Detroit – 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 pleaded guilty to two felony counts of delivering a controlled substance in his trade of Oxycontin pills for the sexual favors of a cocktail waitress. He was charged under an obscure provision of Michigan’s criminal law that 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.” But the judge threw out the latter charge.
Prosecutors said the waitress’ consent was irrelevant.
Charlevoix prosecuting attorney John Jarema said he decided to appeal after police discovered evidence that Lloyd Waltonen may have struck drugs-for-sex deals with several other women.The attorney general’s office, which handled the appeal, 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.
