Adultery Has Potential for Life in Prison

AegisAegis Not Quite TorontoRegistered User regular
edited February 2007 in Debate and/or Discourse
Been trying to find this story for a while now, at first dismissing it as a joke or some such before it being rementioned to the point that it must have had some truth to it, and sure enough:
January 15, 2007

In a ruling sure to make philandering spouses squirm, Michigan's second-highest court says that anyone involved in an extramarital fling can be prosecuted for first-degree criminal sexual conduct, a felony punishable by up to life in prison.

"We cannot help but question whether the Legislature actually intended the result we reach here today," Judge William Murphy wrote in November for a unanimous Court of Appeals panel, "but we are curtailed by the language of the statute from reaching any other conclusion."

"Technically," he added, "any time a person engages in sexual penetration in an adulterous relationship, he or she is guilty of CSC I," the most serious sexual assault charge in Michigan's criminal code.

No one expects prosecutors to declare open season on cheating spouses. The ruling is especially awkward for Attorney General Mike Cox, whose office triggered it by successfully appealing a lower court's decision to drop CSC charges against a Charlevoix defendant. In November 2005, Cox confessed to an adulterous relationship.

Murphy's opinion received little notice when it was handed down. But it has since elicited reactions ranging from disbelief to mischievous giggling in Michigan's gossipy legal community.

The ruling grows out of a case in which a Charlevoix man accused of trading Oxycontin pills for the sexual favors of a cocktail waitress was charged under an obscure provision of Michigan's criminal law. The provision decrees that a person is guilty of first-degree criminal sexual conduct whenever "sexual penetration occurs under circumstances involving the commission of any other felony."

Charlevoix Circuit Judge Richard Pajtas sentenced Lloyd Waltonen to up to four years in prison after he pleaded guilty to two felony counts of delivering a controlled substance. But Pajtas threw out the sexual assault charge against Waltonen, citing the cocktail waitress' testimony that she had willingly consented to the sex-for-drugs arrangement.

Charlevoix prosecuting attorney John Jarema said he decided to appeal after police discovered evidence that Waltonen may have struck drugs-for-sex deals with several other women.

Cox's office, which handled the appeal on the prosecutor's behalf, insisted that the waitress' consent was irrelevant. All that mattered, the attorney general argued in a brief demanding that the charge be reinstated, was that the pair had sex "under circumstances involving the commission of another felony" -- the delivery of the Oxycontin pills.

The Attorney General's Office got a whole lot more than it bargained for. The Court of Appeals agreed that the prosecutor in Waltonen's case needed only to prove that the Oxycontin delivery and the consensual sex were related. But Murphy and his colleagues went further, ruling that a first-degree CSC charge could be justified when consensual sex occurred in conjunction with any felony, not just a drug sale.

The judges said they recognized their ruling could have sweeping consequences, "considering the voluminous number of felonious acts that can be found in the penal code." Among the many crimes Michigan still recognizes as felonies, they noted pointedly, is adultery -- although the Prosecuting Attorneys Association of Michigan notes that no one has been convicted of that offense since 1971.

Some judges and lawyers suggested that the Court of Appeals' reference to prosecuting adulterers was a sly slap at Cox, noting that it was his office that pressed for the expansive definition of criminal sexual conduct the appellate judges so reluctantly embraced in their Nov. 7 ruling.

Murphy didn't return my calls Friday. But Chief Court of Appeals Judge William Whitbeck, who signed the opinion along with Murphy and Judge Michael Smolenski, said that Cox's confessed adultery never came up during their discussions of the case.

"I never thought of it, and I'm confident that it was not something Judge Murphy or Judge Smolenski had in mind," Whitbeck told me Friday. But he chuckled uncomfortably when I asked if the hypothetical described in Murphy's opinion couldn't be cited as justification for bringing first-degree criminal sexual conduct charges against the attorney general.

"Well, yeah," he said.

Cox's spokesman, Rusty Hills, bristled at the suggestion that Cox or anyone else in his circumstances could face prosecution.

"To even ask about this borders on the nutty," Hills told me in a phone interview Saturday. "Nobody connects the attorney general with this -- N-O-B-O-D-Y -- and anybody who thinks otherwise is hallucinogenic."

