Last edited: August 10, 2004


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is unclear from the missing Code of 1800 if this law or a similar one had been in force in Michigan, but, if so, it was repealed as of this date.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 1-5 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.


Footnotes

1 Laws of the Territory of Michigan 1805-1821, (Lansing:W.S. George & Co., 1871), page xii-xiii.

2 2 Stat. 309, enacted Jan. 11, 1805.

3 Laws of the Territory of Michigan, supra. The first code of laws is printed on pages 1-92.

4 Laws of the Territory of Michigan, Vol. 1, (Lansing:W.S. George & Co., 1871), page 900, enacted Sep. 16, 1810.

5 Id. 1.

6 Id. 2.

7 Id. 3.

8 Id. These laws were not repealed by a numbered section in the law. The repeal language occurs between Sections 3 and 4 of the law, in a separate paragraph.

9 Id. 5.

10 Id. at 109-135, enacted Nov. 4, 1816.

11 Id. 4.

12 Id. at 561-588, enacted May 17, 1820.

13 Id. at 562, 4.

14 Laws of Michigan 1841, page 176, No. 80, enacted Apr. 13, 1841.

15 Id. at 177, 2.

16 The Revised Statutes of the State of Michigan, Passed and Approved May 18, 1846, (Detroit:Bagg & Harmon, 1846).

17 Id. at 682, 16.

18 52 N.W. 66, decided May 13, 1892.

19 Id. at 67.

20 Id.

21 53 N.W. 794, decided Dec. 3, 1892.

22 Id. at 795.

23 Michigan Public Acts 1897, page 103, No. 95, enacted Apr. 28, 1897.

24 Id. at 104, 2.

25 Michigan Public Acts 1903, page 295, No. 198, enacted June 10, 1903.

26 Id.

27 138 N.W. 662, decided Nov. 8, 1912.

28 Id. at 664.

29 Id. at 665.

30 Id.

31 Id. at 666.

32 Id. at 667.

33 Id. at 669.

34 Id. at 670.

35 187 N.W. 261, decided Mar. 30, 1922.

36 Id. at 262.

37 Id.

38 Michigan Public Acts 1923, page 80, No. 57, enacted Apr. 20, 1923.

39 235 N.W. 211, decided Feb. 27, 1931.

40 Michigan Public Acts 1931, page 624, No. 328, enacted June 16, 1931.

41 Id. at 654, 159.

42 Id. 338.

43 Id. at 711, 448.

44 Michigan Public Acts 1935, page 141, No. 88, enacted May 27, 1935.

45 Id. at 142-143, 1-a.

46 Id.

47 267 N.W. 741, decided June 4, 1936.

48 Id.

49 Michigan Public Acts 1937, page 305, No. 196, enacted July 14, 1937.

50 Id. at 306, 1-a.

51 Id. at 307-308, 1-b.

52 281 N.W. 534, decided Oct. 5, 1938.

53 Id. at 537.

54 Michigan Public Acts 1939, page 293, No. 148, enacted May 26, 1939.

55 Michigan Public Acts 1939, page 323, No. 165, enacted June 6, 1939.

56 Id. 1.

57 Id. at 324, 8.

58 4 N.W.2d 18, decided May 18, 1942.

59 Report of the Attorney General of Michigan 1942, page 623, issued June 11, 1942.

60 Id.

61 294 N.W. 130, decided Oct. 7, 1940.

62 Id. at 130-131.

63 Id. at 132.

64 9 N.W.2d 528, decided May 18, 1943.

65 Id.

66 147 F.2d 138, decided Feb. 13, 1945. The style of this case probably is erroneous. It should read Rowan v. Michigan since it was a federal case.

67 Id.

68 14 N.W.2d 794, decided June 5, 1944. This reporter gives the date of the decision as June 6, but the Michigan State Reporter gives June 5 as the date, and the decisions both before and after this in the Northwestern Reporter are June 5.

69 Id.

70 Id. at 795.

71 20 N.W.2d 201, decided Oct. 8, 1945.

72 Id. at 202.

73 Id. at 201.

74 25 N.W.2d 164, decided Dec. 2, 1946.

75 Id. at 165.

76 Michigan Public Acts 1947, page 370, No. 242, enacted June 19, 1947.

77 Id. 3.

78 Samuel W. Hartwell, A Citizens’ Handbook of Sexual Abnormalities and the Mental Hygiene Approach to Their Prevention, (State of Michigan:A Report to the Committee on Education of the Governor’s Study Commission on the Deviated Criminal Sex Offender, 1950).

79 Id. at 1.

80 Id. at 4-5.

81 Id. at 5.

82 Id. at 11.

83 Id. at 17-21.

84 Id. at 22-25.

85 Id. at 60-66.

86 Id. at 66.

87 Id. at 69.

88 Id. at 70.

89 Public Acts of Michigan 1950 Ex. Sess., page 40, No. 25, enacted June 9, 1950, effective immediately.

90 Id. at 41, 1.

91 Id. 3.

92 Id. 4.

93 Reynold Bennett, "Proposed Additional Means of Dealing with Sex Offenders," 30 Mich.St.B.J. 28 (March 1951).

94 Id. at 29.

95 Michigan Public Acts 1952, page 62, No. 58, enacted Apr. 8, 1952.

96 Id. at 63, 3.

97 Id. 5.

98 "New Light on the Sex Offender," Journal of Social Hygiene, 38:29-36 (1952).

