Lead Opinion
Memorandum Opinion.
i
These consolidated cases require us to decide the following questions: (1) whether MCL 750.338; MSA 28.570, is unconstitutionally vague, (2) whether the common-sense-of-the-community definition of gross indecency should be overruled, (3) whether oral sexual conduct committed in a public place constitutes gross indecency, and (4) whether the specific sexual conduct alleged in People v Brashier constitutes gross indecency because it was committed with a person under the age of consent.
A majority of the justices are of the opinion that
(1) MCL 750.338; MSA 28.570 is not unconstitutionally vague as it is applied to the conduct in Lino (Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, Griffin, and Mallett, JJ.), and that the statute is not unconstitutionally vague as applied to the alleged conduct in Brashier.
(2) To the extent the Court of Appeals in Bra-shier interpreted People v Carey to leave to the jury’s assessment of the common sense of the community the definition of gross indecency, the Court of Appeals is reversed. (Cavanagh, C.J., and Levin, Brickley, Boyle, and Mallett, JJ.)
(3) Oral sexual conduct committed in a public place is grossly indecent under MCL 750.338; MSA 28.570. (Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, Griffin, and Mallett, JJ.)
(4) Procuring or attempting to procure the specific sexual conduct alleged in Brashier with a person under the age of consent can support a conviction under MCL 750.338; MSA 28.570, regardless of whether the conduct is performed in public. (Cavanagh, C.J., and Levin, Riley, Griffin, and Mallett, JJ.)
In Lino, we reverse the decision of the Court of Appeals and we affirm the defendant’s conviction. Fellatio performed in a public place clearly falls within the ambit of MCL 750.338; MSA 28.570.
In Brashier, we reverse the decision of the Court of Appeals in part and affirm in part. Defendant Brashier’s case is remanded to the trial court so that he may stand trial. Procuring or attempting to procure the specific sexual conduct alleged in Brashier with a person under the age of consent can support a conviction under MCL 750.338; MSA
28.570, regardless of whether the conduct is performed in public.
ii
A. PEOPLE v LINO
On August 23, 1988, several officers, including
The overflow parking lot was enclosed by a six-to eight-foot tall wooden fence on the north and east sides. The south side of the lot is open to the street. There is also an opening on the north side of the fence that allows pedestrian traffic. Although DeMarco’s was open for business at the time of the incident (approximately 12:30 a.m.), there were no other vehicles in the overflow lot.
Officer Ferguson testified that, while he was behind the fence to the north, he saw the driver of the truck lean back in his seat and the defendant’s head moving over the driver’s lap. It was not until the officer climbed up three feet on the fence that he witnessed the defendant performing oral sex (fellatio) on the driver of the pickup truck.
Officer Smith testified that from his vantage point at the pedestrian opening on the north fence, approximately twenty feet away from the vehicle, he saw the driver sitting in the driver’s seat while the defendant bent down out of sight. Officer Smith approached the vehicle and observed the defendant performing oral sex on the driver.
The driver of the truck testified that when he picked up the defendant, the defendant offered to perform oral sex for money. After arriving at the parking lot, the driver paid the defendant twenty dollars and the events, as described, occurred.
Judge Peter Houk presided at the defendant’s
On appeal, the defendant claimed that (1) there was insufficient evidence that the act took place in a public place, (2) the gross indecency statute is unconstitutionally vague as applied, and (3) the trial court erred by not instructing the jury under the "common sense of the society standard.” The Court of Appeals reversed the defendant’s conviction using the Howell test and reasoning that the prosecution failed to present sufficient evidence that the act occurred in a public place.
This Court initially denied the prosecutor’s application for leave to appeal, but the prosecutor’s motion for reconsideration was granted.
B. PEOPLE v BRASHIER
Brashier was charged in four separate informations. In each, a fourteen- or fifteen-year-old boy was victimized by Brashier and codefendant Goike. These events occurred in November and December of 1989.
The details varied, but the basic theme was the same. Defendant Brashier would strike up a conversation with the minor victim, eventually asking whether the victim was interested in earning some
With Brashier directing the proceedings, the minors would physically and verbally abuse Goike, while Goike masturbated. The minors would hit Goike with a stick, urinate on him, vomit on him, pour syrup on him, and force him to consume combinations of these materials. All the while, Goike would continue to masturbate, eventually to climax.
For the most part, defendant Brashier’s partiсipation was limited to directing the activities. At times, he would actively participate in the abuse of Goike. At the end of these sessions, the minors were paid and threatened with harm if they ever revealed what happened.
There was never any direct physical sexual contact between the victims and either Brashier or Goike.
In separate informations corresponding to the four minors, these defendants were charged with one count of procuring or attempting to procure the commission of an act of gross indecency between the male minor victim and another male (the codefendant). In the circuit court, the defendant filed a motion to quash. Oakland Circuit Court Judge Fred Mester denied the motion.
The Court of Appeals reversed on interlocutory appeal, holding that the adoption of the Howell test by the Lino panel compelled the result. On the prosecutor’s petition, the Court of Appeals agreed to convene a special panel to resolve the conflict between the Howell standard and the commonsense-of-the-community standard.
The special panel issued a per curiam opinion rejecting the Howell standard for gross indecency
in
A
Defendants challenge MCL 750.338; MSA 28.570,
Thus, there are at least three ways a penal
Defendant Lino’s vagueness challenge fails because it is clear that a number of cases hold that the public act of fellatio between males is encompassed within the scope of the gross indecency statute; See Howell at 22, and People v Kalchik,
Nor is the statute vague as it applies to Mr. Brashier. He cannot plausibly claim that he could not have known his conduct was prohibited. In McSherry v Block, 880 F2d 1049 (CA 9, 1989), cert den
Every person who loiters about any school or public place at or near which children attend or normally congregate and who remains at any school or public place at or near which children attend or normally congregate, or who reenters orcomes upon such school or place within 72 hours, after being asked to leave ... is a vagrant .... [Cal Penal Code, § 653g.]
Although it was undisputed that the petitioner had not been asked to leave, "[t]he evidence at trial consisted of highly incriminatory observations of the appellant at five different schools, other relevant observations of his behavior, and his prior convictions for kidnapping a minor and lewd conduct with a girl under the age of eighteen.” 880 F2d 1051. The court rioted that "[i]n applying the rule against vagueness or overbroadness something . . . should depend on the moral quality of the conduct.” Freund, The supreme court and civil liberties, 4 Vand LR 533, 540 (1951), quoted with approval in Bouie v City of Columbia, 378 US 347, 362, n 9;
In Rose v Locke,
B
With respect to defendant Lino, fellatio performed in a public place clearly falls within the ambit of the gross indecency statute.
