Cheat on you spouse go to goal for life
Normandy
That's what the law says in sex-drug case Cox appealed
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.
The appeals court decision is available at
http://courtofappeals.mijud.net/resources/opinions.htm. Search for Docket
No. 270229.
pijoe
> Adultery could mean life, court finds
> That's what the law says in sex-drug case Cox appealed
> 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.
I read this with amusement yesterday. Nice slap to the prosecutor.