Thursday, January 18, 2007

A Withering Ruling

In the relatively distant past, I believed the Constitution should be read metaphorically, rather than tightly adhering to the words on the page.

Yes, I hang my head in shame. Particularly since, in retrospect, such extraordinarily clear writing is surpassingly rare.

However, it isn't as if strict construction is beyond its share of surprises.
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.


My guess is that OJ would prefer stoning, and would be the first to wind up.

"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."


The law in question states that a person is guilty of first-degree criminal sexual conduct [CSC] whenever "sexual penetration occurs under circumstances involving the commission of any other felony.

Leaving aside for the moment whether women can, in the normal course of things, ever be charged, Michigan Law makes adultery a felony. Hence, adultery becomes first degree CSC because, by definition, it occurred during the commission of a felony.

CSC1 warrants, according to the law, life in prison. Good thing it's only that, because we sure would not want to mistakenly execute monogamists.

The case arose out of a transaction of Oxycontin for sex. The CSC charge was thrown out, due to the woman's consent.

However, the Michigan Attorney General, Mike Cox, appealed the ruling, because the law mandated the charge of CSC1.

Thereby providing as cautionary an example of "be careful what you ask for" as you could ever hope to find.

Attorney General Cox recently confessed to an adulterous relationship, for which he is guilty of CSC1.

But his paramour, regardless of her marital status, is not.

Go figure.

13 Comments:

Anonymous Anonymous said...

How can so many people with apparently important positions be so lacking in the ability to abstract? Especially a person whose job it is to apply abstract law to specific cases? I just cannot grasp it.

January 19, 2007 7:39 AM  
Blogger Duck said...

Since when is adultery a felony?

January 19, 2007 9:45 AM  
Blogger Hey Skipper said...

Duck:

Since Michigan decided it is.

I don't exactly when that was, except that the last time it was prosecuted as such was in 1971.

January 19, 2007 11:30 AM  
Blogger Hey Skipper said...

This comment has been removed by a blog administrator.

January 19, 2007 11:39 AM  
Anonymous Anonymous said...

Since always, although some of the states have gone through the criminal code and cleaned up some of the more obsolete crimes. Also, the law is almost certainly not constitutional (although it should be).

January 19, 2007 11:44 AM  
Anonymous Anonymous said...

Here's the statute. It dates to 1931, but my guess is that's just the most recent recompiling of the Michigan code and that it's been a crime for much longer.

January 19, 2007 12:31 PM  
Blogger Hey Skipper said...

David:

Also, the law is almost certainly not constitutional (although it should be).

Why is it not?


Why should it be?

Enquiring minds want to know.

January 19, 2007 12:47 PM  
Blogger Peter Burnet said...

Skipper:

Why should it be?

As you are on reord many times for condemning adultery as something that causes extensive harm and doesn't "work", what could be your objection? You didn't by any chance have your fingers crossed, did you?

January 19, 2007 6:16 PM  
Blogger Duck said...

I think that we all know that adultery has to be one of the oldest and most persistent sins. If we jailed every man that committed this act, there would be more men on the inside of the jails than on the outside.

January 19, 2007 8:29 PM  
Blogger Hey Skipper said...

Peter:

As you are on reord many times for condemning adultery as something that causes extensive harm and doesn't "work", what could be your objection?

Huh? Que? What objection?

You burden my words with far more meaning than I meant them to convey. I only wanted to know the reasoning behind David's assertions, in as much as he is an emminently qualified lawyer, and I'm nothing but a glorified heavy equipment operator with good eyesight.

If I was to have an objection though (tentative, because I have very little knowledge on which to go), it would be to laws on the book that no one intends to enforce. Given all the adultery that has surely occurred since 1971, that law is so dead it has kicked the bucket, shuffled off this mortal coil, run down the curtain and joined the bleedin' choir invisibile.

Better to replace it with laws one intends to enforce, such as those punishing breach of contract (Is there such a thing? Darned if I know.)

January 19, 2007 9:08 PM  
Blogger Peter Burnet said...

Skipper:

What? Your objection is that nobody is enforcing the law? Well, we can fix that pretty quickly. We sure don't want anyone accusing us of hypocrisy.

I'm hoping you will tell us why, if adultery doesn't "work", there is nothing we can or should do about it.

Duck:

Sin? Why you old closet theocrat, you. What's next on the Daily Duck--grace?

January 20, 2007 4:29 AM  
Blogger Duck said...

I've never sinned with Grace. I don't know the woman!

January 20, 2007 12:53 PM  
Blogger Hey Skipper said...

Peter:

What? Your objection is that nobody is enforcing the law?

Are you channeling OJ?

I'm hoping you will tell us why, if adultery doesn't "work", there is nothing we can or should do about it.

Granting that adultery doesn't "work" in the sense that we would all be better off if it didn't exist seems obvious enough. However, that answer doesn't help any, as it is akin to say that we would all be better off if human nature were to become something markedly different than it is.

Passing laws no one intends to enforce, because their effects would swamp the damage of the original crime, is a fool's errand, giving the appearance of action where none, in fact, exists.

The alternative is to pass, or enforce, laws that are enforceable, in that their effects are commensurate with the crime, and where government's reach does not intrude into (IMHO) should be a very large sphere of personal autonomy.

Hence my suggestion, which I am willing to grant is, at the moment, ill-informed, to rely on contract law.

In the civil realm, a marriage is a contract. Are there not penalties for breach of contract that can be assessed against the offending party?

Perhaps that was more common forty years ago, albeit in a very skewed fashion. At the time, women were not viewed as fully autonomous beings (much as the Left now views all nations other than the US), and, hence, carried far less accountability. Men, in contrast, were autonomous, and could be assessed punitive alimony as a consequence of assigned blame.

However, keeping in mind that what "works" is a net term, perhaps the path of greatest workiness is roughly where we are now: people are autonomous, and, despite temptations to the contrary, government almost ever improves matters by intruding into personal decisions.

January 21, 2007 6:03 PM  

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