direction note prostitution, used, lewdness, that each of the terms given meaning assignation, its be own distinct and Legislature’s the intent. to in order Accordingly, effectuate must that "lewdness” conclude we just range sexual of acts than broader cover a though, pointed Diversified, intercourse, out in Levenburg, Bennis, hire. it be an act for must determining exactly what acts come within

In guided meaning again by "lewdness,” of we are the must be a sociis. "Lewdness” the rule of noscitur "prostitution” and the fact defined reference the statute is focus of nuisance abatement that the may not all conduct that to abate public morals. See to offend the considered be supra. Levenburg, supra, Diversified, is, That performed any generally lewd act mean it cannot patrons presumably Diversified, the for hire. paid Thus, at issue. the a fee to watch the movie the "for hire” or of Diversified not on focus upon aspect conduct, the but commercial Furthermore, this con the involved. nature of act general of class activities must be of the same duct supra Diversified, See associated noted, Indeed, trial an n 13. as the court at bring unduly will definition of lewdness broad Legislature simply the the statute conduct within not intend to be did covered.5_ ordinary dancing may the fact that The trial court commented on areas, genital partici- albeit the some contact between involve course, scope not come within the pants are this would clothed. Of However, aspect missing. it does "for hire” is statute because the the point What, example, problem. said is to be old- kissing county encompass kissing. at fair? A broad definition of booth fashioned payment activity Would could be said sexual therefore under We don’t nuisance the statute? constitute an abatable under envisioned to come sort conduct think that provisions Clearly, limitation to there must be some statute. scope of the term "lewdness.” op Opinion the Court respect, In this that we believe trial court at arrived a reasonable conclusion in the at case respect lap dancing: with bar to the it constituted only purpose "lewdness” if it was done for the masturbation. Prostitution involves sexual inter- College course, which Random House Dictio- (1984), nary, "genital Revised Edition defines esp. penis contact, the insertion of the into the vagina by ejaculation; copulation.” followed coitus; Accordingly, in order define "lewdness” con- junction "prostitution,” we that conclude "lewdness,” as used the nuisance abatement statute, refers to those sexual acts a nature intercourse, similar fellatio, to sexual intercourse: anal cunnilingus, performed and masturbation on another where done for hire.

With the mind, above definition lewdness in we can conclude that the trial court reached the addressing lap dancing. Lap correct result dancing itself does not constitute lewdness unless purpose it is done of masturbation.6 The enjoin any lap dancing trial court did "where purpose penis.” main of contact is for masturbation of the properly male The trial court ascertained aspects lap dancing what an constituted abatable nuisance. Fantasy

This leaves the issue of the Room. Although apparently masturbation did occur Fantasy performed Room, within the the it was not on by per- Rather, customer it dancers. was watching formed the customer on himself while per- Thus, a dancer. there was no masturbation Accordingly, formed for hire. it does not come within the definition of lewdness set forth above. In terms of the conduct of the dancer in the Fantasy materially Room, that conduct does not 6Random House defines "masturbation” as "the stimulation or manipulation genitals orgasm.” of one’s own or another’s to achieve op Opinion the Court performed from the nude that

differ above, is that, not abata stage as discussed on under the statute.7 ble reasons, we conclude

For the above aspects what correctly court determined trial Duck constituted "lewd- activities at the Dizzy the statute ness, under prostitution” assignation remains, however, There thus abatable. and were the trial court argument prosecutor’s Duck rather than Dizzy the padlocked have should It is within the the nuisance. merely enjoining remedy to choose a the circuit court of discretion building, the such as than padlocking drastic less a nuisance. activities that constitute the enjoining Prosecuting Attorney Wayne People Sill, v ex rel People ex (1945); 570, 576; 17 756 Mich NW2d 310 Attorney Holschuh, General rel Mich (1926). 274-277; 209 NW 158 exer- the trial court’s dispute have no We court in this case. The trial discretion cise its closing rather than to the nuisance enjoin chose establishment, as follows: noting the activities, legal no the of other Given nature personal beliefs matter what the Court or others conduct, the not assignation the as to their moral conduct, does lap seem so would be unlawful is the Court pervasive to the Court nor pre- point that those cannot be persuaded at this one, padlocking with an order short vented [sic] Duck. Dizzy the above, the trial As noted agree with the court. We is to close of the nuisance abatement statute focus occurred on the activity While abatable bordellos. Duck, it not a is bordello. premises matter, Fantasy in the Room conduct of a customer For that patron materially a from of a of movie theater not differ does watching a in the theater. while movie chooses to masturbate who op Opinion the Court only Where, here, as the abatable activities consti- portion tute conduct the business can operate continue to with the abatable conduct enjoined, eminently it for the reasonable trial remedy court to limit its merely in the to first instance prohibited enjoining the conduct rather closing prohibited than If the establishment. activity persists despite injunction, the trial certainly pad- court can reconsider the issue and premises only lock the as effective means abating long However, the nuisance. as defen- willing obey injunction, are dants we no see require premises padlocked. reason to Certainly, to be

