Part IV—Sexual Delinquency Offenses: Gross Indecency, Indecent Exposure, and Crimes Against Nature
In Michigan, a person charged with certain sex offenses may also be charged with and convicted of being a sexually delinquent person. See e.g., MCL 750.158 or MCL 750.335a. However, Michigan’s sexually delinquent person statute is not a separate offense. “The history of sexual delinquency legislation clearly indicates the Legislature’s intent to create a comprehensive, unified statutory scheme . . . to provide an alternate sentence for certain specific sexual offenses . . . .” People v Winford, 404 Mich 400, 405-406 (1978). See also People v Helzer, 404 Mich 410, 419-420 (1978), overruled in part on other grounds by People v Breidenbach, 489 Mich 1, 4 (2011). This unified statutory scheme consists of defining the term sexually delinquent person, limiting its application to specific predicate offenses, and outlining the manner with which a person charged with a predicate offense may be identified as a sexually delinquent person.
B.Definition of Sexually Delinquent Person
A sexually delinquent person is “any person whose sexual behavior is characterized
•by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others, or
•by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or
•by the commission of sexual aggressions against children under the age of 16.” MCL 750.10a (bullets added).
“MCL 750.10a is a definitional statute, and does not carry the possibility of a separate conviction or sentence independent of other charges in the Criminal Code.” People v Craig, 488 Mich 861 (2010) (remanding to trial court “for amendment of the judgment of sentence to reflect a single conviction under MCL 750.338b for gross indecency between male and female as a sexually delinquent person as defined by MCL 750.10a, with a single sentence . . . ”).
C.Limitations in Application of Sexual Delinquency
The sexual delinquency sentencing scheme applies to only five specific offenses:
(1) Crime against nature (sodomy/bestiality), MCL 750.158.
(2) Indecent exposure, MCL 750.335a.
(3) Gross indecency between males, MCL 750.338.
(4) Gross indecency between females, MCL 750.338a.
(5) Gross indecency between a male and a female, MCL 750.338b. People v Arnold (Arnold I), 502 Mich 438, 464-465 (2018).
D.Charging an Offender as a Sexually Delinquent Person
“MCL 767.61a outlines the manner in which an individual charged with an identified predicate offense may commensurately be identified as a sexually delinquent person[.]” People v Arnold (On Remand) (Arnold II), 328 Mich App 592, 599 (2019). Specifically, MCL 767.61a provides:
“In any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person. In every such prosecution the people may produce expert testimony and the court shall provide expert testimony for any indigent accused at his request. In the event the accused shall plead guilty to both charges in such indictment, the court in addition to the investigation provided for in [MCL 768.35 (the procedure for accepting guilty pleas)], and before sentencing the accused, shall conduct an examination of witnesses relative to the sexual delinquency of such person and may call on psychiatric and expert testimony. All testimony taken at such examination shall be taken in open court and a typewritten transcript or copy thereof, certified by the court reporter taking the same, shall be placed in the file of the case in the office of the county clerk. Upon a verdict of guilty to the first charge or to both charges or upon a plea of guilty to the first charge or to both charges the court may impose any punishment provided by law for such offense.”
Sexual delinquency must be proved beyond a reasonable doubt. People v Helzer, 404 Mich 410, 417 (1978), overruled in part on other grounds by People v Breidenbach, 489 Mich 1 (2011).
A person can be lawfully charged with sexual delinquency only when the principal offense is also charged; the principal offense must contain the alternate sentencing language regarding sexual delinquency. People v Helzer, 404 Mich 410, 417 n 10 (1978), overruled in part on other grounds by People v Breidenbach, 489 Mich 1, 4 (2011).1 “[A] charge of sexual delinquency is totally dependent for its prosecution upon conviction of the principal offense.” People v Winford, 404 Mich 400, 408 n 10 (1978); see also People v Franklin, 298 Mich App 539, 547 (2012) (noting that sexual delinquency is not an element of the principal offense”; “[r]ather, a finding of sexual delinquency merely allows for an enhancement of the sentence for the [principal] offense”).
A sexual delinquency charge must be brought before the beginning of trial on the principal charge; that is, “the original charging instrument should ‘also’ include any sexual delinquency claim that may be charged.” Winford, 404 Mich at 408; Helzer, 404 Mich at 424-426. If a sexual delinquency charge is not included in the original indictment or in an amended indictment or information before the principal offense is tried, the prosecutor waives the opportunity to bring a sexual delinquency charge. Helzer, 404 Mich at 424-426.
