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Michigan: Statutory Criminal Law

Contents

  1. Extortion
  2. Hate Crimes
  3. Eavesdropping
  4. Stalking
  5. Coercion
  6. Trespass
  7. Computer-related Crimes
  8. Voyeurism
  9. Cyberbullying
  10. Revenge Porn

  1. Extortion

    1. Introduction

      A victim may be subject to threats to extort money in exchange for return or non-release of illicit photos or videos of the victim.

    2. Text of Statute(s)

      1. Mich. Comp. Laws Ann. § 750.213 - MALICIOUS THREATS TO EXTORT MONEY

        Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another of any crime or offense, or shall orally or by any written or printed communication maliciously threaten any injury to the person or property or mother, father, husband, wife, or child of another with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony, punishable by imprisonment in the state prison no more than 20 years, by a fine of no more than 10,000 dollars.

    3. Cases

      1. People v. Jones, 254 N.W.2d 863 (Mich. Ct. App. 1977)

        • Procedural Posture: defendant convicted of extortion (among other charges); defendant appealed.
        • Law: extortion.
        • Facts: The defendant brutally assaulted and raped victim, threatening to harm victim’s family if she revealed what had happened. The state charged defendant with extortion (among other charges) and he was convicted. On appeal, defendant argued that he did not threaten to extort money from the victim, so could not be charged with extortion.
        • Outcome: The court stated that, although extortion most commonly involves the extraction of money from the victim by the use of threats, the statute also provides that extortion is present where a person threatens to accuse another of a crime, threatens injury to the person, property, or family, with the intent to compel the person to do or refrain from doing any act against his or her will. In this case, the court found extortion because the victim refrained from seeking help due to the threats.
        • Special Notes: Extortion does not require the perpetrator to seek money from the victim; causing the victim to do or refrain from any act against her will (with no pecuniary advantage to the defendant) can satisfy extortion.

    4. Practice Pointers

      • Pecuniary advantage to perpetrator not required for extortion to be found.
      • Counsel should consider whether threats caused the victim to do or refrain from doing anything against her will.
         
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  2. Hate Crimes

    1. Introduction

      Hate crimes in Michigan (also referred to as “ethnic intimidation”) are also prosecuted on the basis of gender. The crime focuses on physical contact or damage to real or personal property, or threats thereof, and victims seeking redress under the statute must therefore show one of these elements.

    2. Text of Statute(s)

      1. Mich. Comp. Laws Ann. § 750.147b - Ethnic intimidation

        1. A person is guilty of ethnic intimidation if that person maliciously, and with specific intent to intimidate or harass another person because of that person's race, color, religion, gender, or national origin, does any of the following:

          (a) Causes physical contact with another person.

          (b) Damages, destroys, or defaces any real or personal property of another person.

          (c) Threatens, by word or act, to do an act described in subdivision (a) or (b), if there is reasonable cause to believe that an act described in subdivision (a) or (b) will occur.

        2. Ethnic intimidation is a felony punishable by imprisonment for no more than two years, by a fine of no more than $5,000.00, or both.
        3. Regardless of the existence or outcome of any criminal prosecution, a person who suffers injury to his or her person or damage to his or her property as a result of ethnic intimidation may bring a civil cause of action against the person who commits the offense to secure an injunction, actual damages, including damages for emotional distress, or other appropriate relief. A plaintiff who prevails in a civil action brought pursuant to this section may recover both of the following:

          (a) Damages in the amount of three times the actual damages described in this subsection or $2,000.00, whichever is greater.

          (b) Reasonable attorney fees and costs.