the trial not court did abuse its discre- choosing try remedy tion the less restrictive first.

Finally, briefly point wish to we comment on a Contrary raised the dissent. to the dissent’s suggestion, "attempt our efforts here not are an fashion a new definition of and lewd- recognized Michigan.” not ness at 276. heretofore Post only Rather, we seek to define those terms properly light of both the statutes prece- constitutional restrictions enunciated in the Supreme of dents both this Court the Court. goal merely definitions, not Our is new but clarify existing Further, the ones. we believe our dissenting colleague unnecessarily is concerned opinion proof that our elevates of the burden prostitution, impedes the enforcement of or en- forcement Rather, of the abatement statute. if we partially clarifying been even have successful in scope statute, the of the enforcement should be made more efficient it will because be clearer to community bench, bar, and the law enforcement exactly activity properly what is considered within purview Expansion of the the statute. of the abate- J. dissent, statute, the is best by as proposed ment Legislature. to the left may tax costs. Defendants

Affirmed. P.J., concurred. Jr., Holbrook, (dissenting). After reviewing the Corrigan, record, majority opinion I from the dissent whole injunctive orders. the circuit court’s affirming trial, the the circuit court At the conclusion abated, assignations lap dancing ordered the dancing or the mastur- declined to hold nude but Room hire in the Fantasy done for batory activity the subsequent proceedings, activity. In abatable in contempt hold declined to defendants court also Instead, court the the continuing lap dancing. for to prohibit lap order previous amended its for mastur- of contact purpose "the main where of the male The conclusion penis.” of the bation scope the majority regarding circuit court the light conduct is too narrow. of abatable record, immediately have the court should whole premises. padlocked for called

Exercising independent judgment novo, de I conclude of review standard inadequate cure fashioned remedy nuisances, assignation, lap including acts proven hire for dancing, dancing, nude and masturbation on defendants’ Fantasy in the Room that occurred pad- court I would order circuit premises. 600.3801; MSA to MCL pursuant the premises lock in this complaint 27A.3801. At time action, pertinent part: provided that statute vehicle, boat, place or Any building, aircraft lewdness, assignation or purpose

used by, kept or gambling, or used prostitution or disorderly persons other prostitutes the use of App 264 203 250 Mich hereby ... is declared a nuisance . . . shall enjoined and provided. be abated as hereinafter public prop A is a nuisance condition or use of erty greatly public that offends or interferes decency. Twp, health, morals, or Bloss v Paris (1968); Twp 466; NW2d Garfield v (1957). Young, 337; 348 Mich 82 NW2d 876 Stat regulating prostitution, spe utes and ordinances regulating public morals, cies laws are within police powers. Michigan’s protect interest in ing places safety, morality order, health, societal in public accommodation would be fur by padlocking proven thered this nuisance. Cognizant my duty apply controlling prece reject repeated dent, I as mistaken a theme many recently Wayne cases, most in State ex rel Prosecuting Attorney Bennis, Co v 200 Mich (1993), light 670, 676; 504 NW2d 731 that the red regulate abatement ity. is act not intended to moral e.g., Wayne also, See State ex rel Co Prose Corp, cutor Diversified 244, Theatrical 396 Mich (1976). 247; 240 NW2d 460 The obvious intent underlying regulate morality. the statute is to regulating is There no constitutional flaw mo rality, specific prohibi absent some constitutional concurring opinion tion. See of Justice Scalia Theatre, Inc, —; Barnes v Glen US 111 CtS (1991). 2456, 2465; L 115 Ed 2d thinking no basis society our [T]here - - ever has - shared that "you may Thoreauvian do - - - - - - - - - you long what like so it does not - - injure someone else” beau ideal—much less for thinking it was written into the Constitution. purpose nudity of Indiana’s would law be violated, 60,000 think, fully I if consenting adults crowded into the display Hoosierdome to their another, genitals one even if there were not an by Corrigan, J. Dissent society prohib- innocent in the crowd. offended Our its, prohibited, human societies have cer- and all they not harm others but tain activities because considered, they are in the traditional