The statutory language, “at the time of the said offense,” indicates that “the relevant time to decide whether defendant was sexually delinquent [is] at the point when the principal offense was committed.” Helzer, 404 Mich at 416 n 8.
If the sexual delinquency charge is based on an underlying misdemeanor offense (e.g., indecent exposure), the prosecutor should bring the prosecution in circuit court under the concurrent jurisdiction statute, MCL 767.1. People v Winford, 404 Mich 400, 408 n 11 (1978). If the prosecutor initially charges only the principal misdemeanor offense and later, but before trial, amends and charges sexual delinquency, the proceedings are subject to transfer to circuit court at the time the sexual delinquency charge is added. Id.
Although the prosecutor must include a sexual delinquency charge on the original or amended indictment before the beginning of trial on the principal charge, the magistrate, at the defendant’s preliminary examination, need only find probable cause to bind the defendant over on the principal offense. People v Winford, 404 Mich 400, 408 n 10 (1978). The magistrate is not required to find probable cause on the charge of sexual delinquency. Id.
“[MCL 767.61a] contemplates that a defendant may be charged and tried in one action for both sexual delinquency and the underlying sexual offense. Moreover, MCL 767.61a only calls for a separate hearing in regards to sexual delinquency ‘[i]n the event the accused shall plead guilty . . . .’” People v Breidenbach, 489 Mich 1, 10 (2011) (second alteration in original). If a defendant pleads guilty to both charges (the underlying offense and the charge of sexual delinquency), MCL 767.61a requires the court to “conduct an examination of witnesses relative to the sexual delinquency of such person and [authorizes the court to] call on psychiatric and expert testimony.” Breidenbach, 489 Mich at 9-10 (quotation marks omitted). Testimony that might assist in determining the defendant’s mental and physical condition at the time he or she committed the principal offense includes “any competent medical, sociological or psychological testimony[.]” People v Helzer, 404 Mich 410, 419 n 14 (1978), overruled in part on other grounds by Breidenbach, 489 Mich at 4.2
“Even where defendant pleads guilty, the court is ordered to separately investigate the charge of sexual delinquency.” Helzer, 404 Mich at 419. The court may not sentence a defendant who pleads guilty or nolo contendere to both the principal and delinquency charges as a sexual delinquent “without first holding a hearing to determine if defendant was sexually delinquent.” People v Franklin, 298 Mich App 539, 542, 544 (2012) (because “[e]ntering a plea of nolo contendere is ‘an admission of all the essential elements of a charged offense,’” and because the defendant pleaded nolo contendere to “indecent exposure under circumstances subjecting him to alternative sentencing as a sexually delinquent person,” the “plea should be understood as an admission of guilt with regard to the indecent exposure charges and the sexually delinquent person charge”), quoting People v Patmore, 264 Mich App 139, 149 (2004).
The examination required under MCL 767.61a can “take[] place at the plea hearing or later,” but it must be conducted at a separate hearing; therefore, “an examination of [the defendant’s] criminal history is [not] sufficient to meet the [separate examination] requirement[.]” Franklin, 298 Mich App at 545.
“[S]eparate jury trials under MCL 767.61a are discretionary, not mandatory.” People v Breidenbach, 489 Mich 1, 4 (2011), overruling in part People v Helzer, 404 Mich 410 (1978).3 Whether separate juries are necessary in cases where a defendant is charged with a criminal sexual offense and with being sexually delinquent at the time he or she committed the principal offense, should be determined on a case-by-case basis according to the provisions of MCR 6.120(B) (joinder and severance of related charges). Breidenbach, 489 Mich at 4. A trial court may empanel separate juries if, in its discretion, the trial court “determine[s] that bifurcation is necessary in order to protect a defendant’s rights or ensure a fair determination of guilt or innocence[.]” Id.; MCR 6.120(B). See People v Campbell, 316 Mich App 279, 294, 297 (2016) (holding that the trial court did not abuse its discretion or deny the defendant his due process right to a fair trial when it refused to bifurcate the proceedings or hold separate trials to determine whether the defendant committed indecent exposure as a sexually delinquent person), overruled on other grounds by People v Arnold (Arnold I), 502 Mich 438, 444 (2018).
“[Because s]exual delinquency is an alternate sentencing provision under which a defendant is prosecuted in order to determine whether special circumstances surrounding the principal charge warrant an alternate sentence[, p]roof of the sexual delinquency charge may involve more than the simple ministerial considerations of proving prior convictions. Although prior convictions may form the basis for a guilty verdict, sexual delinquency is not explicitly dependent upon any prior conviction except the principal charge. The only limitation is that the jury must weigh the acts specified in MCL 750.10a as constituting sexual delinquency.” People v Oswald (After Remand), 188 Mich App 1, 11-12 (1991) (citation omitted).