With respect to defendant Brashier, we remand his case to the trial court so that he may stand trial. If proven true, Brashier’s alleged conduct in orchestrating the conduct of the minors, to facilitate Goike’s sexual arousal and masturbation in the presence of the minors would constitute the offense of procuring, or attempting to procure, an act of gross indecency even though it was not committed in a public place. Procuring or attempting to procure an act of gross indecency with a person under the age of consent can support a conviction under MCL 750.338; MSA 28.570, regardless of whether the conduct is performed in public.
c
This memorandum opinion is signed by the seven participating justices. There are separate concurring and dissenting opinions. However, at least four justices concur in every holding, statement, and disposition of this memorandum opinion.
(separate opinion). We all аgree that Luciano Lino was subject to prosecution for the
The question shrouded under the sheets, and veiled behind the pages, of the several opinions, is whether it constitutes the felony of gross indecency for consenting adults to engage in oral, anal, or manual sex in private.
A
Lino is subject to prosecution, if at all, on presentation of sufficient evidence that a sexual act was committed in public, not because oral sex between consenting adults itself is grossly indecent. A married man and woman would be subject to prosecution for gross, indecency between a male and a female person
Schochet alleged that the statute criminalizing "unnatural and perverted sexual practice” on evidence of fellatio was unconstitutional as applied to private and noncommercial sexual acts between consenting heterosexual adults._
B
Instructions to a jury should be clear that the accused cannot be convicted of the offense of gross indecency because it might be thought by some or many members of the community that oral, anal, or manual sex is grossly indecent, or that sex between a transvestite
After the superpanel decision of the Court of Appeals in People v Brashier,
The new standard instruction allows a jury to decide whether the sexual act charged in the information constitutes an act of gross indecency. The new standard instruction reads:
(1) The defendant is charged with the crime of committing an act of gross indecency with another person. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant voluntarily committed a sexual act with another person.
(3) Second, that this sexual act was an act of gross indecency. An act is grossly indecent if it is of such a character that the common Sense of society regards it as indecent and improper. [CJI2d 20.31. Emphasis added.]
This new standard instruction shows the deficiency of the common-sense-of-the-community
Nor does the new standard instruction state—as the old instruction in effect provided—that an oral, anal, or manual sexual act between consenting adults in private is not an act of gross indecency. Nor does the new standard instruction state—as the old instruction in effect provided—that whether a sexual act is grossly indecent does not depend on whether the act is heterosexual or between gays or lesbians.
c
Unless a majority of this Court is prepared to affirm a jury verdict finding that oral, anal, or manual sex in private between consenting adult heterosexuals, or gays or lesbians, is grossly indecent, a majority of this Court should preclude such a prosecution or conviction by providing an alternative standard instruction that does not permit the prosecution or conviction of consenting adults under any such circumstances for the commission of such acts in private.
Even if a prosecutor knows that he might not be able to obtain a conviction, he may ruin a person, such as an elected official, by bringing the prosecution. Permitting a prosecutor to commence a prosecution and cause arrests for, and conduct a preliminary examination concerning, and the trier of fact, generally a jury, to decide whether sexual acts committed by consenting adults in private
This Court should not wait until long after a prosecutor in one of the eighty-three counties files an information against gays or lesbians or heterosexuals for consensual sexual acts committed in private to rein in unstructured prosecutorial/jury discretion.
D
Penalties are provided by the criminal sexual conduct act to cover nonconsensual sexual behavior, or sexual behavior with a person under the age of consent.
It, therefore, appears that there is little, or at least less, need to continue to include within the definition of gross indecency sexual acts committed
There is, however, clearly a need—to avoid conferring unstructured discretion on the prosecutor/ trier of fact to determine whether an offense has been committed—for this Court to state what does not constitute gross indecency, and specifically for this Court to state that oral, anal, or manual sexual acts committed in private by consenting adults are not grossly indecent. As in People v Myers,
I agree with the majority that the gross indecency statutes are not void for vagueness as applied to Lino and Brashier. Because of the manner in which the gross indecency statutes have been construed,
Although the gross indecency statutes are not void for vagueness as applied to Lino and Brashier, this Court has an obligation to construe them to remedy the vagueness of "gross indecency.”
In Hamling v United States,
In Commonwealth v Balthazar, 366 Mass 298;
In Pryor v Municipal Court of Los Angeles, 25 Cal 3d 238, 253; 158 Cal Rptr 330;
A criminal statute must provide fair warning of the conduct it prohibits, and may not vest law enforcement officials and juries with unbridled discretion to determine the conduct that is prohibited. Kolender v Lawson,
A
An average citizen would not be able to determine the conduct that offends the "common sense of the community.” "In the final analysis, each individual has his own moral codes, private and public, and what acts [sexual acts in this case] might be considered as injurious to public morals are as numerous as the opinions of man.”
The common-sense-of-the-community definition is vague in much the same way as the ordinance in Coates that prohibited "three or more persons to assemble ... on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by . . . .” In striking down the ordinance, the United States Supreme Court said:
Conduct that annoys sоme people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that nostandard of conduct is specified at all. [Coates, supra, p 614.]
A legislature, thus, may not enact a standard for criminal liability that depends on the varied and constantly changing sensibilities of the public.
In Commonwealth v Balthazar, supra, the court reconsidered its earlier decision in Jaquith v Commonwealth, 331 Mass 439, 442;
In light of these changes [developments in the right to privacy] and in light of our own awareness that community values on the subject of permissible sexual conduct no longer are as monolithic as the Jaquith case suggested they were in 1954, we conclude that [Mass Ann Laws, ch 272, § 35] must be construed to be inapplicable to private, consensual conduct of adults. We do so on the ground that the concept of general community disapproval of specific sexual conduct, which is inherent in § 35, requires such an interpretation. [Balthazar, supra, p 302. Emphasis added.]
The court held, however, that because Balthazar
When Balthazar sought a writ of habeas corpus, the federal courts joined Massachusetts’ highest court in recognizing the impermissible vagueness of a criminal statute that bases liability on community standards. The United States District Court for the District of Massachusetts said:
While a state may have a legitimate interest in protecting community sensibilities, criminal liability should only attach to clearly delineated transgression. Currents of community standards are constantly shifting. These changes are sometime subtle. Standards are apt to vary from generation to generation without the specific awareness of either generation. This is true in the area of private sexual conduct, among others. [Balthazar v Superior Court of Massachusetts,428 F Supp 425 , 433 (D Mass, 1977).]
