The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Michigan
"They are pitiable objects sadly in need of
hospitalization or institutionalizing for their own cure and safety as
well as for the protection of the public."
The Post-Revolution Period, 1776-1873
Michigan originally was part of the Indiana Territory, created in 1800, but
none of the original laws of the Territory is known to exist today.1
In 1805, Michigan became a separate territory2
and enacted its own criminal code. It made no reference to sodomy.3
In 1810, the Michigan Territory decided to go its own way with law,
enacting a statute4 that abrogated all laws of
England,5 Canada, and the ancient French common
law,6 the Northwest Territory,7
the Indiana Territory,8 and all laws enacted by
itself between specified dates in 1807 and 1810.9
The Northwest Territory, of which Michigan originally had been part, enacted a
statute in 1795 adopting the common law of England, thus making sodomy a
capital offense. It is unclear from the missing Code of 1800 if this law or a
similar one had been in force in Michigan, but, if so, it was repealed as of
this date.
A new code adopted in 181610 changed that.
If the order in which the crimes were delineated was proportional to their
perceived severity, then sodomy was the fourth most heinous crime, after
murder, manslaughter, and treason, and ahead of rape. The penalty was set at
an unspecified fine and solitary imprisonment at hard labor for up to 21
years.11
Another new code passed in 182012 specified
the fine at a maximum of $300 and reduced the maximum penalty to three years,
still at solitary hard labor.13
A new law of 184114 noted that, in
"buggery" trials, "offenders may escape by reason of the
difficulty of the proof which has been required of the completion of these
crimes" and, therefore, the crime could be considered complete upon
penetration only.15
In a new code of laws adopted in 1846,16 the
penalty for sodomy was raised to a maximum of 15 years, and the provision for
a fine was eliminated.17 The legislature did
not retain the language about the crime being complete upon penetration only,
an action that would come back to haunt them.
Period Analysis: Michigan showed great variation in its sodomy
laws. The penalty went up and down and the state actually eliminated a
rule that made prosecution easier. Emission of semen had to be proven in
order to convict after 1846 and this rule remained for nearly eighty
years.
The Victorian Morality Period, 1873-1948
The first reported case under the law was People v. Graney,18
from 1892. The Michigan Supreme Court upheld a sodomy conviction based upon an
information not verified by oath.19 The trial
court also failed to instruct the jury that the defendant was to be considered
innocent until proven guilty, gave a charge that the evidence "should be
plain and satisfactory in proportion as the crime is detestable," and
allowed the information to stand even though it gave the wrong name of the
alleged victim.20
Later in 1892, the Michigan Supreme Court decided People v. Hodgkin.21
The Court decided that the failure of the legislature to retain the language
about penetration completing an act of sodomy in the 1846 code meant that
proof of emission had to be established in order to convict.22
In 1897, Michigan enacted a unique ancillary law23
that prohibited the debauching of boys. Two separate sections dealt with
female and male violators. The section dealing with males provided that any
male person over the age of fifteen years who shall debauch and deprave
the morals of any boy under fifteen years of age, by enticing or
soliciting such boy to commit the abominable and detestable crime against
nature, either with any man or beast, or who shall himself commit or
attempt to commit the abominable and detestable crime against nature with
or upon any such boy, whether with or without the consent of such boy,
shall be deemed guilty of a felony, and upon conviction thereof be
punished by imprisonment in the State Prison for not more than five years,
in the discretion of the court.24
This law obviously covered a consensual relationship between a 15-year-old
and a 14-year-old and treated this as a felony.
Another unique law was the "gross indecency" statute adopted in
1903,25 obviously based on the English statute
that sent Oscar Wilde to prison. Any
male person who in public or private commits or is a party to the
commission of or procures or attempts to procure the commission by any
male person of any act of gross indecency with another male person shall
be deemed guilty of a felony and upon conviction thereof be punished by
imprisonment in the State prison for not more than five years or by [a]
fine of not more than five thousand dollars, or by both such imprisonment
and fine in the discretion of the court.26
By these two laws, a web was drawn tightly around virtually any form of
erotic expression between two males, but not between two females or a male and
a female.