    3. Cases

      1. People v. Schutter, 695 N.W.2d 360 (Mich. Ct. App. 2005)

        • Procedural posture: district court refused to bind defendants over for trial on charge of ethnic intimidation, finding Defendants’ conduct was motivated by road rage, not ethnic intimidation. The State appealed. The circuit court found Defendants conduct constituted ethnic intimidation. Defendants appealed.
        • Law: Ethnic intimidation.
        • Facts: Defendants and victim were involved in a near-collision while driving. Afterwards, Defendants and Defendants’ father aggressively followed victim’s car, repeating racial slurs. The parties pulled over to the side of the road and got out of the car; victim threw a punch. Defendants severely beat victim while repeatedly stating, “I’m going to fuck you up nigger.”
        • Outcome: The Court emphasized that the question at issue was whether the statute requires the intent to intimidate or harass to be the “sole motivating factor” for the underlying criminal act or whether it can be formed during the commission of the underlying criminal act, regardless of the reason for commission of the underlying act. The Court concluded that the statute permits the intent to be formed during the commission of the underlying act, regardless of the additional motivations to commit the underlying act that may have existed earlier. As a result, the Court agreed with the lower court that Defendants’ conduct could constitute ethnic intimidation.
        • Special Notes: use of racial epithets during the commission of an underlying criminal act is evidence that the actor intended to intimidate victim based on race.

    4. Practice Pointers

      None at this time.

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  3. Eavesdropping

    1. Introduction

      Eavesdropping on a private conversation is codified under the Michigan penal code. In order to record a conversation, a person must have the consent of all parties to the conversation.

    2. Text of Statute

      1. Mich. Comp. Laws Ann. § 750.539c - Eavesdropping upon private conversation:

        Any person who is present or who is not present during a private conversation and who willfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs, or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for no more than two years or by a fine of no more than $2,000.00, or both.

      2. Mich. Comp. Laws Ann. § 750.539a(2) - Offenses relating to eavesdropping or surveillance, definitions

        “Eavesdrop” or “eavesdropping” means to overhear, record, amplify, or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse. Neither this definition or any other provision of this act shall modify or affect any law or regulation concerning interception, divulgence or recording of messages transmitted by communications common carriers.

    3. Cases

      1. Dickerson v. Raphael, 601 N.W.2d 108 (Mich. 1999)

        • Procedural Posture: Lower court denied directed verdict, and the jury returned a verdict for defendants. The appeals court reversed because reasonable minds could differ on the question whether the conversation at issue was private.
        • Law: Eavesdropping.
        • Facts: Plaintiff’s daughter wore a concealed microphone during conversations with her mother regarding mother’s involvement in scientology. Daughter allowed these recordings to be simultaneously transmitted to a nearby third-party corporation, which recorded the conversations for use on a talk show; the recordings were later played on the air. At issue on appeal was whether the conversation, which took place in a public park, was “private” under the meaning of the statute.
        • Outcome: The Supreme Court ultimately reversed and remanded the lower court’s finding based on the improper jury instructions provided at trial. In particular, the proper question was “whether plaintiff intended and reasonably expected that the conversation was private, not whether the subject matter was intended to be private.”
        • Special Notes: The Supreme Court issued a summary disposition, rather than a full opinion. The underlying facts can be reviewed in the Court of Appeals opinion, 564 N.W.2d 85 (Mich. Ct. App. 1997).
           

      2. People v. Stone, 593 N.W.2d 680 (Mich. Ct. App. 1999)

        • Procedural Posture: Trial court granted Defendant’s motion to quash on the basis that the intercepted conversations did not constitute private conversations within the meaning of the eavesdropping statute because the conversations were conducted on a cordless telephone. The state appealed.
        • Law: Eavesdropping.
        • Facts: After Defendant moved out of the marital home, a neighbor told Defendant he could use a police scanner to intercept former wife (victim’s) conversations. Defendant told neighbor to do so and report back. Victim became suspicious after numerous people had information about her they should not have known. Police later searched neighbor’s home, finding tapes of recordings between victim and friends, family, and her attorney.
        • Outcome: The Appeals Court rejected the trial court’s holding, finding that the interception of radio waves generated by a cordless telephone constituted eavesdropping, and a conversation held over a cordless telephone constituted a “conversation.” The Court further found that conversations were conducted in the privacy of the victim’s own home, and she testified at the preliminary examination that she intended that they be heard only by the persons with whom she was conversing. Therefore, the conversations were private even though conducted over a cordless telephone.
        • Special Notes: this reasoning should also apply to conversations conducted over a cell phone, as the court emphasized that the privacy right is not eroded merely because of the advancement in technology and alleged ease of interception of communications conducted through certain technology.

