Adultery to bring life in prison

The state attorney general confessed an adulterous relationship in 2005.
DETROIT FREE PRESS
DETROIT -- 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 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.
Background
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's 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's 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.
What was suggested
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 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 said. But he chuckled uncomfortably when 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.