In 1912, in People v. Swift,27 the
Michigan Supreme Court upheld the gross indecency conviction of a
superintendent of a boys’ detention farm, the act committed with one of the
farm’s charges. In this fascinating case, there was a nearly simultaneous
criminal trial against Swift and a civil case trying to remove him from his
position on malfeasance charges unrelated to the criminal act. Swift presented
a petition for review to the Supreme Court with 127 allegations of error which
the Court sarcastically said merely credited Swift "with saving all
possible questions for review." The complex case involved a request for a
change of venue, due presumably to publicity, charges of Swift’s hypnotic
powers, and complaints by Swift of a conspiracy against him at the farm. He
had been tried once before on the same count, resulting in a hung jury.28
In his second trial, Swift raised claims of inflammation of the public by the
media, and the Supreme Court quoted from one daily that it thought "Mr.
Swift has been guilty of trying to ‘work’ the papers."29
The Supreme Court noted, without comment, that the same judge who presided
over Swift’s criminal trial also presided over the civil trial that sought
to remove him from his position.30 The Court
also noted that the prosecution entered into evidence two previous sexual acts
of Swift’s with the same ward of the farm including one in
which a small dog figured as an interested spectator and to a limited
degree as a participant.31
Despite acknowledging that certain remarks of the prosecutor were
"intemperate and perhaps prejudicial,"32
and that there were "apparent contradictions" in the testimony of
the prosecuting witness,33 the conviction was
sustained unanimously.34
In the 1922 case of People v. Carey,35
the Michigan Supreme Court was faced with a claim that the "gross
indecency" law was unconstitutionally vague because it did not give any
definition of the acts forbidden. Carey’s original information on which he
was tried gave no details as to the nature of the "gross indecency"
that he supposedly committed but, during the course of the trial, after Carey
raised his vagueness claim, the prosecution filed an amended information that
gave the details.36 The Court stated that,
because Carey was informed privately of the exact charges, he did not need to
have them put into the court record. "The gross indecency of the subject
forbids it."37
In 1923, the sodomy law was amended38 to
eliminate the need to prove emission of semen to prove the crime.
In 1931, in People v. Dean,39 the
Michigan Supreme Court unanimously overturned the gross indecency conviction
of a man because evidence of his activity with others was admitted into trial
against him.
In a comprehensive revision of state law in 1931,40
the sodomy law was amended to add that even the slightest penetration was
sufficient to complete the crime.41 The gross
indecency law was changed to lower the maximum fine from $5,000 to $2,500.42
Also enacted in that same code was a broadly worded law that prohibited
anyone from accosting, soliciting or inviting another person in a public place
"to do any other lewd or immoral act[.]"43
It was an unspecified misdemeanor.
In 1935, Michigan became the first state in the nation to enact a
"psychopathic offender" law.44 The
law established a procedure to refer those convicted of "indecent
crimes" to state hospitals if certain criteria were met. The indecent
crimes included not only sodomy and gross indecency, but also "indecent
language in the presence or hearing of any woman or child," "any
disorderly conduct involving sex," or "any other crime or offense of
like nature."45 These people could be
committed if they
appear to be psychopathic, or a sex degenerate, or a sex pervert, with
tendencies dangerous to public safety[.]46
This, the first such law in the nation, also was one of the most sweeping.
In 1936, the Michigan Supreme Court, in the case of People v. Schmitt,47
ruled that the term "crime against nature" did not embrace fellatio
and that the latter crime could be prosecuted only under the "gross
indecency" law, which provided a maximum penalty of five years in prison,
versus the 15 years for the sodomy law.48
The psychopathic offender law was revised extensively in 1937.49
The triggering mechanism omitted the language about "any other crime or
offense of like nature," but also eliminated the reference to
"psychopathic." One needed only to appear to be a "sex
degenerate" or a "sex pervert" in order to be sent to a state
hospital for possible treatment.50 A new
section provided that prisoners in custody found to be a degenerate or pervert
could be transferred to a state hospital.51
Part of the problem with being a pioneer is not having the experience
learned by others. This premier psychopathic offender law fell in the 1938
case of People v. Frontczak et al.52 By
a vote of 5-3, the Michigan Supreme Court found it unconstitutional. George
Frontczak and his co-plaintiffs had been convicted of gross indecency, a crime
that Michigan then recognized only between males. The Court found that the law
was a criminal proceeding, not a civil one, thereby requiring all of the due
process guarantees of the Bill of Rights. Justice Henry Butzel wrote for the
dissenters that the law was a civil proceeding, eliminating the need for many
due process guarantees. He believed that
sex offenders are too apt to be repeaters who possess an urge that
prompts them upon their release to commit other sex crimes, frequently of
the most serious nature. While these offenders are not classified legally
as being insane, they are nevertheless suffering from obsessional or
compulsive neuroses. They present an acute problem. They are pitiable
objects sadly in need of hospitalization or institutionalizing for their
own cure and safety as well as for the protection of the public. The
statute recognizes this fact and seeks only to protect and possibly to
cure these unfortunate and dangerous persons.53
Two changes in law were made in 1939. First, the "gross
indecency" law was expanded to cover two females and a male and a female.54
The psychopathic offender law was rewritten55
to get around the objections of the court. The specific reference to sodomy
and gross indecency and all references to sex degenerates and sex perverts
disappeared from the law and were replaced by those "with criminal
propensities to the commission of sex offenses."56
The due process guarantees demanded by the Michigan Supreme Court in the Frontczak
case were met, and trial upon the original charges was forbidden if the
defendant was found to be psychopathic.57
This law was challenged duly and, in 1942, in People v. Chapman,58
the Michigan Supreme Court upheld its constitutionality.