    4. Practice Pointers

      The emphasis on the inquiry is whether the victim or plaintiff intended and reasonably expected the conversation was private, not on whether the subject matter was private or intended to be private.

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  4. Stalking

    1. Introduction

      In situations where a WMC victim is continuously harassed, the State may charge the defendant with stalking. This law may apply to situations of cyberstalking and cybercrime. A victim may maintain a civil action for damages and costs/fees.

    2. Text of Statute(s)

      1. Mich. Comp. Laws Ann. § 750.411h - Stalking; definitions; violation; penalties; probation, term, conditions; evidence, rebuttable presumption; penalty additional

        1. As used in this section:

          (a) “Course of conduct” means a pattern of conduct composed of a series of 2 or more separate noncontinuous acts evidencing a continuity of purpose.

          (b) “Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.

          (c) “Harassment” means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.

          (d) “Stalking” means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

          (e) “Unconsented contact” means any contact with another individual that is initiated or continued without that individual's consent or in disregard of that individual's expressed desire that the contact be avoided or discontinued. Unconsented contact includes, but is not limited to, any of the following:

          (i) Following or appearing within the sight of that individual.

          (ii) Approaching or confronting that individual in a public place or on private property.

          (iii) Appearing at that individual's workplace or residence.

          (iv) Entering onto or remaining on property owned, leased, or occupied by that individual.

          (v) Contacting that individual by telephone.

          (vi) Sending mail or electronic communications to that individual.

          (vii) Placing an object on, or delivering an object to, property owned, leased, or occupied by that individual.

          (f) “Victim” means an individual who is the target of a willful course of conduct involving repeated or continuing harassment.

        2. An individual who engages in stalking is guilty of a crime as follows:

          (a) Except as provided in subdivision (b), a misdemeanor punishable by imprisonment for no more than one year, a fine of no more than $1,000.00, or both.

          (b) If the victim was less than 18 years of age at any time during the individual's course of conduct and the individual is 5 or more years older than the victim, a felony punishable by imprisonment for no more than five years, a fine of no more than $10,000.00, or both.

        3. The court may place an individual convicted of violating this section on probation for a term of no more than five years. If a term of probation is ordered, the court may, in addition to any other lawful condition of probation, order the defendant to do any of the following:

          (a) Refrain from stalking any individual during the term of probation.

          (b) Refrain from having any contact with the victim of the offense.

          (c) Be evaluated to determine the need for psychiatric, psychological, or social counseling and if, determined appropriate by the court, to receive psychiatric, psychological, or social counseling at his or her own expense.

        4. In a prosecution for a violation of this section, evidence that the defendant continued to engage in a course of conduct involving repeated unconsented contact with the victim after having been requested by the victim to discontinue the same or a different form of unconsented contact, and to refrain from any further unconsented contact with the victim, gives rise to a rebuttable presumption that the continuation of the course of conduct caused the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
        5. A criminal penalty provided for under this section may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct or for any contempt of court arising from the same conduct.

      2. Mich. Comp. Laws Ann. § 750.411i - Aggravated stalking; course of conduct; violation, penalties; probation; rebuttable presumption

        1. As used in this section:

          (a) “Course of conduct” means a pattern of conduct composed of a series of two or more separate noncontinuous acts evidencing a continuity of purpose.

          (b) “Credible threat” means a threat to kill another individual or a threat to inflict physical injury upon another individual that is made in any manner or in any context that causes the individual hearing or receiving the threat to reasonably fear for his or her safety or the safety of another individual.

          (c) “Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.

          (d) “Harassment” means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.

          (e) “Stalking” means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

          (f) “Unconsented contact” means any contact with another individual that is initiated or continued without that individual's consent or in disregard of that individual's expressed desire that the contact be avoided or discontinued. Unconsented contact includes, but is not limited to, any of the following:

          (i) Following or appearing within the sight of that individual.

