Aggravated Indecent Exposure in MIchigan is NOT a Misdemeanor

It’s been a while since I last wrote about Indecent Exposure charges, and in that time I have noticed that there has been a significant change, or shift, in how these cases are brought, and exactly what Offense is being charged. Recently, I’ve dealt with several cases where my Client has, somewhat mistakenly, thought they were facing a simple Misdemeanor charge.

An astute reader will, at this point, ask, “what do you mean, somewhat mistakenly? Either your Client is right, or he’s mistaken.”

flasherGuy2.jpgI have chosen my words carefully. I mean somewhat mistakenly. Read on…

Until a few years ago, the only “Indecent Exposure” crime that existed in Michigan was simple Indecent Exposure, which is a Misdemeanor punishable by up to a year in Jail, but no more than that. And to be clear, in practice, Jail in any Indecent Exposure case can be completely avoided if things are handled properly. In fact, as a Lawyer who rather routinely handles Indecent Exposure cases in the Metro-Detroit area, I am usually able to entirely keep the whole charge off of my Client’s Record, meaning the whole incident just “goes away,” much less keep the Client from getting locked up.

Then, several years back, the Legislature amended the Law, and added a new charge called “Aggravated Indecent Exposure.” This new addition to the Law upped the penalties in cases where, beyond just exposing himself or herself, a person was seen fondling his or her private parts.

At first, even in those cases where there was fondling, many, if not most Police agencies just reverted to bringing the charge as regular old “Indecent Exposure.”

More recently, however, the tables have turned, and I see more and more cases being brought as “Aggravated Indecent Exposure.” In fact, it has been a while since I’ve seen a garden-variety simple Indecent Exposure. Instead, almost all the cases I’ve handled in the last several months have been “Aggravated Indecent Exposure” charges, which are Felony Offenses.

That’s right, despite the language used in the Law itself, Aggravated Indecent Exposure is a Felony. This is true even though the written Law describes it as “a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.”

It’s not just that the Law is wrong; a little explanation will help demonstrate how and why our Legislators in Lansing made an error in the drafting of the Law. Unfortunately, this error is not the kind that would in any way invalidate the Law, or be of any help to anyone facing a violation of it.

It used to be the case that there was a kind of “hybrid” Law in Michigan called a “High Court Misdemeanor.” A High Court Misdemeanor was technically called a “Misdemeanor,” although it was treated as a Felony, and was procedurally identical to a Felony.

Sometimes, Lawyers and Judges and Prosecutors rather correctly referred to this class of Offense as a “2-year Felony.”

It gets better. When Laws were written as “High Court Misdemeanors” (“High Court” meaning that they went from the local District Court to the County’s Circuit Court for final resolution), they provided for a maximum penalty of 2 years in the County Jail.

Except that a person cannot stay in Jail for more than 1 year. In Michigan, a Jail Sentence, meaning that a person is sent to the County Jail, CANNOT exceed 1 year. On the flip side, a Prison Sentence, meaning that a person serves his or her time in a State Prison, must be for a minimum of 1 year, and can go up to life.

Thus, no one could be Sentenced to Jail for a year and a half, or two years. The County Sheriff would have to tell the Judge that the person could not stay for anymore than 1 year. After day 365, they had to be released. And this doesn’t even include the required calculation for good behavior, or what’s often called “good time.”

Yet our Legislature failed to simply fix things by changing what used to be “High Court Misdemeanors” to “Felonies.” That would have solved everything. And it wouldn’t have changed anything, either, inasmuch as that, in EVERY respect, except the actual written Law itself, a High Court Misdemeanors is considered a Felony. Most importantly, these charges are put on a person’s Criminal Record as a FELONY. Usually, the conversation with a prospective employer, or even a current employer, in which the person attempts to explain what I’ve just covered, doesn’t go to well. After all, the employer has seen the Record, and it says “Felony.” “You can call it what you like,” they say, “you can even call it green eggs and ham, but that Record speaks for itself.”

Instead, the Legislature simply changed the “2 years in Jail” language to 2 years “imprisonment.” That now means that a person convicted of Aggravated Indecent Exposure can, in fact, be sent to the State Prison for up to 2 years. At least that part of things was fixed.

