Say Anything Blog

In Michigan there is crime called “Criminal Sexual Conduct.” It resides in section 520b of the Michigan Penal Code and was intended to cover such obvious crimes as rape, etc., and the maximum consequences for violating this law is life in prison.  Which is all well and good.  Unfortunately, a rather vague subsection of the Michigan law is causing no small amount of concern in the state as it makes sex “crimes” like adultery punishable by life in prison according to a Michigan state appeals court.

The subsection in question reads, “A person is guilty of criminal sexual conduct in the first degree if...Sexual penetration occurs under circumstances involving the commission of any other felony.”

So, in essence, if you have sex with a bank teller while in the process of robbing the bank he/she works in you are guilty of criminal sexual conduct...even if said sex were consensual.

The appeals court came to rule on this portion of Michigan’s penal code through a case brought by a state’s attorney prosecuting a drug case.  In the case a man was found guilty of giving a cocktail waitress Oxycontin in exchange for sex.  He was charged, rightly, for illegally distributing a controlled substance but the prosecutor in the case decided to pile on by charging him as a sex criminal as well given the sex-for-drugs arrangement and the vaguely worded criminal code quoted concerning sex related to the commission of any felony.  The appeals court ruled, again correctly, that the prosecutor is correct.  Under Michigan law this man is guilty of a sex crime.  The court’s hands are tied on the matter.

Unfortunately for frisky residents of Michigan, adultery in the state is also considered a felony.  Meaning that anyone caught cheating on their spouse is guilty of criminal sexual conduct and eligible for life in jail.  Now, moral judgments about adultery aside, I think we can all agree that life in jail for cheating on your spouse is just absurd.  Yet that is the impact of Michigan’s law.

Of course, the state’s legislature could fix this problem easily by either defining adultery as something other than a felony or striking the subsection of the criminal sexual conduct statute that concerns sex had during the commission of felonies.  Personally, I’d prefer the latter as I don’t believe sex between consenting adults should ever be illegal even if it is occurring during the commission of other crimes.

But the real question here is, will Michigan’s legislators act?  It seems to me as though all too often our political leaders are happy to let vaguely worded laws stand if only to give the representatives of the state more discretion in their control over our lives.  Prosecutors routinely use a tactic called “overcharging,” which entails them piling all sorts of criminal charges on a defendant, to bully people into plea bargains.  I often get the feeling that many of these prosecutors would nothing more than to see nearly every aspect of our lives be susceptible to criminal charges with the only thing keeping most of us out of prison being their discretion.

Which just illustrates how important it is for our legislators to be exacting in their writing of the laws that govern us and for our judges to be restrained in the opinions they issue concerning those laws.