In 1942, the Michigan Attorney General issued an opinion59
that the psychopathic offender law was broad enough to cover all "circuit
court misdemeanors,"60 thus widening the
law’s sweep.
Meanwhile, in a case brought by a man convicted of gross indecency with
another man, In Re Boulanger,61 from
1940, the Michigan Supreme Court unanimously overturned a shocking action
against the defendant. Edward Boulanger had been sentenced to prison for his
act, but the trial judge ordered that, after his release, he was to be
confined to a mental hospital "until this court shall adjudge you cease
to be a menace to public safety."62 Since
Boulanger received a sentence of six months-one year and the maximum under
state law was five years, it was obvious that his act was consensual and with
an adult. Upon his release (after less than the six-month minimum), Boulanger
was committed to the mental hospital and still was there three years later. In
one paragraph, the court addressed the legal issues involved.
It must be held that petitioner’s commitment was without warrant in
law. He is entitled to be discharged. It is so ordered.63
In a case under the sexual psychopath law, In Re Rowan,64
from 1943, the Michigan Supreme Court again had to correct abuse from the
lower courts. Rowan, who also had been convicted under the gross indecency
law, petitioned for release from confinement and had been denied a jury trial
to determine if he had recovered from his psychopathy, an action the Court
noted was "mandatory" under state law.65
Rowan apparently was unsuccessful in getting out of the institution,
because a federal case of his, Rowan v. People,66
was a failure. The Sixth Circuit Court of Appeals noted that he had not yet
exhausted state remedies and, therefore, could not yet enter federal court.67
In 1944, in People v. Lowenstein,68
the Michigan Supreme Court upheld a conviction for debauching the morals of a
boy even though the alleged victim repudiated his own testimony69
and gave inconsistent testimony on the stand.70
In 1945, in People v. Yaple,71 the
Michigan Supreme Court unanimously upheld the gross indecency conviction of a
man even though the complaining witness’s testimony was not "fully and
exhaustively cross-examine[d]."72 In the
case, the prosecution considered reducing Yaple’s charge from gross
indecency to assault and battery, assault being a lesser offense under
Michigan law than private, consensual sexual relations.73
The case of People v. Pippin74 was
decided by the Michigan Supreme Court in 1946. Pippin had been convicted of
"gross indecency" with another male and placed on probation. The
sentencing judge put no conditions on the probation. Before it expired, he had
been arrested for speaking to a 13-year-old boy on the street and inviting him
into his car. The trial judge found that sufficient to revoke probation, but
the unanimous decision of the Supreme Court was that the invitation was not a
criminal offense75 and overturned the
revocation.
The psychopathic offender law was amended in 1947.76
Commission of a crime prior to initiation of psychopathy proceedings now was
required.77
Period Analysis: Although prosecutions for sodomy were difficult
for the first half-century during this period, owing to the requirement
that emission of semen be proven, Michigan showed great interest in the
sexual life of its citizens. A unique law of 1897, enacted two years after
Oscar Wilde’s trials, outlawed "debauching" of boys, evidently
a broad-brush attempt to stop sexual activity. Another unique law was the
"gross indecency" law of 1903 that covered only males. This
statute clearly was influenced by the Wilde trials since the English
"gross indecency" law was the statute used to send Wilde to
prison. It was not until 1923 that an act of sodomy became complete upon
penetration only, evidently because of the difficulty in securing
convictions otherwise. Sodomy and gross indecency convictions almost
unanimously were sustained by state courts. In 1939, after the Georgia
Supreme Court ruled that sodomy could not occur between two women,
Michigan adopted new "gross indecency" laws covering two women
and a man and a woman. Michigan pioneered the "psychopathic
offender" law with its 1935 statute that did not require a criminal
conviction in order to trigger its operation. Two years later it was
amended to require such a conviction first, but the law was struck down by
the Michigan Supreme Court in 1938 on due process grounds. The law was
reenacted the same year as the expanded "gross indecency" laws
and later was expanded to cover misdemeanor offenses.
