MICHIGAN EX REL WAYNE CTY. PROSECUTING ATTORNEY v. Duck

Corrigan, J.

(dissenting). After reviewing the whole record, I dissent from the majority opinion affirming the circuit court’s injunctive orders.

At the conclusion of the trial, the circuit court ordered the lap dancing and assignations abated, but declined to hold nude dancing or the masturbatory activity done for hire in the Fantasy Room abatable activity. In subsequent proceedings, the court also declined to hold defendants in contempt for continuing the lap dancing. Instead, the court amended its previous order to prohibit lap dancing where "the main purpose of contact is for masturbation of the male penis.” The conclusion of the circuit court and the majority regarding the scope of abatable conduct is too narrow. In light of the whole record, the court should have immediately padlocked the premises.

Exercising the independent judgment called for by a standard of review de novo, I conclude that the remedy fashioned was inadequate to cure the proven nuisances, including acts of assignation, lap dancing, nude dancing, and masturbation for hire that occurred in the Fantasy Room on defendants’ premises. I would order the circuit court to padlock the premises pursuant to MCL 600.3801; MSA 27A.3801. At the time of the complaint in this action, that statute provided in pertinent part:

Any building, vehicle, boat, aircraft or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons *264... is hereby declared a nuisance and . . . shall be enjoined and abated as hereinafter provided.

A public nuisance is a condition or use of property that greatly offends or interferes with public health, morals, or decency. Bloss v Paris Twp, 380 Mich 466; 157 NW2d 260 (1968); Garfield Twp v Young, 348 Mich 337; 82 NW2d 876 (1957). Statutes and ordinances regulating prostitution, a species of laws regulating public morals, are within the police powers. Michigan’s interest in protecting societal order, health, safety, and morality in places of public accommodation would be furthered by padlocking this proven nuisance.

Cognizant of my duty to apply controlling precedent, I reject as mistaken a theme repeated in many cases, most recently in State ex rel Wayne Co Prosecuting Attorney v Bennis, 200 Mich App 670, 676; 504 NW2d 731 (1993), that the red light abatement act is not intended to regulate morality. See also, e.g., State ex rel Wayne Co Prosecutor v Diversified Theatrical Corp, 396 Mich 244, 247; 240 NW2d 460 (1976). The obvious intent underlying the statute is to regulate morality. There is no constitutional flaw in regulating morality, absent some specific constitutional prohibition. See the concurring opinion of Justice Scalia in Barnes v Glen Theatre, Inc, 501 US —; 111 S Ct 2456, 2465; 115 L Ed 2d 504, 517 (1991).

[T]here is no basis for thinking that our society has ever shared that Thoreauvian "you - may - do - what - you - like - so - long - as - it - does - not - injure - someone - else” beau ideal—much less for thinking that it was written into the Constitution. The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an *265offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, "contra bonos mores,” i.e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist . . . there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate "morality.”

The testimony of the various undercover Detroit police officers, together with the physical evidence seized from the premises, established that the Dizzy Duck was a "house of prostitution, lewdness or assignation” under the act. Certain sexual activities on the premises reflect a 1990s-style commitment to "safe sex.” For example, male customers who engaged in sexual activity remained clothed. Further, sexual behavior in the presence of others was usually autoerotic—albeit for hire. This 1990s version of debased, degrading, and licentious conduct is nonetheless the type of conduct that the people historically have chosen to abate as acts of prostitution or lewdness. In my view, prostitution is the conduct of all persons, male and female, who engage in sexual activity as a business. The prosecutor correctly points out that "allowing deviations of prostitution to occur because there are no extant cases on point is error when the facts adduced support the claim of nuisance.”

I dissent from the majority’s effort to define prostitution as only acts of sexual intercourse for hire and lewdness as certain listed sexual acts, other than sexual intercourse, for hire. Our precedents do not compel these new definitions of very *266old terms. I also fear that these narrowed definitions could breed serious problems in future civil enforcement efforts.

