Be Careful What You Wish For...

The recent Michigan court ruling PEOPLE OF MI V LLOYD JOSEPH WALTONEN
reminds me that Hell is actually a town in that poor state which might soon become the residence of a rather large potion of Michigan legislators and judiciary. Lawyers, are statistically speaking, high risk for marital infidelity... and so begins an epic of political stupidity, De Luxe.

Judge William Murphy signed a decision today that unambiguously defines any act of sexual intercourse that is associated with the concurrent commission of any felony as a class-1 Criminal Sexual Conduct. Whether the sex act is consensual makes no difference. Now on the face of it, this seems to have been well meant but terribly poorly thought out.

I’m all for punishing rapists and sexual predators and I don’t really understand the need to tack on additional charges when the offense itself deserves draconian penalties without the need to qualify the offense as “more wrong” because the victim was also robbed. The trauma of rape shouldn’t be trivialized in that way. It is like saying, “well if he didn’t beat you up or rob you, hold you captive for a week or threaten you with a gun then what’s the problem?” The entire notion behind this law is a basic misunderstanding by the Michigan legislature of the nature of rape. Rape is THE charge to be addressed, not the loss of a watch. The loss of the watch doesn’t make the rapist more hideous than he already is. Punishing one rapist as a violent sexual predator because he also displays no sense of propriety for personal property while in effect lessening the charge for one who was only interested in inflicting violent lasting trauma on his victim is like placing a discount rate on rape, Alla Carte. The object here isn’t to make things easier on rapists who “only” rape their victims. The Michigan legislature should be less concerned about tacking on severity and punish this crime in a manner consistent with the actual severity of the crime itself. The very last thing that a rapist should find himself concerned with, is whether he also took the victim’s watch. He should be far too busy being concerned about eating pimento loaf sandwiches twice a day and sleeping with his eyes open for the rest of his life… without requiring that some other event took place which was trivial by comparison to the overwhelming depth of his major offense. If the Michigan legislature feels the need to “add on” severity, then let the individual offenses carry consequences that deliver that meaning. Rob someone, go to prison for 10 years. Shoot them and get charged for shooting them and bear the consequences for the more severe nature of the crime. Kill them and they should not be concerned with the couple of extra years they face for doing it with a handgun, they should be concerned with becoming really fond of the color gray. If someone kills another human being with a #2 pencil, they are not less dead than someone who is killed with a handgun, and a rape victim is not less damaged for life because her assailant left her handbag untouched. Robbery by comparison is a trivial crime. The punishment for rape should obviate the need to patch extra time onto the sentence. In my opinion, dropping the rapist feet first into a wood chipper would not be too extreme. I’ll settle for dropping them naked onto the arctic ice pack and letting them fend for themselves. In a nutshell, it’s a stupid law and this incident has demonstrated the extent to which it’s stupidity can be abused.

While at first glace Judge Murphy's decision along with a unanimous panel, makes him seem mentally challenged, in fact he has no choice under Michigan’s gothic judicial guidelines. Michigan appears to have the notion that a judge is a piece of furniture and isn't paid to think, the Michigan Supreme Court seems to feel that making decisions about whether a law which is the result of the collective brain damage assembled and seated in the legislature should be left to correction by the same people who created the problem in the first place. In other words they have abdicated the responsibility to exercise the process of judicial review, one of the Constitution’s most valuable and essential checks on the power of legislature. They apparently prefer to leave the responsibility for catching and fixing the bugs and unforeseen faux pas of legislators transfixed on re-election to the same people who weren’t paying attention in the first place, and they have bound the hands of the state’s judges to be little more than courtroom babysitters to keep the chaos and insanity neatly compliant with the rules of parliamentary conduct. Never mind that some of the laws they are charged with babysitting should have been kept in the root cellar and fed through a slot under the door. In short, if it can be said that the Michigan legislators are a bunch of worthless career absentees, then the Michigan judiciary is fine with that.

This law was obviously intended to apply to cases in which a victim of rape was subjected to additional violations such as robbery, kidnapping, battery, etc. The wording used to pass this misbegotten intent into law however, was general enough as Judge Murphy pointed out in his decision, not just to apply to the intended circumstances, but to any other felony as well. Sex itself becomes a severe criminal offense when it occurs in association with any other crime for which someone might be arrested.