because mores,” i.e., In phrase, American for immoral. "contra bonos included, society, prohibitions have such sadomasochism, cockfighting, example, bestial- suicide, use, drug prostitution, sodomy. ity, may great diversity of on there be view While whether prohibitions should various of these exist that, specific . . . no absent constitu- there is doubt involved, the the protection for conduct tional prohibit simply does not them be- Constitution cause regulate "morality.” they the various undercover Detroit testimony officers, together physical with the evidence police established that premises, seized from prostitution, a "house of lewdness Dizzy Duck was the act. Certain sexual activ- assignation” under 1990s-style reflect a commit- premises ities on the example, sex.” For male customers ment to "safe clothed. activity remained engaged who sexual Further, presence of others sexual behavior hire. 1990s autoerotic—albeit This usually debased, degrading, and licentious con- version of of conduct that type duct is nonetheless historically chosen to abate as acts of people have view, prostitution or lewdness. prostitution my female, who persons, all male is conduct prose- as business. The engage activity in sexual "allowing out devia- points correctly cutor there are no to occur because prostitution tions of when the facts on error point extant cases of nuisance.” support the claim adduced effort define majority’s I from the dissent of sexual intercourse as acts only acts, certain sexual listed hire and lewdness intercourse, prece- for hire. Our sexual other than very these new definitions of compel dents do not I old also terms. fear these narrowed defini- problems tions could breed serious in future civil enforcement efforts. presented by most serious obstacle the ma-

jority opinion on-stage is its exclusion exhibi- tions of light from masturbation the reach of the red Although persons

abatement act. who mas- stage openly may subject turbate prosecution, on be to criminal majority’s newly under an- nounced lewdness, definitions against property no action can be taken where place. my such view, behavior takes the lan- guage in used the statute does not foreclose a remedy nuisance for such behavior. majority’s distinguish Next, the effort to acts of

prostitution from acts lewdness result could in unnecessary proof elevation of the burden in prosti- the context of the criminal enforcement of practice, prose- tution offenses. Under current prove cutor need not the exact nature of the purchased. majority’s sexual activities The con- permit objection struction will an for failure to allege whether an act of or an act of may require committed, lewdness has been further proof. specificity in bright We do not need to draw a line distinction "prostitution” between terms and "lewdness” in order to resolve this Our case. former cases "prostitution” have never done so. The terms certainly historically overlap- "lewdness” have had ping elements and will continue do so. construing

A decision the terms "lewdness” and "prostitution” apply to autoerotism hire will careening slippery slope not send us down a padlocking kissing will condone the at booths (See 5.) county p imagine fairs. n I cannot a Michigan prosecutor who would waste scarce re- folly. sources hand, on such On the other if the Dizzy Duck v county a proven at record occurred on this acts prosecutor Michigan, to act who failed fair unceremoniously recalled be either would oppor- earliest available at the out of office booted tunity.

i DANCING AND NUDE ASSIGNATION correctly held that acts court The circuit premises assignation defined on the occurred Prosecuting Attorney Wayne Co rel State ex (1979), (1979). Levenburg, 455; 280 NW2d grounds 407 Mich on other remanded proofs these however, to consider court, failed assigna- totality of circumstances. within activi- isolation; the various occur tions did not prostitu- proven to further were done at trial ties in connection tion and majority’s discussion from the

