People v. Lino , 447 Mich. 567 ( 1994 )

Boyle, J.

(concurring in part and dissenting in part). This case is about the scope of the statute punishing gross indecency. It is my position that the offense is limited to specific conduct. The Court reads the statute as if the Legislature intended it to be general morals legislation. Specifically, the result of today’s decision is that the statute will punish the conduct this Court determines to be immoral. Therefore, I dissent.

I agree that defendant Lino’s conviction should be affirmed. I write separately, however, because I disagree with the Court’s conclusion in Brashier that the gross indecency statute covers the conduct alleged.

The behavior Brashier is alleged to have procured appears to be proscribed by MCL 750.145c; MSA 28.342a, ¹ which provides that a person who "finances” any "child sexually abusive activity,” specifically defined to include "sadomasochistic abuse, masturbation, [or] passive sexual involvement,” is guilty of a felony punishable by up to twenty years imprisonment. It also might have been encompassed by the indecent liberties statute, formerly MCL 750.336; MSA 28.568. This statute was repealed by the Legislature in conjunction with adoption of the criminal sexual conduct statutes. 1974 PA 266.

Whether the conduct is punishable under a different statute, however, is not the issue here. On the proofs submitted,² defendant Brashier was not properly bound over on the charge of gross indecency. The statute does not apply to any "unnatural” or immoral sexual act. Rather, it applies only to fellatio between males,³ of which Brashier is not accused. We are not authorized to create a felony by interpretation. Therefore, although the defendant may be tried on several charges,⁴ some of which he currently faces,⁵ the bindover on the specific charge of gross indecency was error.

i

The question presented involves the scope of Michigan’s gross indecency statute,⁶ specifically, whether it applies to immoral acts generally, such as procuring a male to vomit or urinate on another male or masturbate in the presence of a male who is a minor, or only to a specific act or acts.

A. THE PROBLEM ILLUSTRATED—THE "CRIME AGAINST NATURE”

Courts have faced this precise question with respect to statutes that proscribe "sodomy” or "the crime against nature.” Jurisdictions differ regarding whether such terms are limited to anal intercourse, or are to be broadly interpreted to cover all "unnatural” acts, including bestiality, fellatio, and cunnilingus. In Rose v Locke, 423 US 48, 50-51; 96 S Ct 243; 46 L Ed 2d 185 (1975), the Supreme Court seemed to agree that "jurisdictions differ as to whether 'crime against nature’ is to be narrowly applied only to those acts constituting the common-law offense of sodomy, or is to be broadly interpreted to encompass additional forms of sexual aberration.” Id. at 50-51. The issue in that case was whether the Tennessee statute the respondent had been convicted of violating applied to cunnilingus, which would not have constituted sodomy at the common law. The Court reinstated the respondent’s conviction because Tennessee had adopted the broader version of the statute, id. at 53, which the Court held was not unconstitutionally vague, id. at 52.

Although it was not uncommon in other states, including Tennessee, to add fellatio and cunnilingus to the offense of sodomy by interpretation,⁷ Michigan followed the narrow approach by separately proscribing fellatio and sodomy. In People v Schmitt, 275 Mich 575, 577; 267 NW 741 (1936), this Court reversed the defendant’s conviction for sodomy because the prosecution proved only "penetration . . . per os,” or fellatio, not sodomy. The Court found that the Legislature had shown no disposition to depart from the common-law definition, observing that this conclusion was "evidenced further” by the fact that in 1931 the Legislature reenacted 1903 PA 198, which prohibited the offense of fellatio. Id. According to Professors Perkins and Boyce, Michigan’s narrower approach

is the logical position since sodomy was not an offense under the common law of England and is an offense under American common law because of the early English statute which did not apply where the act is in the mouth. [Criminal Law (3d ed), p 466.]

Because the scope of the offense is specifically defined, it may not be expanded on the basis of what a judge or jury thinks it ought to encompass. As the Colorado Supreme Court explained in a case with facts identical to Schmitt, "[w]e cannot, because of our belief that the act charged against the defendant is even more vile and filthy than sodomy, stretch the sodomy section of the statute to include it.” Koontz v People, 82 Colo 589, 594; 263 P 19 (1927).

