Criminal Defense Law Center
West Michigan

Public Sex

It is illegal to have sex in a public place in Michigan. If you are caught having sex in a public place you can be charged with Gross Indecency. This crime is nothing to laugh at as it is a felony charge that carries with it up to five years in prison.

MCL 750.338b:

“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.”

Examples Of Gross Indecency

Inserting a penis, tongue, finger into a person’s vagina or anus. Any entry, no matter how slight is enough. It also does not matter if the sexual act was completed.

Any entry into another person’s mouth by the defendant’s penis, not matter how slight is enough.

Touching of another person’s genital organs or genital openings by the defendant’s tongue or mouth.

Entry into a person’s anal opening no matter how slight by a person’s body or other object.

Under Michigan law, Gross indecency is considered a sex crime. This sex crime is in the same category as Criminal Sexual Conduct. Criminal Sexual Conduct is broken up into four degrees, CSC1, CSC2, CSC3 and CSC4. In the vast majority of cases a person who is convicted for Gross Indecency will have to register on the Michigan Sex Offender Registry. The time a person has to spend on the registry is based on a factor such as the age of the complainant. A person will go on the sex offender registration after they are done serving time in jail or prison.

One thing that sticks out on this charge is the fact that if you are a sexually delinquent person, your punishment can be up to life in prison! So, what exactly does the term “sexually delinquent” mean?

Under Michigan Codified Law, MCL 750.10a, the definition of sexually delinquent means “any person whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16.” The most common way a person gets labeled sexual delinquent in Michigan is by engaging in gross indecent exposure. A classic example of gross indecent exposure is a person who sexually stimulates themselves in public.

Definition Of A Public Place

Under Michigan law, a public place is a place where “a member of the public, who is in a place the public is generally invited or allowed to be at or could have been exposed to or viewed the act.

The law does not require that someone actually sees the sexual act, it only states that a person could have viewed the act. A person can face felony charges for gross indecency for an act that occurs in an empty park.

Identifying Reasons For Deviant Sexual Behavior

Public displays of nudity many times are an isolated incident that happens because someone has had a few too many drinks or is under the influence of drugs. A person who is busted for indecent exposure in a public place maybe suffering from psychological problems such as exhibitionism. Gross indecent exposure deals with sexual acts being performed

Indecent exposure in a public place may also be a sign of a psychological problem (exhibitionist). The offense of gross indecent exposure is a more serious offense. Gross indecent exposure cases involve a public sex act in a public place.

However, some couples are adept at having sex while still concealing their nether bits. Even if you are careful to avoid exposure during sex in public, you may still be charged with other crimes.

What Is Defined As Public Sex?

Clearly having sex on top of a picnic table in a public park is sex in public. Having sex on a beach is sex in public.  A public place is any place exposed to a general view. A place that is shared by all members of a community.  Having sex in a public place is still illegal even if there is no nudity being shown. One question we get asked about is “What about sex in a car?” If a person is having sexual relations in a car parked on a main street in the middle of the day and clearly visible by people who pass you by, you would be having sex in a public settle and could end up facing gross indecency charges. If you are parked on a main street during the day and clearly visible to passers-by, that would qualify as a public setting.  The more likely you are to be seen by a random passer by the more likely you are to be in violations of state laws against public sex.

Defenses To Public Sex

A skillful defense attorney like Shawn Haff and his fellow lawyers at The Criminal Defense Law Center of West Michigan will use all possible defense available to get you the best results possible. There are numerous defenses that can be raised to get the charges against you dropped or have a jury acquit you at trial. These defenses are:

The Public Sex Was Not Actually Public

Let’s say you and your partner are having sex in a car. If your car is parked in an area that is secluded and it is night time, and you are not in the pathway of people walking by the car would could easily see what is going on in the car we will argue that you were not in public and cannot be convicted of a crime.

This defense does not work when the sex act was taking place in a public area. If you and your partner are having sex in a rest area that is open to the public and the door of the restroom stall is closed, you will still probably be convicted for gross indecency.

You Were Not Having Sex

A steamy tango or a passionate make out session is not sex. If you are caught dirty dancing in a public area, you are not breaking the law and can not be charged with a crime.

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