3.12Gross Indecency Between Members of the Opposite Sex
“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 any act of gross indecency with a female person shall be guilty of a felony, punishable as provided in this section. Any female person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a male person shall be guilty of a felony punishable as provided in this section. Any person who procures or attempts to procure the commission of any act of gross indecency by and between any male person and any female person shall be guilty of a felony punishable as provided in this section.” MCL 750.338b.
To be an act of gross indecency, “the operative principle is that the activity be sexual in nature. . . . [B]ehavior can be considered sexual activity within the context of the gross indecency statute even if it does not involve sexual intercourse, oral sexual stimulation, masturbation, or the touching of another person’s genitals or anus.” People v Drake, 246 Mich App 637, 642 (2001). “In order to constitute grossly indecent behavior, the acts must be overt in the sense that they are open and perceivable. The motivation for the behavior can be inferred from the totality of the circumstances and should be considered case by case.” Id.
2.Intercourse Between Husband and Wife
“[N]ormal heterosexual intercourse between a husband and wife” may fall under MCL 750.338b. People v Jones, 222 Mich App 595, 597 (1997). In Jones, “defendants’ [a married couple] conduct would constitute an act of gross indecency under MCL 750.338b” if, as alleged, “defendants had sexual intercourse in a [prison’s] public visiting room, filled with, presumably nonconsenting adults and children under the age of consent, with defendants’ three minor children standing nearby in an attempt to shield defendants’ conduct from others in the visiting room.” Jones, 222 Mich App at 604.
M Crim JI 20.31, Gross Indecency.
Gross indecency between a male and a female 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 750.338b.
A defendant convicted of gross indecency between a male and a female under MCL 750.338b 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 750.338b 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 750.338b 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 750.338b 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.