Summary
In People v Warren, 449 Mich. 341, 347; 535 N.W.2d 173 (1995), we held that "sexual stimulation of a customer's penis by direct manual contact, in exchange for money," is prostitution.
Summary of this case from Michigan v. Dizzy DuckOpinion
Docket Nos. 99534, 99535.
Decided July 25, 1995.
On application by the people for leave to appeal, the Supreme Court, in lieu of granting leave, reversed the orders of the circuit court, and remanded the cases to the circuit court for further proceedings.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.
Carl L. Rubin and Gregory Fisher Lord for the defendants.
The defendants are charged with accepting the earnings of a prostitute, and conspiracy to commit that offense. The circuit court quashed the charges on the ground that the earnings did not come from acts of "prostitution." The Court of Appeals denied leave to appeal. We reverse the orders of the circuit court, and remand these cases to the circuit court for further proceedings.
I
Following an undercover investigation, the defendants were arrested for their involvement in the operation of a so-called "massage parlor." They were charged in a six-count complaint and warrant. After an extended preliminary examination, the defendants were bound over on four criminal charges: (I) conspiracy to accept the earnings of a prostitute, (II) accepting the earnings of a prostitute, (III) conspiracy to keep a house of prostitution, and (IV) maintaining a house of prostitution.
MCL 750.157a, 750.457; MSA 28.354(1), 28.712.
MCL 750.457; MSA 28.712.
MCL 750.157a, 750.452; MSA 28.354(1), 28.707.
MCL 750.452; MSA 28.707.
Each defendant then filed a motion to quash Counts I and II, and a motion to quash Counts III and IV. The motions were denied.
At about the time the court made its decision, the Court of Appeals decided a case that involved some similar issues. Michigan ex rel Wayne Co Prosecutor v Dizzy Duck, 203 Mich. App. 250; 511 N.W.2d 907 (1994). In light of Dizzy Duck, the defendants sought reconsideration.
Vacated 449 Mich. 353; 535 N.W.2d 178 (1995).
The circuit court granted reconsideration as to Counts I and II, concerning the acceptance of the earnings of a prostitute, and quashed those counts of the information.
The prosecutor applied to the Court of Appeals, but leave to appeal was denied. The denial orders cited Dizzy Duck.
People v Anger, unpublished order of the Court of Appeals, entered April 18, 1994 (Docket No. 172972); People v Warren, unpublished order of the Court of Appeals, entered April 21, 1994 (Docket No. 172888).
The prosecutor has applied to this Court for leave to appeal.
II
At the preliminary examination, testimony was taken from undercover police officers and from women who were employees of the business. These witnesses testified that it was customary for nude female employees to masturbate nude male customers. This was done in exchange for money, and the female employees distributed part of the proceeds to the defendants.
This case has not yet been tried. In light of the present procedural posture of the case, we are accepting as true the testimony of the prosecution witnesses at the preliminary examination.
In circuit court, the defendants argued that the female employees were not engaged in "prostitution," since that term refers only to the performance of sexual intercourse in exchange for money. They argued that it is not an act of prostitution to stimulate the genitals with one's hand.
The circuit court initially rejected that argument. However, it reversed itself in light of Dizzy Duck, in which a majority found that prostitution is "the performance of sexual intercourse for hire." 203 Mich. App. 258.
The Court of Appeals in Dizzy Duck declined to follow State ex rel Macomb Co Prosecutor v Mesk, 123 Mich. App. 111, 118; 333 N.W.2d 184 (1983), in which the Court of Appeals had said that prostitution "does include manual stimulation of another person for the payment of money. . . ." Instead, the Court of Appeals in Dizzy Duck relied on dictionary definitions of "sexual intercourse" as meaning penile-vaginal penetration. 203 Mich. App. 260.
In Mesk, the Court of Appeals considered the word "prostitution" as used in the nuisance-abatement statute. MCL 600.3801; MSA 27A.3801.
Dissenting in Dizzy Duck, the dissent said that it would adopt the definition of Mesk. Citing an alternative definition, it characterized prostitution as "the conduct of all persons, male and female, who engage in sexual activity as a business." 203 Mich. App. 265.
This is the definition presented in Black's Law Dictionary (5th ed):
Prostitution is performing an act of sexual intercourse for hire, or offering or agreeing to perform an act of sexual intercourse or any unlawful sexual act for hire. The act or practice of a female of prostituting or offering her body to an indiscriminate intercourse with men for money or its equivalent.
A person is guilty of prostitution, a petty misdemeanor, if he or she: (a) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; or (b) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity. Model Penal Code, § 251.2.
