Much Ado About Dictum

The State Court of Appeals in Michigan has issued a ruling that has many bemused:

In a ruling sure to make philandering spouses squirm, Michigan’s second-highest court says that anyone involved in an extramarital fling can be prosecuted for first-degree criminal sexual conduct, a felony punishable by up to life in prison.

“We cannot help but question whether the Legislature actually intended the result we reach here today,” Judge William Murphy wrote in November for a unanimous Court of Appeals panel, “but we are curtailed by the language of the statute from reaching any other conclusion.”

Now, let’s be clear, the story states several graphs towards the bottom:

The Attorney General’s Office got a whole lot more than it bargained for. The Court of Appeals agreed that the prosecutor in Waltonen’s case needed only to prove that the Oxycontin delivery and the consensual sex were related. But Murphy and his colleagues went further, ruling that a first-degree CSC charge could be justified when consensual sex occurred in conjunction with any felony, not just a drug sale.

The judges said they recognized their ruling could have sweeping consequences, “considering the voluminous number of felonious acts that can be found in the penal code.” Among the many crimes Michigan still recognizes as felonies, they noted pointedly, is adultery — although the Prosecuting Attorneys Association of Michigan notes that no one has been convicted of that offense since 1971.

So the sensationalism and ballyhooing going on over at Pam’s House Blend on this case is uncalled for. The person being prosecuted was being prosecuted for oxycotin use, not adultery.

The portion everyone’s jumping all over is what’s called dictum. It’s that part of a ruling that’s not about the issue, that’s extra opinion added by the judge. Still, it makes juicy fodder for reporter and some bloggers as well.

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