The Kinsey Period, 1948-1986
The issue of sex offenders became a hot topic in Michigan following the
Second World War and Governor G. Mennen Williams appointed a commission to
study the problem in 1949. The group was known as the "Governor’s Study
Commission on the Deviated Criminal Sex Offender."78
The group assembled some definitions for its work. A "sexual
deviate" was a person
whose sexual drive, the object of his sexual desire, or the way of
expressing his desire in obtaining sexual satisfaction, is considered by
his social group to be abnormal.
More strictly speaking and from a biological point of view, an
individual is a deviate if his sexual drives would not, if they were
expressed, result in conception.79
Thus, married couples using contraceptive practices or engaging in oral or
anal sex were "sexual deviates" over whom the state needed to
increase its control. Homosexuality was "the most common type of sexual
deviation," but it was not so "pathological or as hard to
explain" as most other deviations.80 While
most sexual deviations were more common in men than in women, it was not true
of homosexuality. In fact, the study said that "there are probably many
more homosexual women than men." However, the report said that women
"are almost never convicted or even accused of crimes of homosexual
nature in most states" and some laws did not even cover them.81
"Sexual perversion" was labeled as a "term that is loosely used
and probably would best not be used at all." If used, it should be
applied only to
indicate that a deviated desire has been consummated and should never
be used to describe a person who has not committed or attempted to commit
sexually deviated acts even though he may be a psychological deviate.82
The report also disputed a number of "common fallacies"
concerning sexual deviates, including that "castration" would
benefit them, that they always progress to more serious sexual crimes, and
that they are recidivists.83 There also were
several "mistakes society is making" concerning sex deviates. Among
them are the sexual psychopath laws, warning children about sexual attacks in
a manner that makes them "afraid of sex itself," believing that all
existing methods of treatment of sexual deviates will work, and permitting
newspapers to publish details of sex crimes and their trials.84
Then, after a lengthy discussion of sex education for children, the report
came to the part of what to do about sex deviates. It conceded that it had no
idea.85 The best solutions it approved were for
citizens to be aware of and report all sex crimes known to them86
and a recommendation for censorship of comic books.87
The conclusion of the report was that each
individual should search his own heart for the rules of conduct to
which he must be true. Through the ages countless millions have searched
not alone their own hearts but have sought and found God, His laws and
revelations, as the Guide of men in the ordering of their lives.88
With the exception of a recommendation for a comic book censorship law, the
much ballyhooed committee of experts was stymied by its task.
Possibility in reaction to this weak effort, the psychopathic offender law
was revised again in 1950.89 The definition of
a psychopath was changed to exclude those who were "feeble-minded."90
The psychopathic condition had to have been in existence for at least four
months in order that the law be triggered.91
Examining psychiatrists now were required to have a minimum of five years’
experience exclusively in psychiatry, and their opinions had to be unanimous
as to psychopathy in order for the label to devolve upon the defendant.92
An analysis of the psychopathic offender law was published in 1951.93
The existing law was criticized for its failure to include misdemeanants
within its scope. The article claimed that such a law could prevent more
serious sexual crimes by misdemeanants, who, it assumed, always would graduate
to ever-more serious offenses,94 despite the
Governor’s Commission conclusion that this was a myth.