Sex, by itself is not a crime. It should not be equated with rape. Rape is not a sexual act but an act of violence. Sex, by itself can not be escalated in severity as a crime and the need to escalate rape as a crime merely means that the people who thought this notion up still feel that rape isn’t serious enough by itself to require the offender to be removed permanently from the company of polite (or less impolite) society.

The entire case behind this decision revolves around Attorney General Mike Cox and a trivial drug trafficking case involving Lloyd Waltonen and a waitress who had come to mutually satisfactory though illegal arrangements.

Waltonen wanted to trade drugs for sex, and the waitress was looking to trade sex for drugs. She was willing and apparently the price was right. He delivered the drugs, and she received them. In Michigan these are both felonies for the Oxycontin in question. He didn’t force her to have sex and then make her take possession of the drugs, and she wasn’t a victim. They both conspired to trade drugs and sex. Perverting this law, and then enforcing it selectively speaks volumes of Cox’s tenuous grasp of proportion and the Constitution, the law itself, and the people he is charged with protecting. Cox, was annoyed when the judge in the case in which Waltonen was convicted of drug trafficking had the bizarre sexual assault charges dismissed, because they should have been. No violence was involved and the sex was mutually consensual. A.G. Cox wouldn't leave it be. He insisted on appealing the sexual assault charge based on a Michigan law that it turns out might have implications for his own future... and God Bless Him he won. Judge Murphy in spite of his unwillingness to surrender his own integrity, found himself with the rest of the appeals court panel in the position of being helpless to do any other than what Cox demanded, because the law was so ambiguous that it allowed the mere act of consensual sex to become a criminal act in what rapidly became obvious were less than unusual circumstances.

Ironically A.G. Cox, had previously admitted to an extra-marital affair and Michigan still retains legislation on the books which defines adultery as a felony. One would think that an attorney familiar with the laws of the state would have known that his tryst was a criminal act. Cox's mouthpiece, Rusty Hills has expressed his intense indignation at the suggestion that the decision, which makes no distinction between particular felonies such as drug trafficking, or adultery, could be applied to the A.G. himself. Apparently sauce for the goose isn't necessarily sauce for the gander in Michigan. He expressed contempt for the question and suggested that anyone making such suggestion was "hallucinogenic." Yes, well I’m sure that someone is in the midst of some mind altering substance to fight that hard to win a ruling and then refuse to validate the possibility that the law applies equally to themselves. Oops.

If Michigan believes it's judges are too stupid to use reason in determining sentencing, then they need to get better judges. The judges forced into this decision seem to have had the sense, but aren't being allowed to use it. That leaves only the legislature as the possible source of mental decay or defect, but they are too busy defending the sanctity of marriage against gays to trouble themselves with the possibility that any number of them could possibly face life in prison if they have ever had an extra-marital affair, a brief fling with a co-worker, or 5 minutes with a prostitute in their car.

I mentioned this ruling to my wife a little sheepishly. I'm fiercely devoted to her, and she knows that, and I feel a bit funny finding myself defending someone who cheats on their spouse. Her response was "That seems a bit extreme.” Life in prison eternally branded a sexual predator by the state, and then to be listed in a national database for sexual felons seems a bit harsh for cheating... or for trading drugs for sex for that matter.

As it stands, the A.G. is going to have some explaining to do and that’s probably a good thing. If he is forced to talk about it for a while maybe he will see the wisdom of keeping things in proportion. I mean, it isn't as though Cox ever raped anyone, but the charge that he would face due to his admission of infidelity would be the same and carry the same punishment. I'm sure he doesn't mean that just because he is a highly placed and well-paid member of respectable society that he should be exempt from the law, especially in as much as he is charged with enforcing it. The decision he fought so hard to win stated that ANY felony in association with sexual intercourse is a Class-1 CSC. That makes Mr. Cox’s admission of infidelity a matter of serious import and Hill’s indignation at the notion that the Attorney General was essentially admitting to being a sexual predator, disingenuous double-speak. Cox seems to feel that the law applies only to the persons of his choosing. Not himself. That would be absurd. He is after all, the Attorney General.

This is the cumulative cost of allowing the basic safeguards built into our country’s laws to be discarded as incidental. Maybe the national legislature will take it as an object lesson.