On appeal to the United States Court of Appeals for the First Circuit, the court said that the "District Court was rightly concerned that the use of constantly shifting community standards, as the test of what conduct falls within the terms of a criminal statute, places the public 'at its peril to anticipate a judicial pronouncement that public standards of morality have changed.’5,
The "common sense of the community” definition vests the community—law enforcement officials and juries—with discretion to criminalize sexual behavior it finds offensive. This discretion conflicts with the United States Supreme Court’s recent statement "that the more important aspect of the vagueness doctrine ’is not actual notice, but
Under the "common sense of the community” definition, police, prosecutors, and especially juries make the sort of standardless sweep of sexual behavior prohibited in Kolender. As stated by the Supreme Court of Alaska, in holding that a statute proscribing the "crime against nature” was void for vagueness: "[w]e cannot allow criminality to depend only upon the moral sentiment or idiosyncracies of the tribunal before which a defendant is tried.” Harris v State,
In a gross indecency prosecution under the common sense of the community definition, the prosecutor is not required to call "expert” witnesses to provide evidence concerning the common sense of the community. The prоsecutor simply presents proof of the allegedly indecent act. The judge then instructs the jury that if it finds that the defendant committed the act and that the act offends the common sense of the community, it should convict. The jury thus becomes the arbiter of what constitutes the common sense of the community.
There is no fixed yardstick against which to measure the jury’s conclusion that the act in
The United States Supreme Court’s obscenity jurisprudence
The common sense of the community definition is devoid of substantive limitations. The common sense of the community definition is the Miller definition for obscenity minus any substantive limitations like those found in Miller. It is, in short, the test for obscenity squarely rejected in Jenkins.
The Supreme Court of California recently observed:
The obscеnity test as developed in Supreme Court decisions was not framed to measure non-communicative conduct; with no audience to be aroused pruriently or redeemed socially, all that is left of the test is the appeal to contemporary community standards. That appeal is the vaguest part of the test and, standing alone, does not provide a sufficient standard to judge the criminality of conduct. [Pryor, supra, p 250.]
IV
In Lino, the jury was instructed that the prosecutor must prove beyond a reasonable doubt that the act was "committed .openly and in a public place,” and, apparently, so found.
A
The meaning of "public” is not, however, self-evident. The New York Court of Appeals explained that, "[b]ecause the term 'public place’ has no cut- and-dried meaning, it is necessary to interpret and apply the statute [banning lewd public conduct] in a manner that comports with its purpose.” People v McNamara,
The New York Court of Appeals held that New York’s public lewdness statute applies only where the "objective circumstances” establish that lewd acts "can, and likely would, be seen by the casual passerby, whose sensibilities the statute seeks to protect.” McNamara, supra, pp 634-635. In the words of New York’s highest court:
That a member of the public may pass by is certainly part of the essence of a public place, and the harm to such a person’s sensibilities is precisely that aimed at by the statute. Conversely, where no such harm is likely, the statute is not violated. [Id., p 633.]
The Supreme Judicial Court of Massachusetts and the California Supreme Court have similarly defined the term "public place” as set forth in
This Court should follow the lead of the highest courts of New York, Massachusetts, and California, and hold that, to establish the "public place” element of gross indecency, the prosecutor must prove that when the sexual act was committed, the objective circumstances indicated that the conduct could have been seen, and was likely to have been seen, by members of the public.
B
The jury in Lino’s trial was not properly instructed concerning the "public place” element of
The judge’s response did not inform the jury that a public place, in addition to being open to the public’s view, is a place in which one would reasonably expect to find members of the public or casual passersby.
v
One of my colleagues’ opinions suggests that Brashier’s conduct might be chargeable as a felony punishable by imprisonment for up to twenty
The statute also subjects to prosecution with a like penalty "a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material . . . .” There was no "audience” other than Brashier, and it does not appear that the conduct of the minors was for the purpose of Brashier’s sexual gratification or stimulation.
That colleague also states that the majority of this Court today defines gross indecency as including "any and all conduct that a jury thinks is indecent,”
In Howell, supra, a plurality of this Court defined gross indecency as including oral and manual sexual acts committed "with” a person under the age of consent. The three concurring judges in the superpanel decision in Brashier read the Howell definition as permitting prosecution of Brashier on the basis that his conduct involved a manual sexual act committed by Goike "with” a person under the age of consent even though the person under the age of consent did not touch Goike.
I would reverse and remand for a new trial in Lino, and join in remanding for trial in Brashier.
Notes
The statute in question provides:
Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2500.00 .... [MCL 750.338; MSA 28.570.]
This constitutional challenge is brought under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
Neither defendant claims that MCL 750.338; MSA 28.570 impinges on any of their First Amendment freedoms; thus, we do not consider the matter further.
See also United States v White, 882 F2d 250, 252 (CA 7, 1989). "Provided that conduct is of a sort widely known among the lay public to be criminal ... a person is not entitled to clear notice that the conduct violates a particular criminal statute. It is enough that he knows that what he is about to do is probably or certainly criminal.” (Emphasis in original.)
In Bouie at 362, the Court held that due process notice requirements prevented a previously unannounced interpretation of a trespassing statute from being applied retroactively to civil rights protesters. The Court noted that "[a]pplication of this rule is particularly compelling where, as here, the petitioners’ conduct cannot be deemed improper or immoral.”
Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years .... [MCL 750.338; MSA 28.570.]
Lino is a male prostitute, who, at the time, was dressed as a woman. He was charged with gross indecency on evidence that he was waiving at automobiles, entered a pick-up truck, which drove to an empty, well-lit, overflow parking lot, and was observed by a police officer, standing in an opening in a fence surrounding the lot, performing fellatio on an occupant. ■
Lino contended that the sexual act was done in private and therefore did not constitute gross indecency under the circumstances that the act took place in an empty parking lot, in a private vehicle where there was a reasonable expectation of privacy, and the arresting offlcers were able to observe the act only by making a deliberate effort to look into the vehicle.
The Court of Appeals reversed Lino’s conviction because there was "insufficient evidence that the act defendant was convicted of occurred in a public place.” People v Lino,
Accordingly, we reject the construction of the Court of Appeals in Dexter and construe the term "act of gross indecency” to prohibit oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public. [Emphasis added.]
People v Dexter,
The Court of Appeals said that there was no light on inside the pick-up truck, and described the other evidence as follows:
The parking lot was enclosed by a six- to eight-foot-tall wooden fence on the north and east sides. Officer Fergusonparked his vehicle and approached the lot where the pickup’ was parked. The truck was parked in the northeast corner of the lot with its lights off. From behind the fence, Officer Ferguson observed defendant’s head moving "in an up-and-down motion on the lap of the driver.” Officer Ferguson then stood on a supporting crosspiece of the fence that was about three feet off the ground. From that vantage point, Officer Ferguson also оbserved the driver’s exposed penis. Officer Ferguson and two other officers then approached the vehicle. When one officer identified himself, the driver started his vehicle and drove away at a high rate of speed. The driver was later apprehended.