I dissent regulation governing principles ing ing of nude danc- danc- application this case. Nude their frequently lewd involved at stage Amend- the First outside exhibitions live example, nude dancers some For ambit. ment’s openly stage. dancer bent One on masturbated separated a customer to let her buttocks over and sprayed breast dancer anus; another into her blow crowd. the assembled milk on Prosecuting Saginaw Relying ex rel on State Investments, Inc, 111 Mich Attorney v Bobenal (1981), flatly majority App posits 512 16; 314 NW2d regulated dancing cannot be un- that nude light ex also State act. See abatement red der the Alray Prosecuting Attorney v Co rel Oakland App 595; 381 NW2d Plaza, 146 Mich Northcrest regulation. (1985). dancing beyond not Nude 731 complaints were Northcrest in Bobenal 203 they ruled defective because failed to connect the dancing prostitution, assigna- nude lewdness, to present tion. These here, defects are not because complaint alleged proofs and the established dancing substantially that nude connected example, and related to For testi- mony lay stage, revealed that one dancer on the spread legs, displayed genitals her her encourage purchase excite the customers and lap of dances. regard, adopt

In this I would views Justice supra, Souter in Barnes Theatre, v Glen and the Judge Coffey City views of in Miller v Civil (CA 1990) (rev’d Bend, South nom 7, F2d 1081 sub supra, Theatre, Barnes v Glen in the Su- Court). preme Judge Coffey Miller, stated: Not only does dancing nude in and of itself women, degrade its elimination is particularly important because of its close association with a more devastating example of exploitation sexual women, prostitution. The link between nude danc- ing, prostitution and other sexual crimes is well established. It is common knowledge prostitu- tion is performers likely result in a situation where live sexually stimulate an audience and there often exists the probability of audience ac- performers cess to these performance for the sexual activities. . . go . We need no further than our own cases to discover that nude dancing and partners are coupled not only logically historically but also in empirical, present-day reality. We can properly judicial take notice that in no fewer than three of our past decisions in the years prostitution two operations have been based nude establishments. See United States Marren, (7th 1989) ("Mi- F2d Cir Magic chael’s Touch served beverages alcoholic patrons and entertained with nude female dancers who, when performing not stage, on solicited the patrons club’s engage in sexual activities 269 v by Corrigan, J. v United States club”); above rooms located 1989) ("The (7th

Doerr, 949 Cir F2d 886 in . . . concentrated were activities dancing es- . . . were nude three businesses States v Muskovsky, United .”); . . tablishments. 1988) (Prostitution (7th 1319, 1322 Cir F2d 863 dancing in establishment nude operation based purchase "very were enticed where customers exchange for sexual fa- ... in expensive drinks LaRue, vors”). v Furthermore, California in . . . 390, 393; 109, 111; 34 L Ed 2d 93 S Ct 409 US Rehnquist (1972), described now Chief Justice accompa- activities and other sexual a ban on nude that motivated nying nude dancing in California: copula- in engaging oral were found "Customers entertainers; engaged customers women

tion with masturbation; placed and. customers public in vagina of a directly into the currency either rolled entertainer, in order that she or on bar female other forms of up Numerous might pick it herself. male customers the mouths of between contact and performers were vaginal of female areas occurred. reported to have li- such in and around Prostitution occurred involved some of the female premises, and censed girls, exposure young at- dancers. Indecent itself, police on tempted rape, rape and assaults adjacent place immediately on or took officers such ing).] J., (Coffey, F2d 1111 dissent- premises.” [904 Barnes, supra, elicited a majority No opinion Nevertheless, nude opinion held vote. that, public under the state’s regulated be dancing can Barnes, supra, Justice Souter indecency statute. stat- public indecency Indiana concluded of United States four-part inquiry ute satisfied the O’Brien, 1673; 20 L Ed 2d 367; 88 S Ct 391 US interest (1968), because Indiana’s part assaults, asso- sexual prostitution, preventing forbidding nude furthered ciated crimes Dissent opined entertainment. He also that a state’s inter- banning dancing simple est nude results from a dancing evils, correlation of nude with other such and sexual assault. As a matter of fact, record, law, on this and as a matter of nude dancing was related to

Finally, majority misreads the Diversified by asserting case tween live that there is no distinction be

stage portrayals.1 acts and film Diversified Court saw the distinction between live e.g., See, behavior and film as crucial. 396 Mich ("We conclude, however, the statute was apply intended to motion to houses of and not picture theatres where sexual acts are not screen”), portrayed committed but are 396 on the reasons, n 12. For these I do not join majority’s opinion dancing. on nude

ii LAP DANCING prices depending $30, For $20 on whether a purchased songs, customer clad er’s one or two a dancer G-string a would straddle a clothed custom- lap and thrust back and forth. The dancers occasionally grab penises would customers’ through pants lap their in order to solicit dances. 1Perhaps respect majority in this could be said to share the MacKinnon, opinion observations of Professor Catharine about the ultimate remedies: if not her "representation” Is nude a of eroticism or is it eroticism, meaning a sex act? How ais live sex show different? doing sexually,

