Michigan's Sodomy Statute (MCL 750.158): What the Text Says and Where It Stands

Michigan's sodomy statute, MCL 750.158, is still part of the Penal Code. Its text has not been amended since 1952.^[1] In 2003 the US Supreme Court held in Lawrence v Texas that a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violated the Due Process Clause.^[2] The Michigan sources reviewed for this guide do not say how that decision limits the Michigan statute.^[3]

This page sets out the statute's words, how Michigan courts have defined the offense, what Lawrence held, what the Michigan sources do and do not address, and how the statute connects to the registry. It makes no prediction about how any prosecutor or court would treat a particular case.

What does MCL 750.158 say?

The section reads, in part: "Any person who shall commit the abominable and detestable crime against nature either with mankind or with any animal shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years."^[1]

The statute does not define "crime against nature." According to the benchbook, the Court of Appeals has described the section as covering two categories of crime: one with a human being and one with an animal.^[7] A companion section, MCL 750.159, says that in a prosecution for sodomy it is not necessary to prove emission, and that any sexual penetration, however slight, is enough to complete the offense.^[8]

The History line printed with the statute shows the section was enacted in 1931 and last amended by 1952 PA 73, effective September 18, 1952.^[1]

How have Michigan courts defined the offense?

Because the statute uses a phrase from the common law, the courts have looked to the common law for its meaning. The Court of Appeals has said that Michigan follows the common-law definition of sodomy, which covered anal intercourse and not fellatio.^[4] The same line of cases holds that the statute expressly prohibits bestiality, and that an act of bestiality includes any act of sexual connection between a human being and an animal.^[4]

The benchbook also reports that the Court of Appeals rejected an argument in 1980 that the statute's wording is unconstitutionally vague.^[7] That decision came before Lawrence v Texas, and the benchbook does not discuss Lawrence.^[3]

Two points follow from the text and these cases. First, nothing in the words of MCL 750.158 mentions consent, age, or the sex of the participants.^[1] Second, oral sexual acts fall outside the common-law definition the Court of Appeals described.^[4] The Court of Appeals has addressed oral sexual conduct under the gross indecency statutes, which are a separate set of sections with a 5-year maximum.^[9][10]

What did Lawrence v Texas hold?

Lawrence began when police entered a private residence and saw two adult men engaging in a private, consensual sexual act; both were convicted under a Texas statute that forbade two persons of the same sex to engage in certain intimate sexual conduct.^[11] The Supreme Court held that the Texas statute violated the Due Process Clause.^[2] The Court said the case should be resolved by determining whether the petitioners "were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution."^[12]

The opinion also states what the case was not about:

"The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle."^[12]

The Court said the petitioners' right to liberty under the Due Process Clause "gives them the full right to engage in their conduct without intervention of the government," and that the Texas statute "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."^[12] It overruled its earlier decision in Bowers v Hardwick.^[12]

What do Michigan sources say about Lawrence and MCL 750.158?

Very little, and that is the accurate answer. The table sets out what the sources reviewed for this guide address and what they leave open.

Question	What the sources show
Has the Legislature repealed or amended MCL 750.158 since Lawrence?	No amendment appears after 1952 in the section's History line.[1]
Does the Sexual Assault Benchbook discuss Lawrence in its section on MCL 750.158?	No. The benchbook's discussion of the statute does not cite Lawrence or address private consensual adult conduct.[3]
Is there a current model jury instruction for sodomy?	The Model Criminal Jury Instructions list M Crim JI 20.32, "Sodomy," as deleted.[3]
Did Lawrence itself involve minors, coercion, public conduct or prostitution?	No. The opinion says the case did not involve any of those.[12]

The benchbook's section on the statute is silent about Lawrence, and the model instruction is listed as deleted.^[3] Beyond that, this guide did not find a Michigan appellate decision or other Michigan primary source stating how Lawrence limits the statute, and it did not find the jury instruction committee's reason for deleting the sodomy instruction. For that reason this page does not say that the statute has been "struck down," "repealed," or declared "unenforceable," and it does not say the opposite either. The statute's text and the Supreme Court's holding are both set out above so that readers can see each for what it is.

