Michigan Supreme Court Finds Wrongful Interpretation of Incest Statute Allowed Withdrawal of Guilty Plea

The court of appeals impermissibly “expanded” the reach of the state`s incest statute, the Michigan Supreme Court held on June 10, 2022, which in effect created a new offense that did not match the elements of the offense charged. As a result, the Court allowed the defendant to withdraw his plea on appeal.

John Moss was 25 and his adopted sister was 17 when she alleged Moss sexually assaulted her. She claimed that the sexual activity was nonconsensual and Moss disagreed, but he pled no contest to third-degree criminal sexual conduct (CSC-III). After he was sentenced, Moss moved to withdraw his plea on the basis that his conduct did not support his conviction. He argued that because he and the victim were not related by blood, as required by the offense charged, his plea was invalid. After a few rounds in the courts on appeal, the State Supreme Court agreed with Moss and allowed him to withdraw his appeal.

Michigan’s Incest Statute

Moss was charged under Michigan`s criminal sexual conduct (CSC) statute, MCL 750.520d, which states:

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: … (d) that the other person is related to the actor by blood or affinity to the third degree[.]

The question before the Supreme Court was whether the court of appeals erred in concluding that Moss and his adopted sister were “related by blood” for the purposes of CSC-III, in order to allow a factual basis for his plea. The Court began by noting that the statute`s language was not ambiguous and required a straight-forward interpretation. The Court also said it had previously held, in People v. Zajaczkowski, 825 NW.2d 554 (2012), that a “relation by blood is defined as a relation between persons arising by descent from a common ancestor or relation by birth rather than marriage.” While that was in the context of first-degree CSC, the Court said it also applied to a third-degree offense.

The Court of Appeals Erroneously Applied the Adoption Code to the Incest Statute

Instead of looking at the plain meaning of the CSC-III statute, the court of appeals applied the Adoption Code to determine whether Moss and the victim were related by blood. That law says that an order of adoption renders the adopting parents “under the law as though the adopted person had been born to the adopting parents and are liable for all the duties and entitled to all the rights of the parents.” MCL 710.60. The court of appeals concluded that a “constructive biological relation exists” between Moss and the victim, and the two were “effectively related by blood.”

This was wrong, the Supreme Court said, because the Adoption Code distinguished between relations by blood and by adoption throughout the code. “The Legislature would have no need to use both by blood and adoption in defining `relation` or `related` if MCL 710.60 has the effect the court of appeals concluded it does.”

The Adoption Code can only change the law, the Court said, and “not the genetic makeup of an adopted child or his adoptive parents.” The Adoption Code doesn`t actually make the adopted child a biological child of the adopted parents. “Rather, the statute focuses on the [legal] rights and duties and not the biological makeup.”

In Zajaczkowski, the Court rejected the “civil presumption of legitimacy” that the defendant in that case became the blood relative of the victim by virtue of marriage. Instead, they were step-siblings and not related by blood, the Court said. In this case, the Court similarly rejected that the Adoption Code`s legal protections for adopted children created the presumption that they are related by blood.

The Court of Appeals Created an Impermissible Constructive Crime

An impermissible “constructive crime” is one “built up by the courts with the aid of inference, implication, and strained interpretation.” People v. Olson, 292 NW 860 (1940). “Michigan does not recognize constructive crimes, and we have previously characterized them as repugnant to the spirit and letter of English and American law,” the Court said.

The application of the Adoption Code by the court of appeals to define the meaning of the term “related by blood” in the CSC-III statute created an impermissible constructive crime, the Court said, one that lawmakers did not intend, and one that could not form the basis of Moss`s plea.

In the present case, the Court of Appeals did not find that defendant and the complainant were actually related “by blood.” Rather, it determined that defendant effectively became the biological child of his adoptive mother and that a constructive biological relationship existed between the defendant and the complainant. By doing so, the Court of Appeals enlarged the CDC-III statute and strained its interpretation, impermissibly creating a constructive crime as applied to this defendant and others similarly situated.

IN CONCLUSION, the Court reiterated that a court may not accept a guilty plea unless there is a factual basis for the plea. The factual basis is insufficient if it does not establish grounds for finding that the defendant committed the crime charged. The Court found that Moss did not commit the crime of CSC-III as charged.

Accordingly, the Court reversed the court of appeals judgment and remanded to allow Moss to withdraw his plea. See: People v. Moss, No. 162208 (Mich. S. Ct. June 10, 2022).

Note: The Court again mentioned the “valid policy concerns” in excluding adopted siblings from the incest statute, but said it`s up to the Legislature to fix the problem. “It is this Court`s duty to enforce the clear statutory language that the Legislature has chosen,” not change it. The Court said the same thing when it sided with the defendant in Zajaczkowski.