Lansing Police Officer Clyde Smith was also working surveillance that night, and was riding alone in an unmarked police car. Officer Smith observed the driver of the truck pick up defendant. He then followed the truck to the parking lot, got out of his vehicle, and met with Officer Ferguson, who was observing the truck. Officer Smith was also able to observe defendant performing an act of fellatio on the driver.
The driver of the truck testified that when he picked up defendant, defendant offered him sex for money. After the two arrived in the parking lot, the driver paid defendant, and defendant thereafter performed fellatio upon him. The driver testified that, when he parked in the lot, he intended that the activities in the truck would remain private. [190 Mich App 716 -717.]
As set forth in the memorandum opinion signed by all seven justices, this opinion and one of the two dissenting/concurring opinions,(see opinion of Riley, J., post, p 623).
Brashier involves behavior with minors. Brashier procured minors to perform fetishes described in the memorandum opinion and in one of the dissenting/concurring opinions (Riley, J., post, pp 622-623) that aroused Goike. It appears that the minors observed, and, to the extent so described, assisted and participated in Goike’s acts of masturbation, who, aided by the activity of the minors so arousing him, masturbated until he reached orgasm.
In the instant case of Brashier, a superpanel of the Court of Appeals, disagreeing with the panel in Lino (see n 2), restated the definition of gross indecency set forth in People v Carey, n 2 supra. People v Brashier,
The judges said that the Howell definition "is clear, concise, and sufficiently inclusive to include defendant Brashier’s grossly indecent conduct.” Id., p 680. The concurring opinion explained:
The principal, Goike, performed' manual sex acts, masturbation, while defendant encouraged and assisted several persons under the age of consent to abuse Goike until he experienced orgasm. Defendant paid the juveniles; he threatened them; he scripted their actions; he participated in the abuse. He aided and abetted the commission of gross indecency as defined by Howell. [Brashier, supra, p 680, n 1. Emphasis in original.]
In sum, without regard to whether one opts for the definition put forth in Howell or for the "common sense of the community” definition, a person who procures minors to perform the fetishes of a person who is masturbating in their presence, has committed, or aided and abetted, or procured, the commission of an act of gross indecency, even though the activity occurs in private.
Any male person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a
The Penal Code also proscribes, in identical language, the commission of "any act of gross indecency” between female persons:
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 fеmale person of any act of gross indecency with anpther female person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years .... [MCL 750.338a; MSA 28.570(1).]
In Kentucky v Wasson,
In Texas v Morales,
In Bowers v Hardwick,
Justice Powell concurred, pointing out that Hardwick had not been tried, much less convicted and sentenced, and that this was an action for declaratory judgment challenging the validity of the statute. Justice Powell said that it was conceded during oral argument that there had been no reported decision involving prosecution for private homosexual sodomy for several decades, and added:
The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct. Some 26 Stаtes have repealed similar statutes. But the constitutional validity of the Georgia statute was put in issue by respondents, and for the reasons stated by the Court, I cannot say that conduct condemned for hundreds of years has now become a fundamental right. [Id., p 198, n 20.]
Justice Blackmun’s dissent, joined by Justices Brennan, Marshall and Stephens, began with the following statement:
This case is no more about "a fundamental right to engage in homosexual sodomy,” as the Court purports to declare, ante, at 191, than Stanley v Georgia,394 US 557 [89 S Ct 1243 ;22 L Ed 2d 542 ] (1969), was about a fundamental right to watch obscene movies, or Katz v United States,389 US 347 [88 S Ct 507 ;19 L Ed 2d 576 ] (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men,” namely, "the right to be let alone.” Olmstead v United States,277 US 438 , 478 [48 S Ct 564 ;72 L Ed 944 ;66 ALR 376 ] (1928) (Brandeis, J., dissenting). [Id., p 199.]
See part 11, pp 589 ff.
Lino, a male prostitute, was clothed as a woman.
If, as I would hold, an act of fellatio or cunnilingus committed by consenting adults in private is not grossly indecent, it does not, in my opinion, become grossly indecent because money is paid.
See n 2 for the definition of gross indecency set forth in the plurality opinion in Howell.
The former instruction, based on Howell, read as follows:
(1) The defendant is charged with having committed an act of gross indecency with [another male/another female/a male/ a female]. The defendant pleads not guilty to this charge. Toestablish this charge the prosecution must prove each of the following elements beyond a reasonable doubt:
(2) First, the defendant must have voluntarily committed either a manual or an oral sexual act with a [male/female] person.
(3) A manual sexual act means that the defendant handled the sexual organs of the victim.
(4) An oral sexual act means that [the mouth or tongue of one person was placed in contact with the sexual organs of •another/the penis of one person entered into or against the mouth of another].
(5) Second, if you find that such an act was committed, then you must further determine that the act was committed [without the consent of the complainant/with the complainant and that the complainant was under the age of sixteen years at the time of the alleged offense/openly in a public place], [CJI 20:7:01.]
The early cases adverted to in Brashier and by- the majority speak of both the "common sense of the community” and the "common sense of society.”
Such prosecutions could also again become a weapon in a divorce action, where one spouse employs private detectives, obtains the names of lovers or prostitutes, and demands prosecution of the other spouse for engaging in an act of gross indecency.
Csc of the third degree, a felony punishable by imprisonment for not more than fifteen years, includes sexual penetration with another person where force or coercion is used, or with a person who is at least thirteen and under sixteen. MCL 750.520d; MSA 28.788(4).
Force or coercion includes any of the circumstances listed in § 520b(lXf)(i) to (v) of the Penal Code. MCL 750.520b; MSA 28.788(2).
Csc of the first degree, a felony punishable by imprisonment for life or for any term of years, includes sexual penetration with another person who is under thirteen years of age. MCL 750.520b; MSA 28.788(2).
MCL 750.145; MSA 28.340.
MCL 750.145a; MSA 28.341.
MCL 750.157a; MSA 28.354(1).
In People v Howell, n 2 supra, a plurality of this Court defined "gross indecency” to include sexual acts committed in public, or without the consent of the other person involved, or with a person under the age of consent.
The criminal sexual conduct act (MCL 750.520a et seq.; MSA 28.788[1] et seq.) became effective after the sexual conduct involved in Howell occurred, a little over a year before Howell was decided.
The esc act defines "sexual contact” and "sexual penetration” broadly.
(k) "Sexual contact” includes the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.
(l) "Sexual penetration” means sexual intercourse, cunnilingus, fellatio, anal intercourse, оr any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required. [MCL 750.520a; MSA 28.788(1).]
The definition of sexual penetration would include sodomy.
Sodomy, "the abominable and detestable crime against nature, either with mankind or with any animal,” continues to be defined in a separate provision of the Penal Code, with a fifteen-year penalty. MCL 750.158; MSA 28.355. See Bowers, n 6 supra.
In Myers, the Court of Appeals held that a male person’s grabbing and massaging over clothing the groin area of another male person did not constitute gross indecency. The other male person was
The Court said that since the Court of Appeals, following the "common sense of the community” definition, stated in People v Dexter, n 2 supra, had "consistently applied the gross indecency statute at issue and the other gross indecency statutes to cases involving oral sexual acts, we decline, in this instance, to apply the statute to the fact situation herein involving the defendant’s touching of another’s genital area over clothing.” Myers, supra, pp 220-221.
In Emmerich, as in Myers, an undercover police officer engaged in conversation and then some activity with the defendant, concluding with the defendant placing his leg between the officer’s legs, rubbing back and forth, and finally placing his pocketed hand on the officer’s groin area, putting pressure on his genitals, with inquiry regarding what the other "liked.” Id., p 284. The Court opted for the Howell test, but said that even under the "common sense of the community” definition, the touching of the genital area over clothing was not grossly indecent, citing Myers. Emmerich, supra, p 289. •
Before Lino’s conduct, the Court of Appeals held that performing fellatio in public constitutes gross indecency. See People v Kalchik,
In Howell, n 2 supra, p 21, a plurality of this Court held that the gross indecency statutes prohibit oral sexual acts with a person under the age of consent. The Howell test was adopted by at least two panels of the Court of Appeals before Brashier’s conduct. People v Emmerich, supra, text accompanying n 18; People v Lynch,
Kolender v Lawson,
Similarly, see People v Hayes,
State v Musser,
The Court in Coates was concerned that the ordinance had the potential to infringe on the First Amendment right of assembly. The decision did not rest, however, entirely on the Court’s First Amendment concerns. The Court said that even "conduct clearly within the city’s constitutional power to prohibit” could not be prohibited "through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed.” Id., p 614.
The district court had issued a writ of habeas corpus releasing Balthazar because "unnatural and lascivious acts” was impermissibly vague. The First Circuit affirmed.
In District of Columbia v Walters,
The statute betrays the classic defects of vagueness in that it fails to give clear notice of what conduct is forbidden and invests the police with excessive discretion to decide, after the fact, who has violated the law. . . . Oрposing segments of the public may well agree as to the lewdness, obscenity or indecency of many acts, to paraphrase the court in Ricks v District of Columbia, 134 US App DC 201, 210-211; 414 F2d 1097 (1968), but they will disagree about many other acts without approaching absurdity. Thus, there is a broad gray area in which the words of the statute will convey substantially different standards to different people. An act that is obscene to one person may be quite innocent to another—and by proscribing ",any other lewd, obscene or indecent act” the statute is so encyclopedic in its reach that areas of reasonable disagreement are limitless. [Emphasis added.]
In Pryor, supra, the California Supreme Court similarly held that language of a criminal statute that required a citizen to make predictions about his community’s moral sensibilities was impermissibly vague. The-court said:
Some jurors would find that acts of extramarital intercourse fall within that definition [lustful, lascivious, unchaste, wanton, or loose in morals and conduct]; some would draw the line between intercourse and other sexual acts; others would distinguish between homosexual and heterosexual acts. Thus one could not determine what actions are rendered criminal by reading the statute or even the decisions which interpret it. He must gauge the temper of the community, and predict at his peril the moral and sexual attitudes of those who will be called to serve on the jury. [Id., pp 251-2521 Emphasis added.]
The court limited the offense of committing "lewd and dissolute conduct” in public to "conduct which involves the touching of genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense . . . .” Id. at 256. The court adopted this narrowing construction, in part, because it did "not impose vague and far-reaching standards under which the criminality of an act depends upon the inoral views of the judge or jury . . . .” Id., p 257. (Emphasis added.)
In People v Ferguson,
In Miller v California,
The Court said that it did not
agree with the Supreme Court of Georgia’s apparent conclusionthat the jury’s verdict against appellant virtually precluded all further appellate review of appellant’s assertion that his exhibition of the film was protected by the First and Fourteenth Amendments. Even though questions of appeal to the "prurient interest” or of patent offensiveness are “essentially questions of fact,” it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is "patently offensive.” Not only did we there say that "the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,” [Miller, supra] 413 US 25 , but we made it plain that under that holding "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core’ sexual conduct. . . .” Id. at 27.
We also took pains in Miller to "give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced,” that is, the requirement of patent offensiveness. Id. at 25. These examplеs included "representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” and "representations or descriptions of masturbations, excretory functions, and lewd exhibition of the genitals.” Ibid. While this did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to £x substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination. It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant’s depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty. [418 US 160 -161. Emphasis added.]
While the values underlying the First Amendment were important to the Court in Jenkins, the broader teaching of Jenkins is that unbridled discretion to find conduct criminal cannot be confided to the trier of fact.
In State v Henry,
The indeterminacy of the crime created by [Oregon Revised Statutes] 167.087 does not lie in the phrase "sexual conduct” that is further defined in ORS 167.060(10). It lies in tying the criminality of a publication to "contemporary state standards.” Even in the ordinary criminal law, we doubt that the legislature can make it a crime to conduct oneself in a manner that falls short of "contemporary state standards.” In a law censoring speech, writing, or publication, such an indeterminate test is intolerable.
The political, literary, scientific, and artistic value, of a work is judged not by community standards, but according to the "reasonable person” standard. Pope v Illinois,
The jury was instructed:
The Defendant is charged with having committed an act of gross indecency with another male. The Defendant pleads not guilty to this charge. To establish this charge the prosecution must prove each of the following elements beyond a reаsonable doubt:
First, the Defendant must have voluntarily committed an oral sexual act with another male person. An oral sexual act means that the mouth or tongue of one person was placed in contact with the sexual organs, the penis, of another person. Second, if you find that such an act was committed, then you must further determine that the act was committed openly and in a public place.
The commentary to the public lewdness section of the Model Penal Code states that
the rationale of this provision is to prevent the open flouting of societal conventions, it should not condemn as debauchers of public morality persons who desire privacy and who take reasonable measures to secure it. [American Law Institute, Model Penal Code, § 251.1, p 452.]
A couple who drive out to a secluded "lover’s lane” and engages in sexual conduct should not be said to have committed an act of gross indecency in a public place if a lost hiker happens to stumble across them.
No member of the public inadvertently witnessed the sexual act. Nor does it appear that it was likely that a member of the public would have inadvertently witnessed the act.
If an automobile had unexpectedly driven into the overflow parking lot, Lino might have ceased fellating the customer.
When the officer identified himself, the driver started his vehicle and drove away at a high rate of speed.
There is no evidence that the use of the parking lot as a “lover’s lane” had become sufficiently notorious that adults or minors congregated near the opening of the fence and vied with each other for an opportunity to stand where the officer stood so that they could observe such sexual activity.
