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STATE OF MICHIGAN
COURT OF APPEALS


DENISE DIAMOND, Plaintiff-Appellee/Cross-Appellant, V DAVID WITHERSPOON, Defendant, and CITY OF DETROIT, Defendant-Appellant/CrossAppellee.

FOR PUBLICATION April 12, 2005 9:10 a.m. No. 252657 Wayne Circuit Court LC No. 01-133307-NO

TOYIA MOODY and STEPHANIE BENNETT, Plaintiffs-Appellees/CrossAppellants, V DAVID WITHERSPOON, Defendant, and CITY OF DETROIT, Defendant-Appellant/CrossAppellee. No. 252658 Wayne Circuit Court LC No. 01-118433-CZ Official Reported Version

Before: Fort Hood, P.J., and Griffin and Donofrio, JJ.

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DONOFRIO, J. Defendant city of Detroit appeals as of right from a judgment of $2.625 million entered on a jury verdict awarding plaintiffs $7.5 million as a result of violations of the Civil Rights Act (CRA), MCL 37.2302, and allocating fault of thirty-five percent against defendant. The action involved violations of the CRA in which defendant's employee, David Witherspoon, a police sergeant, committed criminal sexual conduct against the three plaintiffs. Defendant now appeals, arguing among other things that the trial court erred when it failed to find as a matter of law that plaintiffs were not denied any public services under the CRA because of their sex, but instead were subjected to criminal assault.1 Because we conclude that the CRA does encompass the instant facts as a matter of law, and that plaintiffs were denied public services because of their sex, we affirm. I. Substantive Facts This action arises out of the criminal sexual conduct committed by former Detroit Police Sergeant David Witherspoon. Witherspoon admitted stopping all three plaintiffs on separate occasions in 1999 and 2000. Instead of issuing tickets to plaintiffs for the alleged traffic violations, Witherspoon initiated sexual contact and photographed plaintiffs Toyia Moody and Denise Diamond with their breasts bared. Regarding plaintiff Stephanie Bennett, Witherspoon photographed her while clothed, pulled at her dress, and attempted to touch her. It is undisputed that Witherspoon pleaded guilty on three counts of extortion, MCL 750.213, and three counts of second-degree criminal sexual conduct, MCL 750.520c(1)(c), in connection with the assaults on plaintiffs.2 Witherspoon is currently serving concurrent sentences of three to fifteen years and three to twenty years in prison. A. Plaintiff Bennett In June 1999, Witherspoon, while in uniform and in a marked police car, stopped Bennett's vehicle on Seven Mile Road. When Bennett asked if she was getting a ticket, Witherspoon answered that "it depended." Bennett's fianc

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