          (ii) Approaching or confronting that individual in a public place or on private property.

          (iii) Appearing at that individual's workplace or residence.

          (iv) Entering onto or remaining on property owned, leased, or occupied by that individual.

          (v) Contacting that individual by telephone.

          (vi) Sending mail or electronic communications to that individual.

          (vii) Placing an object on, or delivering an object to, property owned, leased, or occupied by that individual.

          (g) “Victim” means an individual who is the target of a willful course of conduct involving repeated or continuing harassment.

        2. An individual who engages in stalking is guilty of aggravated stalking if the violation involves any of the following circumstances:

          (a) At least one of the actions constituting the offense is in violation of a restraining order and the individual has received actual notice of that restraining order or at least one of the actions is in violation of an injunction or preliminary injunction.

          (b) At least one of the actions constituting the offense is in violation of a condition of probation, a condition of parole, a condition of pretrial release, or a condition of release on bond pending appeal.

          (c) The course of conduct includes the making of one or more credible threats against the victim, a member of the victim's family, or another individual living in the same household as the victim.

          (d) The individual has been previously convicted of a violation of this section or section 411h.1

        3. Aggravated stalking is a felony punishable as follows:

          (a) Except as provided in subdivision (b), by imprisonment for no more than five years, a fine of no more than $10,000.00, or both.

          (b) If the victim was less than 18 years of age at any time during the individual's course of conduct and the individual is five or more years older than the victim, by imprisonment for no more than ten years, a fine of no more than $15,000.00, or both.

        4. The court may place an individual convicted of violating this section on probation for any term of years, but not less than five years. If a term of probation is ordered, the court may, in addition to any other lawful condition of probation, order the defendant to do any of the following:

          (a) Refrain from stalking any individual during the term of probation.

          (b) Refrain from any contact with the victim of the offense.

          (c) Be evaluated to determine the need for psychiatric, psychological, or social counseling and, if determined appropriate by the court, to receive psychiatric, psychological, or social counseling at his or her own expense.

        5. In a prosecution for a violation of this section, evidence that the defendant continued to engage in a course of conduct involving repeated unconsented contact with the victim after having been requested by the victim to discontinue the same or a different form of unconsented contact, and to refrain from any further unconsented contact with the victim, gives rise to a rebuttable presumption that the continuation of the course of conduct caused the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
        6. A criminal penalty provided for under this section may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct or for contempt of court arising from the same conduct.

    3. Cases

      1. McNeil-Marks v. Midmichigan Med. Ctr.-Gratiot, 891 N.W.2d 528 (Mich. Ct. App. 2016)

        • Procedural Posture: Plaintiff appealed trial court’s order granting summary disposition to defendant-employer.
        • Law: criminal stalking.
        • Facts: Case arose from plaintiff’s discharge from employment at a medical center. Plaintiff had obtained a personal protection order (PPO) against Restrained Person due to threats against plaintiff and plaintiff’s children. Plaintiff encountered Restrained Person at the medical center where she worked, and believed Restrained Person to be taunting her using a particular tone of voice. Restrained Person was a patient at the medical center and was being pushed in a wheelchair. Restrained Person was later served with the PPO while a patient at the medical center. The medical center, believing that Plaintiff had disclosed Restrained Person’s status as a patient to her attorney in violation of HIPAA, fired her. Plaintiff sued for wrongful termination, because, among other reasons, the termination violated public policy because it prohibited her from disclosing unlawful behavior (Restrained Person’s stalking).
        • Outcome: On the question of whether Plaintiff had reasonably reported Restrained Person’s stalking to her attorney, the Court determined that Restrained Person’s conduct was sufficiently willful to constitute stalking under the statute. While the initial encounter (being wheeled past plaintiff) was not willful, Restrained Person’s statement to plaintiff was. The court also considered Restrained Person’s “decidedly willful tone” in determining Restrained Person’s conduct constituted stalking.

