Translate

Wednesday, January 2, 2013

Is Michigan Still Prosecuting Consenting Adults?

I can't tell from this news article, the headline claiming an criminal charge for "incest," whether this is a matter of consensual sex between adults or a predatory assault. Obviously, there is a big difference between those two. Here's what the article by Brad Devereaux reported at mlive.com (emphases are mine)...
The 45-year-old Farwell man who was arrested on Christmas Day and charged with criminal sexual assault third degree involving incest appeared in the 80th District Court in Clare County on Wednesday, Dec. 26.
Merry Christmas!

Michigan State Police arrested Nokes at his home in Farwell after an investigation of a complaint they received several months earlier from Nokes' family member, alleging three instances on incest in Farwell and one instance in Clinton County.
That sounds like a third party complaining, rather than the possible victim.

Thankfully, the article was helpful by linking to this information about the applicable state law. Again, emphases are mine...




MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931


750.520d Criminal sexual conduct in the third degree; felony.Sec. 520d.
(1) A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exist:
(a) That other person is at least 13 years of age and under 16 years of age.
(b) Force or coercion is used to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (v).
(c) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
(d) That other person is related to the actor by blood or affinity to the third degree and the sexual penetration occurs under circumstances not otherwise prohibited by this chapter. It is an affirmative defense to a prosecution under this subdivision that the other person was in a position of authority over the defendant and used this authority to coerce the defendant to violate this subdivision. The defendant has the burden of proving this defense by a preponderance of the evidence. This subdivision does not apply if both persons are lawfully married to each other at the time of the alleged violation.
(e) That other person is at least 16 years of age but less than 18 years of age and a student at a public school or nonpublic school, and either of the following applies:
(i) The actor is a teacher, substitute teacher, or administrator of that public school, nonpublic school, school district, or intermediate school district. This subparagraph does not apply if the other person is emancipated or if both persons are lawfully married to each other at the time of the alleged violation.
(ii) The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(f) That other person is at least 16 years old but less than 26 years of age and is receiving special education services, and either of the following applies:
(i) The actor is a teacher, substitute teacher, administrator, employee, or contractual service provider of the public school, nonpublic school, school district, or intermediate school district from which that other person receives the special education services. This subparagraph does not apply if both persons are lawfully married to each other at the time of the alleged violation.
(ii) The actor is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(2) Criminal sexual conduct in the third degree is a felony punishable by imprisonment for not more than 15 years.
I'm not sure if "to the third degree" includes third degree relatives, which includes first cousins, but i think it does. A second degree relative can include grandparents, grandchildren, aunts, uncles, nephews, nieces or half-siblings, and a first degree relative includes parents, full siblings, or children. Unless I'm reading it wrong, and please let me know if I am, this law treats consensual sex between adults the same as rape (see 1b). We don't know if the defendant raped someone, preyed on a 13-year-old, or had consensual sex, perhaps with a cousin.

What kind of crappy law is that???

As one of my favorite childhood television shows taught me, "One of these things is not like the other."

An adult, regardless of gender, sexual orientation, race, or religion, should be free to share love, sex, residence, and marriage with any consenting adults, without prosecution, bullying, or discrimination. Laws, or clauses in laws, that criminalize consensual sex between adults should be scrapped immediately.

As to this case... if the defendant is guilty of preying on a minor or assaulting someone, he should be locked away for as long as possible (15 years is what this law says). However, if this was a matter of consensual sex, the case should be thrown out.

UPDATE:

I found an article by Pat Maurer at clarecountyreview.com that is much more clear about the case in question, although other questions are raised...
William J. Nokes, 45, of Farwell, is facing three counts of Criminal Sexual Conduct, 3rd Degree (incest) relating to his biological daughter. Each felony count carries up to a 15 year term in prison.

State Police at the Lansing Post received the first complaint last September when the 22 year-old victim reported sexual intercourse while visiting her father in Farwell over the Fourth of July holiday.

The complaint went to the Mt. Pleasant State Police Post in October. Troopers contacted and interviewed the father, who reportedly confessed to multiple incidents in both Clare and Clinton Counties.
If she reported "sexual intercourse," wouldn't that be rape? Otherwise, why would she file a complaint? That isn't the only question I have about the wording of his report. He's facing three felony counts. She made the "first" complaint, and did so about two or more months after it happened. Are the two other charges based on his statements? As in, did he say something like. "Oh yeah, we had sex multiple times in a couple of different counties?" I would be interested to know whether he raised her or not.

Three alternate possibilities here immediately spring to mind: 1) He raped her over the July 4th holiday, then when the cops came knocking he claimed they have an ongoing consensual sexual relationship, thinking that would be an effective defense, but it only made things worse for him. 2) They had consensual sex a few times, and then he raped her once, and this confused her for a while until she finally got the courage to file a report. That would explain the delay as well as why she would see him multiple times in two different places. 3) They had a consensual relationship sexual relationship and subsequently had a fight and so now she's alleging he raped her. Either way, it is sad. If he raped her, he should be locked up in a bad place for a long time.

Regardless of the details of this case, that law needs to be changed. Consensual sex between should never be equated with assault, coercion, or preying on those unable to legally consent.
— — —

No comments:

Post a Comment

To prevent spam, comments will have to be approved, so your comment may not appear for several hours. Feedback is welcome, including disagreement. I only delete/reject/mark as spam: spam, vulgar or hateful attacks, repeated spouting of bigotry from the same person that does not add to the discussion, and the like. I will not reject comments based on disagreement, but if you don't think consenting adults should be free to love each other, then I do not consent to have you repeatedly spout hate on my blog without adding anything to the discourse.

If you want to write to me privately, then either contact me on Facebook, email me at fullmarriageequality at yahoo dot com, or tell me in your comment that you do NOT want it published. Otherwise, anything you write here is fair game to be used in a subsequent entry. If you want to be anonymous, that is fine.

IT IS OK TO TALK ABOUT SEX IN YOUR COMMENTS, BUT PLEASE CHOOSE YOUR WORDS CAREFULLY AS I WANT THIS BLOG TO BE AS "SAFE FOR WORK" AS POSSIBLE.