Isabella Case Puts Attention on 'Gross Indecency' Law
Morning Sun, April 4, 1999
Mt. Pleasant, MI
By Richard Harrold, Sun Staff
Writer
A mentally handicapped man's legal ability to consent to sexual relations is at the
root of a criminal charge being challenged in Isabella County Circuit Court.
Terry Lint, 55, is accused of sexually assaulting a 30-year-old developmentally
disabled man with an IQ of 70, functioning with skills comparable to a 12- to 14-year-old,
according to court records.
Lint is charged with fourth-degree criminal sexual conduct -- a two-year misdemeanor
that involves force or coercion of a suspect in a position of authority over the victim.
But he's also charged with gross indecency between males, a five-year felony rooted in
19th century British law that requires no victim and erases the issue of consent as a
defense.
Under the gross indecency statute -- of which there is a similar law pertaining to
males and females -- a prosecutor must prove only that the sexual act occurred.
In a written opinion, Isabella Trial Judge William R. Rush admitted the gross indecency
law is vague, but ruled that Lint could stand trial under the statute.
"The court readily agrees that the legal definition of gross indecency is all over
the board," Rush wrote. "The court finds the defendant knew or should have known
that the conduct he engaged in with a mentally challenged male who is essentially a child
was wrong and would be a crime."
Now attorney Joe Barberi is attempting to convince Chief Judge Paul Chamberlain to
reverse Rush's decision and have all charges dropped against his client because
prosecutors have failed to show a crime was committed.
Barberi, according to court records, contends "police and prosecutors are using
their discretion to unconstitutionally criminalize sexual behavior they find
offensive."
The state Supreme Court ruled in 1994 that the gross indecency charge could only be
used in limited circumstances, one of those involving a sex act with children.
One attorney involved in that challenge, Rudy Serra of Detroit, questioned the use of
the law in the Isabella case.
"I have a problem with a case in which the state tells someone with an IQ of 70
what they can and cannot do sexually," said Serra, who is human rights commissioner
for the city of Detroit and also serves on the board of the Triangle Foundation, a gay
advocacy group.
While declining to discuss the details of a pending case, Isabella County Prosecutor
Larry Burdick disagreed.
"We believe the facts of the case support the charges (of gross indecency),"
Burdick said.
Barberi said in court records that his client's contact with the alleged victim was
consensual, but Burdick said the alleged victim disputes that.
And prosecutors have recently filed requests with the court to present two previous
convictions on Lint's record which they say show a pattern of selecting "individuals
who are incapable of fending off (his) advances due to age or limited mental
capabilities," according to court documents.
Sera and Nora Baladerian, a certified sex therapist, however, said they have problems
with the presumption that because someone has a low IQ, that means they cannot consent to
sex.
And while prosecutors must prove the sexual contact in Lint's case was accomplished
without consent to convict on the fourth degree CSC charge, they don't have to prove the
act was forced with the felony gross indecency.
Critics of the gross indecency statute argue not only that it's vague, but that it is
selectively applied to cases that are more appropriately covered under more modern CSC
laws.
Baladerian, president of the American Association for Single People, expressed shock at
the case.
"His IQ is 70?" she asked. "One more point and he'd be considered
normal."
Experts say Michigan is the only state with the gross indecency law still on the books;
it is also among 20 states with sodomy laws that apply to both sexes.
Enacted in 1952, the gross indecency statutes contain verbatim the language of the same
19th century British law used to prosecute author Oscar Wilde just before the turn of the
century, Serra said.
In 1975, Michigan joined many other states that enacted new, more comprehensive and
specific criminal sexual conduct codes.
"This was done with the idea that the gross indecency and sodomy statutes would be
repealed," Serra said.
But they weren't.
One of the problems with the gross indecency statute was is never specifically said
what constituted "gross indecency," Serra said.
For a time, it was loosely defined by what was termed "community standards."
Then in 1994, the state Supreme Court ruled that the community standard method was too
vague and, hence, unconstitutional.
"The court ruled that gross indecency could not apply except in cases of payment
for sex, forced sex, public sex, or sex with children," Serra said.
The court also hinted that the state's legislature should take a look at whether the
law was even necessary anymore given the current criminal sexual conduct code.
But the legislature hasn't, and several representatives and senators have said they
have no intention of ever raising the issue.
That attitude is not uncommon. Other states have had their laws struck down by the
courts, but the legislatures in some states have often been deadlocked on the issue of
repealing these laws.
In addition to being an attorney, Serra has also worked with the developmentally
disabled, having been a supervisor in some foster care homes.
Part of the problem, as he sees it, is society's inability to recognize the
developmentally disabled as sexual beings.
Baladerian agrees.
"They're not even supposed to be sexual. It's a prejudicial thing," she said.
"Sex education for the developmentally disabled is basically AIDS, sterilization, and
just don't do it."
"These are adults and they do have rights and they can behave appropriately,"
Serra said. "Our society does have a mind set about developmentally disabled people.
And that mind set is they can't have sex because they'll reproduce.
"But they can be sexually appropriate and they can be provided with birth control
and they can be instructed on where the activity is appropriate," Serra said.
But Burdick said the case is not simply about someone else deciding consent for the
complainant.
According to the police report, the complainant was "very nervous and at one point
almost began to cry" while describing what happened to police.
The complainant came to police in a less than direct manner. One support coordinator
from state mental health services told a protective services employee who then told
police.
Another case pending in Isabella courts provides another example of the use of gross
indecency prosecution.
In that case, a 27-year-old man is accused of getting two boys drunk -- a 12- and
11-year-old -- and having them perform a solo sex act.
He faces three charges: contributing to the delinquency of a minor by enticing them to
perform indecent sexual acts, and with furnishing alcohol to a minor -- both misdemeanors
-- and with gross indecency between males, a felony.
Burdick agreed with the notion there might be a hole in the state's laws for incidents
involving children but in which there was no contact.
"I think there is a real problem with the CSC statutes where there was not any
contact," Burdick said.
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