In every sexual delinquency prosecution, if requested by an indigent defendant, the court must provide expert testimony for the defense. MCL 767.61a.
1.Alternate Penalty for Offenders Sentenced as Sexually Delinquent Persons
If an offender is convicted of being a sexually delinquent person at the time he or she committed one of the identified predicate offenses, the offender may be sentenced to the state prison for an indeterminate term, the minimum of which is one day, and the maximum of which is life. See MCL 750.158 (crime against nature or sodomy); MCL 750.335a (indecent exposure); MCL 750.338 (gross indecency between males); MCL 750.338a (gross indecency between females); MCL 750.338b (gross indecency between a male and a female). See also MCL 767.61a, which “sets out how an individual accused of one of the predicate offenses can also be accused of being a sexually delinquent person” and “characterizes the ‘1 day to life’ sentence as ‘an alternate sentence.’” People v Arnold (Arnold I), 502 Mich 438, 449, 465 (2018). This alternate sentence “is an optional alternative.” Id. at 465.
With the exception of indecent exposure, MCL 750.335a, each of the identified predicate offenses contains language stating that if the person was sexually delinquent at the time of the offense, he or she may be punished by imprisonment for an indeterminate term, and that the minimum term shall be one day, and the maximum term shall be life in prison. See MCL 750.158; MCL 750.338; MCL 750.338a; MCL 750.338b. In 2005, MCL 750.335a was amended to state that indecent exposure by a sexually delinquent person “‘is punishable by imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life’”; however, “this change in wording has no effect on the meaning of the statute and is merely stylistic.” Arnold I, 502 Mich at 451-452, 479, citing 2005 PA 300. Accordingly, under the original and amended version of the statute, the “1 day to life” provision in MCL 750.335a(2)(c) provides “an option a sentencing judge could draw upon, alongside and not to the exclusion of other available options,” and if the trial court chooses to impose a “1 day to life” sentence, it cannot be modified. Arnold I, 502 Mich at 469.
“Sexual delinquency is not merely a penalty enhancement provision related to the principal charge; it is an alternate sentencing provision tied to a larger statutory scheme.” People v Kelly, 186 Mich App 524, 528 (1990). See also People v Winford, 404 Mich 400, 404 n 5 (1978) (“the indeterminate penalty for a sexual delinquency conviction [i]s an alternate form of sentencing”; a defendant may only be sentenced once upon conviction of the principal charge and the sexual delinquency charge, i.e., the court has the discretion to sentence the defendant under the terms of the principal offense, or under the terms of the sexual delinquency offense, but not both). “MCL 750.335a and MCL 777.16q [in the statutory sentencing guidelines] provide[] multiple, but exclusive, sentencing options” for the crime of indecent exposure by a sexually delinquent person. People v Arnold (On Remand) (Arnold II), 328 Mich App 592, 616 (2019).
“[T]he Penal Code provides judges with certain options, not mandates, when confronted with an individual convicted of indecent exposure as a sexual delinquent. Trial courts may consider sentencing options consistent with the [advisory sentencing] guidelines, particularly when the trial court determines that factors governed by the Code of Criminal Procedure, such as an offender’s status as a habitual offender, supply an appropriate mechanism ‘to enhance the punishment imposed upon those who have been found guilty of more serious crimes and who repeatedly engage in criminal acts.’”Arnold II, 328 Mich App at 611, quoting People v Smith, 423 Mich 427, 445 (1985). Accordingly, “a trial court has the option to sentence a defendant to ‘1 day to life’ under MCL 750.335a(2)(c), or to a term consistent with the advisory sentencing guidelines.” Arnold II, 328 Mich App at 612.
An offense committed by a sexually delinquent person, as defined in MCL 750.10a, is a tier I offense under the Sex Offenders Registration Act (SORA). MCL 28.722(r)(ix). 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.
1 For more information on the precedential value of an opinion with negative subsequent history, see our note.
2 For more information on the precedential value of an opinion with negative subsequent history, see our note.
3 Helzer, 404 Mich at 424, held that separate juries were required to determine a defendant’s guilt or innocence of a principal sexual offense and the question of the defendant’s status as a sexually delinquent person. According to the Court, “[t]hough not explicitly stated, we find a separate hearing and record directed by clear implication [in MCL 767.61a].” Helzer, 404 Mich at 419 n 13. Breidenbach, 489 Mich at 4, held that “the Helzer Court erred when it created a compulsory rule to that effect.”