3.11Gross Indecency Between Females
“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 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 female person of any act of gross indecency with another female person shall be guilty of a felony[.]” MCL 750.338a.
M Crim JI 20.31, Gross Indecency.
Gross indecency between females 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 750.338a.
A defendant convicted of gross indecency between females 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 750.338a 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 750.338a 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 750.338a 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.
“[O]ral sexual conduct between females committed in a public place is . . . grossly indecent under MCL 750.338a.” People v Brown, 222 Mich App 586, 590 (1997) (“applying the [People v Lino, 447 Mich 567 (1994),] holding [that oral sexual conduct committed between males in a public place was grossly indecent under MCL 750.338] to the case at bar and concluding that oral sexual conduct between females committed in a public place [was] also grossly indecent under MCL 750.338a”). “[O]ral sexual conduct in-and-of itself is [not] grossly indecent under the statute, [it is the] act of oral sexual conduct performed in a public place [that] violates the statute. . . . [T]he key issue in determining whether an act of oral sexual conduct was performed in a ‘public place’ is not so much the exact location of the act, but whether there is the possibility that the unsuspecting public could be exposed to or view the act. . . . [A]n act of oral sexual conduct is grossly indecent, i.e., committed in a public place, when an unsuspecting member of the public, who is in a place the public is generally invited or allowed to be, could have been exposed to or viewed the act.” Brown, 222 Mich App at 591-592.