The prosecution presented evidence that, at the time of Lino’s conduct, the restaurant сonnected to the overflow parking lot in which Lino’s conduct occurred, was open. This evidence alone is not sufficient to support a finding that it was reasonably likely that members of the public would in fact be present in the overflow parking lot. The parking lot was, after all, an overflow lot.
See McNamara, supra, p 793 where the Court said that an information that failed to "establish that [parked] vehicle was situated in a place where it was likely that respondent’s lewd acts would be observed” by a member of the public was insufficient.
Opinion of Boyle, J., post, pp 603-604.
MCL 750.145c(2); MSA 28.342a(2).
See ns 13-16 and accompanying text.
Opinion of Boyle, J., post, p 614.
Id., p 616.
Id., p 617.
Brashier, supra, p 680, n 1.
Concurrence Opinion
(concurring in part and dissenting in part). This case is about the scope of the statute punishing gross indecency. It is my position that the offense is limited to specific conduct. The Court reads the statute as if the Legislature intended it to be general morals legislation. Specifically, the result of today’s decision is that the statute will punish the conduct this Court determines to be immoral. Therefore, I dissent.
I agree that defendant Lino’s conviction should be affirmed. I write separately, however, because I disagree with the Court’s conclusion in Brashier that the gross indecency statute covers the conduct alleged.
The behavior Brashier is alleged to have procured appears to be proscribed by MCL 750.145c; MSA 28.342a,
i
The question presented involves the scope of Michigan’s gross indecency statute,
A. THE PROBLEM ILLUSTRATED—THE "CRIME AGAINST NATURE”
Courts have faced this precise question with respect to statutes that proscribe "sodomy” or "the crime against nature.” Jurisdictions differ regarding whether such terms are limited to anal intercourse, or are to be broadly interpreted to cover all "unnatural” acts, including bestiality, fellatio, and cunnilingus. In Rose v Locke,
Although it was not uncommon in other states, including Tennessee, to add fellatio and cunnilingus to the offense of sodomy by interpretation,
is the logical position since sodomy was not an offense under the common law of England and is an offense under American common law because of the early English statute which did not apply where the act is in the mouth. [Criminal Law (3d ed), p 466.]
Because the scope of the offense is specifically defined, it may not be expanded on the basis of what a judge or jury thinks it ought to encompass. As the Colorado Supreme Court explained in a case with facts identical to Schmitt, "[w]e cannot, because of our belief that the act charged against the defendant is even more vile and filthy than sodomy, stretch the sodomy section of the statute to include it.” Koontz v People, 82 Colo 589, 594;
B. THE MICHIGAN GROSS INDECENCY STATUTES
Although sodomy does not as a matter of law
The answer to this question begins with an examination of the statutory scheme. Gross inde
The offenses of gross indecency between females and gross indecency between males and females were first enacted in 1939, see
The very addition of those two offenses, which meant that "gross indecency” was prohibited regardless of the gender of the participants, provides additional support for the narrow interpretation. If any sexual act could constitute the offense, then the 1939 act would have instituted decency regulation for all sexual behavior. Though this interpretation of the statutes would not necessarily have prohibited all sex, it would seem to mean that any person who had sex could be bound over and tried on a felony charge. The outrageousness of this possibility is stronger evidence that the Legislature intended the statutes to apply only to a specific act or acts.
While there is a textual argument
Michigan case law also supports this view. Although early opinions of this Court hesitate to provide explicit details, they reflect a certainty
Appellant raises the question of whether the counts charging gross indecency merged into the sodomy counts. Michigan follows the common-law definition of sodomy. People v Hodgkin (1892),94 Mich 27 [53 NW 794 ]. At common law, sodomy covered only copulation per anum. "Penetration per os did not constitute sodomy, or the 'crime against nature,’ ” People v Schmitt (1936),275 Mich 575 , 577 [267 NW 741 ], and cases therein cited. The legislature has shown no inclination to depart from the common-law definition of sodomy. Penetration per os, fellatio, is prohibited by the gross indecency statute. People v Schmitt, supra. The elements of gross indecency and sodomy differ.
Greater detail was recounted in People v Myers,
[P]ost-Nexter appellate decisions that have construed the gross indecency statute at issue have arisen from a factual background in which fellatio occurred. . . . No cases were found in which another sexual act, i.e., the massage of fully covered male genitalia, has occurred.
[Prosecutions brought under other gross indecency statutes which also do not define an "act of gross indecency,” namely MCL 750.338a; MSA 28.570(1) (gross indecency between females) and MCL 750.338b; MSA 28.570(2) (gross indecency between a male and a female) have involved acts of fellatio or cunnilingus. People v Livermore,9 Mich App 47 , 56-59;155 NW2d 711 (1967) (sexualconduct between two females); People v McCaleb, 37 Mich App 502 ;195 NW2d 17 (1972), lv den389 Mich 784 (1973) (fellatio); People v Rea,38 Mich App 141 ;195 NW2d 809 (1972), lv den388 Mich 795 (1972) (cunnilingus); People v Roy Edwards,58 Mich App 146 ;227 NW2d 263 (1975), reversed in light of People v Howell, supra,396 Mich 825 ;238 NW2d 536 (1976) (fellatio); People v Towlen,66 Mich App 577 ;239 NW2d 668 (1976), lv den397 Mich 831 (1976) (fellatio).
In each of the above cases (except Livermore, which did not involve a determination of whether, the sexual act committed constituted gross indecency), the trier of fact determined that the act was grossly indecent in light of community mores.
The only case from this Court to suggest that the gross indecency statutes proscribe "unnatural” acts other than fellatio and cunnilingus was People v Howell,
ii
The separate opinion rejects the historical definition of the scope of the statute and asserts that gross indecency has historically been defined by the common sense of the community. Opinion of Levin, J., ante at 594-598. The author then rejects the common sense of the community test and holds that gross indecency includes masturbation in the presence of minors. Id. at 580, 594-598.
The suggestion that the scope of gross indecency as defined by this Court
Defining the offense of indecent liberties, as the Court did in Hicks, is a very different matter from defining gross indecency. It appears that the offense of indecent liberties, along with indecent exposure, was defined in terms of the "common sense of the community.” See, e.g., People v Healy,
The opposite is true of "gross indecency” or "the crime against nature.” These terms are not definitions that limit the type of conduct to which a jury will apply its common-sense judgment. They are euphemisms for the conduct prohibited by them. "Crime against nature” is a euphemism for anal intercourse. As explained in Spence, The law of crime against nature, 32 NC L R 312, 313 (1954), the first English statute on the subject, passed in 1533, prohibitеd as a felony the "detestable and abominable vice of buggery committed with mankind or beast.” Some American states, however,
The debate regarding the common sense of the community test in the context of gross indecency misfocuses the inquiry and obscures the precise issue in this case. That issue is what the term "gross indecency” is a euphemism for, and whether the statute encompasses the conduct of defendant Brashier. Gross indecency is a euphemism for fellatio and cunnilingus. As noted, the "common sense of the community” has not historically defined the scope of the gross indecency statutes. The holding of the Court in Dexter,
The second flaw in the separate opinion is even more fundamental. Despite contrary protestations, the opinion adopts a broad view of the statute. There is no support in the almost one-hundred-year history of the statute for its application to sadomasochistic activity that involves no sexual contact between the victims and the perpetrators.