This criticism stung the legislature into action in 1952. A new law95
specified that commission of either a felony or a misdemeanor could trigger
the law.96 Recovery from the psychopathy no
longer was required, merely that the person no longer "be a menace to
others."97
A follow-up to the report of the committee on sex criminals was published
in 1952 in a medical journal.98 The new report
stated that, since the time of the first, a number of things had been done in
Michigan by the committee, including communicating with "900 persons
competent to comment on the sex offender," studying the laws of other
states that dealt with sex offenders, studying more than 600 case histories of
different sex offenders, surveying a small sample of the public on their
attitude toward sex offenders, and recommending actions to deal with sex
offenders. One area that was kept in mind by those doing the study was
"the emotional prejudice of sexuality."99
Under this prejudice section, it was noted that sex criminals were "not
the major problem news items would have us believe." This certainly is a
far different tone from that of the earlier report, which made it seem as
though the state of Michigan would collapse without some immediate strong
effort to stop sex crimes. "Sex deviation" was "exceedingly
common" and was so because "any sexual activity can be called
abnormal which does not lead to bisexual [sic] activity."100
The Governor’s Commission, still in existence, sent questionnaires to
various professionals and, from their responses, made a list of
recommendations. One was that
sex deviates be evaluated experimentally to detect elements of
treatability.101
This recommendation obviously meant rounding up such "deviates" before
any criminal activity was ascribed to them, because the other recommendations
used the term "sex offender." No details were given as to the
definition of "experimentally." Under the section "What
Legislation Has to Offer," Judge James O’Neill commented on a
recommendation made by the Governor’s Commission that "selected sex
deviates" be "committed through the Probate Courts with a view to
treating their emotional disturbance, that is, those not to be charged with a
violation of the law."102 This also shows
that Gay men and Lesbians were recommended for capture and
"treatment" even if law abiding. O’Neill endorsed psychiatric care
and said that a
psychiatric division in the State Department of Correction will offer
much if combined with a one-day-to-life sentence. This plan allows
treatment if it will do any good. The offenders are detailed for
sufficient periods so that more can be learned of the characteristics of
these individuals. Part of the purpose of the indeterminate sentence is to
detect the dangerous potentials, so that they need never be released if
they show no improvement. [Emphasis added].103
O’Neill and the Commission thus blurred their definitions, making it
clear that a status of "deviation," separate from commission of a
criminal offense, would involve an indeterminate sentence in the penal system
for "experimentation" and possible "treatment."
An Opinion of the Attorney General from 1956104
interpreted state law to permit the return of personal items taken from a
person arrested for but acquitted of or not subsequently prosecuted of a sex
crime. However, the police file did not have to be returned.105
Beginning in 1957, and continuing for three years, 142 "sexual
psychopaths" at the Ionia State Hospital were given LSD, without their
knowledge or consent, in an effort to have them "confess hidden
thoughts."106
In 1958, in People v. Wasker,107 the
Michigan Supreme Court unanimously ruled in favor of a man convicted of
"gross indecency" with another male and processed under the
psychopathic offender law. Wasker had been consulting a psychiatrist prior to
his arrest. Upon his arrest, three psychiatrists were appointed to determine
his mental status under the psychopathic offender law. One of them was his
private physician who violated the confidential physician-patient
confidentiality by sharing his previous notes with the other two
psychiatrists. The Court found this to violate Wasker’s rights and nullify
the finding of psychopathy. Justice John Voelker, author of the opinion, felt
a need to attack Wasker anyway. His "boyish" "victim"
could have testified as to Wasker’s "perverse acts."108
A medical journal article109 published in
1961 showed the limitations of liberalism on the issue of homosexuality from
the medical community. Although conceding that the sodomy and related laws of
Michigan "reflect the ignorance and the superstitions of well-meaning
legislators of 100 years ago,"110 and
endorsing repeal of the laws,111 the doctors
cautioned that, because
perverse sexual practices are symptoms of underlying pathology, a
concise answer cannot be given concerning the "dangerousness" of
homosexuals as a group. Only by a painstaking and thorough evaluation of
each homosexual can the personality problems and potentialities for harm
be assessed.112
In 1965, Michigan enacted a law113
permitting any person convicted of most crimes, including sodomy and gross
indecency, prior to turning 21 to have judgement of conviction set aside if
requested five years or more after conviction and if the person had been
convicted on not more than one offense. A judge was permitted to enter such an
order if "the circumstances and behavior of the applicant" warranted
it.114
The psychopathic offender law received its last revision in 1966.115
A minimum of two years on community parole was required before the psychopath
was released from psychopathy proceedings.116
In 1966, the Attorney General issued an opinion117
that it was the responsibility of the head of the state’s mental health
system to seek and have captured any escaped sex psychopath.