B. THE MICHIGAN GROSS INDECENCY STATUTES

Although sodomy does not as a matter of law include fellatio, People v Schmitt, supra, it does not inexorably follow that gross indecency includes only fellatio. This case hinges on the question whether the term "gross indecency” is to be construed broadly or narrowly.⁸

The answer to this question begins with an examination of the statutory scheme. Gross indecency between males was not proscribed by statute until 1903.⁹ See 1903 PA 198, § 1. In 1931, that statute was reenacted as part of the criminal code. See 1931 PA 328, § 338.

The offenses of gross indecency between females and gross indecency between males and females were first enacted in 1939, see 1939 PA 148, only three years after a decision of this Court carrying implications for the original statute. In Schmitt, 275 Mich 577-578, which followed the historical narrow interpretation of the sodomy statute, the Court noted that "the offense of fellatio is now prohibited by [the gross indecency statute].” The fact that the Legislature thereafter employed identical language in the companion statutes lends support to the argument that the statute applies only to oral-genital contact.

The very addition of those two offenses, which meant that "gross indecency” was prohibited regardless of the gender of the participants, provides additional support for the narrow interpretation. If any sexual act could constitute the offense, then the 1939 act would have instituted decency regulation for all sexual behavior. Though this interpretation of the statutes would not necessarily have prohibited all sex, it would seem to mean that any person who had sex could be bound over and tried on a felony charge. The outrageousness of this possibility is stronger evidence that the Legislature intended the statutes to apply only to a specific act or acts.

While there is a textual argument¹⁰ for application of the statute to any "unnatural” or immoral act, that argument is belied by the number and variety of statutes addressing specific sexual behavior. ¹¹ The Legislature’s awareness of the numerous offenses, and the distinctions between them, is illustrated in 1952 PA 73, which amended 1948 CL 750.85 to apply to "[a]ny person who shall assault any female with intent to commit the crime of rape, and any person who shall assault another person with intent to commit the crime of sodomy or gross indecency . . . .” Another example is MCL 750.145a; MSA 28.341, which makes it a misdemeanor to "accost, entice, or solicit a child under the age of 16 with intent to induce or force said child to commit an immoral act, or to submit to an act of sexual intercourse, or an act of gross indecency, or any other act of depravity or delinquency . . . .” The statute contemplates an "act of depravity” that is not an act of gross indecency.

Michigan case law also supports this view. Although early opinions of this Court hesitate to provide explicit details, they reflect a certainty

that "particular conduct is rendered criminal by it.” People v Carey, 217 Mich 601, 603; 187 NW 261 (1922). As illustrated by the Court of Appeals in People v Dexter, 6 Mich App 247, 250-251; 148 NW2d 915 (1967):

Appellant raises the question of whether the counts charging gross indecency merged into the sodomy counts. Michigan follows the common-law definition of sodomy. People v Hodgkin (1892), 94 Mich 27 [53 NW 794]. At common law, sodomy covered only copulation per anum. "Penetration per os did not constitute sodomy, or the 'crime against nature,’ ” People v Schmitt (1936), 275 Mich 575, 577 [267 NW 741], and cases therein cited. The legislature has shown no inclination to depart from the common-law definition of sodomy. Penetration per os, fellatio, is prohibited by the gross indecency statute. People v Schmitt, supra. The elements of gross indecency and sodomy differ.

Greater detail was recounted in People v Myers, 161 Mich App 215, 219-220; 409 NW2d 788 (1987), in which the Court held that the statute did not apply to the touching of another’s genital area over clothing:

[P]ost-Nexter appellate decisions that have construed the gross indecency statute at issue have arisen from a factual background in which fellatio occurred. . . . No cases were found in which another sexual act, i.e., the massage of fully covered male genitalia, has occurred.

