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Speaking of Batshit Crazy...
January 15, 2007
BY BRIAN DICKERSON
FREE PRESS COLUMNIST
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.
Seriously, say no to it, or you ass will land in prison...For Life!
While I agree with those who call this "so bizarre it doesn't merit a response," I must respond just because I'm Wednes and that's what I do.
Michigan already leads the US in having laws against consensual sex acts. We do not allow gay marriage; oral sex is a felony here (even with a married couple at home); and now cheating is legally the same as rape. Granted, this is a new interpretation of an old law. I have a lot of difficulty beleiving that the Framers intended to criminalize cheating on one's spouse. I guess because most of them cheated on their spouses.
With that in mind, there are all kinds of reasons to cheat on your spouse. While I don't condone most of them, I don't think they are worthy of felony charges either. Fraud? Maybe. Civil crime? Almost certainly. But to treat a philanderer as a violent criminal is just as silly as sending potheads to prison.
Is prison some kind of booming business I don't know about? Are there giant vacancies so that they need to make up new ways to interpret laws so that more of us are guilty? If we can learn anything from the Catholic church, it's that relaxing rules and making them more reasonable will garner more respect than constantly going around telling everyone how bad they are.
What about poly couples? What about separated ones? Is only the married person a criminal or is the "homewrecker" one too? Does it depend on the complaining party? The mind doth boggle. Deep down this strikes me as one more way to push Christian morality on people who may or may not swing that way.
In better news, my afternoon Life Coach meeting is being held by phone. This saves me a fast $10 on cabs. Plus we will likely finish way far early. Whoooo. When I get done with that meeting, I'm going to finish editing my novel which I may now call The Cat's Apprentice. I'm really loving this novel and hope I can pull it together. I may also give my new short story a going over. Later still, I shall have eggs and potatoes and watch a scary movie...not sure which yet.
Soon I get a new job developer. This will be my third one over the last two years. Let's hope she will be The Charm since I'm really stoked to get back to work. I need new clothes and to buy stuff for the wedding. I think I want to rent an archway and a fog machine.
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I might be tempted by the slightly more subtle:
A Familiar's Apprentice
or the much more ?(and probavbly far too) subtle:
The Familiar Apprentice
ah, Michigan = where one way or t'other Marriage IS a life sentence...
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And if our divorce rate wasn't so high it'd be true.
I like the Familiar's Apprentice except that the cats are not actually familiars and it would bother me. And I certainly didn't want to use the term Werecat because I hate it.
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Speaking of finding, how's the search for my David Tennant movie going?
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But tell no one. I tell everyone I don't have time to read for them.
wednes@livejournal.com
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Mine are too "arty" and full of themselves. But I never feel bad about it, because Joss Whedon is so much worse. "Serenity" indeed. And he wonders why his movie failed... Dumbass.
ANd Werecat is as bad as Meercat. :)
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Hahaha, I thought I was the only person who disliked Joss Whedon. Nice.
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TO make a movie where the villain ticks off everyone's major flaw before he kills them, and to name that movie "Serenity". Sheesh.... lol.
Thundercats! THis suggests that you are younger - and were more impressionable than I was in the 80's. :)
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I can't really replace it, otherwise I wouldn't make a big deal of it.
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