The most serious obstacle presented by the majority opinion is its exclusion of on-stage exhibitions of masturbation from the reach of the red light abatement act. Although persons who masturbate openly on stage may be subject to criminal prosecution, under the majority’s newly announced definitions of prostitution and lewdness, no action can be taken against the property where such behavior takes place. In my view, the language used in the statute does not foreclose a nuisance remedy for such behavior.

Next, the majority’s effort to distinguish acts of prostitution from acts of lewdness could result in the unnecessary elevation of the burden of proof in the context of the criminal enforcement of prostitution offenses. Under current practice, the prosecutor need not prove the exact nature of the sexual activities purchased. The majority’s construction will permit an objection for failure to allege whether an act of prostitution or an act of lewdness has been committed, and may require further specificity in proof.

We do not need to draw a bright line distinction between the terms "prostitution” and "lewdness” in order to resolve this case. Our former cases have never done so. The terms "prostitution” and "lewdness” certainly historically have had overlapping elements and will continue to do so.

A decision construing the terms "lewdness” and "prostitution” to apply to autoerotism for hire will not send us careening down a slippery slope that will condone the padlocking of kissing booths at county fairs. (See p 259, n 5.) I cannot imagine a Michigan prosecutor who would waste scarce resources on such folly. On the other hand, if the *267acts proven on this record occurred at a county fair in Michigan, a prosecutor who failed to act would either be recalled or unceremoniously booted out of office at the earliest available opportunity.

i

ASSIGNATION AND NUDE DANCING

The circuit court correctly held that acts of assignation occurred on the premises as defined in State ex rel Wayne Co Prosecuting Attorney v Levenburg, 406 Mich 455; 280 NW2d 810 (1979), remanded on other grounds 407 Mich 1147 (1979). The court, however, failed to consider these proofs within the totality of circumstances. The assignations did not occur in isolation; the various activities proven at trial were done to further prostitution and in connection with prostitution.

I dissent from the majority’s discussion of the principles governing the regulation of nude dancing and their application to this case. Nude dancing at the Dizzy Duck frequently involved lewd live stage exhibitions outside the First Amendment’s ambit. For example, some nude dancers openly masturbated on stage. One dancer bent over and separated her buttocks to let a customer blow into her anus; another dancer sprayed breast milk on the assembled crowd.

Relying on State ex rel Saginaw Prosecuting Attorney v Bobenal Investments, Inc, 111 Mich App 16; 314 NW2d 512 (1981), the majority flatly posits that nude dancing cannot be regulated under the red light abatement act. See also State ex rel Oakland Co Prosecuting Attorney v Alray Northcrest Plaza, 146 Mich App 595; 381 NW2d 731 (1985). Nude dancing is not beyond regulation. The complaints in Bobenal and Northcrest were *268ruled defective because they failed to connect the nude dancing to prostitution, lewdness, or assignation. These defects are not present here, because the complaint alleged and the proofs established that nude dancing was substantially connected to and related to prostitution. For example, testimony revealed that one dancer lay on the stage, spread her legs, and displayed her genitals to excite the customers and encourage the purchase of lap dances.

In this regard, I would adopt the views of Justice Souter in Barnes v Glen Theatre, supra, and the views of Judge Coffey in Miller v Civil City of South Bend, 904 F2d 1081 (CA 7, 1990) (rev’d sub nom Barnes v Glen Theatre, supra, in the Supreme Court). In Miller, Judge Coffey stated:

