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ADDITIONAL INFORMATION

Definition (c) is the key

Adopted by the Legislature in 1931, Section 520b of the Michigan Penal Code says, in part:


1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:


(c) Sexual penetration occurs under circumstances involving the commission of any other felony.


Source: Michigan Compiled Laws

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BRIAN DICKERSON

Adultery could mean life, court finds
That's what the law says in sex-drug case Cox appealed

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."

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"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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shycherokee

I thought we lived in a free country, but in todays scociety I believe its becoming more of a communist country. The Governement tell's us what we can do with our bodies,they tell us we have to wear a seat belt or we get punished even if we can afford it it don't matter.They tell our children what they can or can't do,what time they have to be in the house.What's next putting Liz Taylor in prison the next time she get's remarried?

How many people are they willing to put in Prison for life because they had sex with an adult who was willing to have sex with them,I thought that was a decision an adult could make on their own,do we need to ask the government if we can have sex the next time we want to be intimate with someone we love or care deeply for? Arent our prisions over crowded enough,putting people in prison for no actual crime whould be a crime in itself.

Having and intimate time with another willing adult no matter what kind it is,as long as both are adults and both are willing it should be left up to them to make the decision for themselves.

Next thing ya know they will be telling us we can't have more then one child,or how far we can drive in a week's time because they think we drive to much,or have to many children.
If we don't start standing up for ourselves we wont be able to voice our own oppion's next.
I don't know about every one else but I like being able to choose for myself,make my own desicions,make my mistakes and learn from them.I want to have my children and grandchildren be able to choose for themselves also.
God Gave us free will. to choose for ourselves what was best for ourself,not the government to choose for us because that's what they will do in the end if we don't start speaking up and taking actions to make sure AMERICA stays the land of the free and Opportunities,the American Dream. America has become bullies in my oppion not only to other countries but to our own as well.

Posted: Mon Jan 29, 2007 10:19 pm


it's-adultery

Gentelmen,

Lest we advocate antinomianism, let's be careful what we call for.

For a man to put his sexual organ in anohter man's rectum is a criminal act, and should be punished my the civil authorities.

Marriage should not be within the realm of state law.

Posted: Sun Jan 28, 2007 4:51 pm


Ish

The question is not whether the State does use adultery to charge someone with criminal sexual conduct - the question is whether it can.

The true issue doesn't involve adultery but the ease of charging someone with a sexual crime - 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."

The legislature should end this and amend the statute, revoke the law regarding adultery and revoke the law prohibiting sodomy.

Mr. Cox's assertion that this discussion is ridiculous seems to contradict his attempt to charge a man with criminal sexual conduct for trading drugs for sex. The guy already took a hit for the drugs - let him be.

Posted: Sat Jan 27, 2007 1:43 am


jozzmenia

woundtootight

The solution is, don't marry a trophy wife who "can't work". Marry someone with a good education and good job then u wont have to support them forever.

If u marry someone and totally support them, do u think the court will put them out on the streets after years? no!

Posted: Thu Jan 25, 2007 3:03 pm


woundtootight

MDABONE said...

That law is beyond dumb. The law should be if woman cheats, she gets nothing and if man cheats he gets nothing...........I have known cases where the woman cheats on the husband and then on top of that gets all of his money. That is a joke.

����

My 'ex' cheated on me repeatedly, and I did everything possible to repair our marriage. Finally, I filed for divorce, because she abandoned me and my sons for another man.

In the end, she got half my pension and half of all of my assets, including the children's trust funds.

Now tell me, is that fair?

Posted: Thu Jan 25, 2007 2:23 pm


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