In People v. Kern,118 from 1967, a
conviction for sodomy and gross indecency was affirmed by the Court of
Appeals. The juvenile "complainant" was recommended for placement in
a juvenile center and to receive "psychiatric care,"119
indicating that he consented to the sexual activity. The juvenile’s identity
of the defendant only by his first name was considered sufficient for a jury
to convict.120
In 1967, the Court of Appeals, deciding the case of People v. Askar,121
ruled that the sodomy law applied to heterosexuals.122
A rare instance of consensual relations between women being prosecuted was
the subject of the 1967 case People v. Livermore.123
Julie Livermore and Carol French had been camping with French’s children and
were spotted by other campers "in close bodily contact with each other
for approximately 1 hour." Complaint was made to police after Livermore
and French entered their tent.124 Two highway
patrol troopers arrived to investigate and spent 10 minutes standing outside
the tent and overheard "[o]bscene language and conversation indicative of
sexual conduct occurring between 2 female persons," then, from outside
the tent, identified themselves and requested admission. When they received no
reply, they unzipped the tent and, after shining a flashlight on the women,
who were under a blanket, arrested them.125
The Court of Appeals rejected all of Livermore’s contentions, including lack
of proof of corpus delicti,126 the
warrantless arrest,127 and the inability of
the arresting officers positively to identify the language they heard as
coming from Livermore.128 The sentence of
1½-5 years in prison for this private, consensual act was sustained.
The case of People v. Dodson,129
also from 1967, showed an interesting role reversal. In this case, a
16-year-old male was convicted of forcibly sodomizing a 60-year-old man.130
The Court of Appeals rejected the defendant’s contention that the trial
judge was prejudiced by "his natural feeling of revulsion" at the
case.131
A 1968 law review article132 detailed a
proposed new criminal code for Michigan. The proposed code would decriminalize
consensual relations between persons of the same sex.133
More than three decades after this proposal, the new code still has not
passed.
The state that pioneered the psychopathic offender law conceded failure and
abandoned it in 1968, repealing it outright.134
In 1968, in People v. Guzanich,135
the Michigan Court of Appeals upheld a conviction after evidence of a prior
conviction for sodomy with a different person was admitted. The court said
that it was
error to permit such cross-examination. We need not determine the
effect of the error on a jury trial conviction. The record in this nonjury
trial contains substantial evidence to support the conviction, and we are
unable to say the error was reversible error in this instance.136
In other words, the defendant’s constitutional rights were violated, but
the conviction would be allowed to stand because of the nature of the crime of
which he was accused.
The constitutionality of the sodomy law was upheld by the Court of Appeals
in 1968 in People v. Green.137 Because
the statute used the "common-law definition of sodomy" and case law
in the state "delineated the crime’s elements," vagueness could
not be claimed. Since sodomy
is of an indelicate nature, it cannot be said that the failure to
graphically outline the acts encompassed by the crime of sodomy causes the
statute to be unconstitutionally vague.138
Other errors raised "are clearly without merit and, therefore, do not
require our expatiation."139
In a brief, undetailed opinion from 1969, People v. Emmerson,140
an appellate court unanimously sustained a gross indecency conviction even
though
the trial judge determined that parts of the testimony of the
complainant were not true, he specifically stated that he did not rely on
any of such testimony.141
In the 1972 case of People v. McCaleb,142
the Court of Appeals ruled that the trial court committed reversible error
when it instructed the jury that fellatio was an act of "gross
indecency" as a matter of law. This, the Court of Appeals believed,
intruded into the province of the jury to see if
fellatio between a male and a female is conduct which the common sense
of society regards as indecent and improper. The effect of the trial judge’s
charge was to eliminate the second element of the crime, "whether the
conduct was indecent," from the purview of the jury.143
This decision was a hint that heterosexual persons should have greater
sexual freedom than homosexual persons.
The Court of Appeals, deciding People v. Vasquez144
in 1972, again rejected a claim that sodomy could not be accomplished between
people of the opposite sex.145
In 1972, in People v. Hempton,146
the Michigan Court of Appeals upheld the gross indecency conviction of a man,
but overturned his "kidnapping" conviction that was based on the
fact that he drove the unwilling object of his desires back to his house after
the young man left him.
