Adultery ruling creates furor in Mich.

People who cheat on their spouses know there can be a steep price to pay if they get caught. But life in prison?

It's possible in Michigan, though unlikely.

In a footnote to a ruling involving a drugs-for-sex case, a Michigan appeals court said that if state law were enforced as written, adulterers could be put away for life.

The ruling has generated a little unwanted publicity for Michigan Attorney General Mike Cox, who acknowledged an extramarital affair in 2005.

Adultery is still a crime under Michigan law, punishable by a short prison sentence, but no one has been prosecuted for the offense since 1971. And the voters did not hold Cox's infidelity against him, electing him to a second term last year.

The issue resurfaced this week when Detroit Free Press columnist Brian Dickerson wrote about the case of Lloyd Joseph Waltonen of Charlevoix, a Lake Michigan town about 270 miles from Detroit.

Waltonen, 43, pleaded guilty last year to illegally delivering OxyContin, a prescription painkiller. He was sentenced to four to 20 years in prison.

Waltonen had also been charged with rape _ or first-degree criminal sexual conduct _ for allegedly giving OxyContin to a cocktail waitress in exchange for sex. But before he was sentenced, the trial judge threw out the rape charges, because the woman testified she had been a willing participant, even though she also said she had become hooked on the drug.

On Nov. 7, the Michigan Court of Appeals reinstated the rape charge, saying the law was written in such a way that it did not matter whether the woman consented.

Then, in a footnote to the unanimous, 3-0 opinion, Appeals Judge William B. Murphy said that first-degree criminal sexual conduct is defined as sexual penetration in the furtherance of another felony. Because adultery is a felony, he said, adulterous sex could in theory be prosecuted as rape.

In a column Monday, Dickerson asked Murphy's colleague Judge William Whitbeck whether rape charges could be brought against the attorney general, at least theoretically.

"Well, yeah," Whitbeck replied.

On the Free Press Web site, dozens of readers have debated whether adultery is bad enough to justify life behind bars.

In the footnote, Murphy said he doubted the Legislature had such far-reaching intentions when enacting the law. But he said the appeals court was legally unable to draw its own conclusions.

"Technically," he added, "any time a person engages in sexual penetration in an adulterous relationship ... he or she is guilty" of first-degree criminal sexual conduct. He added: "We encourage the Legislature to take a second look at the statutory language if it is troubled by our ruling."

A spokesman for the state Senate majority leader said the matter is not on the agenda as lawmakers struggle with a gaping budget deficit.

The attorney general is not interested, either, his spokesman Rusty Hills said. "There are a lot of footnotes in a lot of cases that don't become the law of the land," he said.

As for Cox's adulterous past, Hills said, "The voters got to weigh and sift all the relevant information and they overwhelmingly chose to re-elect the attorney general."