Adultery could mean life
for lovers, court finds
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.
The appeals court decision is available at
http://courtofappeals.mijud.net/resources/opinions.htm. Search for
Docket No. 270229.
Contact BRIAN DICKERSON at 248-351-3697 or
bdickerson@freepress.com.
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