The curious case of People v. Howell,147
from 1976, is a legal puzzle. First, two of the eight members of the Michigan
Supreme Court did not sit. The remaining six split 3-3 on the question of the
constitutionality of the gross indecency law as applied to private, consensual
activity between males,148 although the
opinion of the court reads as though the decision went in favor of the
striking of the law.149
The Court of Appeals decided People v. Coulter et al.150
in 1980. The Court rejected the contention of the defendants that their
"attempted sodomy" could have been an attempt at
"slick-legging," which was not recognized as sodomy under Michigan
law.151 The Court also rejected a vagueness
challenge152 and a claim that the law was
discriminatory on the basis of sex.153
A victory occurred in the 1981 case of People v. Dezek et al.154
The Court of Appeals unanimously overturned the convictions of six men for
gross indecency in a public restroom in Kalamazoo. The Court found that the
restroom stalls were temporary private places where privacy rights attached155
and that the warrant for the surveillance by hidden video equipment was far
too general to be permitted.156
In 1982, the Michigan Supreme Court, deciding People v. Masten,157
stopped an attempt by the state to use the gross indecency law to cover
solicitation for prostitution. Masten had been arrested for soliciting other
males for money, an act which the Supreme Court said was not an effort to
"procure the commission by any male person of any act of gross indecency
with another male" since the wording required the procurement to be with
a third party, not with himself.158
The Court of Appeals rejected a consent defense in the 1984 case of People
v. Dauer.159 Its analysis was limited to:
We follow the line of Michigan authority holding that convictions under
the gross indecency statutes are proper even where the proscribed conduct
occurs between two consenting adults.160
The Michigan Supreme Court, in the 1984 case of People v. Hackett,161
ruled that the reputation and previous sexual conduct of an alleged sodomy
victim was irrelevant.162
Period Analysis: The psychopathic offender law continued to be
revised by the legislature until the impossibility of its working was
acknowledged and the law, the first enacted in the nation, became the
second in the nation to be repealed. State courts remained extremely
conservative in interpreting the sodomy and gross indecency laws,
sustaining a conviction of two women, and twice ruling that heterosexuals
were not exempt from the law. Although in the 1980s Michigan followed case
law that consensual sex in enclosed restroom stalls was constitutionally
protected, it received conflicting court decisions on the right of privacy
in one’s home.
The Post-Hardwick Period, 1986-Present
In 1987, in People v. Kalchik,163
the Court of Appeals upheld the constitutionality of the gross indecency law,164
but still overturned the conviction. Kalchik had been arrested in a public
restroom in a closed toilet stall and had been observed engaging in fellatio
from overhead surveillance. Citing a long string of case law on the subject,
the Court found the stall to be a private place.165
Also in 1987, in People v. Myers,166
the Court of Appeals ruled that the fondling of the clothed crotch of an
undercover police officer did not constitute "gross indecency."167
This decision stated that case law in Michigan generally limited the scope of
the statute to oral sex acts.168
In a third 1987 case, People v. Johnson,169
the Court of Appeals divided 2-1 to uphold a conviction under the
"third-degree criminal sexual conduct" law for kissing a penis.
Dissenting Judge Michael Kelly noted that Michigan law was clear that actual
penetration had to be proven for the statute to be violated, quoting from the
statute.170 The majority apparently saw the
clear reading of the statute as only so many words.
The case of People v. Emmerich,171
from 1989, led to a victory. Emmerich and an undercover police officer, Cletus
Smith, cruised each other at a rest stop and, when the officer let Emmerich
believe that he was interested in sex, they began fondling each other.
Emmerich then was arrested and charged with four crimes, including assault.
The trial court rightfully dismissed all of the assault-related charges, but
refused to dismiss the gross indecency charge.172
Judge Barbara MacKenzie of the Court of Appeals rejected the state’s
argument that the Dexter rule should be followed and instead opted to
follow Howell that the gross indecency law can not be held applicable
to consenting adults.173 MacKenzie also noted
that Emmerich’s fondling of the officer’s clothed groin area was not an
act of gross indecency per the Myers decision of two years earlier.174
In another case from 1989, People v. Lynch,175
another Court of Appeals panel decided to follow Howell that consenting
adults could not be prosecuted under the gross indecency law, but allowed the
conviction to stand because it occurred in a public restroom.176
In a broad-based constitutional challenge, Michigan Organization for
Human Rights (MOHR) v. Kelley, the sodomy and gross indecency laws were
attacked as violative of privacy, equal protection, and free association. In
1990, a trial court struck down all of the laws177
and the state did not appeal. However, the decision applied only to Wayne
County (Detroit).
In 1990, in People v. Austin et al.,178
the Court of Appeals reversed a trial judge’s dismissal of charges against
26 men arrested in a restroom on "gross indecency" charges. The
Court of Appeals held that, contrary to what the trial judge decided,
consensual fellatio and masturbation in a restroom, even without members of
the public present, constituted a violation of the gross indecency law. After
reviewing case law on the subject, the court issued a contradictory decision
to that in the MOHR case, noting that the law had been interpreted as
constitutional in its coverage of private, consensual activity.179
In 1990, five men were arrested for consensual sex in a park in the city of
Adrian and received sentences ranging from three months to five years in
prison.180
In 1991, a raid of a private party led to the arrest of two Gay men for
"gross indecency." They and others were targeted for arrest by the
Ottawa County Sheriff’s Department, which was investigating the "[G]ay
underground." The charges were dropped.181
In the 1991 case of People v. Lino,182
a different three-judge panel contradicted the Austin panel. The
unanimous court followed Howell and limited the applicability of the
gross indecency law to that conduct which occurred in public, with a minor, or
without consent.183 Lino had been arrested for
fellating a truck driver in a truck parked away from a public area in the
dark. The arresting officer claimed to be able to see, in the dark, Lino’s
head going "up-and-down" and to be able to see the driver’s penis.
