Case Triggers a Revamp of the Wayne County Illicit Sex Prosecution
Guidelines
Detroit Free Press,
August 7, 2001
By Jack Kresnak
Saying police should not use undercover decoys to investigate consensual
sex by adults, Wayne County Prosecutor Mike Duggan announced Monday that he
will not charge a circuit judge arrested last month on suspicion of exposing
himself in a rest room at Metro Airport.
"We are not going to charge and prosecute consenting adults,"
Duggan said in unveiling the new guidelines his office will use in cases of
alleged illicit sex.
The judge, Richard B. Halloran Jr., 53, has been on a 30-day paid leave
from his Wayne County Circuit Court job. He could not be reached Monday for
comment. His lawyer, John M. Allen, said the judge was pleased with Duggan’s
decision and plans to return to work.
The judge was not charged because he was not offering money and the
expected sexual act was seen as consensual because of the undercover officer’s
response, officials said.
Duggan would not discuss details of the Halloran case. The only witness
against Halloran apparently was an undercover police officer. Duggan said
there was not enough evidence to prosecute.
Duggan said his office had been reviewing its policies on sexual misconduct
in public places for about a month, after Assistant Detroit Police Chief
Marvin Winkler raised concerns about methods his officers were using to curb
illicit sexual activity at Rouge Park. Duggan said the Halloran arrest
prompted him to announce the policies about a week earlier than planned.
Gay activists have complained about police stings at Rouge Park, saying men
had been charged with soliciting sex from undercover police when they had done
nothing but flirt or walk away.
Some were charged with being an "annoying person," a misdemeanor
under a 1964 ordinance meant to deter obnoxious behavior, such as swearing or
harassment.
Some men had their cars impounded, a practice used when drivers try to
solicit police prostitution decoys. The cars may be reclaimed after the owner
pays a fee of at least $900.
Jeff Montgomery, executive director of the Triangle Foundation, a
Detroit-based gay advocacy organization, praised Duggan’s new policies.
"These policies are a significant, positive step in the right
direction and a vindication of the long-standing struggle of the Triangle
Foundation to correct the practices of law enforcement," Montgomery said.
On July 6, Triangle brought the issue of Detroit police targeting gay men
in Rouge Park to the Detroit City Council.
The group said that about 500 people had been ticketed since February.
Duggan’s new policies specify that charges be filed:
When someone offers money for sex, whether to a citizen or an undercover
cop.
When a sexual act is performed in a public place — such as parks, freeway
rest stops or airport rest rooms — where it is likely to be witnessed by
someone else.
When any sex act is done in public or in the presence of a police officer.
Duggan said vehicle seizures and criminal charges will not be pursued if
police decoys lead the suspect to believe that the sexual act is invited and
consensual.
Open cases involving misdemeanor charges of lewd conduct, indecent
exposure, disturbing the peace or being an annoying person will be reviewed in
light of the new policies, Duggan spokeswoman Ruth Carter said later.
Carter said cars will be returned if warranted. She said men who had paid a
fine to get their cars back may be due refunds.
Michigan State Police Lt. Lynne Huggins, commander of the Metro South Post
in Wayne County, said her department will change the way it investigates
illicit sex at freeway rest stops in light of Duggan’s policy change.
"Normally, we would send male officers in street clothes into the rest
area, and if they were approached for sex, they would then make an
arrest," Huggins said.
But under the new policies, "If my plainclothes officers were
approached and seemed willing to comply with the person’s request, then, no,
we would not be able to seek charges. If my undercover officer is approached
and, say, someone exposes themselves or goes beyond saying, ‘Hey, you’re
cute,’ then we would still be able to get charges."
John O’Brien, Oakland County’s chief assistant prosecutor, said his
office does not have a formal policy regarding undercover police
investigations of illicit sexual activity. He said 34 people had been charged
with gross indecency between males, a felony, in 2000 and 2001.
"The critical line is when does a discussion about a future act in
private become criminal and when does the conduct begin that makes it
criminal," O’Brien said.
Macomb County Prosecutor Carl Marlinga called Duggan’s guidelines sound.
Marlinga said he could not remember any cases involving undercover officers
being used to investigate consensual sex in public places. A problem with men
having sex in a men’s room at a mall was solved by making arrests based on
surveillance methods instead of undercover decoys.
Contact Jack Kresnak at 313-223-4544, or kresnak@freepress.com.
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