[Prosecutions brought under other gross indecency statutes which also do not define an "act of gross indecency,” namely MCL 750.338a; MSA 28.570(1) (gross indecency between females) and MCL 750.338b; MSA 28.570(2) (gross indecency between a male and a female) have involved acts of fellatio or cunnilingus. People v Livermore, 9 Mich App 47, 56-59; 155 NW2d 711 (1967) (sexual conduct between two females); People v McCaleb, 37 Mich App 502; 195 NW2d 17 (1972), lv den 389 Mich 784 (1973) (fellatio); People v Rea, 38 Mich App 141; 195 NW2d 809 (1972), lv den 388 Mich 795 (1972) (cunnilingus); People v Roy Edwards, 58 Mich App 146; 227 NW2d 263 (1975), reversed in light of People v Howell, supra, 396 Mich 825; 238 NW2d 536 (1976) (fellatio); People v Towlen, 66 Mich App 577; 239 NW2d 668 (1976), lv den 397 Mich 831 (1976) (fellatio).

In each of the above cases (except Livermore, which did not involve a determination of whether, the sexual act committed constituted gross indecency), the trier of fact determined that the act was grossly indecent in light of community mores.

The only case from this Court to suggest that the gross indecency statutes proscribe "unnatural” acts other than fellatio and cunnilingus was People v Howell, 396 Mich 16, 24; 238 NW2d 148 (1976). That case and its companion case, People v Helzer actually involved forced fellatio and fellatio with a minor, respectively. The Court held that the statute was not unconstitutionally vague as applied to the defendants because "the statutes have long been applied in the courts of this state to acts of forced fellatio and fellatio with a minor.” Id. at 21. However, three justices would have adopted a definition of gross indecency that encompassed acts that had not been previously held to be "acts of gross indecency”: "manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public.” Id. at 24. Because the three other justices did not sign this section, it is not binding precedent.¹² Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98 (1976)._

The dispute we now face was perpetuated as the Court of Appeals wrestled with the assertion in Howell that the offense of gross indecency encompassed acts that the "common sense” of society test would regard as indecent and improper. See 396 Mich 23. Some panels read Dexter as impermissibly endorsing a broad common sense of society test and held that the gross indecency statute did not apply to the act of touching a covered groin. See, e.g., People v Emmerich, 175 Mich App 283; 437 NW2d 30 (1989). Others noted that the gross indecency statute had only been applied to cases involving oral sexual acts. See, e.g., People v Myers, supra, 161 Mich App 221. Still others found in Carey and Dexter a broad common-sense test to find mutual masturbation in public a question "left to the discretion of the jury,” and thus chargeable as gross indecency. See, e.g., People v Austin, 185 Mich App 334, 340; 460 NW2d 607 (1990).

ii

The separate opinion rejects the historical definition of the scope of the statute and asserts that gross indecency has historically been defined by the common sense of the community. Opinion of Levin, J., ante at 594-598. The author then rejects the common sense of the community test and holds that gross indecency includes masturbation in the presence of minors. Id. at 580, 594-598.

The suggestion that the scope of gross indecency as defined by this Court¹³ was "the common sense of the community” is a straw man. That approach postulates that the requirement of indecency has not simply been an element of the statutory offense, but that it has been the only element, and that the offense has thus included any and all conduct that a jury thinks is indecent. Compare supra, p 608, n 8. The "common sense of the community” test finds no support in Carey.¹⁴ The issue was not the scope of the offense, but the sufficiency of the information. The Court held that it was unnecessary to name the particular conduct involved, and that it was sufficient simply to track the language of the statute: "The information in the language of the statute informed defendant of the crime for which he was to be tried. It should not state the evidence by which it is to be proved, nor should it describe the particular act charged. The gross indecency of the subject forbids it.” 217 Mich 603. The Court cited the passage from Hicks about the test that applied in prosecutions for the distinct offenses of indecent liberties and indecent exposure, as well as the passage from People v Girardin, 1 Mich 90 (1848), concerning obscenity, merely to support the unremarkable proposition that the charging document need not state all details explicitly to be legally sufficient.