    4. Practice Pointers

      A victim may maintain a civil action for damages, costs, and fees incurred as a result of conduct prohibited under section 411h of the Michigan penal code. See MCL § 600.2954.

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  5. Coercion

    1. Introduction

      Under the Michigan Penal Code, coercion is not a statutory offense in itself. Rather, it is an element of a series of crimes, particularly sex abuse crimes, including crimes such as sexual conduct in the fourth through first degree, assault with intent to commit criminal sexual conduct, and human trafficking.

    2. Text of Statute(s)

      1. Mich. Comp. Laws Ann. § 750.462a - Definitions (Human Trafficking)

      2. Mich. Comp. Laws Ann. § 750.520b (West 2014) - Criminal sexual conduct in first degree

    3. Cases

      1. People v. Reid, 592 N.W.2d 767 (Mich. Ct. App. 1999)

        • Procedural Posture: Defendant was convicted of two counts of first-degree criminal sexual conduct and appealed.
        • Law: Criminal sexual conduct in the first degree; coercion.
        • Facts: Defendant was convicted of two counts of criminal sexual conduct in the first degree against victim when victim was 15 years old. At issue on appeal was whether Defendant used his position of authority to coerce the complainant to submit to sexual acts. Defendant was an acquaintance of the complainant’s father who had offered to help as an informal “counselor” after complainant had gotten into trouble at school.
        • Outcome: As an initial matter, the court found there was sufficient evidence to find Defendant was in a position of authority over victim because, although his position was informal, complainant’s parents had placed defendant in a position of authority, and complainant was aware of this. The court also found that Defendant manipulated this position of authority to get the complainant alone, where he then gave the victim “spiked” beverages and instructed him to perform sexual act. This conduct was coercive. The Court upheld Defendant’s convictions.
        • Special Notes: indicia of coercion may include some or all of the following factors: defendant is in a position of authority or control, Defendant’s conduct occurs in a place where control or authority is strong (e.g. on school property, Defendant’s residence); victim is vulnerable.

      2. People v. Premo, 540 N.W.2d 715 (Mich. Ct. App. 1995)

        • Procedural Posture: Circuit court denied Defendant’s motion to quash three charges of fourth-degree criminal sexual conduct. Defendant appealed.
        • Law: Criminal sexual conduct in the fourth degree; coercion.
        • Facts: Defendant, a teacher at a high school, was alleged to have pinched the buttocks of three female students while on high school property. Defendant argued that pinching the victims’ buttocks was insufficient to satisfy the requirement that force or coercion be used to accomplish sexual contact.
        • Outcome: Court found that the facts were sufficient to support the denial of the motion because Defendant actually applied physical force to his victims. Alternatively, the court found that Defendant’s conduct constituted coercion: Defendant was in a position of authority over his victims (teacher to students), the incidents occurred on school property, and Defendant abused his position of authority as a teacher.

    4. Practice Pointers

      Force or coercion is not limited to physical violence; coercion can be established through the totality of circumstances.1

    1. People v. Reid, 233 Mich. App. 457, 468, 592 N.W.2d 767, 773 (Mich. Ct. 1999). ↩
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  6. Trespass

    1. Introduction

      Michigan’s trespass statute could be used to support an action in circumstances where, for example, a perpetrator remains on the property of the victim after being forbidden to do so or being asked to leave.

    2. Text of Statute(s)

      1. Mich. Comp. Laws Ann. § 750.552 - Trespass upon lands or premises of another; application to process server; violation; penalty

        1. Except as otherwise provided in subsection (2), a person shall not do any of the following:

          (a) Enter the lands or premises of another without lawful authority after having been forbidden to do so by the owner or occupant or the agent of the owner or occupant.

          (b) Remain without lawful authority on the land or premises of another after being notified to depart by the owner or occupant or the agent of the owner or occupant.

