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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Sunday, April 19, 2009

Michigan Senate Seeks to Repeal Adultery as Felony

State Senator Ron Jelinek (R - Berrien County) has introduced a bill in Lansing to repeal adultery as a crime. The bill, which has a companion in the Michigan House, has been referred to the Senate Judiciary Committee. The bill, expected to be presented for the Governor's signature sometime during this legislative session, could become law in 2009.

The Michigan Penal Code has long-contained a chapter on adultery, defined as, "the sexual intercourse of 2 persons, either of whom is married to a third person." The scope of the criminal conduct includes divorced but cohabiting persons. The statute requires the cuckolded spouse to swear-in as the complaining witness and has a brief statute of limitation; one year.

The adultery statute was codified into the penal code back in 1931. The caselaw on this "consensual" crime goes back to 1884, in a case coming out of Senator Jelinek's own Berrien County. The case, People v Hendrickson, stands for the evidentiary proposition that the testimony of the un-married participant in an adulterous union can supply the requisite evidence to support a conviction.

In the here and now of 2009, Michigan's family courts have adhered to the "no-fault" provisions of the divorce statutes. Adultery is now a matter of private morals, with family court judges free to exercise their discretion regarding the weight to put on allegations of adultery and their attendant consequences in matters of child custody and property division.

Senator Jelinek's proposed legislation seeks to align the penal code with the unfortunate reality of post-modern society. Immoral, but all to common, adultery has always posed the biggest threat to the traditional family unit. Adultery is a rarely charged felony, however, thus, it's persistent inclusion within the penal code, particularly the anti-cohabitation provision, bloats the Michigan Compiled Laws with anachronistic provisions. Transgressions are best addressed within the discretion of the family courts.

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2 Comments:

Anonymous Anonymous said...

So can any one answer if this is still a felony on the books?

January 1, 2012 at 6:55 PM 
Blogger Timothy P. Flynn, Esq. said...

Yes, it is still on the books.

January 1, 2012 at 7:00 PM 

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