P. Young, Jr., Chief Justice Stephen J. Markman Brian K.
Zahra Bridget M. McCormack David F. Viviano Richard H.
Bernstein Joan L. Larsen, Justices
order of the Court, the application for leave to appeal the
June 6, 2016 order of the Court of Appeals is considered, and
it is DENIED, because we are not persuaded that the question
presented should be reviewed by this Court.
respectfully dissent from the order denying leave to appeal.
I would grant leave to appeal because I believe that this
Court's peremptory order in People v Johnson was
poorly reasoned and inconsistent with the text of MCL
750.520a(r), the statute defining sexual
penetration. Johnson is
erroneous and should be overruled.
prosecution in this case sought to amend the information to
charge defendant with one count of first-degree criminal
sexual conduct pursuant to MCL 750.520b(1)(c). The defendant
had pushed a 14-year-old girl's head down onto his penis,
forcing the victim's mouth to make contact with
defendant's penis. The trial court denied the
prosecution's motion, concluding it was bound by this
Court's order in Johnson to hold that under the
circumstances there was no "sexual penetration" as
required by MCL 750.520b(1)(c).
750.520a(r) defines "sexual penetration" to include
"sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any
part of a person's body or of any object into the genital
or anal openings of another person's body . . . . "
The statute unambiguously defines "fellatio" as a
type of "sexual penetration." The term
"fellatio" means "oral stimulation of the
penis." "The clear definition
of the word 'fellatio' encompasses any penile
stimulation accomplished using the mouth." Kissing, as allegedly occurred in this
case, in Conway,  and in Johnson, therefore fits within the statutory
definition of fellatio.
under Johnson, proof of "fellatio"
constituting "sexual penetration" under MCL
750.520b requires proof of
"intrusion." This additional
"intrusion" requirement is incompatible with the
statutory language, as explained above, and places
inconsistent constructions on the expressly listed parallel
crimes of "fellatio" and
"cunnilingus." Instead, in this case, the relevant
inquiry to determine whether the prosecution has demonstrated
"sexual penetration" under MCL 750.520b(1)(c) is
not whether there has been "intrusion, " but
whether there was "fellatio."
continue to believe that Johnson is wrong and should
be overruled. At the very least, this issue should be given
this Court's full attention and resolved by a reasoned
opinion, rather than a peremptory order. I would grant leave to appeal.
 People v
Johnson, 432 Mich. 931 (1989). See People
v Conway, 469 Mich. 857, 857 (2003) (Young,
J., dissenting) (explaining why Johnson should be
Dictionary (11th ed). See also
Conway, 469 Mich. at 857 (Young, J., dissenting)
("The term fellatio is defined as 'oral
stimulation of the penis.' "), quoting
Random House Webster's ...