Hills said Sunday that Cox did not want to comment.

The Court of Appeals opinion could also be interpreted as a tweak to the state Supreme Court, which has decreed that judges must enforce statutory language adopted by the Legislature literally, whatever the consequences.

In many other states, judges may reject a literal interpretation of the law if they believe it would lead to an absurd result. But Michigan's Supreme Court majority has held that it is for the Legislature, not the courts, to decide when the absurdity threshold has been breached.

Whitbeck noted that Murphy's opinion questions whether state lawmakers really meant to authorize the prosecution of adulterers for consensual relationships.

"We encourage the Legislature to take a second look at the statutory language if they are troubled by our ruling," he wrote.

Hills declined to say whether the Attorney General's Office would press for legislative amendments to make it clear that only violent felonies involving an unwilling victim could trigger a first-degree CSC charge.

"This is so bizarre that it doesn't even merit a response," he said.

Meanwhile, Waltonen has asked the state Supreme Court for leave to appeal the Court of Appeals ruling. He still hasn't been tried on the criminal sexual conduct charge. His attorney said a CSC conviction could add dozens of years to Waltonen's current prison sentence.

Justices will decide later this year whether to review the Court of Appeals' decision to reinstate the CSC charge.

Now while I understand that the judges who ruled in this may have tried to protect themselves from being veiwed as being activist by taking a literal look at the law, doesn't this go a tad bit too far? Does common sense have to be entirely disassociated with legal interpretations to the point that we end up with these situations when instead it could be applied and save the legal conundrum that the particular state now finds itself in? This for a fact wouldn't have any positive effect towards reducing the already overcrowed jail system.

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  • ShintoShinto __BANNED USERS
    edited January 2007
    Prosecutors would have to start going after it.

    It doesn't sound like that is likely.

    In the meantime, hopefully the snafu will be fixed by the Michigan legislature.

    Shinto on
  • fjafjanfjafjan Registered User
    edited January 2007
    Well yeah, this is pretty damn retarded.

    fjafjan on
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  • ElJeffeElJeffe Moderator, ClubPA mod
    edited January 2007
    This strikes me as on the same level as those places where eating ice cream on a Thursday is still a crime. When someone gets prosecuted for this, get back to me, and I'll summon forth some indignation.

    ElJeffe on
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  • Marblehead JohnsonMarblehead Johnson Registered User
    edited January 2007
    See, this is why I don't like my wife meddling with foreign governments....

    Marblehead Johnson on
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  • stigweardstigweard Registered User regular
    edited January 2007
    So, if a guy gets a hummer in the getaway car while waiting for his friend to get out of the liquor store, and later finds out the store clerk got killed, will he spend life in prison for felony murder, or felony CSC I? OR will he get two consecutive life terms? If he turns in his accomplices because he was just the driver, and wants to trade for a lower sentence, will he be getting bent over the table by the vengeful DA? This sounds like it will make a great episode of Law and Order: SVU.

    stigweard on
  • MrMisterMrMister Please demonstrate your enthusiasm for e-marking and/or e-assessment with examplesRegistered User regular
    edited January 2007
    ElJeffe wrote:
    This strikes me as on the same level as those places where eating ice cream on a Thursday is still a crime. When someone gets prosecuted for this, get back to me, and I'll summon forth some indignation.

    I'm not quaking in my boots, but I think it's generally bad principle to have a law on the books such that the DA can really bend you over the table with it, should he feel so inclined.

    MrMister on
  • ElJeffeElJeffe Moderator, ClubPA mod
    edited January 2007
    See, this is why I don't like my wife meddling with foreign governments....

    I giggled.

    ElJeffe on
    Maddie: "I named my feet. The left one is flip and the right one is flop. Oh, and also I named my flip-flops."

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  • Andrew_JayAndrew_Jay Registered User
    edited January 2007
    ElJeffe wrote:
    This strikes me as on the same level as those places where eating ice cream on a Thursday is still a crime.
    And if sexual penetration takes place while eating said ice cream . . . :winky:

    Quick question that's sort of related because this made me think of other retarded sexual act laws - when a law is repealed, it is retroactive right? When this is struck down or changed, the charge of "first-degree criminal sexual conduct" is dropped?