In a direct slap at the trial court, the Court of Appeals also directed a new
trial to determine "whether a rational trier of fact could find that the
essential elements of the charged crime were proven beyond a reasonable
doubt."184 On appeal,185
the Michigan Supreme Court voted 6-2 to refuse the case "because we are
not persuaded that the question presented should be reviewed by this
Court."186
Even though the Attorney General did not file an appeal from the MOHR
decision, confusion reigned in Michigan over the status of the sodomy and
gross indecency laws. The Michigan Court of Appeals issued an en banc
decision in People v. Brashier187 in
1992. By a vote of 10-3, the Court clarified the contradiction in case law in
the state by adopting the restrictive definition of the term "gross
indecency," making certain that what consenting adults do in their own
bedroom remains the prosecutor’s business. In a per curiam hiding its
author, the Court decided that neither it nor any other court was free to
overrule the 1922 Carey decision that held the gross indecency statute
to cover private, consensual activity based on the "common sense of the
community."188 The three dissenting
justices said that Carey should be overruled. They believed that
there is no longer any "common sense of society" regarding
sexual behavior between consenting adults in private and that defining
gross indecency in terms of the "common sense of society" vests
unstructured discretion in the trier of fact to determine whether a crime
has been committed.189
Michigan thus was under the cloud of contradictory court decisions, between
Emmerich, Lynch, MOHR, and Lino on the one hand and Austin
and Brashier on the other. An appeal of Brashier to the Michigan
Supreme Court was granted and the high court’s previous refusal of the Lino
decision was vacated on a motion to reconsider.190
The Michigan Supreme Court handed down its decision at the end of 1994,191
and sustained both convictions. It remains unclear if the Court determined
that the laws extend to truly private acts, since arguably neither case did.
The Court did decide, by a 5-3 vote, that the Court of Appeals erred in Brashier
in deciding that "gross indecency" could be decided by triers of
fact under a "common sense of the community." Two Justices of the
Court stated that they did not believe the laws extended to private conduct.
Justice Charles Levin wrote a separate opinion not labeled as either a
concurrence or a dissent. He said that the Michigan Supreme Court should issue
instructions that private, consensual sexual activity between adults,
regardless of the sex of the parties, should not be interpreted as a violation
of the gross indecency laws.192 He said the
Court
should not wait until long after a prosecutor in one of the
eighty-three counties files an information against [G]ays or [L]esbians or
heterosexuals for consensual sexual acts committed in private to rein in
unstructured prosecutorial/jury discretion.193
Justice Patricia Boyle also wrote that she believed the gross indecency
laws were not applicable to private, consensual activity. "The Court
reads the statute as if the Legislature intended it to be general morals
legislation. Specifically, the result of today’s decision is that the
statute will punish the conduct this Court determines to be immoral."194
In 2001, the arrest of a Detroit state judge for exposing himself in a
restroom caused an interesting reassessment of the enforcement of
consenting adult laws in Michigan. County Prosecutor Mike Duggan announced
that "[w]e are not going to charge and prosecute consenting
adults."195
Common-law crimes also remain recognized in Michigan,196
but in this jurisdiction, unlike any other, case law is such that repeal
of the "crime against nature" law will not reinstate the
common-law provision.197
Period Analysis:
Michigan continues to struggle under
conflicting appellate court decisions concerning the applicability of
the sodomy and gross indecency laws to private, consensual adult acts.
The Michigan Supreme Court finally agreed to review two conflicting
decisions and issue a final decision, but the cases, decided in 1994,
did not eliminate the conflict. Since the cases did not involve
clearly private and consensual activity, they did not decide the
constitutional breadth of laws covering such activity, a situation
unlikely to be resolved until a case with the proper posture is
presented to the Court. In at least Wayne County (Detroit), it took
the arrest of "one of their own" for the government to see
the harm in these laws. A judge's arrest for exposing himself to an
undercover police officer led to a decision in that county not to
prosecute laws against consenting adults.