99 Id. at 29.

100 Id. at 30.

101 Id. at 34.

102 Id. at 35.

103 Id.

104 Report of the Attorney General of Michigan 1956, page 795, issued Dec. 29, 1956.

105 Id. at 796.

106 Irving Wallace et al., The Book of Lists #2, (New York:Morrow & Co., 1980), page 77.

107 91 N.W.2d 866, decided Sep. 9, 1958.

108 Id. at 868.

109 Stephen C. Mason, Joseph S. Jacob, Leonard E. Himler, Stuart M. Gould, Jr., and H. Waldo Bird, "Homosexuality: A Medico-Legal Problem," Journal of the Michigan Medical Society, 60:635-638 (1961).

110 Id. at 635.

111 Id. at 637.

112 Id. at 636.

113 Michigan Public Acts 1965, page 374, No. 213, enacted July 16, 1965, effective immediately.

114 Id. at 375, 1.

115 Michigan Public Acts 1966, page 382, No. 267, enacted July 12, 1966.

116 Id. 7a.

117 Report of the Attorney General of Michigan 1966, page 375, issued Oct. 26, 1966.

118 149 N.W.2d 216, decided Mar. 28, 1967.

119 Id. at 218.

120 Id. at 218-219.

121 153 N.W.2d 888, decided Nov. 16, 1967.

122 Id. at 890.

123 155 N.W.2d 711, decided Dec. 5, 1967.

124 Id. at 712.

125 Id. at 712-713.

126 Id. at 713.

127 Id. at 713-714.

128 Id. at 716.

129 155 N.W.2d 876, decided Dec. 6, 1967.

130 Id. at 876-877.

131 Id. at 877.

132 "Sex Offenses and Penal Code Revision in Michigan," 14 Wayne L.Rev. 934 (Winter 1968).

133 Id. at 948-957.

134 Michigan Public Acts 1968, page 203, No. 143, at 204, 2, enacted June 12, 1968, effective Aug. 1, 1968.

135 13 Mich.App. 634, decided Oct. 22, 1968.

136 Id. at 635.

137 14 Mich.App. 250, decided Nov. 25, 1968. Leave to appeal denied, 381 Mich. 815, decided Apr. 16, 1969.

138 Id. at 251.

139 Id. at 252.

140 172 N.W.2d 916, decided Oct. 27, 1969. Released for publication Dec. 30, 1969.

141 Id.

142 195 N.W.2d 17, decided Jan. 17, 1972.

143 Id. at 19.

144 39 Mich.App. 573, decided Mar. 28, 1972.

145 Id. at 574.

146 204 N.W.2d 684, decided Nov. 27, 1972. Released for publication Mar. 9, 1973.

147 238 N.W.2d 148, decided Jan. 27, 1976.

148 Id. at 154.

149 Id. at 151.

150 288 N.W.2d 448, decided Jan. 3, 1980. Leave to appeal denied May 7, 1980.

151 Id. at 449.

152 Id. at 450.

153 Id. at 451.

154 308 N.W.2d 652, decided June 4, 1981.

155 Id. at 655.

156 Id. at 657.

157 322 N.W.2d 547, decided Aug. 9, 1982. Affirming People v. Mabry, 301 N.W.2d 528, decided Dec. 3, 1980.

158 Masten, at 548.

159 346 N.W.2d 599, decided Feb. 7, 1984.

160 Id. at 600.

161 365 N.W.2d 120, decided Dec. 28, 1984.

162 Id. at 126-127.

163 407 N.W.2d 627, decided May 5, 1987.

164 Id. at 629.

165 Id. at 631.

166 409 N.W.2d 788, decided July 6, 1987.

167 Id. at 790-791.

168 Id.

169 418 N.W.2d 117, decided Dec. 7, 1987.

170 Id. at 123-124.

171 437 N.W.2d 30, decided Feb. 23, 1989.

172 Id. at 31-32.

173 Id. at 32-33.

174 Id. at 33-34.

175 445 N.W.2d 803, decided Aug. 7, 1989.

176 Id. at 805-806.

177 Washington Blade, July 20, 1990, page 19.

178 460 N.W.2d 607, decided Aug. 23, 1990.

179 Id. at 608-610.

180 Stonewall Union Reports, November 1990, page 5.

181 Detroit News, Jan. 9, 1991, B7W:1.

182 476 N.W.2d 654, decided Aug. 20, 1991 "at 9:05 a.m.".

183 Id. at 656-657.

184 Id. at 657.

185 484 N.W.2d 659, decided May 5, 1992.

186 Id.

187 496 N.W.2d 385, decided Dec. 29, 1992 "at 9:30 a.m." Released for publication Mar. 18, 1993.

188 Id. at 388.

189 Id.

190 508 N.W.2d 490 (Brashier), and 491 (Lino).

191 People v. Lino, 527 N.W.2d 434, decided Dec. 28, 1994. The case took a year for the court to decide.

192 Id. at 441 and 443.

193 Id. at 443.

194 Id. at 451.

195 www.geocities.com/privacylaws/USA/Michigan/minews07.htm.

196 Michigan Code of Laws, 750.505.

197 In Re Lambrecht, 100 N.W. 606 at 608, decided July 27, 1904.


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