The reader should not panic. While a person technically faces up to two years in prison,as I noted earlier, with proper handling, any and all incarceration can be avoided. Technically speaking a communications satellite can drift out of orbit, fall from the sky, and land on your head, too, but that’s not likely to happen, either…

In addition, the term ‘High Court Misdemeanor” has been dropped. Now, most 2 year Crimes are just called, rather incorrectly, “Misdemeanors.”

Yet this does nothing to stop the flow of Clients who come into my Office thinking that they’re facing a Misdemeanor charge, only to find out that they are, to use our phrase from above, “somewhat mistaken,” and that they are really facing a Felony, instead.

In the real world, there are very significant differences between how a Misdemeanor winds through the Court system and how a Felony proceeds.

A Misdemeanor will have the following steps in the Court system:

  1. Arraignment (which often can be waived)
  2. Pre-Trial
  3. Trial (if the case is not resolved first), and
  4. Sentencing (which, in Misdemeanor cases, can occur on the day a resolution is had after a Pre-Trial or Trial).

A Felony will have the following steps

  1. Arraignment (Cannot be waived in Felony cases, and, therefore, cannot be waived in Aggravated Indecent Exposure Cases)
  2. Preliminary Examination (held in the District Court to determine if the case is strong enough to be transferred “up” to the County Circuit Court)
  3. Pre-Trial (in Aggravated Indecent Exposure cases, this will ONLY occur in the Circuit Court)
  4. Sentencing (In Aggravated Indecent Exposure cases, this MUST occur on a separate date, after a PSI, or “Pre-Sentence Investigation has been conducted by the Circuit Court Probation Department, and its recommendation forwarded to the Circuit Judge).

This highlights the importance of either being lucky enough to only face the simple Misdemeanor charge of Indecent Exposure, or having the Defense Lawyer get the charge reduced from Felony Aggravated Indecent Exposure to simple Misdemeanor Indecent Exposure.

Yet there’s good new in all of this.

In EVERY Aggravated Indecent Exposure case I’ve handled, I have been able to have the charge reduced to the actual Misdemeanor Offense of simple Indecent Exposure. In most of these cases, I have been able to work things out so that my Client, if he (so far, and not surprisingly, it has only been men that have faced this new charge) stays out of trouble for a year, will have the whole thing dismissed. This, of course, means no Record.

There’s more good news, as well. Given my success a having these cases reduced to Misdemeanors, I will accept my Felony Retainer ($2000), and, if I can have the case reduced to a Misdemeanor at the District Court, meaning it is not transferred up to the County Circuit Court (and this is most likely to happen in Macomb County), then the remainder of the Fee (the other $2000) does not have to be paid.

Money is important, of course, but the most important part of handling these cases is, quite frankly, making sure the Client doesn’t get “hammered,” and is treated leniently, as well as minimizing the charge, if not keeping it off their Record altogether.

I have noted in other articles that there is, admittedly, a certain perceived “yuck” factor about these cases. This should not come as a shock. For example, it is not uncommon for a caller to my Office to be a bit reticent, at first, to give many details to Ann, my Senior Assistant. Often, after a few minutes on the phone, they realize that Ann has, quite literally, heard it all, and they relax enough to at least give her some details (like where and when the Offense allegedly occurred) so that I can return the call with some idea of what I’m dealing with. From my perspective, these cases happen, and they happen often. I suppose it’s like anything else, you see enough of something and it just become routine. For me, it’s routine. The reader probably couldn’t believe the things I’ve heard…

In most cases, my Clients are ashamed and embarrassed beyond words. Whether the charge is the result of some poorly planned “alone time,” or the person just felt so overwrought by the circumstances of life that they acted out in a way uncharacteristic of them, the point is, it happens. If you call my Office, there’s no need to be ashamed, embarrassed or self-conscious. I’m here to help.

Thus, anyone facing a charge of “Aggravated Indecent Exposure” is NOT facing a Misdemeanor, despite what the written law mistakenly says, and is, instead, facing a real-life Felony. Even so, much can be done to make that better, and maybe even make the whole regrettable incident go away entirely.