Life in prison for adultery: Piling the ironies high

Turns out there are limits to family values.

Here’s the story as I understand it:

A Michigan law makes it a first-degree sex crime, equivalent to rape and punishable by life in prison, to engage in penetrative sex in the course of committing another felony.

A man who traded OxyContin pills for sex was charged by the local DA with a first-degree sex crime. The distribution of the pills was a felony, so the resulting sex happened in the course of committing a felony. (Apparently the defendant made a habit of the practice.)

The trial court threw the charge out, the state Attorney General’s office appealed, and the appeals court (the middle tier in the Michigan system) restored it.

But the appeals court did much more than that: it pointed out that, since under Michigan law adultery is a felony, any adulterous act involving penetration could also be charged as first-degree sex crime. Apparently this was intended as a nasty joke, or rather two nasty jokes.

One joke was aimed at the Michigan Supreme Court, which had earlier ruled that judges had to enforce statutes as written, without considering whether the literal language created such an obviously bad result that the legislature couldn’t reasonably be understood as having intended it. So the Appeals Court, in dicta not required to decide the case before it, created an absurd result to make the point that literalism can be carried too far, even in statutory interpretation.

The other, nastier joke was aimed at the Attorney General, a Republican named Mike Cox (who just signed on as John McCain’s Michigan campaign chair). Like McCain, Cox had some well-publicized difficulty remembering his wedding vows. So the court was in effect saying that, according to Cox’s reading of the statute, Cox himself was eligible for life in prison.

Wait, it gets better. The local Fox News channel had a laugh-fest about the opinion. The newsies seemed to find it hard to believe that Michigan law makes a felony of adultery, which they obviously regard as a joke rather than a crime.

That says something about modern American conservatism, doesn’t it?

Defending family values is all very well: up to a point. The Ten Commandments are fine on the courthouse lawn, but don’t expect anyone to actually live by them. If the Bible condemns homosexuality, that ban ought to be enshrined in law. But when the Torah sentences adulterers to be stoned to death, and the Gospels denounce divorce as equivalent to adultery, that’s … quaint, sorta like the Geneva Conventions.

Now, of course, the Michigan legislature has to do something. It will be fun to watch the “family values” politicians voting, or alternatively not voting to legalize adultery or downgrade it to a misdemeanor. I’m happy either way.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: