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January 16, 2007
Law Of Unintended Consequences, Michigan Style

If philanderers want to find a cozy hideaway for their assignations, they may want to avoid Michigan, at least for a while. Its appellate court just ruled that thanks to an overzealous prosecutor's application of the law, adultery is now a serious sexual crime (via Memeorandum):

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.

How did Michigan manage to return to our Puritanical past? Cox wanted to prosecute a defendant in a drug case as a sex offender for taking sexual intercourse as payment for illegal Oxycontin sales. He made use of an obscure law that made any sexual penetration during the commission of a felony the same kind of sexual offense as rape and molestation, regardless of whether the sex was consensual or not.

When he first presented this rather novel method of sticking sex offender status on drug dealers, the trial judge threw it out. The prosecutor appealed when he discovered that the defendant had sex with a number of his customers, apparently scandalizing the legal community despite decades of this kind of behavior among drug users. Cox's office handled the appeal, and the court discovered that the law exists as Cox applied it.

This tale presents two lessons. First, the effort to eradicate drugs prompts the same extreme behavior that all militant efforts at "reform" produce. In this case, the prosecutors threw the kitchen sink at a drug dealer without any qualms whatsoever at their attempts to criminalize consenting sexual relations between two unrelated adults. Perhaps one could make an intellectual case of this being a form of prostitution, but that's just a misdemeanor and not a registerable sexual offense.

The second lesson is that legislatures often write laws badly, even laws with good intent. The Michigan legislature should revisit this provision in its penal code in light of prosecutorial attempts to criminalize sex among drug users. However, it will be interesting to see which politician will stand up to offer a bill to make adultery legal. I'd bet that it would have to be one without a spouse. Nevertheless, they should remove this particular arrow from the legal quiver, and soon.

NOTE: This post in no way should be construed as an endorsement of adultery. CQ's First Mate Approved position on adultery is that it's very, very bad. Did you see Fatal Attraction? 'Nuf said. Oh, and don't do drugs.

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Posted by Ed Morrissey at January 16, 2007 6:29 AM

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