To state it differently, the separate opinion would "overrule” the broad interpretation of the statute, only to apply it broadly to conduct that is not even covered by the definition proposed by three justices in Howell.
Faced with the unattractive prospect of finding Brashier’s conduct outside the reach of the gross indecency statute, the problem is solved by four members of this Court saying that gross indecency is what Brashier did. The result contradicts the rationale of the separate opinion, and assumes authority we do not possess. No matter how reprehensible the alleged conduct, the power to create crimes and establish penalties rests exclusively with the Legislature.
III. CONCLUSION
The common sense of the community does not define the conduct proscribed by the gross indecency statute. The statute covers only oral-genital contact that a jury finds in the circumstances is indecent. Because this conduct was not shown at the preliminary examination, it was error to bind over the defendant on this charge. I dissent, and would remand for further proceedings consistent with this opinion.
MCL 750.145c(2); MSA 28.342a(2), reads as follows:
A person who persuades, induces, entices, coerces, causes, orknowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $20,000, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child, or that person has not taken reasonable precautions to determine the age of the child. [Emphasis added.]
"Child sexually abusive activity” means a child engaging in a listed sexual act. MCL 750.145c(lXf); MSA 28.342a(l)(f). Those acts include not only "sadomasochistic abuse,” but also "passive sexual involvement.”
As the testimony is understood by the Court—"[t]he minors would hit Goike with a stick” while he was masturbating, ante at 574—this case involves "[s]adomasochistic abuse.” Thаt term is defined as "[fjlagellation or torture, real or simulated, for the purpose of real or simulated sexual stimulation or gratification, by or upon a person,” MCL 750.145c(l)(j); MSA 28.342a(l)(j).
"Passive sexual involvement” is defined by the statute to include any "act . . . which exposes another person ... to an act of . . . sadomasochistic abuse [or] masturbation . . . because of the proximity of the act to that person, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.” The legal question whether the minor is "engaging” in the "passive sexual involvement” as required by subsection 1(h), by being in "the proximity of the act [masturbation],” has not been answered. However, the evidence indicates that defendant Brashier financed the presence of the minors.
This statute was amended in 1988, specifically eliminating the requirement that child sexually abusive activity be "commercial.” See
The proofs at examination show a curiously consistent pattern of denial of any sexual contact. If the proofs at trial indicate that contact in fact occurred, the prosecutor may seek leave to amend the information. MCL 767.76; MSA 28.1016.
Historically the statute has never been applied to consensual sexual activity between two persons in privacy.
The proofs appear to implicate not only the indecent exposure statute, MCL 750.335a; MSA 28.567(1), but also the "disorderly person” statute, MCL 750.167(i); MSA 28.364(i), and the statute that proscribes admitting a person into a place for purposes of lewdness, MCL 750.449; MSA 28.704. '
See MCL 750.145; MSA 28.340 (contributing to the delinquency of children); MCL 750.145a; MSA 28.341 (accosting, enticing, or soliciting a child for immoral purposes); MCL 750.157a; MSA 28.354(1) (conspiracy).
These cases involve MCL 750.338; MSA 28.570, which prohibits gross indecency bеtween male persons:
Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2,500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life.
See, e.g., State v Altwater,
The Court of Appeals has read the term to protect interests in privacy against the possibility that the statute could be applied to truly private conduct between consenting adults. As explained in People v McCaleb,
The jury’s function in this case as the trier of fact was to determine that (1) defendant had engaged in fellatio with a female, and (2) fellatio between a male and a female is conduct which the common sense of society regards as indecent and improper. The effect of the trial judge’s charge was to eliminate the second element of the crime, "whether the conduct was indecent,” from the purview of the jury. [Id. at 507.]
As the second sentence implies, the "commоn sense test” was a second element of the offense, limiting the scope of the statute to acts of fellatio that are found by a jury to be indecent:
In [People v] Dexter [6 Mich App 247 ;148 NW2d 915 (1967)], we did not hold that as a matter of law fellatio is prohibited by the gross indecency statute. What this Court did in Dexter was affirm a jury’s determination as trier of fact that the act of fellatio violated the gross indecency statute. Dictum from People v Schmitt,275 Mich 575 , 577 (1936), was cited in Dexter at 250, for the proposition that "fellatio is prohibited by the gross indecency statute.” This statement, however, fails to tell us whether fellatio is prohibited as a matter of law or only upon jury determination. This statement in Schmitt relied on People v Swift,172 Mich 473 [138 NW 662 ] (1912), for its authoritative basis. Swift, however, was a jury case in which the trier of fact determined in the first instance that the gross indecency statute had been violated. It is to be noted that nowhere in Swift is fellatio mentioned as the type of conduct prohibited by the act. Dexter and Schmitt, resting as they do on Swift, thus fail to resolve the issue posed by the case at bar. [Id. at 505.]
In contrast, the statute proscribing "the abominable and detestable crime against nature” appears to date from Michigan’s early years of statehood. A statute practically identical to the current one can be found at 1846 RS, ch 158, § 16. This Court has long held that this statute enacted the common-law offense. See People v Hodgkin,
For example, unlike the sodomy statute, which proscribes "the
Consider the different statutes addressing sexual behavior in the 1948 Compiled Laws—the last compilation before the enactment of the criminal sexual conduct statutes and accompanying repeal of many older statutes. See, e.g., 1948 CL 750.13 (enticing away a female under age 16); 1948 CL 750.140 (children; exhibition, employ or apprentice for immoral purpose); 1948 CL 750.85 (assault with intent to rape); 1948 CL 750.90 (sexual intercourse under pretext of medical treatment); 1948 CL 750.145a (accosting, enticing or soliciting a child for immoral purposes); 1948 CL 750.145b (same, second offense); 1948 CL 750.158 (crime against nature); 1948 CL 750.333 (incest); 1948 CL 750.335 (lewd cohabitation, gross lewdness or indecеnt exposure); 1948 CL 750.336 (female child indecent liberties); 1948 CL 750.338a (gross indecency between female persons); 1948 CL 750.338b (gross indecency between male and female); 1948 CL 750.339 (males under 15, debauching by females); 1948 CL 750.340 (debauching by males); 1948 CL 750.341 (female patient in institution for insane, ravish, abuse); 1948 CL 750.342 (female ward, carnal knowledge); 1948 CL 750.520 (rape).
