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.
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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.”
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[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.