          (c) Enter or remain without lawful authority on fenced or posted farm property of another person without the consent of the owner or his or her lessee or agent. A request to leave the premises is not a necessary element for a violation of this subdivision. This subdivision does not apply to a person who is in the process of attempting, by the most direct route, to contact the owner or his or her lessee or agent to request consent.

        2. Subsection (1) does not apply to a process server who is on the land or premises of another while in the process of attempting, by the most direct route, to serve process upon any of the following:

          (a) An owner or occupant of the land or premises.

          (b) An agent of the owner or occupant of the land or premises.

          (c) A lessee of the land or premises.

        3. A person who violates subsection (1) is guilty of a misdemeanor punishable by imprisonment in the county jail for no more than 30 days, by a fine of no more than $250.00, or both.
        4. As used in this section, "process server" means a person authorized under the revised judicature act of 1961, 1961 PA 236, MCL 600.101 to 600.9947, or supreme court rule to serve process.

    3. Cases

      1. People v. Johnson, 168 N.W.2d 913 (Mich. Ct. App. 1969)

        • Procedural Posture: Defendants convicted of criminal trespass and appealed.
        • Law: Trespass.
        • Facts: A group of clergy unlocked a condemned house and entered the house to make it habitable. Members of the group proceeded to move a woman (co-defendant) and her family into the home. The Housing Commissioner made a complaint and requested the police to arrest all persons on the premises for violations of trespass. The police arrived and notified all Defendants to leave the premises if they did not wish to be arrested. Defendants refused to leave. On appeal Defendants contended that the statute was inapplicable to a peaceful occupant of property.
        • Outcome: Court found that the requisite criminal intent under the “failure-to-depart” prong of the statute is established by an intention to remain upon the lands of another without lawful authority upon being requested to depart. The Court upheld the verdict, finding the jury had sufficient evidence to find Defendants did not have lawful authority to remain on the premises.
           

    4. Practice Pointers

      None at this time.

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  7. Voyeurism

    1. Introduction

      There are a variety of statutes that provide protection to a victim in cases of unwanted voyeurism in person or by digital recording, particularly where the recording is lewd or lascivious in nature.

    2. Text of Statute(s)

      1. Mich. Comp. Laws Ann. § 750.1671 - “Disorderly person” defined; subsequent violations by person convicted of refusing or neglecting to support family

        (1) A person is a disorderly person if the person is any of the following

        […]

        (c) A window peeper.

      2. Mich. Comp. Laws Ann. § 750.539j - Surveillance, photographing, etc., of individual clad only in undergarments, genitalia or buttocks of individual, or unclad breasts of female under circumstances in which individual would have reasonable expectation of privacy; distribution, dissemination, or transmission of recording, photograph, or visual image obtained in violation of section; other offenses

        1. A person shall not do any of the following:

          (a) Surveil another individual who is clad only in his or her undergarments, the unclad genitalia or buttocks of another individual, or the unclad breasts of a female individual under circumstances in which the individual would have a reasonable expectation of privacy.

          (b) Photograph, or otherwise capture or record, the visual image of the undergarments worn by another individual, the unclad genitalia or buttocks of another individual, or the unclad breasts of a female individual under circumstances in which the individual would have a reasonable expectation of privacy.

          (c) Distribute, disseminate, or transmit for access by any other person a recording, photograph, or visual image the person knows or has reason to know was obtained in violation of this section.

        2. A person who violates or attempts to violate this section is guilty of a crime as follows:

          (a) For a violation or attempted violation of subsection (1)(a):

          (i) Except as provided in subparagraph (ii), the person is guilty of a felony punishable by imprisonment for no more than two years, a fine of no more than $2,000.00, or both.

          (ii) If the person was previously convicted of violating or attempting to violate subsection (1)(a), the person is guilty of a felony punishable by imprisonment for no more than five years, a fine of no more than $5,000.00, or both.

          (b) For a violation or attempted violation of subsection (1)(b) or (c), the person is guilty of a felony punishable by imprisonment for no more than five years, a fine of no more than $5,000.00, or both.