III
As was illustrated recently by our several opinions in People v Lino, 447 Mich. 567; 527 N.W.2d 434 (1994), this entire area of law is made more difficult by the Legislature's adherence to antiquated and obscure terminology. One of the lessons of the Lino inquiry is that it is prudent to decide only the case before us, and not attempt to catalog what is permitted and prohibited by each of these challenging statutes.
Lino concerned the gross indecency statute. MCL 750.338; MSA 28.570.
There are, of course, exceptions, such as the criminal sexual conduct statute. 1974 PA 266, as amended, MCL 750.520a et seq.; MSA 28.788(1) et seq.
As noted above, the Court of Appeals resorted to dictionaries in Dizzy Duck in its efforts to locate the meaning of the word "prostitution." Rejecting the statement found in Mesk, the Court of Appeals said that "prostitution" is "the performance of sexual intercourse for hire." 203 Mich. App. 258.
The present case requires us to determine whether the majority in Dizzy Duck was correct that prostitution is limited to sexual intercourse for hire. However, the present case does not require a determination whether the word "prostitution" has a meaning so broad as that proposed by the dissent. The issue today is simply whether "prostitution" includes sexual stimulation of a customer's penis by direct manual contact, in exchange for money.
We find that such activity is prostitution. The Court of Appeals so concluded in Mesk, and such an interpretation of the word "prostitution" comports with the ordinary meaning of the word.
MCL 8.3a; MSA 2.212(1).
Appellate decisions often describe "prostitution" with a reference to sexual intercourse. However, such references rarely constitute a judicial holding that other paid sexual acts, such as fellatio, cunnilingus, anal intercourse, or masturbation are not prostitution. Exceptions exist, but we find them less persuasive than decisions that have found that it is prostitution to perform masturbatory massages for money.
The same may be said of dictionary definitions. We do not find in these sources an implication that sexual intercourse is the only paid activity that can be prostitution.
State ex rel Polk Co Sheriff v Toneca, Inc, 265 N.W.2d 909, 913 (Iowa, 1978). See also State ex rel Gilchrist v Hurley, 48 N.C. App. 433, 449-450; 269 S.E.2d 646 (1980), pet den 301 N.C. 720 (1981).
The Illinois Supreme Court so held in Chicago v Cecola, 75 Ill.2d 423, 428; 27 Ill Dec 462; 389 N.E.2d 526 (1979). Writing in a civil nuisance suit (like Dizzy Duck) the court observed that "[t]he activities of a house of prostitution involve commercial sexual acts of every sort" and that, "[c]learly, a masturbatory massage parlor is engaged in commercial acts of sexual gratification involving the sex organs of one person in the hand of another." Thus, wrote the court in Cecola, the "defendants' activities fall clearly within the definition of prostitution. . . ." 75 Ill.2d 428. Put another way, masturbatory massage parlors "are, in essence, specialized houses of prostitution." Chicago v Geraci, 30 Ill. App.3d 699, 703; 332 N.E.2d 487; 80 ALR3d 1013 (1975).
The Illinois Court of Appeals was split on this question until the 1979 decision in Cecola.
We agree with the prosecutor that the restrictive definition of "prostitution" advanced by the majority in Dizzy Duck is erroneous. Instead, we hold that sexual stimulation of a customer's penis by direct manual contact, in exchange for money, is prostitution.
The prosecutor thinks it would defy common sense to conclude, as under Dizzy Duck, that "the women who regularly provide oral sex for money to men who stop their cars by the side of the street" are not prostitutes. While such a case is not before us, we would be surprised to learn that such activity did not fall within the common understanding of the word "prostitution." See, e.g., Lino, 447 Mich. 579, n 2 (opinion of LEVIN, J.), and Michigan ex rel Wayne Co Prosecutor v Bennis, 447 Mich. 719, 727, 743; 527 N.W.2d 483 (1994) (opinion of RILEY, J.).
For these reasons, we reverse the circuit court order that quashed Counts I and II of the information, and we remand these cases to the circuit court for further proceedings. MCR 7.302(F)(1).
BRICKLEY, C.J., and CAVANAGH, BOYLE, RILEY, MALLETT, and WEAVER, JJ., concurred.
I would deny leave to appeal, and dissent from the peremptory reversal of the Court of Appeals. I could join in an order granting leave to appeal to consider the jurisprudentially significant issue, decided without oral argument or plenary consideration in the majority opinion.