Defining the offense of indecent liberties, as the Court did in Hicks, is a very different matter from defining gross indecency. It appears that the offense of indecent liberties, along with indecent exposure, was defined in terms of the "common sense of the community.” See, e.g., People v Healy, 265 Mich 317, 319; 251 NW 393 (1933); People v Visel, 275 Mich 77, 79; 265 NW 781 (1936); People v Noyes, 328 Mich 207, 211; 433 NW2d 331 (1950) (quoting actual jury instructions). This was possible because the scope of the offense has built-in limitations. Indecent exposure, for example, is limited to cases involving exposure—a concept familiar to everyone. Though the term "indecent liberties” may be slightly more amorphous, it seems that it was commonly understood to encompass touching. With that understanding, it is easy to see how society shared, and probably continues to share, a common sense about what exposure or which liberties with children are "indecent.”¹⁵ In that sense, those terms need no further definition. Establishing "common sense” as the test only confirms this.

The opposite is true of "gross indecency” or "the crime against nature.” These terms are not definitions that limit the type of conduct to which a jury will apply its common-sense judgment. They are euphemisms for the conduct prohibited by them. "Crime against nature” is a euphemism for anal intercourse. As explained in Spence, The law of crime against nature, 32 NC L R 312, 313 (1954), the first English statute on the subject, passed in 1533, prohibited as a felony the "detestable and abominable vice of buggery committed with mankind or beast.” Some American states, however, seem to have "found the word 'buggery’ too offensive to be seen in the code.” Id. See also Perkins & Boyce, Criminal Law (3d ed), p 465 (citing states "which have used some such designation in lieu of a name”).

The debate regarding the common sense of the community test in the context of gross indecency misfocuses the inquiry and obscures the precise issue in this case. That issue is what the term "gross indecency” is a euphemism for, and whether the statute encompasses the conduct of defendant Brashier. Gross indecency is a euphemism for fellatio and cunnilingus. As noted, the "common sense of the community” has not historically defined the scope of the gross indecency statutes. The holding of the Court in Dexter, 6 Mich App 250, for example, as opposed to the dicta regarding common sense of the community, was that "[pjenetration per os, fellatio, is prohibited by the gross indecency statute” and that that offense and sodomy were distinct offenses. Id.

The second flaw in the separate opinion is even more fundamental. Despite contrary protestations, the opinion adopts a broad view of the statute. There is no support in the almost one-hundred-year history of the statute for its application to sadomasochistic activity that involves no sexual contact between the victims and the perpetrators.

To state it differently, the separate opinion would "overrule” the broad interpretation of the statute, only to apply it broadly to conduct that is not even covered by the definition proposed by three justices in Howell.¹⁶ In fact, the sadomasochistic abuse of Mr. Goike is conduct to which the statute has never been applied.

Faced with the unattractive prospect of finding Brashier’s conduct outside the reach of the gross indecency statute, the problem is solved by four members of this Court saying that gross indecency is what Brashier did. The result contradicts the rationale of the separate opinion, and assumes authority we do not possess. No matter how reprehensible the alleged conduct, the power to create crimes and establish penalties rests exclusively with the Legislature.

III. CONCLUSION

The common sense of the community does not define the conduct proscribed by the gross indecency statute. The statute covers only oral-genital contact that a jury finds in the circumstances is indecent. Because this conduct was not shown at the preliminary examination, it was error to bind over the defendant on this charge. I dissent, and would remand for further proceedings consistent with this opinion.

Brickley, J., concurred with Boyle, J.

1 MCL 750.145c(2); MSA 28.342a(2), reads as follows:

A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $20,000, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child, or that person has not taken reasonable precautions to determine the age of the child. [Emphasis added.]

"Child sexually abusive activity” means a child engaging in a listed sexual act. MCL 750.145c(lXf); MSA 28.342a(l)(f). Those acts include not only "sadomasochistic abuse,” but also "passive sexual involvement.”

As the testimony is understood by the Court—"[t]he minors would hit Goike with a stick” while he was masturbating, ante at 574—this case involves "[s]adomasochistic abuse.” That term is defined as "[fjlagellation or torture, real or simulated, for the purpose of real or simulated sexual stimulation or gratification, by or upon a person,” MCL 750.145c(l)(j); MSA 28.342a(l)(j).

"Passive sexual involvement” is defined by the statute to include any "act . . . which exposes another person ... to an act of . . . sadomasochistic abuse [or] masturbation . . . because of the proximity of the act to that person, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.” The legal question whether the minor is "engaging” in the "passive sexual involvement” as required by subsection 1(h), by being in "the proximity of the act [masturbation],” has not been answered. However, the evidence indicates that defendant Brashier financed the presence of the minors.

