Message to drug dealers: if you’re going to trade drugs for sex, pick a single woman.
There’s been tut-tutting around the blogosphere about the ‘crazy’ decision, but the bottom line is that the Michigan court is correct: under Michigan law, adulterous sex is one of most serious sexual offenses, because in Michigan, adultery is still on the books as a felony.
Michigan Compiled Laws (MCL) 750.29 defines adultery as “the sexual intercourse of two persons, either of whom is married to a third person.” It is a felony. Michigan’s law regarding sexual assault is actually quite progressive, and tracks the American Law Institute’s Model Penal Code. Instead of “rape” it has degrees of “criminal sexual conduct” (CSC).
MCL 750.520b(1) lists all the possible acts that fall under CSC I – the most serious category of criminal sexual conduct, in which sexual penetration occurs and one of the other listed circumstances applies. MCL 750.520b(1)(c) refers to sexual penetration occurring “under circumstances involving the commission of any other felony.”
It’s pretty clear why you would want such a law: a person who is already committing a felony, and decides to have themselves a little fun with their victim, should be punished most harshly.The law doesn’t distinguish between types of felonies–which, when you think about it, makes sense, because you don’t want some rapist saying “You forgot to specifically include the felony I committed!” and getting off the hook. Felonies are the most serious crimes, so it’s safe to assume that whatever the felony actually is, it’s probably not something where you assume the sex is consensual.
In Michigan, remember, adultery is also a felony. There is no groundswell of support for overturning this, especially since nobody has been convicted of adultery in Michigan in over 30 years. And from the prosecutor’s point of view, it’s a good way to drop a serious charge on top of whatever else you’ve got. As Mr. Waltonen found out the hard way.
Could the Court have done something different? Not without being those “activist judges” one hears so much about nowadays. The Legislature made adultery a felony; the Legislature made sex-during-a-felony CSC 1; the Legislature can fix it if y’alls don’t like it.
mythago
6 Responses to ““Activist” courts – criminal divison, part 2”
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Since it takes two to commit adultery, would this mean that both parties could be charged with felony CSC-1?
It sure sounds like it, but then there’s a provision immediately thereafter saying an unmarried male lover of the adulterous spouse is also guilty of adultery; that implies that you can’t charge an unmarried female lover with adultery.
Because unmarried female lovers are obviously jsut whores, and therefore lacking proper agency or indeed humanity?
Treating adultery as a felony is kinda screwy, but you’re absolutely right that it’s a legislative problem, not a court procedural problem. It would be glorious if they have a similiar “committed during the course of a felony” provision for when some corrupt Michigan legislator makes crucial bribe arrangements while engaged in some adulterous afternoon delight.
If the language truly means any other felony, couldn’t you be convicted of CSC I because you committed CSC III?
Aaron, you are just testing to see how much I remember from Crim Law, aren’t you?