MCL 750.449a states:
“(1) Except as provided in [MCL 750.449a(2)], a person who engages or offers to engage the services of another person, not his or her spouse, for the purpose of prostitution, lewdness, or assignation, by the payment in money or other forms of consideration, is guilty of a misdemeanor. A person convicted of violating this section is subject to . . . MCL 333.5201 to [MCL 333.5210 (serious communicable disease procedures)].
(2) A person who engages or offers to engage the services of another person, who is less than 18 years of age and who is not his or her spouse, for the purpose of prostitution, lewdness, or assignation, by the payment in money or other forms of consideration, is guilty of a crime punishable as provided in [MCL 750.451].”
Except as provided in MCL 750.451b, MCL 750.449a does not apply to a law enforcement officer while performing his or her duties as a law enforcement officer. MCL 750.451a. Under MCL 750.451b, the exemption in MCL 750.451a does not apply “if the officer engages in sexual penetration as that term is defined in [MCL 750.520a] while in the course of his or her duties.”
Whether a victim had worked as a prostitute in the past is not an element of the offense of prostitution. People v Francis, 347 Mich App 560, 565 (2023). “MCL 750.449a(2) does not require any of the parties to have a prior experience working as a prostitute.” Id. at 565. “[A] defendant’s solicitation of a sexual act for money is sufficient to demonstrate the conduct prohibited under the statute.” Id. at 565. The defendant’s offer of money is what is important; “the actual exchange of money” is not required. Id. at 565.
a.Violation of MCL 750.449a(1)
A first violation of MCL 750.449a(1) is a misdemeanor punishable by imprisonment for not more than 93 days, or a maximum fine of $500, or both. MCL 750.451(1). Enhanced penalties apply for repeat offenders. See MCL 750.451(2)-(4).
A defendant aged 16 or older who violates MCL 750.449a(1) and who has one prior conviction is guilty of a misdemeanor punishable by imprisonment for not more than one year, or a maximum fine of $1,000, or both. MCL 750.451(2).
A defendant who violates MCL 750.449a(1) and who has two or more prior convictions is guilty of a felony punishable by imprisonment for not more than two years, or a maximum fine of $2,000, or both. MCL 750.451(3).
b.Violation of MCL 750.449a(2)
A violation of MCL 750.449a(2) is a felony punishable by imprisonment for not more than 5 years, or a maximum fine of $10,000, or both. MCL 750.451(4).
Under MCL 750.451(5), a prosecutor who intends to seek an enhanced sentence based on a defendant’s prior conviction(s) must include on the complaint and information a statement listing the prior conviction(s). At sentencing or at a separate hearing before sentencing, the court, without a jury, must determine the existence of the defendant’s prior conviction(s). Id. The existence of a prior conviction may be established by any relevant evidence, including, but not limited to, one 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 750.451(5).
Defendants convicted of violating MCL 750.449a(1) for the first time, or defendants aged 16 or older who have a prior conviction must pay a crime victim assessment of $75. See MCL 780.905(1)(b).
Defendants convicted of violating MCL 750.449a(1) who have two or more prior convictions or a defendant convicted of violating MCL 750.449a(2) must pay a crime victim assessment of $130. See MCL 780.905(1)(a).
3.Minimum State Cost and Other Costs
For a first conviction of MCL 750.449a or a conviction of MCL 750.449a(1) with a prior conviction, 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 $50. See MCL 769.1j(1)(b); MCL 769.1k(1)(a).
For a conviction of MCL 750.449a(1) with two or more prior convictions or a first violation of MCL 750.449a(2),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).
MCL 750.449a(2) is a tier I offense under the Sex Offenders Registration Act (SORA), and if the defendant meets the domicile, residence, employment, or student status, registration is required. MCL 28.722(r)(iv); see also MCL 28.723.
However, registration is not required for a conviction of MCL 750.449a(1) because it is not designated as a tier I, tier II, or tier III offense under the SORA. See MCL 28.722(r); MCL 28.722(t); MCL 28.722(v).
For more information on the SORA’s registration requirements, see Chapter 9.
D.Prosecution of Person Under Age 18
“In any prosecution of a person under 18 years of age for an offense punishable under this section or a local ordinance substantially corresponding to an offense punishable under this section, it shall be presumed that the person under 18 years of age was coerced into child sexually abusive activity or commercial sexual activity in violation of [MCL 750.462e] or otherwise forced or coerced into committing that offense by another person engaged in human trafficking in violation of [MCL 750.462a] to [MCL 750.462h]. The prosecution may overcome this presumption by proving beyond a reasonable doubt that the person was not forced or coerced into committing the offense.” MCL 750.451(6).
The state may also petition the court to find the person under age 18 “to be dependent and in danger of substantial physical or psychological harm under [MCL 712A.2(b)(3)].” MCL 750.451(6). If the person under age 18 “fails to substantially comply with court-ordered services under [MCL 712A.2(b)(3)], [he or she] is not eligible for the presumption under [MCL 750.451(6)].” MCL 750.451(6).
2.Mandatory Reporting of Suspected Human Trafficking
“Excluding any reasonable period of detention for investigation purposes, a law enforcement officer who encounters a person under 18 years of age engaging in any conduct that would be a violation of [MCL 750.448, MCL 750.449, MCL 750.450, or MCL 750.462], or a local ordinance substantially corresponding to [MCL 750.448, MCL 750.449, MCL 750.450, or MCL 750.462], if engaged in by a person 16 years of age or over shall immediately report to the department of health and human services a suspected violation of human trafficking involving a person under 18 years of age in violation of [MCL 750.462a] to [MCL 750.462h].” MCL 750.451(7).
“The department of health and human services shall begin an investigation of a human trafficking violation reported to the department of health and human services under [MCL 750.451(7)] within 24 hours after the report is made to the department of health and human services, as provided in . . . MCL 722.628. The investigation shall include a determination as to whether the person under 18 years of age is dependent and in danger of substantial physical or psychological harm under [MCL 712A.2(b)(3)].” MCL 750.451(8).
M Crim JI 20.35, Accepting the Earnings of a Prostitute.
Prostitution is not limited to sexual intercourse in exchange for money; it also includes the “sexual stimulation of a customer’s penis by direct manual contact, in exchange for money[.]” People v Warren, 449 Mich 341, 347 (1995).
“Appellate decisions often describe ‘prostitution’ with a reference to sexual intercourse. However, such references rarely constitute a judicial holding that other paid sexual acts, such as fellatio, cunnilingus, anal intercourse, or masturbation are not prostitution. Exceptions exist, but we find them less persuasive than decisions that have found that it is prostitution to perform masturbatory massages for money.” Warren, 449 Mich at 346.
See also People v Morey, 230 Mich App 152, 156 (1998), aff’d 461 Mich 325 (1999) (prostitution, for purposes of MCL 750.457—accepting the earnings of a prostitute—includes an agreement to perform fellatio in exchange for money when the prostitute “actually initiated physical contact with the [customer’s] ‘private areas’”).