Part V—Other Offenses Related to Sexual Misconduct
3.15Accosting or Encouraging a Child for an Immoral Purpose
“A person who accosts, entices, or solicits a child less than 16 years of age, regardless of whether the person knows the individual is a child or knows the actual age of the child, or an individual whom he or she believes is a child less than 16 years of age with the intent to induce or force that child or individual to commit an immoral act, to submit to an act of sexual intercourse or an act of gross indecency, or to any other act of depravity or delinquency, or who encourages a child less than 16 years of age, regardless of whether the person knows the individual is a child or knows the actual age of the child, or an individual whom he or she believes is a child less than 16 years of age to engage in any of those acts is guilty of a felony[.]” MCL 750.145a.
“Because the Legislature used the disjunctive term ‘or,’ [in the statutory language of MCL 750.145a] it is clear that there are two ways to commit the crime of accosting a minor[:]
A defendant is guilty of accosting a minor if the prosecution proves beyond a reasonable doubt that the defendant (1) accosted, enticed, or solicited (2) a child (or an individual whom the defendant believed to be a child) (3) with the intent to induce or force that child to commit (4) a proscribed act.
Alternatively, a defendant is guilty of accosting a minor if the prosecution proves beyond a reasonable doubt that the defendant (1) encouraged (2) a child (or an individual whom the defendant believed to be a child) (3) to commit (4) a proscribed act.” People v Kowalski, 489 Mich 488, 499 (2011). See also People v Darga, ___ Mich App ___, ___ (2023) (confirming that there are two ways a defendant may violate MCL 750.145a—either (1) by accosting, enticing, or soliciting a child with intent to induce/force the child to commit a proscribed act, or (2) by encouraging a child to commit a proscribed act).
In Darga, the Court approved of the trial court’s use of dictionary definitions of “accost,” “entice,” “solicit,” “encourage,” and “induce,” when instructing the jury about the offense described in MCL 750.145a. Darga, ___ Mich App at ___. From Merriam Webster’s College Dictionary, 11th edition, those definitions are:
“Accost means to approach and speak to someone in an often challenging or aggressive way.
Entice means to attract artfully or adroitly, or by arousing hope or desire.
Solicit means to approach with a request or a plea, to urge strongly, or to entice or lure, especially into evil.
Encourage means to inspire with courage, spirit or hope; to attempt to persuade.
Induce means to move by persuasion or influence; to call forth or bring about by influence or stimulation.” Darga, ___ Mich App at ___ (citations omitted; emphasis added).
The Darga Court further explained that the definitions were a tool used in its analysis—the definitions were not the totality of its analysis. Darga, ___ Mich App at ___. Specifically, with regard to the words “accost,” “entice,” and “solicit,” the Court “[understood] them as proscribing conduct of the person doing the accosting, enticing, or soliciting, rather than proscribing the effect on the intended victim.” Id. at ___. According to the Court, “each word (informing the other) connotes an effort or attempt at persuasion.” Id. at ___. “MCL 750.145a requires proof that a defendant had the ‘intent to induce or force’ a child to commit an immoral act, but it does not require that a defendant succeed (or even that the intended target is aware).” Darga, ___ Mich App at ___.
MCL 750.145a “permits conviction under two alternative theories[.]” People v Kowalski, 489 Mich 488, 499 (2011). “[T]he encourages prong envisions a mens rea consistent with a general criminal intent”; “the Legislature’s use of the term ‘encourages’ indicated its intention that the mens rea element of the encourages prong be the intent to do the physical act of encouraging. The verb ‘encourages’ contemplates intentional conduct by a defendant.”1 Id. at 499-500.
“In comparison, if a defendant has committed acts of accosting, enticing, or soliciting, the statute requires the prosecution to demonstrate a specific intent to induce or force the child to commit proscribed acts; it is not enough for the prosecution to merely establish that the defendant committed acts of accosting, enticing, or soliciting.” Kowalski, 489 Mich at 500.
“[The] theory of accosting a minor for an immoral purpose under MCL 750.145a is an inchoate crime.” People v Darga, ___ Mich App ___, ___ (2023).
“The actus reus of [accosting a minor for an immoral purpose under MCL 750.145a] is complete when a defendant engages in certain conduct with the specific intent to cause the outcome of a minor engaging in an act proscribed by the statute. The success or failure of the intended act is irrelevant. By extension, if the outcome of a defendant’s act is irrelevant to whether the defendant violated MCL 750.145a, the victim’s awareness or knowledge of the intended outcome is also irrelevant.” Darga, ___ Mich App at ___ (intended victim may have been asleep during defendant’s efforts).
