People v. Bennett

Michigan Court of Appeals

People v. Bennett

205 N.W.2d 831, 45 Mich. App. 127, 1973 Mich. App. LEXIS 1065

CourtMichigan Court of Appeals

DecidedFebruary 22, 1973

DocketDocket 13199

StatusPublished

Cited by7 cases

This text of 205 N.W.2d 831 (People v. Bennett) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Bennett, 205 N.W.2d 831, 45 Mich. App. 127, 1973 Mich. App. LEXIS 1065 (Mich. Ct. App. 1973).

Pincite

Opinion

*128 Van Valkenburg, J.

The defendant was convicted by a jury of taking indecent liberties with a 14-year-old boy contrary to MCLA 750.336; MSA 28.568, was sentenced to a prison term of from 2 to 10 years, and appeals as of right. He testified in his own behalf and interposed the defense of alibi.

Defendant asserts that in order to sustain a conviction under MCLA 750.336, supra, there must be proof of an assault which necessarily occasions the taking of indecent liberties. This precise question was before this Court in People v Osborn, 31 Mich App 156 (1971), wherein this Court held that the assault which necessarily is involved in taking indecent liberties with a child under the age of 16 is sufficient to constitute an assault within the meaning of the statute. An assault separate and apart from the act itself need not be proven.

Defendant further asserts that there could be no assault since the act was committed with the complainant’s consent. This Court in People v Doyle, 16 Mich App 242 (1969), impliedly recognized that a child under the age of 16 years is legally incapable of giving consent to the taking of indecent liberties, applying the same rationale that applies to statutory rape. While complainant herein was a male under the age of 16, we can see no reason for applying a different rule merely because of gender. Obviously, the sex of the child does not render him any more capable in the eyes of the law to give his consent to such acts. Accordingly, we hold that this 14-year-old boy was legally incapable of giving consent.

Defendant’s contention that the statute herein challenged is unconstitutional is without merit. See People v Hicks, 98 Mich 86 (1893); Armstrong v Bannan, 272 F2d 577 (CA 6, 1959); People v Kranz, 39 Mich App 69 (1972).

*129 Although defendant’s remaining allegations of error were not properly preserved for appellate review, they have been carefully considered and found lacking in merit.

Affirmed.

All concurred.

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*128 Van Valkenburg, J.

The defendant was convicted by a jury of taking indecent liberties with a 14-year-old boy contrary to MCLA 750.336; MSA 28.568, was sentenced to a prison term of from 2 to 10 years, and appeals as of right. He testified in his own behalf and interposed the defense of alibi.

Defendant asserts that in order to sustain a conviction under MCLA 750.336, supra, there must be proof of an assault which necessarily occasions the taking of indecent liberties. This precise question was before this Court in People v Osborn, 31 Mich App 156 (1971), wherein this Court held that the assault which necessarily is involved in taking indecent liberties with a child under the age of 16 is sufficient to constitute an assault within the meaning of the statute. An assault separate and apart from the act itself need not be proven.

Defendant further asserts that there could be no assault since the act was committed with the complainant’s consent. This Court in People v Doyle, 16 Mich App 242 (1969), impliedly recognized that a child under the age of 16 years is legally incapable of giving consent to the taking of indecent liberties, applying the same rationale that applies to statutory rape. While complainant herein was a male under the age of 16, we can see no reason for applying a different rule merely because of gender. Obviously, the sex of the child does not render him any more capable in the eyes of the law to give his consent to such acts. Accordingly, we hold that this 14-year-old boy was legally incapable of giving consent.

Defendant’s contention that the statute herein challenged is unconstitutional is without merit. See People v Hicks, 98 Mich 86 (1893); Armstrong v Bannan, 272 F2d 577 (CA 6, 1959); People v Kranz, 39 Mich App 69 (1972).

*129 Although defendant’s remaining allegations of error were not properly preserved for appellate review, they have been carefully considered and found lacking in merit.

Affirmed.

All concurred.

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Bluebook (online)

205 N.W.2d 831, 45 Mich. App. 127, 1973 Mich. App. LEXIS 1065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bennett-michctapp-1973.

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