    Andrew_Jay on
  • Der Waffle MousDer Waffle Mous Blame this on the misfortune of your birth. New Yark, New Yark.Registered User regular
    edited January 2007
    I'm fairly sure I can turn in my own scalp for money in connecticut.

    But I get the feeling that might not be true.

    Der Waffle Mous on
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  • ElJeffeElJeffe Moderator, ClubPA mod
    edited January 2007
    MrMister wrote:
    ElJeffe wrote:
    This strikes me as on the same level as those places where eating ice cream on a Thursday is still a crime. When someone gets prosecuted for this, get back to me, and I'll summon forth some indignation.

    I'm not quaking in my boots, but I think it's generally bad principle to have a law on the books such that the DA can really bend you over the table with it, should he feel so inclined.

    Sure, fine, but there are tons of shitty laws out there that should take precedent over this one as far as being overturned.

    I mean, if you give me a poll that reads:
    Should this law be overturned?

    [ ] Yes
    [ ] No
    [ ] Boddah

    I'll check "Yes". But that's about the extent of my caring, up until I see some evidence

    ElJeffe on
    Maddie: "I named my feet. The left one is flip and the right one is flop. Oh, and also I named my flip-flops."

    I make tweet.
  • mcdermottmcdermott Registered User regular
    edited January 2007
    ElJeffe wrote:
    This strikes me as on the same level as those places where eating ice cream on a Thursday is still a crime. When someone gets prosecuted for this, get back to me, and I'll summon forth some indignation.

    I'm always of the opinion that it's better to get laws like this straightened out before somebody gets prosecuted, because I imagine being prosecuted for First Degree Criminal Sexual Conduct would be no fun, regardless of the outcome. And considering that under the strict interpretation of the law you could end up convicted, and having to wait for an appeal to get out of prison (leading to a little real CSC-I if you're unlucky) perhaps it's best not to wait.

    I mean, am I the only one who could see this law being misused by an AG or DA? Possibly for political purposes, possibly personal?

    mcdermott on
  • Andrew_JayAndrew_Jay Registered User
    edited January 2007
    why wrote:
    I'm fairly sure I can turn in my own scalp for money in connecticut.

    But I get the feeling that might not be true.
    Probably best to do your homework and find out beforehand.

    Andrew_Jay on
  • fjafjanfjafjan Registered User
    edited January 2007
    technical quetion, is infidelity limited to married couples, or does cheating on your girlfriend or whatnot also count? Would homosexual partnership thingy count?

    fjafjan on
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  • Der Waffle MousDer Waffle Mous Blame this on the misfortune of your birth. New Yark, New Yark.Registered User regular
    edited January 2007
    Andrew_Jay wrote:
    why wrote:
    I'm fairly sure I can turn in my own scalp for money in connecticut.

    But I get the feeling that might not be true.
    Probably best to do your homework and find out beforehand.
    Well, if someone had my scalp they'd be relaxing on a tropical island.

    Der Waffle Mous on
    Steam PSN: DerWaffleMous Origin: DerWaffleMous Bnet: DerWaffle#1682
  • mcdermottmcdermott Registered User regular
    edited January 2007
    fjafjan wrote:
    technical quetion, is infidelity limited to married couples, or does cheating on your girlfriend or whatnot also count? Would homosexual partnership thingy count?

    I believe "adultery" is reserved for sex between a married person and a third party...so no, cheating on a girlfriend/boyfriend wouldn't count. As for civil unions, I would imagine if you're in a legally binding relationship bearing all the weight of a marriage then it should be treated no differently...however, I'm guessing it would depend on the wording of the law and where a judge decided to go with it.

    mcdermott on
  • jothkijothki Registered User regular
    edited January 2007
    Are copyright violations a felony in Michigan? If that's the case, then pirating pornography and watching it with your spouse would be first-degree criminal sexual conduct as well.

    jothki on
  • SenjutsuSenjutsu thot enthusiast Registered User regular
    edited January 2007
    ...

    Senjutsu on
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  • saggiosaggio Registered User regular
    edited January 2007
    This is why judicial independence and review are important parts of any effective democratic state.

