Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
A bizarre appeals court ruling here in Michigan:
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.
It will come as a shock to no one, I imagine, that this ruling was demanded by an attorney general who, himself, is an adulterer:
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.
"I'll take one of those in wife size, and three in mistress size."
Comments
What's the statute of limitations on CSC?
Posted by: Mark P | January 18, 2007 9:39 AM
When I was in law school (early 1990s), Michigan had the reputation as having the worst bar in the country. Georgia and Arizona also came in for a lot of criticism. At some point, someone ought to let them know about Bowers
Posted by: kehrsam | January 18, 2007 10:17 AM
Seems to me that the ruling was logical enough given the circumstances - it's the law that needs to be changed.
Posted by: Kevin W. Parker | January 18, 2007 10:31 AM
Ok, I need help here. Are they actually saying that they would prosecute people for having an affair? Is this still America? How can two consenting adults be prosecuted for consenting action regardless of how one views it morally?
Posted by: GH | January 18, 2007 11:12 AM
Well, two things:
1) The decision is not bizarre, the laws are. It makes perfect sense once you look at the two stupid laws in question, one making adultery a felony, another making consensual sex related to the commission of a felony CSC1.
The first law is a vestige that should be wiped from the slate. The second is yet another idiotic idea from the current "tough on crime" era. (i.e. Let's criminalize non-criminal activity when done by criminals.)
2) Cox didn't want this outcome, he was just trying to pile on on one particular conviction (where a guy traded Oxy for sex). The judge just demonstrated how far this stupid law could be pushed, which is not at all what Cox wanted.
Posted by: Oran Kelley | January 18, 2007 11:23 AM
GH asked:
From the article:
Adultery is a felony in Michigan, so technically people could get charged with CSC 1 for having an affair, although the article also notes that no one has been convicted of adultery in Michigan since 1971.
Posted by: Jason I. | January 18, 2007 11:24 AM
Also from the article was this little gem:
Leave it up to the Legislature to make decisions about absurdity? Well, I guess they're perfectly qualified...
Posted by: Jason I. | January 18, 2007 11:29 AM
Mark -
Most places have no statute of limitations on CSC I, same as murder. And unless I am mistaken, MI, got rid of the statute of limitations for all felonies about ten years ago.
Posted by: DuWayne | January 18, 2007 11:38 AM
How can two consenting adults be prosecuted for consenting action regardless of how one views it morally?
While I'm not a fan of adultery laws, adultery is a violation of the marriage contract. In their Goodridge decision, the MA SJC mentioned the "exclusive" aspect of marriage something like 5 or 6 times. (here in MA, adultery carries penalties of up to three years in prison, two years in jail, or a fine)
Posted by: MAJeff | January 18, 2007 12:00 PM
I might sound terribly reactionary, or terribly anti-marriage (depending on how one construes my remark), but either marriage is a contract protected by the state with the force of the law, or it is nothing and should be abolished. I say this as someone who has recently seen a loved one go through a difficult divorce that, because of no fault, has lost nearly everything he worked his life for because his wife cheated on him and left him. I don't think that adultery should be a first-degree criminal sexual conduct, but it certainly should be some kind of criminal sexual conduct--or marriage should be dropped as a state-protected entity altogether (which I would be fine with).
Posted by: Chuck | January 18, 2007 12:03 PM
What if sexual fidelity isn't part of the marriage 'contract', Chuck? It ain't part of mine ...
Posted by: Scott Simmons | January 18, 2007 12:19 PM
I have a rather naive question. Is there anyway for the public to enforce this law independent of district attorneys in the state? Say a member of the public trying to prosecute the attorney general, and members of the state legislature for adultery and rape.
Posted by: dc | January 18, 2007 12:23 PM
Thats for the help. After reading the article it is clear.
Yes but violating a contract is not necesarily a criminal offense. If my wife runs off with another fellow I don't want her tossed in jail with murderers and rapists. This to me seems obviously stupid.
I don't see the logic in this at all. The state usually has protections for parties involved in situations as you mention. Usually it means a bigger share of the split if it is shown fault clearly lies with one party or another.
Posted by: GH | January 18, 2007 12:41 PM
Classic example of how simplistic intentions can have unintended (dare we say irreducibly complex?) consequences.
Posted by: Kristine | January 18, 2007 12:46 PM
Chuck:
IANAL, but I can recognize nonsense whan I see it. Breach of contract is very rarely if ever a criminal matter, unless something like outright fraud is involved. There's nothing illogical about a contract - recognized as legally valid - being broken due to conduct that isn't criminal.
I do believe that lawyers spend a good deal of time studying about instances of this and applying them in their practices [grins].
Posted by: Poly | January 18, 2007 1:01 PM
How could they prove it? I mean, if a woman is actually raped (forced to have intercourse), she can be examined, and evidence collected. With consentual sex (albeit outside a marriage), how can the aggrieved party prove there was intercourse? Can the wife force the mistress to be examined by medical doctors?
Really, unless they are caught 'in the act', it's just here-say.
Crazy.
Posted by: MarkG | January 18, 2007 1:40 PM
Answering a couple of the questions above (I did a little MCS research last night after reading about this decision):
There is a statute of limitations on adultery prosecutions, which is one year after the date of the adulterous act.
Only the aggrieved spouse can file charges of adultery. So no, we here in Michigan won't be treated to the sight of a County Prosecutor charging AG Cox with adultery and asking for life.
Interestingly (and probably reflecting that the adultery statute dates from a 1931 recodification), if a married man has sex with an unmarried woman, only the man can be charged with adultery, while if a married woman has sex with an umarried man, both can be charged.
Also, if a couple gets divorced, makes up, and begins living together again without getting remarried, both can be charged with adultery (I don't know how you square this one with the provision that only a spouse can file adultery charges).
And yes, Michigan does have a cohabitation statute, but that one's only a misdemeanor, so no chance of a life sentence for shacking up together.
Posted by: Don K | January 18, 2007 1:52 PM
Thats like being a married bachelor. 2 unmarried people committing adultery with each other.
Posted by: GH | January 18, 2007 2:51 PM
In my ignorance of the law I conflated breach of contract with criminal law. Fair enough. Still, a cheat shouldn't be allowed to walk away with everything - or even half.
Posted by: Chuck | January 19, 2007 9:29 AM
Chuck, IANYL but if you and your spouse would like to make that provision (cheating = no right to half of the marital property), you are free to do so through a private contractual agreement. But the state should not be seen as having an interest in the matter. The uninteded consequences of allowing the state to have such an interest would be so profound as to tear down the entire Warren Court legacy. (And I don't think that's overstating the matter.)
Posted by: Melody | January 19, 2007 9:50 AM
So if the state has no interest in the matter (which I agree with) and if anyone is free to enter any kind of legal contract, and since the "institution" of marriage, especially as a unique state-sponsored compact is so rife with corruption, church-state entanglements, and discrimination against gays, I say we should abolish "marriage" altogether as a peculiar government-sponsored legal condition.
Posted by: Chuck | January 19, 2007 10:47 AM