Indecent proposal

Last week Americans both celebrated and condemned the Supreme Court’s decision to overturn Texas’ sodomy law. The controversial ruling was noted for its uncharacteristically strong language in favor of equal rights for gay people.

Local lawmakers immediately began to question whether the decision would affect Michigan’s sodomy law, which applies to both heterosexual and homosexual couples. The Texas law applied only to homosexual couples.

Before the Supreme Court’s ruling, Michigan lawmakers had been lobbying to repeal both the sodomy law and another lesser-known statute, “gross indecency.”

In May, state Rep. Steve Tobocman, D-Detroit, introduced a bill that would repeal the gross indecency law, along with several other laws which he describes as “arcane.”

What exactly is gross indecency?

“That’s a great question,” says Tobocman. “I don’t know.”

Gross indecency is not defined in the law; it’s left to the courts to determine what constitutes grossly indecent behavior. When it was first scripted in 1931, the definition was held to the “common sense of society.” However, in 1994, the Michigan Supreme Court struck down that definition, and narrowed the law to only include cases involving public sex, and sex acts involving a minor, force or payment. A felony offense, a first-time conviction of gross indecency could result in five-to-15 years in jail. The sodomy law is similarly vague, referring to “any person who shall commit the abominable and detestable crime against nature either with mankind or with any animal” and can lead to 15 years for a first conviction, and a life sentence for a second conviction.

Critics of the gross indecency law say it’s used discriminatorily, specifically to target gay men.

Tobocman says heterosexual couples caught engaging in sexual activities in public, as in the quintessential foggy car-window scenario, are often simply told to leave the area, or are charged with indecent exposure, a misdemeanor.

“But, if it’s a homosexual couple, suddenly we charge them with a higher crime with a higher penalty, which is the gross indecency statute,” Tobocman says.

Both gross indecency and sodomy are felony offenses, and, under current law, all felony sex convictions result in the offender’s permanent listing in Michigan’s sex-offender registry.

There are three gross indecency statutes, one applying to two men, one for two women, and one for a man and woman. The Triangle Foundation, a gay-rights group, says Michigan is the only state in the nation that charges gross indecency between two men.

Tobocman drafted the repeal package after consulting with the Triangle Foundation. He says there are other laws that can be used to prosecute public sex, like indecent exposure and lewd and lascivious behavior, both misdemeanors. The repeal package also includes several other laws that Tobocman describes as outdated. They include statutes that prohibit swearing in public and cohabitation.

“These are arcane laws. They’re vague, and have traditionally been used to go after gay men,” says Shelli Weisberg, legislative director for ACLU of Michigan. “Although we don’t condone public or nonconsensual sex, there are already laws on the book to address these issues.”

Gary Glenn, president of the American Family Association of Michigan, disagrees.

“Just because there are other laws on the books that address these behaviors is certainly no reason to repeal a law that has been useful to law enforcement officials,” says Glenn. “The current language allows law officials flexibility in protecting the right of families and children in our state to enter public places without being confronted by sexual behavior.”

Glenn doesn’t believe the laws are being applied in a disproportionate manner against gay men.

“That’s comparable to complaining that laws against speeding are used against speeders. If it’s enforced disproportionately, it’s because individuals engaged in homosexual behavior disproportionately do so in public places. They even maintain Web sites advertising locations where to do so,” he says.

One of the sites Glenn referred to is www.cruisingforsex.com, which includes chat rooms and a nationwide, searchable database of listing of public and semi-public places where gay men can go to look for sex. Detroit’s Coleman A. Young Municipal Center and the main Detroit Public Library earn mentions on the site.

The gross indecency law is problematic because of confusion surrounding it. In 1990 the Wayne County Circuit Court declared the law unconstitutional because of its vagueness. However, the attorney general never appealed the judgment, so the law remained on the books.

So how can an overturned law be used to prosecute someone?

“How can George Bush declare war without congressional approval? These things happen,” says Sean Kosofsky, director of policy for the Triangle Foundation. “Sometimes the courts need to remind law enforcement what the law is and how to do their job.”

Kosofsky was unable to provide statistics on the number of gross indecency convictions, but says they occur on a regular basis. The Triangle Foundation recently published a report, “Bag a Fag” (Kosofsky says that’s what police call such operations), which detailed police stings on gay men having sex in highway rest stops. Offenders are usually charged with the gross indecency statute.

Detroit attorney Rudy Serra has worked closely with the Triangle Foundation and the “Bag a Fag” report, and drafted both the sodomy and gross indecency repeals. Serra says the gross indecency charge is commonly used in plea bargains.

“Sometimes the threat of the felony charge is used to extract a plea bargain to a lesser offense,” Serra wrote in an article for the Journal of Law in Society.

Because of the pleading-down factor, Kosofsky says convictions of the charge seldom happen, but do occasionally occur. The penalties usually entail a fine, but some offenders have been sentenced to jail time.

State Rep. Leon Drolet, a conservative Republican representing Clinton Township, spearheaded the sodomy repeal, and is a supporter of the gross indecency repeal. While he feels relatively confident about his sodomy bill — bolstered in part by the recent Supreme Court ruling — he thinks Tobocman’s gross indecency repeal faces a difficult uphill battle.

“If you bring up gross indecency, the eyes roll and no one wants to hear about it,” says Drolet. “It suffers from misunderstanding of the law.”

Drolet also says it will be hard to find supporters for the bill, because they could be painted as supporting public sex in campaign smear tactics.

“I applaud [Tobocman’s] courage in taking on a harder law to appeal,” says Drolet. “But I’ve had a whale of a time trying to get momentum to repeal the sodomy law. It’s going to be an even tougher road to pave for gross indecency.”