A Michigan court of appeals case caused a stir among the State Bar of Michigan’s Family Law Section today. The court released its opinion in People v Waltonen, a case in which Michigan’s Attorney General filed an appeal on behalf of Emmet County’s prosecuting attorney. The issue involved whether consent could be a defense against a charge of criminal sexual conduct in the first degree when the sexual penetration occurred during the commission of a felony (in Waltonen, this was the delivery of a controlled substance.) The court of appeals ruled that consent was not a defense.
It was this footnote that caused the ripple of concern and . . . well . . . laughter.
“We cannot help but question whether the Legislature actually intended the result we reach here today, considering that a voluminous number of felonious acts can be found in the Penal Code, but we are curtailed by the language of the statute from reaching any other conclusion. In Pettway, supra at 817, this Court noted, “As the prosecution correctly argues, felony, as construed in the phrase ‘any other felony,’ refers to any felony other than criminal sexual conduct.” (Emphasis in original.) Technically, any time a person engages in sexual penetration in an adulterous relationship, a felony pursuant to MCL 750.30, he or she is guilty of CSC I under § 520b(1)(c). We believe that the Legislature, in drafting § 520b(1)(c), may have conceived of scenarios in which there was a violent felony involving an unwilling victim. We encourage the Legislature to take a second look at the statutory language if it is troubled by our ruling.”
The reason for mirth? Adultery is still a felony under Michigan law. Rumor has it . . .
Read the court of appeals decision here. See also the comments of Brian Dickerson in the Detroit Free Press on January 15, 2007. Dickerson says that the court’s decision “has since elicited reactions ranging from disbelief to mischievous giggling in Michigan's gossipy legal community.”
To contact Jeanne Hannah or to view her Family Law website, click here.