M Crim JI 20.40, Accosting a Child for Immoral Purposes.
Accosting, enticing, or soliciting a child for immoral purposes is a “felony punishable by imprisonment for not more than 4 years or a fine of not more than $4,000.00, or both.” MCL 750.145a. “A person convicted of violating [MCL 750.145a] who has 1 or more prior convictions is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $10,000.00, or both.” MCL 750.145b(1).
“If the prosecuting attorney intends to seek an enhanced sentence based upon the defendant having 1 or more prior convictions, the prosecuting attorney shall include on the complaint and information a statement listing the prior conviction or convictions. The existence of the defendant’s prior conviction or convictions shall be determined by the court, without a jury, at sentencing or at a separate hearing for that purpose before sentencing. The existence of a prior conviction may be established by any evidence relevant for that purpose, including, but not limited to, 1 or more of the following:
(a) A copy of the judgment of conviction.
(b) A transcript of a prior trial, plea-taking, or sentencing.
(c) Information contained in a presentence report.
(d) The defendant’s statement.” MCL 750.145b(2).
A defendant convicted of accosting or encouraging a child for immoral purposes 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 750.145a 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).
The Sex Offenders Registration Act (SORA) designates MCL 750.145a and MCL 750.145b as tier II offenses, MCL 28.722(t)(i) and MCL 28.722(t)(ii), and requires registration if the defendant meets the domicile, residence, employment, or student status, MCL 28.723.
Accosting a child for immoral purposes, MCL 750.145a, “is one of only three offenses for which a conviction does not necessarily require commission of a sexual act that results in placement on the sex-offender registry.” People v Lymon (Lymon II), ___ Mich ___, ___(2024) (affirming the judgment of the Court of Appeals in People v Lymon (Lymon I), 342 Mich App 46 (2022), only as to non-sexual offenders who were placed on the sex-offender registry, and vacating the opinion as to conclusions that went beyond consideration of non-sexual offenders). “[T]he imposition of the 2021 SORA on non-sexual offenders . . . constitutes cruel or unusual punishment under the Michigan Constitution.” Lymon II, ___ Mich at ___. “[O]ffenders whose crimes lacked a sexual component are entitled to removal from the sex-offender registry.” Id. at ___.
For more information on the SORA’s registration requirements, see Chapter 9.
1.Not Unconstitutionally Vague
“A statute can be unconstitutionally vague if it: (1) fails to provide fair notice to the public of the proscribed conduct, (2) gives the trier of fact unstructured and unlimited discretion to determine if an offense has been committed, or (3) is overbroad and impinges on First Amendment rights. To evaluate a vagueness challenge, a court must examine the entire text of the statute and give the words of the statute their ordinary meanings.” People v Gaines, 306 Mich App 289, 319 (2014) (citations omitted).
MCL 750.145a “provides fair notice to the public of the proscribed conduct and does not give a trier of fact unstructured and unlimited discretion to determine whether an offense has been committed. [In this case, n]o reasonable person would have to guess whether asking 13- or 14-year-old girls for photographs of them naked, particularly of their breasts and vaginas, is immoral conduct under the statute. Therefore, defendant’s vagueness challenge must fail because he cannot establish that no circumstances exist under which the statute would be valid.” Gaines, 306 Mich App at 320.
2.Not Unconstitutionally Overbroad
“A statute is overbroad when it precludes or prohibits constitutionally protected conduct in addition to conduct or behavior that it may legitimately regulate.” People v Gaines, 306 Mich App 289, 320 (2014). Where “[the d]efendant argues that the statute regulates both speech and conduct, . . . [the] defendant must demonstrate that the overbreadth of the statute is both real and substantial—there is a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” Id. at 321 (quotation marks and citations omitted). “MCL 750.145a proscribes accosting or encouraging children for the purpose of inducing them to engage in criminal activity. This statute does not pose realistic dangers to First Amendment protections. . . . Therefore, MCL 750.145a is not facially overbroad.” Gaines, 306 Mich App at 321.
1 “When interpreting a criminal statute that does not have an explicit mens rea element, we do not construe the Legislature’s silence as an intention to eliminate the mens rea requirement. Kowalski, 489 Mich at 499. For additional information on mens rea and criminal liability, in general, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 10.