        3. This section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law committed by that person while violating or attempting to violate subsection (1)(a) to (c).
        4. This section does not prohibit security monitoring in a residence if conducted by or at the direction of the owner or principal occupant of that residence unless conducted for a lewd or lascivious purpose.
        5. This section does not apply to a peace officer of this state or of the federal government, or the officer's agent, while in the performance of the officer's duties.
        6. As used in this section, “surveil” means to subject an individual to surveillance as that term is defined in section 539a.

      3. Mich. Comp. Laws Ann. § 750.539d - Installation, placement, etc., of recording, transmitting, etc., device in private place; distribution, dissemination, or transmission of recording, photograph, or visual image obtained in violation of section; other offenses

        1. Except as otherwise provided in this section, a person shall not do either of the following:

          (a) Install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.

          (b) Distribute, disseminate, or transmit for access by any other person a recording, photograph, or visual image the person knows or has reason to know was obtained in violation of this section.

        2. This section does not prohibit security monitoring in a residence if conducted by or at the direction of the owner or principal occupant of that residence unless conducted for a lewd or lascivious purpose.
        3. A person who violates or attempts to violate this section is guilty of a crime as follows:

          (a) For a violation or attempted violation of subsection (1)(a):

          (i) Except as provided in subparagraph (ii), the person is guilty of a felony punishable by imprisonment for no more than two years, a fine of no more than $2,000.00, or both.

          (ii) If the person was previously convicted of violating or attempting to violate this section, the person is guilty of a felony punishable by imprisonment for no more than five years, a fine of no more than $5,000.00, or both.

          (b) For a violation or attempted violation of subsection (1)(b), the person is guilty of a felony punishable by imprisonment for no more than five years, a fine of no more than $5,000.00, or both.

        4. This section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law committed by that person while violating or attempting to violate subsection (1)(a) or (b).

    3. Cases

       

      1. People v. Mazur, No. 317856, 2015 WL 2090627 (Mich. Ct. App. May 5, 2015)

        • Procedural Posture: Defendant appealed conviction for installing a recording device in the bedroom of minor victim (in violation of 750.539d) and photographing minor victim without consent (in violation of 750.539j).
        • Law: Installing a device for observing/photographing/eavesdropping and photographing/recording/digitally capturing undergarments, genitalia, buttocks, breasts.
        • Facts: Defendant secretly placed a camera pen capable of video and audio recordings in bedroom of 17-year-old daughter of defendant’s girlfriend, capturing naked and partially-clad images of victim. Defendant argued convictions were against the weight of the evidence that he was “principal occupant” of home and installed the pen for security monitoring (under statute that does not prohibit securing monitoring done by or at the direction of the owner or principal occupant unless conducted for a lewd or lascivious purpose). However, additional evidence included camera footage showing seen on camera placing pen minutes before victim entered room after a shower, locating of pen at crotch level, and text messages referring to his sexual “addiction.”
        • Outcome: Court found that based on totality of evidence, including the footage showing the placement of the camera, that the defendant used the camera pen for lewd or lascivious purpose and not for the purpose of monitoring security.
        • Special Notes: There is very little case law on these statutes.
           

    4. Practice Pointers

      Be prepared to demonstrate how installation of device or recording was done for a lewd or lascivious purpose, not security purposes, in a situation where the defendant is the owner or principal occupant.

    1. This statute has been held unconstitutional to the extent that it criminalizes begging. See Speet v. Schuette, 726 F.3d 867, 870 (6th Cir. 2013) (finding the anti-begging ordinance violates the First Amendment but not addressing window peeping). ↩
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  8. Cyberbullying

    1. Introduction

      To date, Michigan does not have a statute specifically prohibiting cyberbullying. Rather, the state requires schools to establish policies to prevent cyberbullying, which it defines as any electronic communication intended or that a reasonable person would know is likely to harm one or more pupils.

      Refer instead to computer related crimes (above).

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  9. Revenge Porn

    1. Introduction

      The Michigan penal code provides criminal penalties, including fines and jail time, for persons who intentionally distribute sexually explicit visual materials.

