Michigan Attorney General Mike Cox

Adulterers can be prosecuted for first-degree criminal sexual conduct, a felony punishable by up to life in prison, according to Michigan’s second-highest court.

The ruling by Court of Appeals Judge William Murphy is especially awkward for Attorney General Mike Cox, whose office triggered it by successfully appealing a lower court’s decision to drop charges against a man accused of trading drugs for sex, reported columnist Brian Dickerson of the Detroit Free Press.

Cox confessed to an adulterous relationship in November 2005.

Murphy wrote in his opinion for a unanimous appeals panel, “We cannot help but question whether the Legislature actually intended the result we reach here today, but we are curtailed by the language of the statute from reaching any other conclusion.”

The ruling received little notice when it was made in November, Dickerson notes, but “it has since elicited reactions ranging from disbelief to mischievous giggling in Michigan’s gossipy legal community.”

“Technically,” Murphy wrote, “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.

The defendant, Lloyd Waltonen of Charlevoix, Mich., is accused of trading Oxycontin pills for the sexual favors of a cocktail waitress. He was charged under an obscure provision of Michigan’s criminal law that decrees a person is guilty of first-degree criminal sexual conduct whenever “sexual penetration occurs under circumstances involving the commission of any other felony.”

Waltonen was sentenced to up to four years in prison after he pleaded guilty to two felony counts of delivering a controlled substance. However, Charlevoix Circuit Judge Richard Pajtas threw out the sexual assault charge, arguing the cocktail waitress’ testified she consented to the sex-for-drugs arrangement.

Cox’s office appealed the decision, insisting the waitress’ consent was irrelevant. The main issue, it argued in a brief, was that the pair had sex “under circumstances involving the commission of another felony,” delivery of drugs.

The Court of Appeals not only agreed with that argument, it further ruled that a first-degree criminal sexual conduct charge could be justified when consensual sex occurred in conjunction with any felony, not just a drug sale.

Among those crimes, the judges pointed out, is adultery.

The Detroit paper’s Dickerson notes, however, that according to the Prosecuting Attorneys Association of Michigan, no one has been convicted of adultery since 1971.

Dickerson said some judges and lawyers suggested the Court of Appeals’ reference to prosecuting adulterers was a slap at Cox, but Chief Court of Appeals Judge William Whitbeck said Cox’s confessed adultery never came up during their discussions of the case.

Whitbeck signed the opinion along with Murphy and Judge Michael Smolenski.

“I never thought of it, and I’m confident that it was not something Judge Murphy or Judge Smolenski had in mind,” Whitbeck told Dickerson.

The columnist said, however, Whitbeck “chuckled uncomfortably” when asked if the opinion could be cited as justification for bringing first-degree criminal sexual conduct charges against the attorney general.

“Well, yeah,” he said.

Cox’s spokesman, Rusty Hills, told Dickerson “to even ask about this borders on the nutty.”

“Nobody connects the attorney general with this – N-O-B-O-D-Y – and anybody who thinks otherwise is hallucinogenic.”

Dickerson pointed out Michigan’s Supreme Court has decreed judges must enforce statutory language adopted by the Legislature literally, regardless of the consequences.

In his opinion, Murphy’s says the judges “encourage the Legislature to take a second look at the statutory language if they are troubled by our ruling.”

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