Indecent Exposure Charges In Michigan: Legal Grounds and Penalties “Revealed”

There are three levels of indecent exposure crimes in Michigan.

(I) INDECENT EXPOSURE – MCL 750.335a(2)(a)

• To be found guilty of indecent exposure contrary to MCL 750.335a(2)(a), the prosecutor must prove each of the following beyond a reasonable doubt.

1. The individual knowingly made an open or indecent exposure of his or her person.
2. The individual did this in a place under circumstances in which another person might reasonably have been expected to observe it and which created a substantial risk that someone might be offended or in a place where such exposure is likely to be an offense against your community’s generally accepted standards of decency and morality.

• The penalty for indecent exposure is:

1. Misdemeanor conviction punishable by up to 1 year in jail or a fine up to $1,000.00, or both.
2. Sex Offender Registry possible if individual is determined to be a sexually delinquent person (SEE BELOW)

(II) AGGRAVATED INDECENT EXPOSURE – MCL 750.335a(2)(b)

• To be found guilty of aggravated indecent exposure contrary to MCL 750.335a(2)(b), the prosecutor must prove each of the following beyond a reasonable doubt.

1. The individual knowingly made an open or indecent exposure of his or her person.
2. The individual was fondling his or her genitals, pubic area, buttocks, or, if the person is female, breasts.
3. The individual did this in a place under circumstances in which another person might reasonably have been expected to observe it and which created a substantial risk that someone might be offended or in a place where such exposure is likely to be an offense against your community’s generally accepted standards of decency and morality.

• The penalty for aggravated indecent exposure is:

1. High court misdemeanor conviction punishable by up to 2 years in prison or a fine up to $2,000.00, or both.
2. Sex Offender Registry as a Tier I offender if the victim is a minor.
3. Sex Offender Registry as a Tier II offender if BOTH the victim is a minor AND the individual was already a Tier I offender.
4. Sex Offender Registry as a Tier III offender if BOTH the victim is a minor AND the individual was already a Tier II offender.

(III) INDECENT EXPOSURE BY A SEXUALLY DELINQUENT PERSON – MCL 750.335a(2)(c)

• To be found guilty of indecent exposure by a sexually delinquent person contrary to MCL 750.335a(2)(c), the prosecutor must prove each of the following beyond a reasonable doubt.

1. The individual knowingly made an open or indecent exposure of his or her person.
2. The individual did this in a place under circumstances in which another person might reasonably have been expected to observe it and which created a substantial risk that someone might be offended or in a place where such exposure is likely to be an offense against your community’s generally accepted standards of decency and morality.
3. The individual is a “sexually delinquent person”, defined by MCL 750.10a as “any person whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16.”

• The penalty for indecent exposure by a sexually delinquent person is:

1. Felony conviction punishable by imprisonment for an indeterminate term, the minimum being 1 day in jail and the maximum being life in prison.
2. Sex Offender Registry as a Tier I offender as a first offense.
3. Sex Offender Registry as a Tier II offender if the offender was already a Tier I offender.
4. Sex Offender Registry as a Tier III offender if the offender was already a Tier II offender.

What is considered indecent exposure is not always well defined and is subjective to the circumstances. The Michigan Court of Appeals defines “indecent exposure” as the exhibition of those private parts of the person that instinctive modesty, human decency or natural self-respect require they should customarily be covered in the presence of others. People v Kratz, 230 Mich 334; 203 NW 114 (1925). Different body parts may apply to different situations, but the application is very broad.

Here are some examples when indecent exposure convictions were upheld:

• “Open and indecent exposure” does not necessarily require a public place. A male was convicted of indecent exposure where he summoned a minor female to the bedroom of his own house and exposed his erect penis through the zipper of his shorts. People v Neal, 266 Mich App 654; 702 NW2d 696 (2005).

• The fact that the open and indecent exposure occurred during nude dancing in a theater before a consenting audience does not nullify the indecent exposure charge. A female was convicted of indecent exposure when, during nude dancing before a theater audience, she was massaging her pubic and buttock regions. People v Wilson, 95 Mich App 440; 291 NW2d 73 (1980).

• A witness does not actually have to see the exposure but rather the prosecutor must show that the exposure happened under conditions which another person “might reasonably have been expected to observe it”. A male was convicted of indecent exposure where he was sitting in the driver’s seat of a vehicle near an elementary school with his bare legs exposed and his right hand moving at his crotch but no witness could testify that they saw his genitalia. People v Vronko, 228 Mich App 649; 579 NW2d 138 (1998).

• “Open and indecent exposure” does not have to be in person but also applies to television programs. A male was convicted of indecent exposure where, during a three-minute segment on a public-access cable channel, the only objects on screen were a flaccid penis and testicles marked with facial features that provided humorous commentary through a voice-over recording. People v Huffman, 266 Mich App 354; 702 NW2d 621 (2005).

For the most severe indecent exposure charge, the court’s determination that the individual is a “sexually delinquent person” must be proven by the prosecutor at a separate hearing from the plea or trial where the individual was determined to have committed an indecent exposure. MCL 767.61a. The prosecutor must allege that he or she is seeking the “sexually delinquent person” enhancement in the felony information instead of waiting until there is a conviction to make that decision. People v Winford, 404 Mich 400; 273 NW2d 54 (1978).  Advance notice is required so the defendant may be given the opportunity to properly defend against a potential life-in-prison offense.

Several cities and municipalities in Michigan have their own ordinance version of indecent exposure that may be more or less restrictive than the state statute. Some indecent exposure ordinances exempt private homes and strip clubs from being covered by the statute. Other indecent exposure ordinances go further to criminalize thongs, thin bikinis and even sagging pants that show underwear or buttocks. Like the state statute, these ordinances are fact-specific in what situations are appropriate and what persons might be offended.

If you are charged with indecent exposure charges, it is important to have an attorney on your side that understands the facts and the law to get the best possible resolution. An indecent exposure conviction can damage your reputation, your career and even your ability to secure housing if you must register as a sex offender. Do not hesitate to contact the criminal defense lawyers at Kershaw, Vititoe and Jedinak PLC to answer your questions and vigorously defend against these accusations.