Nick Krieger (@nckrieger):
By now, everyone has heard about Lansing’s most recent sex scandal involving State Representatives Todd Courser (R-Lapeer) and Cindy Gamrat (R-Plainwell). Rumors of the sexual relationship between Courser and Gamrat had been circulating for several months. But the story became more salacious on Friday when The Detroit News released audio recordings of Courser, Gamrat, and legislative staffers discussing the extramarital affair and their plans to cover it up.
In Michigan, adultery is a felony, defined as “the sexual intercourse of 2 persons, either of whom is married to a third person.” MCL 750.29. Courser and Gamrat are both married, and not to each other.
Although the adultery statutes are rarely enforced, the act of adultery is punishable by up to four years in prison, MCL 777.16a, and adultery remains a felony under Michigan law, Stopera v DiMarco, 218 Mich App 565, 569-570; 554 NW2d 379 (1996). In 2012, for instance, Michigan’s Attorney Discipline Board sanctioned prominent Oakland County lawyer Henry Baskin for various instances of professional misconduct. Among other allegations, the Grievance Administrator charged that Baskin had breached the Michigan Rules of Professional Conduct by committing the felony of adultery. It is absolutely clear that by engaging in an extramarital, sexual affair with one another, Courser and Gamrat both committed the felony of adultery.
It gets even more bizarre.
By committing adultery, Courser and Gamrat also committed the much-more-serious felony of first-degree criminal sexual conduct (“CSC-I”).
Michigan’s CSC-I statute prohibits rape and similar violent sexual acts. However, the CSC-I statute prohibits other types of sexual misconduct as well, including all “[s]exual penetration” that occurs during “the commission of any other felony.” MCL 750.520b(1)(c).
The Michigan Court of Appeals has explained that because adultery constitutes an “other felony” within the meaning of the CSC-I statute, and because adultery necessarily involves “sexual penetration,” all persons who commit adultery in this state simultaneously commit the crime of CSC-I. See People v Lockett, 295 Mich App 165, 176 n 1; 814 NW2d 295 (2012); People v Waltonen, 272 Mich App 678, 694 n 8; 728 NW2d 881 (2006). Indeed, as the Waltonen Court observed, “[t]echnically, 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.”
The crime of CSC-I is punishable by imprisonment for any term of years or life, and subjects the offender to electronic monitoring (i.e., wearing a tether) for life. MCL 750.520b(2)(a) and (d). It also subjects the offender to registration on the Michigan Sex Offender Registry.
So, will Courser and Gamrat be prosecuted for CSC-I, sentenced to life in prison, and placed on the Sex Offender Registry? No. Of course not. In fact, it’s almost certain that they will not even be prosecuted for adultery. Michigan law provides that the felony of adultery may not be prosecuted except upon the complaint of the spouse of one of the parties to the affair. MCL 750.31. Thus, unless Courser’s wife or Gamrat’s husband decides to press adultery charges, there won’t be any criminal fallout.
Nevertheless, this situation highlights the need to revisit Michigan’s Draconian adultery laws. Should adultery still be classified as a four-year felony in Michigan? The adultery statute has not been amended or revised since 1931. I think it might be time for the Legislature to take another look. And what about the criminal sexual conduct law? Did the Legislature actually intend to treat and punish adultery the same as forcible rape when it drafted the CSC-I statute? I seriously doubt it.
Without question, the Michigan Legislature has been tarnished by this affair and subsequent cover-up. I express no opinion on the ultimate question whether Courser and Gamrat should resign from office. I do know, however, that the Legislature will be missing an opportunity if it does not seize this chance to modernize and clarify Michigan’s adultery laws.