    I'm sure the Attorney General is D:right about now.

    saggio on
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  • TastyfishTastyfish Registered User regular
    edited February 2007
    mcdermott wrote:
    ElJeffe wrote:
    This strikes me as on the same level as those places where eating ice cream on a Thursday is still a crime. When someone gets prosecuted for this, get back to me, and I'll summon forth some indignation.

    I'm always of the opinion that it's better to get laws like this straightened out before somebody gets prosecuted, because I imagine being prosecuted for First Degree Criminal Sexual Conduct would be no fun, regardless of the outcome. And considering that under the strict interpretation of the law you could end up convicted, and having to wait for an appeal to get out of prison (leading to a little real CSC-I if you're unlucky) perhaps it's best not to wait.

    I mean, am I the only one who could see this law being misused by an AG or DA? Possibly for political purposes, possibly personal?

    Presumably it would get you put on the sexual offenders register even if you were given an exceptionally lenient punishment as well?

    Tastyfish on
  • MalkorMalkor Registered User regular
    edited February 2007
    why wrote:
    Andrew_Jay wrote:
    why wrote:
    I'm fairly sure I can turn in my own scalp for money in connecticut.

    But I get the feeling that might not be true.
    Probably best to do your homework and find out beforehand.
    Well, if someone had my scalp they'd be relaxing on a tropical island.
    In CT its illegal to cross a river (without an authorized ferryman), run on Sunday, or have anything but a bowl haircut.

    Malkor on
    14271f3c-c765-4e74-92b1-49d7612675f2.jpg
  • ViolentChemistryViolentChemistry __BANNED USERS
    edited February 2007
    Malkor wrote:
    why wrote:
    Andrew_Jay wrote:
    why wrote:
    I'm fairly sure I can turn in my own scalp for money in connecticut.

    But I get the feeling that might not be true.
    Probably best to do your homework and find out beforehand.
    Well, if someone had my scalp they'd be relaxing on a tropical island.
    In CT its illegal to cross a river (without an authorized ferryman), run on Sunday, or have anything but a bowl haircut.
    Then those laws should be removed so that they cannot be abused.

    ViolentChemistry on
  • GolemGolem of Sand Saint Joseph, MORegistered User regular
    edited February 2007
    MrMister wrote:
    the DA can really bend you over the table with it, should he feel so inclined.

    :shock:

    Then he/she would be going to jail, if he/she was married. :P

    Golem on
  • Regina FongRegina Fong Allons-y, Alonso Registered User regular
    edited February 2007
    This is why "strict legal constructionalism" - or whatever the hell it is Scalia calls his moon-worshipping outloook on the law - is so mind-numbingly stupid.

    Regina Fong on
  • nexuscrawlernexuscrawler Registered User regular
    edited February 2007
    yeah find a jury that'll convict someone of this.....

    nexuscrawler on
  • ViolentChemistryViolentChemistry __BANNED USERS
    edited February 2007
    yeah find a jury that'll convict someone of this.....
    Okay.
    National-atlas-louisiana.PNG

    ViolentChemistry on
  • mcdermottmcdermott Registered User regular
    edited February 2007
    Malkor wrote:
    why wrote:
    Andrew_Jay wrote:
    why wrote:
    I'm fairly sure I can turn in my own scalp for money in connecticut.

    But I get the feeling that might not be true.
    Probably best to do your homework and find out beforehand.
    Well, if someone had my scalp they'd be relaxing on a tropical island.
    In CT its illegal to cross a river (without an authorized ferryman), run on Sunday, or have anything but a bowl haircut.
    Then those laws should be removed so that they cannot be abused.
    ElJeffe seems to think we shouldn't worry about them unless some prosecutor actually tries to convict somebody of them, though.

    I've read that up here it's a felony for a wife to open her husband's mail. I think that's a fun one. My wife commits a felony nearly every day, then.

    EDIT: Yeah, the whole "find a jury that'll convict" thing could only come from somebody who's never been to the deep south. Or even parts of the mountain west. Or the bible belt.

    mcdermott on
  • ViolentChemistryViolentChemistry __BANNED USERS
    edited February 2007
    mcdermott wrote:
    Malkor wrote:
    why wrote:
    Andrew_Jay wrote:
    why wrote:
    I'm fairly sure I can turn in my own scalp for money in connecticut.