In terms of what the men are an audience watching gang rape a in a movie is no different from an watching gang rape reenacting gang rape audience a movie, watching any gang rape. from a or an audience MacKinnon, Only (Cambridge, University Words Mass: Harvard Press, 1993), p Supreme 28. These are not the views of our Court. Dizzy through clothing, lap dance, contact, sexual In a genitals place females’ between the took males’ provided groins. management even grips Duck so the on the walls of the hand movements more force- could make their dancers ful. Some customers the women’s bare breasts and or suck would either fondle grab the women improved thrusting. Customers their buttocks occasionally ejaculated, before and sometimes lap dance was finished. sometimes after ruling, the court ordered that acts In its first lap dancing was ad- When evidence be abated. lap during contempt proceeding that duced dancing despite order, the court continued lap merely of to direct that acts modified the order masturbating purpose male of penis enjoined. majority The affirms were be lap deny abatement of circuit court’s decision dancing, except my in the order. as described specific adequately view, order did not this more proven remedy the harms. essentially amended order is unenforceable. prosecutor’s prove parties’ intent efforts to certainly Fifth

would be met with assertions compelled privilege against self-in- Amendment no real The amended order serves crimination. purpose, proof than to elevate the burden of other justification. without

Lap dancing of another for is sexual stimulation physical contact. Unlike hire and involves actual colleagues, adopt my I the broad definition would ex rel in dicta in State described Prosecuting Attorney Mesk, 123 Macomb Co (1983). App Even 111, 118; 333 NW2d (5th ed), Dictionary ma- cited Law Black’s only alternatively jority, not describes performance of intercourse, but also as sexual any Accordingly, for hire. unlawful sexual act 203 Mich majority sexual acts the defines as "lewd” also fall legal within the definition of More- majority’s over, the decision to define lewdness as just "sexual acts done for hire other than sexual p intercourse,” ante, 258, 3,n is not the common understanding of the term. quite probable Legislature

I think it is adopted light the red abatement act in 1915 meant the term "lewdness” to describe the activi- prostitute. ties of a male involved with a female example, Rayburn, For 514; State v 170 Iowa (1915), opinion contemporary 153 NW rendered at the time of the enactment of the Michigan statute, the court construed the term "lewdness” to describe the activities the male actor. "prostitution” If synony- "lewdness” are

mous, it would unnecessary have been to have used but one of the words. presumably There was using some reason for both. ... If a man and go together woman to or resort to a ill house of purpose intercourse, fame for the having sexual purpose her prostitution, would be for his for go by lewdness. Or a man could purpose himself for the having intercourse, sexual which would be lewdness under this statute and under defini- given. tions hereafter such a Or a man could resort place, guilty and be of lewdness without sexual may intercourse. import Lewdness not indulgence, criminal generally but is used as indi- cating gross indecency respect to the sexual Mitchell, 362, relations. State 366; v 149 Iowa would, NW 378 course, Sexual intercourse of [1910]. lewdness, but, constitute suggested, as may there be lewdness without sexual intercourse all, man, woman, at and the as well may as be guilty of it. Dictionary, Webster’s Third New International v by Corrigan, as the (1964), lewdness defines Edition Unabridged turn, Lewd, in is being of lewd.” or state "quality licentious”; "incit- or unchaste "sexually defined Licentious imagination.” or to sensual desire ing is, turn, by "marked behavior behavior restraints,” that which is or moral legal absence of con- standards accepted or offensive "hostile "lewdness” with the word Construing duct.” majority’s join I cannot dictionary, aid of a definition. announced newly the definition I endorse do 433, 48 NC Hurley, v ex rel Gilchrist State (1980), adopted not cited but 443; 269 SE2d Mesk: includes the prostitution plainly that We hold body, in return for receiving of the offering or intercourse, inter- anal

fee, vaginal for acts of masturbation, course, fellatio, cunnilingus, pubic genitals, person’s with a physical contact hasten to add area, We or breasts. buttocks of sexual behavior cataloguing of these acts our con- of sexual other acts to exclude not intended [Emphasis pay. for or received added.] duct offered 1982), (RI, McKee, 442 A2d also State See receiving a conviction the court affirmed where had The defendant pandering as a to work woman police undercover hired an her He informed massage parlor. in his masseuse $1,000 more a week earn that she could $500 acts of work, including performing doing "extra” How- on the customers. fellatio masturbation under prohibited would be ever, intercourse sexual court, rejected id. at rules. The the house prosti- the definition contention defendant’s hire: intercourse to sexual limited tution was described that defendant sexual acts [T]he 274 203 250 App by Corrigan, J. Dissent "prostitu