    2. Text of Statute(s)

      1. Mich. Comp. Laws Ann. § 752.365 (West 1993) - Dissemination, or possession with intent to distribute, obscene material

        1. A person is guilty of obscenity when, knowing the content and character of the material, the person disseminates, or possesses with intent to disseminate, any obscene material.
        2. Obscenity is a misdemeanor, punishable by imprisonment for no more than one year, by a fine of no more than $100,000.00, or both.
        3. A person convicted of a second or subsequent offense under this section is guilty of a felony and may be imprisoned for no more than two years, and shall be fined not less than $50,000.00 or more than $5,000,000.00. For purposes of this section, an offense is considered a second or subsequent offense if the defendant has previously been convicted under this section or under any similar statute of the United States or of any state.

      2. Mich. Comp. Laws Ann. § 750.145e (West 2016) - Dissemination of sexually explicit visual material of another; prohibition; applicability

        1. A person shall not intentionally and with the intent to threaten, coerce, or intimidate disseminate any sexually explicit visual material of another person if all of the following conditions apply:

          (a) The other person is not less than 18 years of age.

          (b) The other person is identifiable from the sexually explicit visual material itself or information displayed in connection with the sexually explicit visual material. This subdivision does not apply if the identifying information is supplied by a person other than the disseminator.

          (c) The person obtains the sexually explicit visual material of the other person under circumstances in which a reasonable person would know or understand that the sexually explicit visual material was to remain private.

          (d) The person knows or reasonably should know that the other person did not consent to the dissemination of the sexually explicit visual material.

        2. Subsection (1) does not apply to any of the following:

          (a) To the extent content is provided by another person, a person engaged in providing:

          (i) An interactive computer service as that term is defined in 47 USC 230;

          (ii) An information service, telecommunications service, or cable service as those terms are defined in 47 USC 153;

          (iii) A commercial mobile service as defined in 47 USC 332;

          (iv) A direct-to-home satellite service as defined in 47 USC 303(v); or

          (v) A video service as defined in 2006 PA 480, MCL 484.3301 to 484.3315.

          (b) A person who disseminates sexually explicit visual material that is part of a news report or commentary or an artistic or expressive work, such as a performance, work of art, literary work, theatrical work, musical work, motion picture, film, or audiovisual work.

          (c) A law enforcement officer, a corrections officer, or guard in a correctional facility or jail, who is engaged in the official performance of his or her duties.

          (d) A person disseminating sexually explicit visual material in the reporting of a crime.

        3. This section does not prohibit a person from being charged with, convicted of, or punished for another violation of law committed by that person while violating or attempting to violate this section.
        4. A person who violates subsection (1) is guilty of a crime and punishable as provided in section 145f.1
        5. As used in this section:

          (a) “Disseminate” means post, distribute, or publish on a computer device, computer network, website, or other electronic device or medium of communication.

          (b) “Nudity” means displaying a person's genitalia or anus or, if the person is a female, her nipples or areola.

          (c) “Sexually explicit visual material” means a photograph or video that depicts nudity, erotic fondling, sexual intercourse, or sadomasochistic abuse.

      3. Mich. Comp. Laws Ann. § 750.145f (West 2016) - Dissemination of sexually explicit visual material of another; penalties

        A person who violates section 145e is guilty of a crime punishable as follows:

        (d) Except as provided in subdivision (b), the person is guilty of a misdemeanor punishable by imprisonment for no more than 93 days, a fine of no more than $500.00, or both.

        (e) For a second or subsequent violation of section 145e, the person is guilty of misdemeanor punishable by imprisonment for no more than one year, a fine of no more than $1,000.00, or both.

    3. Cases

      • There are no cases (published or unpublished) addressing this statute on WestLaw.
      • In 2017, a Michigan man was convicted on 5 felony counts and will serve prison time for distributing photographs of his ex-girlfriend and posting them on a “revenge porn” website. The judge found his sentence was exacerbated after investigators discovered he threatened the victim over the images.
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