Not only does nude dancing in and of itself degrade women, its elimination is particularly important because of its close association with a more devastating example of sexual exploitation of women, prostitution. The link between nude dancing, prostitution and other sexual crimes is well established. It is common knowledge that prostitution is a likely result in a situation where live performers sexually stimulate an audience and there often exists the probability of audience access to these performers for the performance of sexual activities. . . . We need go no further than our own cases to discover that nude dancing and prostitution are partners coupled not only logically and historically but also in empirical, present-day reality. We can properly take judicial notice that in no fewer than three of our decisions in the past two years prostitution operations have been based in nude dancing establishments. See United States v Marren, 890 F2d 924, 926 (7th Cir 1989) ("Michael’s Magic Touch served alcoholic beverages and entertained patrons with nude female dancers who, when not performing on stage, solicited the club’s patrons to engage in sexual activities in *269rooms located above the club”); United States v Doerr, 886 F2d 944, 949 (7th Cir 1989) ("The prostitution activities . . . were concentrated in three businesses that . . . were nude dancing establishments. . . .”); United States v Muskovsky, 863 F2d 1319, 1322 (7th Cir 1988) (Prostitution operation based in nude dancing establishment where customers were enticed to purchase "very expensive drinks ... in exchange for sexual favors”). . . . Furthermore, in California v LaRue, 409 US 109, 111; 93 S Ct 390, 393; 34 L Ed 2d 342 (1972), now Chief Justice Rehnquist described the prostitution and other sexual activities accompanying nude dancing that motivated a ban on nude dancing in California:
"Customers were found engaging in oral copulation with women entertainers; customers engaged in public masturbation; and. customers placed rolled currency either directly into the vagina of a female entertainer, or on the bar in order that she might pick it up herself. Numerous other forms of contact between the mouths of male customers and the vaginal areas of female performers were reported to have occurred.
Prostitution occurred in and around such licensed premises, and involved some of the female dancers. Indecent exposure to young girls, attempted rape, rape itself, and assaults on police officers took place on or immediately adjacent to such premises.” [904 F2d 1111 (Coffey, J., dissenting).]

No opinion in Barnes, supra, elicited a majority vote. Nevertheless, the opinion held that, nude dancing can be regulated under the state’s public indecency statute. In Barnes, supra, Justice Souter concluded that the Indiana public indecency statute satisfied the four-part inquiry of United States v O’Brien, 391 US 367; 88 S Ct 1673; 20 L Ed 2d 672 (1968), in part because Indiana’s interest in preventing prostitution, sexual assaults, and associated crimes was furthered by forbidding nude *270entertainment. He also opined that a state’s interest in banning nude dancing results from a simple correlation of nude dancing with other evils, such as prostitution and sexual assault. As a matter of fact, on this record, and as a matter of law, nude dancing was related to prostitution.

Finally, the majority misreads the Diversified case by asserting that there is no distinction between live stage acts and film portrayals.1 The Diversified Court saw the distinction between live behavior and film as crucial. See, e.g., 396 Mich 246 ("We conclude, however, that the statute was intended to apply to houses of prostitution and not motion picture theatres where sexual acts are not committed but are portrayed on the screen”), and 396 Mich 250, n 12. For these reasons, I do not join the majority’s opinion on nude dancing.

ii

LAP DANCING

For prices of $20 or $30, depending on whether a customer purchased one or two songs, a dancer clad in a G-string would straddle a clothed customer’s lap and thrust back and forth. The dancers would occasionally grab customers’ penises through their pants in order to solicit lap dances. *271In a lap dance, sexual contact, through clothing, took place between the females’ genitals and the males’ groins. The management even provided hand grips on the walls of the Dizzy Duck so the dancers could make their movements more forceful. Some customers would either fondle or suck the women’s bare breasts and grab the women by their buttocks for improved thrusting. Customers occasionally ejaculated, sometimes before and sometimes after the lap dance was finished.

In its first ruling, the court ordered that acts of lap dancing be abated. When evidence was adduced during the contempt proceeding that lap dancing continued despite the order, the court merely modified the order to direct that acts of lap dancing for the purpose of masturbating the male penis were to be enjoined. The majority affirms the circuit court’s decision to deny abatement of lap dancing, except as described in the order. In my view, this more specific order did not adequately remedy the proven harms.