Nor has it been treated as such. See, e.g., People v Kalchik,
People v Carey, supra, and People v Hicks,
Nor does the majority cite a single case before the Howell holding that the scope of these statutes is defined by the "common sense of the community.”
A good illustration is People v Lakin,
This Court’s explanation for why the alleged conduct could constitute indecent liberties highlights the role that common sense played in defining the offense:
Had the girl’s parents or any decent adult been present, there would have been objection not to the touching alone, but to the touching accompanied by defendant’s indecent proposal. Under some circumstances a given act may be permissible, yet when that same act is accompanied by improper suggestions or proposals and occurs in surroundings such as .are here disclosed, it assumes a new aspect and becomes criminal in character. [Id. at 284.]
The definition proposed by three justices in Howell,
The word "with” parallels language used in the Criminal Sexual Conduct statutes. The esc statutes require "sexual рenetration with another person,” see, e.g, MCL 750.520b(l); MSA 28.788(2X1), or "sexual contact with another person,” MCL 750.520c(l); MSA 28.788(3)(1). These terms contemplate penetration into the genital or anal openings, and intentional touching of the intimate parts or clothing covering them, respectively. MCL 750.520a(k), (1); MSA 28.788(l)(k), (i). They do not suggest that the act criminalizes sexual intercourse or sexual contact in the presence of a minor. Rather, their common-sense construction suggests quite clearly that, like gross indecency, "with” refers to sexual conduct between persons, not in the presence of them.
Concurrence Opinion
(concurring in part and dissenting in
i
A
MCL 750.338; MSA 28.570 mandates:
Any male person who, in public or in private, commits or is a party to the commission of ,or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony
"When construing statutory provisions, the task of this Court is to discover and give effect to the intent of the Legislature. Legislative intent is to be derived from the actual language of the statute, and when the language is clear and unambiguous, no further interpretation is necessary.” Storey v Meijer, Inc,
At issue in the instant case is the definition of "gross indecency.” While a majority rejects a definition formed by a common sense of the community, no mаjority definition emerges. Two justices
" 'Indecent and improper liberties with the person of such child’ means such liberties as the common sense of society would regard as indecent and improper. In this case, as in State v Millard, 18 Vt [571] 577 [1846], it may be said that 'no particular definition is given by the statute of what constitutes this crime. The indelicacy of the subject forbids it, and does not require of the court to state what particular conduct will constitute the offense. The common sense of the community, as well as the sense of decency, propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.’ ” [People v Carey,217 Mich 601 ,602-603; 187 NW 261 (1922), quoting People v Hicks,98 Mich 86 , 90;56 NW 1102 (1893).][5 ]
Hence, contrary to the approach that refuses to define "gross indecency,” the approach adopting and extending Howell, and the approach limited to oral-genital contact, gross indecency is determined by reference to the common sense of the community, i.e., it is a question for the trier of fact.
Certainly many gross indecency cases refer to or deal with oral sexual acts; however, no Michigan court has ever held that gross indecеncy is limited solely to such acts. Similarly, while this Court has held that sodomy does not constitute gross indecency, see, e.g., People v Schmitt,
The purpose of the gross indecency act is to prohibit sexual conduct that is offensive to the community. "The word 'indecent’ is a common and general one. As ordinarily understood, it includes anything which is lewd or lascivious, obscene or grossly vulgar, unbecoming, unseemly, unfit to be
Statutes generally confer authority upon municipalities to preserve and protect the public morals, and to provide for the punishment of persons conducting themselves indecently in the streets and other public places, to the annoyance of the citizens. It has been observed that the decency which is protected by a statute is that which the predominant majority of minds agree upon. [Id. at 452.]
Indeed, even the lead opinion in People v Howell,
oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public. [Howell, supra at 24 (Levin, J.).][7 ]
Thus, I agree with the memorandum opinion that the statute includes more than just oral-genital acts. The purpose and history of the statute reveal that while oral sеxual conduct may constitute gross indecency, other acts may also violate the statute. However, unlike the memorandum opinion, I leave this latter determination to the trier of fact, i.e., whether gross indecency is con
ii
Lino’s conduct could very well be considered gross indecency by a jury. Under the Carey standard, a reasonable jury should be permitted to find that fellatio in a well-lit parking lot next to an open restaurant that is visible by the naked eye offends the common sense of society. Fellatio, as noted by the memorandum opinion, has long been deemed gross indecency by Michigan courts. See, e.g., Howell, supra at 22 (finding forced fellatio and fellatio performed on a nine-year-old boy gross indecency); People v Myers,
Because Lino’s actions constituted gross indecency, I join the memorandum opinion affirming his conviction.
hi
Similarly, Brashier’s conduct could be found by a jury to constitute gross indecency. Brashier on four separate occasions approached fourteen- or fifteen-year-old boys and offered them money if they would accompany him to "beat up a queer.” Brashier would approach the boys, feed them
A jury certainly would be entitled to find that this behavior constituted gross indecency although it did not constitute oral sex. The common sense of the community is clearly offended by these acts. The exact purpose for enacting the gross indecency statute was to combat such aberrant behavior. The appropriateness of maintaining a purposefully vague statute is also clearly revealed by the circumstances of this case. No legislature can be expected to delineate with laser-like precision all possible offensive sexual predilections. Finding that this conduct could not constitute gross indecency simply would be inconsistent with the common law and the purpose of the statute at issue.
IV
. Accordingly, I join the memorandum opinion except insofar as it rejects the common sense of the community definition of gross indecency.
MCL 750.338; MSA 28.570.
Cavanagh, C.J., and Mallett, J.
Contrary to Justice Boyle’s limited interpretation of the statute, the Legislature never intended only to prohibit cunnilingus and fellatio.
While the purpose of the statute interpreted by Hicks was to punish male persons who take "indecent and improper liberties with the” persons of female children, the definition eventually defined the gross indecency statute at issue. See, e.g., People v Dexter,
Id. at 576.
I reject Justice Levin’s formulation, however, because it is fashioned from whole cloth. Justice Levin’s standard, although creating a principled rule, is unprincipled: it is not derived from history, jurisprudence, legislative intent, or the text of the statute. Indeed, the statute prohibits gross indecency "in public or private,” but Justice Levin has bifurcated the statute to mandate a "public” element in some cases.
In fact, a number of courts have approved instructions which, as a matter of law, instructed that fellatio is gross indecency. People v Edwards,
Furthermore, Brashier, while not actually fondling the victims, aided and abetted his partner’s gross indecency. As such, he may be found guilty of gross indecency. People v Loveday,