Adultery Could Carry Life Sentence in Michigan

A Michigan appeals court has ruled that adultery is constitutes first-degree criminal sexual conduct, a felony punishable by up to life in prison, under the literal reading of the law.

“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.

[…]

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.”

[…]

[Attorney General Mike] 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.

Bill Quick thinks that, no matter how absurd this is on its face and how unlikely it is to be enforced, “It will stay on the books for those special times some crusading prosecutor (Nifong, anybody?) wants to threaten somebody with criminal charges. The state is perfectly happy to have every aspect of your life criminalized, and your staying out of prison made entirely dependent upon the discretion – and mercy – of the state.”

Jerralyn Merritt agrees: “The fact that Michigan prosecutors don’t expect to charge every cheating John and Mary doesn’t make the law any less threatening. What about a case where they want to bust someone for a serious crime but don’t have the evidence. What’s to prevent prosecutors from charging adultery instead?”

Strangely, the Supreme Court, while finding a right to privacy hiding in the shadows of the Constitution that protects the right to kill one’s fetus, has not yet ruled that the criminalization of adultery is problematic. In the now-ancient case of Pace v. Alabama (1883) they specifically declined to do so. In his dissent in Lawrence v. Texas (2003), Justice Scalia hinted that this might change under the logic of the majority’s invalidation of homosexual sodomy laws.

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers‘ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.

My guess is that, should this ruling get that far, it would indeed be invalidated.

The Michigan court’s ruling, though, is somewhat ironic for those of us who dislike judicial activism and prefer a strict reading of the laws:

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.

[Chief Court of Appeals Judge William] 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.

One hopes they will. For reasons Quick and Merritt note, though, it’s possible they won’t.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Kent G. Budge says:

    I see some obtuseness in the definition of an absurdity. It’s one thing to reject the ruling pointed to by the plain language of the statute as absurd because one disagrees with the underlying policy. In these cases, the court should indeed defer to the legislature. It’s another thing to reject the ruling pointed to by the plain language of the statute as absurd because any reasonable person can see that that’s not what the legislature intended. Knowing the difference requires the exercise of good judgement, but isn’t judgement what judges are for?

  2. Billy says:

    The state is perfectly happy to have every aspect of your life criminalized, and your staying out of prison made entirely dependent upon the discretion – and mercy – of the state.

    That’s about right, really.

    This demonstrates the absurdity of “strict constructionism” taken as dogma. It is merely a tool available to judges, and though some (Scalia) would have us believe that legislative intent (demonstrated through debate histories, context, and other evidence) is never to be considered, the natural result of ignoring it is to countenance an untold abundance of absurdities. Thankfully, we do have a federal constitution to knock out the most egregious of the violations created thusly, but that won’t stop the majority, particularly with justices thereupon who insist that proportionalism has no place in determining whether a punishment fits the crime (again, unsurprisingly, Scalia).

  3. If that is the law then the law is an ass.

    Strict constructionism does not say that all laws are good or logical, just that they should be enforced. To the extent they are not good or logical, their enforcement is one of the best ways to point this out. The solution is not for judges to judges to decide which laws they like or dislike (that has its own set of problems) or to decide the case outside of the law, but to change the law. If the legislature won’t act, then the voters can act on the legislature.

    Another example of this is the Chicago goose liver law. To make the choice not to enforce the law is exactly the wrong way to go about it. Enforce the law with full vigor to bring it to the attention of the voters so that the law can be repealed.

  4. Billy says:

    Strict constructionism does not say that all laws are good or logical, just that they should be enforced.

    Thankfully, the Constitution says that the judicial branch is in charge of whether such laws can be enforced in the first place.

    Constitution > dogmatic strict constructionist judicial theory.

  5. madmatt says:

    [Attorney General Mike] Cox’s office, which handled the appeal on the prosecutor’s behalf, insisted that the waitress’ consent was irrelevant.

    Ironically he was just re-elected even though he has admitted cheating on his wife…I think this means he should prosecute his lying hypocritical self

  6. Bandit says:

    The jails are going to be really full

  7. Kent G. Budge says:

    The jails are going to be really full

    I’ll be sure to visit.

    Assuming they don’t find a way to revive Edmunds-Tucker, and jail me for being a member of a religion that once advocated polygamy.