    But I get the feeling that might not be true.
    Probably best to do your homework and find out beforehand.
    Well, if someone had my scalp they'd be relaxing on a tropical island.
    In CT its illegal to cross a river (without an authorized ferryman), run on Sunday, or have anything but a bowl haircut.
    Then those laws should be removed so that they cannot be abused.
    ElJeffe seems to think we shouldn't worry about them unless some prosecutor actually tries to convict somebody of them, though.

    I've read that up here it's a felony for a wife to open her husband's mail. I think that's a fun one. My wife commits a felony nearly every day, then.

    EDIT: Yeah, the whole "find a jury that'll convict" thing could only come from somebody who's never been to the deep south. Or even parts of the mountain west. Or the bible belt.
    Um, it's a federal offense for anyone other than you to open your mail. Pretty sure that doesn't apply if you tell the person it's okay first, though.

    ViolentChemistry on
  • ElJeffeElJeffe Moderator, ClubPA mod
    edited February 2007
    mcdermott wrote:
    ElJeffe seems to think we shouldn't worry about them unless some prosecutor actually tries to convict somebody of them, though.

    The idea was more that there are so many other, worse laws that are actually having an affect on people in more than a hypothetical fashion that it would be kind of silly to direct one's efforts at combating this one, instead, given that there's no evidence that any prosecutor anywhere is even bothering to take it seriously.

    ElJeffe on
    Maddie: "I named my feet. The left one is flip and the right one is flop. Oh, and also I named my flip-flops."

    I make tweet.
  • mcdermottmcdermott Registered User regular
    edited February 2007
    ElJeffe wrote:
    mcdermott wrote:
    ElJeffe seems to think we shouldn't worry about them unless some prosecutor actually tries to convict somebody of them, though.

    The idea was more that there are so many other, worse laws that are actually having an affect on people in more than a hypothetical fashion that it would be kind of silly to direct one's efforts at combating this one, instead, given that there's no evidence that any prosecutor anywhere is even bothering to take it seriously.

    No prosecutor is taking it seriously yet. Doesn't mean it couldn't happen. But as I said, I'd rather see it changed before somebody is prosecuted for First Degree Criminal Sexual Conduct than after.

    And it isn't like it should be difficult to fix...we aren't talking about rewriting the state constitution or building the Hoover Dam. You either A) repeal the law against adultery (unlikely, given the current moral/political climate) or B) amend the CSC-I law to say "a felony, excluding adultery."

    I suppose downgrading adultery to a misdemeanor would be a third option, too. Probably still unlikely given the current climate. Can't be soft on terrorism, soft on crime, or soft on sin.

    I mean, I'm sure I could pore over everything else the Michigan legislative session and find a dozen other trivial things that they really shouldn't be worrying about either with worse laws being on the books.

    mcdermott on
  • Casual EddyCasual Eddy The Astral PlaneRegistered User regular
    edited February 2007
    Huh.

    This would technically apply to 'open marriages' and swingers as well, wouldn't it?

    Casual Eddy on
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    Casual Eddy: best poster of 2015

    gotta update that stuff man
  • NintoNinto Registered User regular
    edited February 2007
    Huh.

    This would technically apply to 'open marriages' and swingers as well, wouldn't it?

    Yup.

    Ninto on
  • FeralFeral MEMETICHARIZARD along with you if I get drunk well I know I'm gonna be gonna be the man whoRegistered User regular
    edited February 2007
    MrMister wrote:
    ElJeffe wrote:
    This strikes me as on the same level as those places where eating ice cream on a Thursday is still a crime. When someone gets prosecuted for this, get back to me, and I'll summon forth some indignation.

    I'm not quaking in my boots, but I think it's generally bad principle to have a law on the books such that the DA can really bend you over the table with it, should he feel so inclined.

    The first person that actually gets seriously prosecuted for this is going to be a politician caught in an adultery scandal.

    Imagine what the late 1990s would have looked like if this were a federal law. The Republicans would have been drooling at the chance to put Clinton in jail for life just for adultery.

    Feral on
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  • DrezDrez Registered User regular
    edited February 2007
    I find this very, very weird, personally.

    Drez on
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