This statute was amended in 1988, specifically eliminating the requirement that child sexually abusive activity be "commercial.” See 1988 PA 110, § 1. Thus the suggestion that this statute might not apply to Brashier because "[t]here was no 'audience’ other than” him, opinion of Levin, J., ante at 602, appears to be incorrect.

2 The proofs at examination show a curiously consistent pattern of denial of any sexual contact. If the proofs at trial indicate that contact in fact occurred, the prosecutor may seek leave to amend the information. MCL 767.76; MSA 28.1016.

3 Historically the statute has never been applied to consensual sexual activity between two persons in privacy.

4 The proofs appear to implicate not only the indecent exposure statute, MCL 750.335a; MSA 28.567(1), but also the "disorderly person” statute, MCL 750.167(i); MSA 28.364(i), and the statute that proscribes admitting a person into a place for purposes of lewdness, MCL 750.449; MSA 28.704. '

5 See MCL 750.145; MSA 28.340 (contributing to the delinquency of children); MCL 750.145a; MSA 28.341 (accosting, enticing, or soliciting a child for immoral purposes); MCL 750.157a; MSA 28.354(1) (conspiracy).

6 These cases involve MCL 750.338; MSA 28.570, which prohibits gross indecency between male persons:

Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2,500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life.

Nearly identical statutes prohibit gross indecency between female persons, see MCL 750.338a; MSA 28.570(1), and gross indecency between male and female persons, see MCL 750.338b; MSA 28.570(2).

7 See, e.g., State v Altwater, 29 Idaho 107; 157 P 256 (1916); Herring v State, 119 Ga 709; 46 SE 876 (1904); State v Dietz, 135 Mont 496; 343 P2d 539 (1959); State v Fenner, 166 NC 247; 80 SE 970 (1914); Berryman v State, 283 P2d 558 (Okla Crim App, 1955); Blankenship v State, 289 SW2d 240 (Tex Crim, 1956); State v Phillips, 102 Ariz 377; 430 P2d 139 (1967); Hogan v State, 84 Nev 372; 441 P2d 620 (1968).

8 The Court of Appeals has read the term to protect interests in privacy against the possibility that the statute could be applied to truly private conduct between consenting adults. As explained in People v McCaleb, 37 Mich App 502; 195 NW2d 17 (1972), though gross indecency includes acts of fellatio, it does not include all acts of fellatio. The issue in that case was whether it was error requiring reversal "for the trial court to instruct the jury that as a matter of law the act of fellatio is prohibited by the gross indecency statute, rather than leaving that determination to the jury as a basic element of the crime to be ascertained by the trier of fact.” Id. at 504. The Court held that it was error:

The jury’s function in this case as the trier of fact was to determine that (1) defendant had engaged in fellatio with a female, and (2) fellatio between a male and a female is conduct which the common sense of society regards as indecent and improper. The effect of the trial judge’s charge was to eliminate the second element of the crime, "whether the conduct was indecent,” from the purview of the jury. [Id. at 507.]

As the second sentence implies, the "common sense test” was a second element of the offense, limiting the scope of the statute to acts of fellatio that are found by a jury to be indecent:

In [People v] Dexter [6 Mich App 247; 148 NW2d 915 (1967)], we did not hold that as a matter of law fellatio is prohibited by the gross indecency statute. What this Court did in Dexter was affirm a jury’s determination as trier of fact that the act of fellatio violated the gross indecency statute. Dictum from People v Schmitt, 275 Mich 575, 577 (1936), was cited in Dexter at 250, for the proposition that "fellatio is prohibited by the gross indecency statute.” This statement, however, fails to tell us whether fellatio is prohibited as a matter of law or only upon jury determination. This statement in Schmitt relied on People v Swift, 172 Mich 473 [138 NW 662] (1912), for its authoritative basis. Swift, however, was a jury case in which the trier of fact determined in the first instance that the gross indecency statute had been violated. It is to be noted that nowhere in Swift is fellatio mentioned as the type of conduct prohibited by the act. Dexter and Schmitt, resting as they do on Swift, thus fail to resolve the issue posed by the case at bar. [Id. at 505.]

