Tuesday, January 16, 2007

Criminal sexual conduct

In November, the Michigan Court of Appeals decided that a drug dealer could be charged with the additional felony of "criminal sexual conduct" when he exchanged drugs for sex. The court found that by its terms, "criminal sexual conduct" could be charged along with any felony, even a nonviolent one. The statute prohibits any sexual conducts that "occurs under circumstances involving"; the Court of Appeals interpreted this to mean that there must be a "direct interrelationship" between the sex and the felony, though they need not occur simultaneously.

Okay, so why do we care whether a drug dealer got an additional charge for, apparently, sexually exploiting an addict? Isn't this a particularly troublesome form of prostitution?

First (and least), it seems just a trifle unfair that, instead of a prostitution-related offense, the defendant got a felony charge that was clearly intended for violent crimes and can carry a much more serious sentence than either prostitution offense or drug dealing. Criminal sexual conduct is punishable by any term of years or life in prison. MCL 750.520b(2)(a).

Second, and more significantly, there is the meaning of "circumstances involving" a felony. The court's "direct interrelationship" test does, happily, exclude circumstances where the only relationship is a random one, e.g., consensual sex between two hostage-takers during a siege. Indeed, the court suggests that even a sexual relationship with a drug buyer would not be included unless there is but-for causation. This is reassuring -- consensual sex shouldn't be used to trump up charges -- but some fine points of proof may remain.

Third, the court's opinion points out that since any felony counts, and adultery is in all circumstances a felony in Michigan, this crime necessarily occurs in any case of adultery! As the Detroit Free Press helpfully points out, Michigan's attorney-general is admittedly an adulterer and, under this law, eligible for serious prison time. (Thanks to Howard Bashman for the link.)

I previously wrote about the propriety of adultery laws here and here.

The AG's spokesman insists, of course, that the idea of locking up his boss is "nutty" and even "hallucinogenic." But why should that be, if he has clearly violated not one but two criminal laws? I suppose -- political explanations aside -- it is because laws like this are not meant to be used in every instance where they apply. Sodomy laws are still on the books in some places because Lawrence v. Texas appears to permit their use where coercion, minors, or public conduct are involved, even if these are not elements of the offense. Sodomy, "criminal sexual conduct," and potentially adultery, are handy shortcuts for prosecutors when they lack solid proof for a rape or sexual assault charge.

Such shortcuts, I believe, are intolerable. If a particular circumstance is what makes an offense morally culpable and constitutionally punishable, it must be codified, charged and proved.

If "criminal sexual conduct" is defined as narrowly as it seems to be by the court, such circumstances will always be present in the form of "direct interrelationship" with a felony -- unless of court that felony is adultery. One can still question, as the Court of Appeals did, whether the same, potentially unlimited punishment should apply regardless of whether the felony was a violent one. But perhaps -- not likely, but perhaps -- this decision will spur Michigan's lawmakers to reconsider also the criminalization of adultery, which highlights the sexual hypocrisy of our society may, on occasion, inflict real public harms for private indiscretions.

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