People v. Warren
| Decision Date | 25 July 1995 |
| Docket Number | Nos. 99534,99535,s. 99534 |
| Citation | 535 N.W.2d 173,449 Mich. 341 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Larry N. WARREN, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robin M. ANGER, Defendant-Appellee. |
| Court | Michigan Supreme Court |
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, Southfield, for 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.
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 (III) 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 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). 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.
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. at 258, 511 N.W.2d 907.
The Court of Appeals in Dizzy Duck declined to follow Michigan 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...." 8 Instead, the Court of Appeals in Dizzy Duck relied on dictionary definitions of "sexual intercourse" as meaning penile-vaginal penetration. 203 Mich.App. at 260, 511 N.W.2d 907.
Dissenting in Dizzy Duck, the dissent said that she would adopt the definition of Mesk. Citing an alternative definition, 9 she characterized prostitution as "the conduct of all persons, male and female, who engage in sexual activity as a business." 203 Mich.App. at 265, 511 N.W.2d 907.
As was illustrated recently by our several opinions in People v. Lino, 447 Mich. 567, 527 N.W.2d 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. at 258, 511 N.W.2d 907.
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 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 at 428, 27 Ill.Dec. 462, 389 N.E.2d 526. Put another way, masturbatory massage parlors "are, in essence, specialized houses of prostitution." Chicago v. Geraci, 0 Ill.App.3d 699, 703, 332 N.E.2d 487, 80 A.L.R.3d 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 II of the information, and we remand these cases to the circuit court for further proceedings. MCR 7.302(F)(1).
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.
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. 1 In the instant case, factual and legal assessment is required. Peremptory disposition is not appropriate.
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 2 or conspiracy to commit that offense 3 because a woman working in a massage parlor is not a prostitute within the meaning of the Penal Code.
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 4 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.
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...
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