Detective Mirando did tion.” This fact constitute finding supported by logic is well definition "pros well as law. The defendant’s titution” would exclude all sexual acts but reproduction.4 associated with This is an absurd applicable construction of the statutes which con tain no such limited definition of the offense of Dictionary, The defendant’s reliance on Black’s Law 4th Edition, for, brief, misplaced, is also as the state notes in its "any 5th Edition of that work includes hire” in its definition of unlawful sexual act for "prostitution.” Dictionary, Black’s Law (5th 1979). Ed, Bucaulis, See also Commonwealth v Mass (1978), holding 59, 66; 373 NE2d 221 that the term properly "sexual intercourse” includes the act of fellatio. The term "sexual commonly intercourse” has

been employed to describe a variety of sexual conduct, 265, including the act of fellatio. L See G c 22, 23; Commonwealth v Gallant §§ Mass [373 577, 584; (1977)] (defining 369 NE2d 707 "natural” and "unnatural” intercourse under G L c 23). nothing There is before us which § indicates the act of fellatio previously considered scope to be outside the . . statute. . We accordingly conclude that the defendant should have understood that his conduct was in violation of the statute. majority, sum,

In precedents unlike the I do not read our understanding or the common to limit the term "lewdness” to sexual acts other than sexual intercourse done for hire.

hi FANTASY ROOM prices ranging $125, For from a customer $65 Fantasy trip purchase Room. The to the could Fantasy back of the Room, room in the a small parti- plexiglass by establishment, was divided room; one side of would enter A dancer tion. would The dancer the other. customer entered clothing in the masturbate her then remove presence. also invite She would customer’s masturbating join chose, if he her customer partition. techni- Evidence side of the other on samples analyzed the walls and taken from cians pres- plexiglass and detected divider room ence of semen. majority Mesk, concludes, on in reliance

The presence supra, in the of oneself that masturbation prostitution or lewdness. is not another for hire "prosti opined the term Mesk, that this Court In of another manual stimulation tution” includes person pre money. payment The issue for the the Mesk Court. not before sented here was automasturbatory not foreclose Mesk decision does prostitution or from the definition for hire acts reaching result, relied on its Mesk lewdness. Corp, supra. Diversified Theatrical Diversified App Chicago Geraci, 3d 30 Ill turn cited (1975). 250, n 13. 396 Mich 703; 332 NE2d term "lewdness” that Geraci noted "prostitu of the term than and inclusive broader general class of to the same Lewdness refers tion.” pros normally houses of with associated activities court, terms, are said the Geraci Such titution. prohibit designate acts of "sex intended to money.” performed are nature which whatever App Ill 3d 703: Fantasy amounted in the Room activities conduct associated lewd live presence of in the of oneself stimulation Manual activity, proscribed because, for hire is another Geraci, under Diversified and it is a sex act of performed money. Nothing "whatever nature” precedents requires participants in our engage must physical

in actual contact. majority’s attempt I dissent from the to fashion a new definition of and lewdness not recognized Michigan. Michigan’s heretofore cit- permitted blight ies must be to call a halt to urban neighborhoods and contamination of their from light people red Michigan districts. The of the State of intent;

have declared their the executive through branch has moved to enforce that intent legitimate process due, means. All the some, then has been afforded the defendants in remedy this state’s courts. The fashioned is inade- quate to cure the harms. respectfully

I dissent.

Case Details

Case Name: MICHIGAN EX REL WAYNE CTY. PROSECUTING ATTORNEY v. Duck

Court Name: Michigan Court of Appeals

Date Published: Jan 18, 1994

Citation: 511 N.W.2d 907

Docket Number: Docket 134045, 136610

Court Abbreviation: Mich. Ct. App.