A person facing a charge under this statute, or who has an old conviction under it, has a question that turns on the specific facts and on constitutional law. That is a question for a lawyer who can review the record, not one a general reference page can answer.

What is the penalty, and what is a "sexually delinquent person"?

A violation is a felony punishable by up to 15 years in state prison.^[1] The benchbook notes that no fines are authorized under the section.^[7]

The statute adds an alternative: if the person was "a sexually delinquent person" at the time of the offense, the offense "may be punishable" by an indeterminate prison term with a minimum of 1 day and a maximum of life.^[1] A sexually delinquent person is defined in MCL 750.10a as a person whose sexual behavior is characterized by repetitive or compulsive acts indicating a disregard of consequences or the recognized rights of others, by the use of force upon another person in attempting sex relations, or by the commission of sexual aggressions against children under 16.^[13]

Sexual delinquency is not a separate crime. The Michigan Supreme Court has described MCL 750.10a as a definitional statute that does not carry a separate conviction or sentence, and the sentencing scheme applies to only five offenses, of which MCL 750.158 is one.^[14] The charging document may allege it along with the principal offense, and it must be proved beyond a reasonable doubt.^[15] The same alternative sentence is explained in more detail in the guide to indecent exposure.

Does a conviction lead to sex offender registration?

The Sex Offenders Registration Act lists a violation of MCL 750.158 "committed against a minor" as a Tier II offense unless one of two exceptions applies.^[5] The exceptions are: (A) the victim consented, was at least 13 but less than 16, and the individual is not more than 4 years older; or (B) the victim consented, was 16 or 17, and was not under the individual's custodial authority.^[6]

The benchbook reports that the Court of Appeals has held a violation of MCL 750.158 requires registration only if the victim is a human being less than 18 years old, and that the registration act does not apply to the part of the statute that prohibits bestiality.^[7] Separately, the act lists as a Tier I offense any offense committed by a person who was a sexually delinquent person at the time.^[5]

A person already registered for a conviction under MCL 750.158 that resulted from a consensual act, where the victim was 13 or older but under 16 and the registrant is not more than 4 years older, falls within a category for which the court must grant a petition to end registration.^[16] Tiers are explained in SORA tiers, and the petition process in petitions for removal from the registry.

Related statutes that are often confused with it

Gross indecency

Michigan has three gross indecency statutes, covering acts between males, between females, and between a male and a female; each is a felony punishable by up to 5 years or a fine of up to $2,500.^[10] In a case about oral sexual conduct, the Court of Appeals said the key issue in deciding whether the act was performed in a public place is whether there is the possibility that the unsuspecting public could be exposed to or view it.^[9] A public place is not required where the charge involves procuring an act with a person under the age of consent.^[17]

Lewd and lascivious cohabitation

Until 2023, MCL 750.335 also prohibited an unmarried man and woman from "lewdly and lasciviously" associating and cohabiting, according to the Senate Fiscal Agency's summary of the bill that removed it.^[18] 2023 PA 78 took immediate effect on July 12, 2023.^[19] The section now reaches only open and gross lewdness and lascivious behavior, a misdemeanor punishable by up to 1 year or a fine of up to $1,000, and a prosecution may not be commenced more than 1 year after the offense.^[19] The section's printed heading still includes the word "cohabitation."^[19]

Criminal sexual conduct

Nonconsensual acts, and acts with people below the age of consent, are prosecuted in Michigan under the criminal sexual conduct statutes, which are organized by penetration or contact and by listed circumstances rather than by the type of act. Start with the overview of criminal sexual conduct law, consent under the CSC statutes and the age of consent.

What people get wrong

"Michigan repealed its sodomy law." The Legislature has not amended MCL 750.158 since 1952.^[1]

"The statute covers oral sex." The Court of Appeals has said the common-law definition Michigan follows did not include fellatio.^[4]

"Lawrence decided every kind of case." The opinion says the case did not involve minors, persons who might be injured or coerced or who are in relationships where consent might not easily be refused, or public conduct or prostitution.^[12]

"Sexually delinquent person is its own charge." It is an alternate sentencing provision tied to five offenses, not a stand-alone crime.^[14]

More corrections of this kind are collected in common myths about Michigan sex crime law, and dated changes are listed in the timeline of law changes.