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Gross Indecency is a felony that carries a maximum penalty of 5 years in the State Penitentiary.

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There are three statutes which prohibit "gross indecency," MCL 750.338 (gross indecency between male persons), MCL 750.338a (gross indecency between female persons) and MCL 750.338b (gross indecency between male and female persons). All three statutes prohibit the commission of "any act of gross indecency" between two persons whether committed "in private or in public." The statutes also prohibit being a "party" to the commission of such acts and prohibit procuring or attempting to procure such acts. Gross indecency is punished by not more than 5 years in the state prison or by a fine of $2,500.00. If a defendant is found to be asexually delinquent person at the time of the offense, the defendant may be punished in the state prison for an indeterminate term, 1 day to life.

It should be noted that, while the statutes indicate gross indecency is a crime "whether committed in private or in public", the Michigan Criminal Jury instructions, in the second element of the crime, indicates the act must be committed in a public place or where a member of the public is invited or allowed to be unless a minor child is present. See CJI2nd 20.31(2)(f) below.

According to the Editor at the Prosecuting Attorneys Coordinating Council, recent statements by the Michigan Supreme Court in peremptory orders suggest that at least some members of the court believe that a prosecutor does not have to prove that the conduct occurred in a public place because the plain language of the statutes prohibit gross indecency that occurs in public or in private. See People v Bono, 465 Mich 888 (2001); People v Lint, 465 Mich 851 (2001) (Dissent of Corrigan, C.J.); People v Williams, 462 Mich 861 (2000). (Emphasis added).

Black's Law Dictionary defines the term "Gross" as: "conduct which is willful and flagrant, out of all measure, beyond allowance, not to be excused" (Compare to "Gross Negligence"). "Indecent" is defined as: "vulgar, offensive, obscene."

CJI2d 20.31 Michigan Criminal Jury Instructions - Elements of the crime. Gross Indecency

(1) The defendant is charged with the crime of committing an act of gross indecency. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant engaged in a sexual act that involved one or more of the following:

[Choose (a), (b), (c), (d), (e), or (f):]

(a) entry into another person’s [vagina / anus] by the defendant’s [penis / finger / tongue / (name object)]. Any entry, no matter how slight, is enough. It does not matter whether the sexual act was completed or whether semen was ejaculated. or

(b) entry into another person’s mouth by the defendant’s penis. Any entry, no matter how slight, is enough. It does not matter whether the sexual act was completed or whether semen was ejaculated. or

(c) touching of another person’s [genital openings / genital organs] with the defendant’s mouth or tongue. or

(d) entry by [any part of one person’s body / some object] into the genital or anal opening of another person’s body. Any entry, no matter how slight, is enough. It is alleged in this case that a sexual act was committed by [state alleged act]. It does not matter whether the sexual act was completed or whether semen was ejaculated. or

(e) masturbation of oneself or another. or

(f) masturbation in the presence of a minor, whether in a public place or private place.

[Add (3) unless only (2)(f) is being given.]

(3) Second, that the sexual act was committed in a public place. A place is public when a member of the public, who is in a place the public is generally invited or allowed to be, could have been exposed to or viewed the act.

Penalty under Michigan Codified Law (Statutory law)

750.338 Gross indecency; between male persons.

Sec. 338.

Any male person who, in public or in 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 guilty of 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.

750.338a Gross indecency; female persons.

Sec. 338a.

Any female person who, in public or in private, commits or is a party to the commission of, or any person who procures or attempts to procure the commission by any female person of any act of gross indecency with another female person shall be guilty of 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.

750.338b Gross indecency; between male and female persons.

Sec. 338b.

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. Any person convicted of a felony as provided in this section shall be punished 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.

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