The amended order is essentially unenforceable. The prosecutor’s efforts to prove the parties’ intent would certainly be met with assertions of the Fifth Amendment privilege against compelled self-incrimination. The amended order serves no real purpose, other than to elevate the burden of proof without justification.

Lap dancing is sexual stimulation of another for hire and involves actual physical contact. Unlike my colleagues, I would adopt the broad definition of prostitution described in dicta in State ex rel Macomb Co Prosecuting Attorney v Mesk, 123 Mich App 111, 118; 333 NW2d 184 (1983). Even Black’s Law Dictionary (5th ed), cited by the majority, alternatively describes prostitution not only as sexual intercourse, but also the performance of any unlawful sexual act for hire. Accordingly, the *272sexual acts the majority defines as "lewd” also fall within the legal definition of prostitution. Moreover, the majority’s decision to define lewdness as "sexual acts done for hire other than just sexual intercourse,” ante, p 258, n 3, is not the common understanding of the term.

I think it is quite probable that the Legislature that adopted the red light abatement act in 1915 meant the term "lewdness” to describe the activities of a male involved with a female prostitute. For example, in State v Rayburn, 170 Iowa 514; 153 NW 59, 60 (1915), a contemporary opinion rendered at the time of the enactment of the Michigan statute, the court construed the term "lewdness” to describe the activities of the male actor.

If "prostitution” and "lewdness” are synonymous, it would have been unnecessary to have used but one of the words. There was presumably some reason for using both. ... If a man and woman go together to or resort to a house of ill fame for the purpose of having sexual intercourse, her purpose would be for prostitution, his for lewdness. Or a man could go by himself for the purpose of having sexual intercourse, which would be lewdness under this statute and under definitions hereafter given. Or a man could resort to such a place, and be guilty of lewdness without sexual intercourse. Lewdness may not import criminal indulgence, but is generally used as indicating gross indecency with respect to the sexual relations. State v Mitchell, 149 Iowa 362, 366; 128 NW 378 [1910]. Sexual intercourse would, of course, constitute lewdness, but, as suggested, there may be lewdness without sexual intercourse at all, and the man, as well as the woman, may be guilty of it.

Webster’s Third New International Dictionary, *273Unabridged Edition (1964), defines lewdness as the "quality or state of being lewd.” Lewd, in turn, is defined as "sexually unchaste or licentious”; "inciting to sensual desire or imagination.” Licentious behavior is, in turn, behavior "marked by the absence of legal or moral restraints,” that which is "hostile or offensive to accepted standards of conduct.” Construing the word "lewdness” with the aid of a dictionary, I cannot join the majority’s newly announced definition.

I do endorse the definition of prostitution in State ex rel Gilchrist v Hurley, 48 NC App 433, 443; 269 SE2d 646 (1980), cited but not adopted in Mesk:

We hold that prostitution plainly includes the offering or receiving of the body, in return for a fee, for acts of vaginal intercourse, anal intercourse, fellatio, cunnilingus, masturbation, or physical contact with a person’s genitals, pubic area, buttocks or breasts. We hasten to add that our cataloguing of these acts of sexual behavior is not intended to exclude other acts of sexual conduct offered or received for pay. [Emphasis added.]

See also State v McKee, 442 A2d 440 (RI, 1982), where the court affirmed a conviction of receiving and pandering for prostitution. The defendant had hired an undercover police woman to work as a masseuse in his massage parlor. He informed her that she could earn $500 to $1,000 a week more by doing "extra” work, including performing acts of masturbation and fellatio on the customers. However, sexual intercourse would be prohibited under the house rules. The court, id. at 443, rejected the defendant’s contention that the definition of prostitution was limited to sexual intercourse for hire:

[T]he sexual acts that defendant described to *274Detective Mirando did in fact constitute "prostitution.” This finding is well supported by logic as well as by law. The defendant’s definition of "prostitution” would exclude all sexual acts but that associated with reproduction.4 This is an absurd construction of the applicable statutes which contain no such limited definition of the offense of prostitution.