I
While the majority prefers the approach of the dissenting judge in the Court of Appeals in Michigan ex rel Wayne Co Prosecutor v Dizzy Duck, 203 Mich. App. 250; 511 N.W.2d 907 (1994), the determination of the majority of the Court of Appeals in that case was not so devoid of reason as to justify peremptory reversal. The majority's decision to peremptorily reverse the decision of the Court of Appeals belittles its efforts, in the disposition of these cases, as reflected in its carefully written published opinion in Dizzy Duck, and deprives Larry N. Warren and Robin M. Anger and their counsel of an opportunity to fully brief and orally argue in support of the decision of the Court of Appeals.
Today's peremptory decision reflects an increasingly common method of deciding cases, a method that does not provide safeguards against hasty and ill-considered decisions, a method that is unsafe.
When this Court grants leave to appeal, there is an opportunity to educate the justices concerning the state of the record and the law through oral argument, as well as visually through briefs. A justice who may have missed a significant point of law or fact on perusal of the materials considered before voting for peremptory reversal might be enlightened and persuaded in the course of oral argument.
Peremptory disposition, without plenary consideration, full briefing, oral argument, and an opportunity for the profession to file briefs as amici curiae, should be reserved for cases in which the law is settled and factual assessment is not required. In the instant case, factual and legal assessment is required. Peremptory disposition is not appropriate.
People v Wright, 439 Mich. 914, 914-915 (1992) (LEVIN, J., dissenting); Roek v Chippewa Valley Bd of Ed, 430 Mich. 314, 322; 422 N.W.2d 680 (1988) (LEVIN, J., separate opinion); Grames v Amerisure Ins Co, 434 Mich. 867, 868-875 (1990) (LEVIN, J., dissenting); People v Little, 434 Mich. 752, 769-770; 456 N.W.2d 237 (1990) (LEVIN, J., dissenting); People v Wrenn, 434 Mich. 885, 885-886 (1990) (LEVIN, J., dissenting); Harkins v Northwest Activity Center, Inc, 434 Mich. 896, 899 (1990) (LEVIN, J., dissenting); Dep't of Social Services v American Commercial Liability Ins Co, 435 Mich. 508, 515; 460 N.W.2d 194 (1990) (LEVIN, J., separate opinion); Yahr v Garcia, 436 Mich. 872, 872-873 (1990) (LEVIN, J., dissenting); Universal Underwriters Ins Co v Vallejo, 436 Mich. 873, 873-874 (1990) (LEVIN, J., dissenting); People v Stephens, 437 Mich. 903, 903-910 (1991) (LEVIN, J., dissenting); People v Berkey, 437 Mich. 40, 54; 467 N.W.2d 6 (1991) (LEVIN, J., dissenting); Turner v Washtenaw Co Rd Comm, 437 Mich. 35, 38-39; 467 N.W.2d 4 (1991) (LEVIN, J., separate opinion); Lepior v Venice Twp, 437 Mich. 955, 956-966 (1991) (LEVIN, J., dissenting); Rochester Hills v Southeastern Oakland Co Resource Recovery Authority, 440 Mich. 852, 852-856 (1992) (LEVIN, J., dissenting); In re Reinstatement of Eston (Grievance Administrator v Eston), 440 Mich. 1205, 1205-1207 (1992) (LEVIN, J., dissenting); In re Reinstatement of Callanan, 440 Mich. 1207, 1207-1209 (1992) (LEVIN, J., dissenting); McFadden v Monroe Civil Service Comm, 440 Mich. 890, 890-891 (1992) (LEVIN, J., dissenting); Holly Twp v Dep't of Natural Resources (Holly Twp v Holly Disposal, Inc), 440 Mich. 891, 891-893 (1992) (LEVIN, J., dissenting); Marzonie v ACIA, 441 Mich. 522, 535-539; 495 N.W.2d 788 (1992) (LEVIN, J., dissenting); People v Waleed, 441 Mich. 902, 902-903 (1992) (LEVIN, J., dissenting); People v Hardison, 441 Mich. 913, 914-916 (1993) (LEVIN, J., dissenting); People v Justice, 441 Mich. 916, 917-919 (1993) (LEVIN, J., dissenting); People v LaClear, 442 Mich. 867, 867-871 (1993) (LEVIN, J., dissenting); Auto-Owners Ins Co v City of Clare, 446 Mich. 1, 16-18; 521 N.W.2d 480 (1994) (LEVIN, J., dissenting); Weisgerber v Ann Arbor Center for the Family, 447 Mich. 963, 964-969 (1994) (LEVIN, J., dissenting); Howard v White, 447 Mich. 395, 405-410; 523 N.W.2d 220 (1994) (LEVIN, J., dissenting).