9 In contrast, the statute proscribing "the abominable and detestable crime against nature” appears to date from Michigan’s early years of statehood. A statute practically identical to the current one can be found at 1846 RS, ch 158, § 16. This Court has long held that this statute enacted the common-law offense. See People v Hodgkin, 94 Mich 27; 53 NW 794 (1892).

10 For example, unlike the sodomy statute, which proscribes "the abominable and detestable crime against nature,” MCL 750.158; MSA 28.355, the statute at issue proscribes "any act of gross indecency,” MCL 750.338; MSA 28.570.

11 Consider the different statutes addressing sexual behavior in the 1948 Compiled Laws—the last compilation before the enactment of the criminal sexual conduct statutes and accompanying repeal of many older statutes. See, e.g., 1948 CL 750.13 (enticing away a female under age 16); 1948 CL 750.140 (children; exhibition, employ or apprentice for immoral purpose); 1948 CL 750.85 (assault with intent to rape); 1948 CL 750.90 (sexual intercourse under pretext of medical treatment); 1948 CL 750.145a (accosting, enticing or soliciting a child for immoral purposes); 1948 CL 750.145b (same, second offense); 1948 CL 750.158 (crime against nature); 1948 CL 750.333 (incest); 1948 CL 750.335 (lewd cohabitation, gross lewdness or indecent exposure); 1948 CL 750.336 (female child indecent liberties); 1948 CL 750.338a (gross indecency between female persons); 1948 CL 750.338b (gross indecency between male and female); 1948 CL 750.339 (males under 15, debauching by females); 1948 CL 750.340 (debauching by males); 1948 CL 750.341 (female patient in institution for insane, ravish, abuse); 1948 CL 750.342 (female ward, carnal knowledge); 1948 CL 750.520 (rape).

12 Nor has it been treated as such. See, e.g., People v Kalchik, 160 Mich App 40, 44; 407 NW2d 627 (1987); People v Austin, 185 Mich App 334, 338; 460 NW2d 607 (1990).

13 People v Carey, supra, and People v Hicks, 98 Mich 86; 56 NW 1102 (1893).

14 Nor does the majority cite a single case before the Howell holding that the scope of these statutes is defined by the "common sense of the community.”

15 A good illustration is People v Lakin, 286 Mich 282; 282 NW 149 (1938), in which this Court rejected the defendant’s argument that the allegations at the preliminary examination were insufficient to bind him over for trial on the charge of indecent liberties. A twelve-year-old girl had testified that the defendant asked her to engage "in indecent conduct, and offered her a quarter if she would accede to his wishes. He then placed a hand on her knee.” Id. at 283.

This Court’s explanation for why the alleged conduct could constitute indecent liberties highlights the role that common sense played in defining the offense:

Had the girl’s parents or any decent adult been present, there would have been objection not to the touching alone, but to the touching accompanied by defendant’s indecent proposal. Under some circumstances a given act may be permissible, yet when that same act is accompanied by improper suggestions or proposals and occurs in surroundings such as .are here disclosed, it assumes a new aspect and becomes criminal in character. [Id. at 284.]

16 The definition proposed by three justices in Howell, 396 Mich 24, would have prohibited "oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public.” Particularly in light of the final phrase that mentions "any ultimate sexual act,” the limitation of the offense to "oral or manual sexual acts” with minors seems rather definite.

The word "with” parallels language used in the Criminal Sexual Conduct statutes. The esc statutes require "sexual penetration with another person,” see, e.g, MCL 750.520b(l); MSA 28.788(2X1), or "sexual contact with another person,” MCL 750.520c(l); MSA 28.788(3)(1). These terms contemplate penetration into the genital or anal openings, and intentional touching of the intimate parts or clothing covering them, respectively. MCL 750.520a(k), (1); MSA 28.788(l)(k), (i). They do not suggest that the act criminalizes sexual intercourse or sexual contact in the presence of a minor. Rather, their common-sense construction suggests quite clearly that, like gross indecency, "with” refers to sexual conduct between persons, not in the presence of them.