People v. Warren

535 N.W.2d 173, 449 Mich. 341

• Court: Michigan Supreme Court
• Decided: July 25, 1995
• Docket: Docket 99534, 99535
• Status: Published

Opinions

Per Curiam.

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,¹ (ii) accepting the earnings of a prostitute,² (in) conspiracy to keep a house of prostitution,³ and (iv) maintaining a house of prostitution.⁴

Each defendant then filed a motion to quash Counts i and ii, and a motion to quash Counts hi 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 NW2d 907 (1994).⁵ In light of Dizzy Duck, the defendants sought reconsideration.

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.⁶ The denial orders cited Dizzy Duck.

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.⁷

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 NW2d 184 (1983), in which the Court of Appeals had said that prostitution "does include manual stimulation of another person for the payment of money . . . .”⁸ Instead, the Court of Appeals in Dizzy Duck relied on dictionary definitions of "sexual intercourse” as meaning penile-vaginal penetration. 203 Mich App 260.

Dissenting in Dizzy Duck, the dissent said that it would adopt the definition of Mesk. Citing an alternative definition,⁹ it characterized prostitution as "the conduct of all persons, male and female, who engage in sexual activity as a business.” 203 Mich App 265.

in

As was illustrated recently by our several opinions in People v Lino, 447 Mich 567; 527 NW2d 434 (1994),¹⁰ this entire area of law is made more difficult by the Legislature’s adherence to antiquated and obscure terminology.¹¹ 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.

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.¹²

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.¹³ Exceptions exist,¹⁴ but we find them less persuasive than decisions that have found that it is prostitution to perform masturbatory massages for money.

The Illinois Supreme Court so held in Chicago v Cecola, 75 Ill 2d 423, 428; 27 Ill Dec 462; 389 NE2d 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, "[cjlearly, 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 NE2d 487; 80 ALR3d 1013 (1975).¹⁵

We agree with the prosecutor that the restrictive definition of "prostitution” advanced by the majority in Dizzy Duck is erroneous.¹⁶ Instead, we hold that sexual stimulation of a customer’s penis by direct manual contact, in exchange for money, is prostitution.

For these reasons, we reverse the circuit court order that quashed Counts i and n 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.

1 MCL 750.157a, 750.457; MSA 28.354(1), 28.712.

2 MCL 750.457; MSA 28.712.

3 MCL 750.157a, 750.452; MSA 28.354(1), 28.707.

4 MCL 750.452; MSA 28.707.

5 Vacated 449 Mich 353; 535 NW2d 178 (1995).

6 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).

7 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.

8 In Mesk, the Court of Appeals considered the word "prostitution” as used in the nuisance-abatement statute. MCL 600.3801; MSA 27A.3801.

9 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.

10 Lino concerned the gross indecency statute. MCL 750.338; MSA 28.570.

11 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.

12 MCL 8.3a; MSA 2.212(1).

13 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.

14 State ex rel Polk Co Sheriff v Toneca, Inc, 265 NW2d 909, 913 (Iowa, 1978). See also State ex rel Gilchrist v Hurley, 48 NC App 433, 449-450; 269 SE2d 646 (1980), pet den 301 NC 720 (1981).

15 The Illinois Court of Appeals was split on this question until the 1979 decision in Cecola.

16 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 NW2d 483 (1994) (opinion of Riley, J.).