3.10Gross Indecency Between Males
“Gross indecency . . . punishes sexual conduct that society considers indecent and improper. . . . [G]ross indecency does not require an assault, and may even occur between consenting participants.” People v Hack, 219 Mich App 299, 307-308 (1996).
“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[.]” MCL 750.338.
1.Procures or Attempts to Procure
“[A] defendant may [not] be convicted of attempting to procure the commission of an act of gross indecency [under MCL 750.338] when the act proposed would be between the defendant and another person.” People v Masten, 414 Mich 16, 17 (1982). That part of MCL 750.338 “referring to one who ‘procures or attempts to procure’ an act of gross indecency is meant to apply to situations in which the defendant facilitates or attempts to facilitate the commission of an act of gross indecency by two other persons. . . . It is meant to proscribe two kinds of conduct: committing gross indecency and bringing about gross indecency.” Masten, 414 Mich at 19.
“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, regardless of whether the conduct is performed in public.” People v Lino, 447 Mich 567, 578 (1994). Defendant’s “alleged conduct in orchestrating the conduct of the minors to facilitate [another adult male’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.” Id.
2.Acts of Gross Indecency
“[M]asturbation in [a] public [restroom] between consenting adult males” “would constitute an act of gross indecency under MCL 750.338.” People v Bono (On Remand), 249 Mich App 115, 121-122 (2002).
“[F]ellatio performed in a public place clearly falls within the ambit of the gross indecency statute.” People v Lino, 447 Mich 567, 578 (1994).
M Crim JI 20.31, Gross Indecency.
Gross indecency between males is 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.” MCL 750.338.
A defendant convicted of gross indecency between males under MCL 750.338 must pay a crime victim assessment of $130. See MCL 780.905(1)(a).
3.Minimum State Cost and Other Costs
If the court orders payment of any combination of a fine, costs, or applicable assessments, the court must impose the minimum state cost of not less than $68. See MCL 769.1j(1)(a); MCL 769.1k(1)(a).
Under MCL 333.5129, the court may order a defendant who was arrested and charged with violating MCL 750.338 to undergo examination and/or testing for certain diseases. “The court may, upon conviction or the issuance by the probate court of an order adjudicating a child to be within the provisions of [MCL 712A.2(a)(1)], order an individual who is examined or tested under [MCL 333.5129] to pay the actual and reasonable costs of that examination or test incurred by the licensed physician or local health department that administered the examination or test.” MCL 333.5129(10).
If the victim is at least 13 years old but less than 18 years old, MCL 750.338 is a tier II offense under the Sex Offenders Registration Act (SORA). MCL 28.722(t)(vi). If the victim is under 13 years old, MCL 750.338 is a tier III offense under the SORA. MCL 28.722(v)(i). If the defendant meets the domicile, residence, employment, or student status, registration is required. See MCL 28.723.
For more information on the SORA’s registration requirements, see Chapter 9.
“[T]here are at least three ways a penal statute may be found unconstitutionally vague: (1) failure to provide fair notice of what conduct is prohibited, (2) encouragement of arbitrary and discriminatory enforcement, or (3) being overbroad and impinging on First Amendment freedoms.” People v Lino, 447 Mich 567, 575-576 (1994). “Vagueness challenges that do not implicate First Amendment freedoms are examined in light of the facts of each particular case.” Id. at 575.
MCL 750.338 is not unconstitutionally vague “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. [The defendant] had fair notice that public fellatio between males is prohibited by the statute, and, correspondingly, the statute does not create a risk of arbitrary and discriminatory enforcement.” Lino, 447 Mich at 576 (citations omitted). See also People v Kalchik, 160 Mich App 40, 45-46 (1987) (“We do not find that the gross indecency statute, as applied to this defendant, is unconstitutionally vague since this state’s courts have interpreted [MCL 750.338] to prohibit the conduct in which defendant was engaged, i.e., fellatio between adult males in a public place”; “defendant was forewarned that the conduct in which he was engaged is prohibited by the gross indecency statute.”).
MCL 750.338 is not unconstitutionally vague where the defendant “cannot plausibly claim that he could not have known his conduct [of directing fourteen and fifteen year old boys to physically and verbally abuse another adult male while that adult male masturbated to the abuse] was prohibited.” Lino, 447 Mich at 573-574. The defendant was “on notice that sexual activity involving persons under the age of consent could constitute the statutory crime of gross indecency.” Id. at 578.