http://www.freep.com/apps/pbcs.dll/article?AID=/20070115/COL04/701150333&imw=YAdultery 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.
"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.
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.
Cox's spokesman, Rusty Hills, bristled at the suggestion that Cox or anyone else in hiscircumstances 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.
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.
Contact BRIAN DICKERSON at 248-351-3697 or bdickerson@freepress.com.
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