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Adultery Has Potential for Life in Prison
Aegis
Fear My DanceOvershot Toronto, Landed in OttawaRegistered User regular
Fear My DanceOvershot Toronto, Landed in OttawaRegistered User regular
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:
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.
Detroit Free Press wrote: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.
We'll see how long this blog lasts
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It doesn't sound like that is likely.
In the meantime, hopefully the snafu will be fixed by the Michigan legislature.
- "Proving once again the deadliest animal of all ... is the Zoo Keeper" - Philip J Fry
Dismayed By Humanity Since 1992.
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.
I giggled.
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?
But I get the feeling that might not be true.
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:
I'll check "Yes". But that's about the extent of my caring, up until I see some evidence
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?
- "Proving once again the deadliest animal of all ... is the Zoo Keeper" - Philip J Fry
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.
I'm sure the Attorney General is
Presumably it would get you put on the sexual offenders register even if you were given an exceptionally lenient punishment as well?
:shock:
Then he/she would be going to jail, if he/she was married. :P
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.
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
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.
This would technically apply to 'open marriages' and swingers as well, wouldn't it?
Yup.
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.
the "no true scotch man" fallacy.