See also Commonwealth v Bucaulis, 6 Mass App 59, 66; 373 NE2d 221 (1978), holding that the term "sexual intercourse” properly includes the act of fellatio.

The term "sexual intercourse” has commonly been employed to describe a variety of sexual conduct, including the act of fellatio. See G L c 265, §§ 22, 23; Commonwealth v Gallant [373 Mass 577, 584; 369 NE2d 707 (1977)] (defining "natural” and "unnatural” intercourse under G L c 265, § 23). There is nothing before us which indicates that the act of fellatio was previously considered to be outside the scope of the statute. . . . We accordingly conclude that the defendant should have understood that his conduct was in violation of the statute.

In sum, unlike the majority, I do not read our precedents or the common understanding to limit the term "lewdness” to sexual acts other than sexual intercourse done for hire.

hi

FANTASY ROOM

For prices ranging from $65 to $125, a customer *275could purchase a trip to the Fantasy Room. The Fantasy Room, a small room in the back of the establishment, was divided by a plexiglass partition. A dancer would enter one side of the room; the customer entered the other. The dancer would then remove her clothing and masturbate in the customer’s presence. She would also invite the customer to join her if he chose, by masturbating on the other side of the partition. Evidence technicians analyzed samples taken from the walls and the plexiglass room divider and detected the presence of semen.

The majority concludes, in reliance on Mesk, supra, that masturbation of oneself in the presence of another for hire is not prostitution or lewdness. In Mesk, this Court opined that the term "prostitution” includes manual stimulation of another person for the payment of money. The issue presented here was not before the Mesk Court. The Mesk decision does not foreclose automasturbatory acts for hire from the definition of prostitution or lewdness. In reaching its result, Mesk relied on Diversified Theatrical Corp, supra. Diversified in turn cited Chicago v Geraci, 30 Ill App 3d 699, 703; 332 NE2d 487 (1975). 396 Mich 250, n 13. Geraci noted that the term "lewdness” was broader than and inclusive of the term "prostitution.” Lewdness refers to the same general class of activities normally associated with houses of prostitution. Such terms, said the Geraci court, are intended to designate and prohibit "sex acts of whatever nature which are performed for money.” 30 Ill App 3d 703:

The activities in the Fantasy Room amounted to lewd live conduct associated with prostitution. Manual stimulation of oneself in the presence of another for hire is proscribed activity, because, *276under Diversified and Geraci, it is a sex act of "whatever nature” performed for money. Nothing in our precedents requires that participants must engage in actual physical contact.

I dissent from the majority’s attempt to fashion a new definition of prostitution and lewdness not heretofore recognized in Michigan. Michigan’s cities must be permitted to call a halt to urban blight and contamination of their neighborhoods from red light districts. The people of the State of Michigan have declared their intent; the executive branch has moved to enforce that intent through legitimate means. All the process that is due, and then some, has been afforded the defendants in this state’s courts. The remedy fashioned is inadequate to cure the harms.

I respectfully dissent.

Perhaps in this respect the majority could be said to share the observations of Professor Catharine MacKinnon, if not her opinion about the ultimate remedies:

Is nude dancing a "representation” of eroticism or is it eroticism, meaning a sex act? How is a live sex show different? In terms of what the men are doing sexually, an audience watching a gang rape in a movie is no different from an audience watching a gang rape that is reenacting a gang rape from a movie, or an audience watching any gang rape.

MacKinnon, Only Words (Cambridge, Mass: Harvard University Press, 1993), p 28. These are not the views of our Supreme Court.

The defendant’s reliance on Black’s Law Dictionary, 4th Edition, is also misplaced, for, as the state notes in its brief, the 5th Edition of that work includes "any unlawful sexual act for hire” in its definition of "prostitution.” Black’s Law Dictionary, 1100 (5th Ed, 1979).