See Schweiker v Hansen, 450 U.S. 785, 791; 101 S Ct 1468; 67 L Ed 2d 685 (1981) (Marshall, J., dissenting) ("A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error"); Leis v Flynt, 439 U.S. 438, 457-458; 99 S Ct 698; 58 L Ed 2d 717 (1979) (Stevens, J., dissenting) ("Summary reversal `should be reserved for palpably clear cases of . . . error.' Eaton v Tulsa, 415 U.S. 697, 707 [ 94 S Ct 1228; 39 L Ed 2d 693 (1974)] [Rehnquist, J., dissenting]").
II
Because the majority has determined to decide this case peremptorily, I venture the following dissenting opinion on the merits.
Larry N. Warren and Robin M. Anger cannot properly be convicted of accepting the earnings of a prostitute or conspiracy to commit that offense because a woman working in a massage parlor is not a prostitute within the meaning of the Penal Code.
MCL 750.457; MSA 28.712.
MCL 750.157a, 750.457; MSA 28.354(1), 28.712.
In Dizzy Duck, a majority of the Court of Appeals held that prostitution refers to sexual intercourse for hire, meaning vaginal intercourse. The majority in this Court reverses.
Because the activity in the massage parlor did not include oral sex or anal sex, we need not decide whether the Court of Appeals erred in not including oral and anal sex for money within the definition of prostitution.
But see People v Lino, 447 Mich. 567, 584 , n 8; 527 N.W.2d 434 (1994) (LEVIN, J.).
While it is indeed arguable that the legislative purpose in proscribing prostitution and receiving the earnings of a prostitute includes prohibiting not only vaginal intercourse for money but also oral and anal sex for money, it is unclear whether that legislative purpose included prohibiting, with the same penalty structure for violation, manual sex for money. Massage parlors are a post-World War II phenomenon, appearing long after the enactment of the Penal Code provisions on which this prosecution is based.
Chapter LXVII of the Penal Code, 1931 PA 328, concerns prostitution. Sections 452 and 457 were included in that enactment.
The Legislature distinguished between "sexual contact" and "sexual penetration" in defining criminal sexual conduct, imposing significantly lesser penalties for proscribed sexual contact as compared with proscribed sexual penetration. The majority exceeds this Court's proper function in taking upon itself equating sexual penetration for money with sexual contact for money. Unmarried teenagers understand that there is a difference between manual sex and "going all the way."
"Sexual contact" includes the intentional touching of the victim's or actor's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification. [MCL 750.520a(k); MSA 28.788(1)(k).]
"Sexual penetration" means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required. [MCL 750.520a(l); MSA 28.788(1)(l).]
One of the purposes of legislation proscribing prostitution and receiving the earnings of a prostitute is to protect women from exploitation and degradation. Just as the Legislature saw greater need, by imposing greater penalties, for protecting against unconsented or underage sexual penetration than unconsented or underage sexual contact, the Legislature might conclude that there is a need for greater protection, and a correspondingly more severe penalty structure, where there is sexual penetration (vaginal, anal, or oral) for hire than where there is sexual contact (manual) for hire.
Where there is unlawful sexual penetration, there is greater danger of physical abuse beyond that involved in the sexual penetration, and greater risk of sexually transmitted diseases than where there is unlawful sexual contact. Since those risks are present to a considerably lesser extent where manual sex is involved, it is beyond our proper role to conclude that the Legislature intended or would intend that prostitution include manual sex for hire. I would leave it to the Legislature to consider and decide whether the regulation or proscription of massage parlors should be dealt with at the state or local level, as well as the penalty structure for manual sex for hire and for receiving the earnings of a woman engaged in that activity.
Warren and Anger are also charged with violation of § 452 of the Penal Code constituting maintenance of a house of ill fame for the purpose of lewdness, but no issue in that regard is presented in this appeal. In the companion Dizzy Duck case, I agree with the majority that the civil abatement statute may be employed to abate as a nuisance an establishment, such as the Dizzy Duck, where men are stimulated by women hired for that purpose to masturbate to orgasm. In so ruling, the meaning of "lewdness, assignation, or prostitution" for the purposes of a civil abatement statute has been expanded.
MCL 600.3801; MSA 27A.3801.
The Court's role in construing a penal statute is more limited than in construing legislation not involving the imposition of prison sentences. I do not wish to be understood as having expressed an opinion whether § 452 may properly be read as including the imposition of penal sanctions for maintaining a massage parlor.