Fortunately, moral crimes don’t require defenses. I think it’s ridiculous that this guy is being prosecuted, but the fact that his wife was actually cheating has nothing to do with it.
All it takes is one jury member to find the wife’s actions sufficient justification and at worst it’s a hung jury.
Maybe I misspoke. “Defense” might not have conveyed my meaning. Let me try again.
Some people would be really upset that a spouse snooped in their e-mail. But some wouldn’t.
This guy is being prosecuted, yes, but he would not be being prosecuted if the wife hadn’t reported it and, judging from what I know of police, showed interest in pressing charges.
So we conclude the wife is claiming to be upset that he violated her privacy. BUT, she’s also almost certainly upset she was caught (human nature).
Although it may be irrelevant to the legal case, each one of us inevitably forms our own opinion on how much of this claim is real anguish and how much of it is “railroading the spouse who caught her.” Was privacy really a key issue to her, irrespective of the affair?
But that’s impossible to be sure of, because the affair pollutes her motives. While some people would and some people wouldn’t be upset at having e-mail read, practically everyone who’s caught in an affair would feign outrage and try to punish the spouse who discovered it.
So, again, it’s like my example of the hypothetical drug kingpin. Sure, he might be genuinely shocked at the invasion of his privacy. But it’s also to his cynical advantage to play his outrage up to the maximum, and as observers, we recognize that, and may have a fairly jaded opinion of his outrage, real or feigned.
Color me jade.
We’re not talking about whether he’ll be convicted. We’re talking about how sad it is that he’s even being prosecuted. He’s certainly not going to be convicted.
This is an interesting situation, and we’ll have to wait and see what the courts say, but why is the wife not being charged with a crime?
Michigan has an adultery statute (Section 750.29 ) on the books, though it appears that the “injured” spouse has to be the one to report it for it to be prosecuted.
While we’re not sure if the husband committed a crime, it seems a slam-dunk that the wife did.
I’m not interested in debating whether it should be a crime, but right now it is.
What gives?
This case brings up issues that tend to be negated (though, admittedly, not under the law) by marriage. “Implied consent” is not, AFAIK, mentioned in any criminal statutes any more in criminal law. But many of us assume it.
My car is in my name only. If my wife takes my keys and moves it so she can get her car out of the garage, is she guilty of the felony crime of operating a motor vehicle without owners consent?
In my previous example of rolling over in bed and touching my wifes breast. The woman has been married to me for shy of 31 years and bore me 3 children. She willfully came into the bed wearing lingerie. Would I really be convicted of sexual assault for touching?
My example of my wife opening my mail to pay the bills when she’s done that for over 3 decades. Would she really be convicted of doing that?
If, while inside our home, I take all my clothes off and ask my wife for sex, am I going to be convicted of exposing myself to her?
The answer is, of course not! And she wouldn’t be convicted of anything if she went into my email when my password is written on a post it right by the monitor.
I’m sure there must have been some rulings regarding marriage and this kind of thing.
Like it or not, a lot of privacy is surrendered when one participates in the dance of death called marriage.
This, sir, should be enscribed on every marriage license. Couples should be required to read it outloud before signing.
Yeah, on the face of it, the bringing charges is so ridiculous you have to ask, was the person she was having the affair with the District Attorney?
According to Section 750.31 he has a year to file. It would be funny if he did as retaliation for her suit against him.
It does suck that the trial isn’t until February. I’m really interested in the outcome and I’ll probably forget to look up later.
Its not a question of law. Its a question of fact and evidence. You touched your wife or exposed yourself to her the circumstances of a long and productive relationship would mean that absent heavy evidence to the contrary any trier of fact would be entitled to conclude that there was in fact consent for that. The question of Consent as you know is decided cording to the circumstances. Ditto for the envelopes.
I don’t know about you specific examples, but there is a ruling in England and Wales, R v Collins in which it was held that you cannot file a criminal complaint for unwanted or unrequested touching which are in the course of every day life to be expected, the examples given are being sqaushed in a busy bus or train, touched to gain attention, back slapped in friendship etc etc.
Your sureness is irrelevant without a citation to back it up. I’ve not heard of a precedent established in this type of case but I would welcome further information, if it exists.
The ridiculousness of your argument above was not in regards to the supreme court being potentially involved, down the road. It was regarding your belief that implied consent to read a spouse’s email exists.
One of the problems with the law being used to adjudicate behavior inside the marriage is that it’s often a he-said, she-said kind of thing. Implied consent is hard or impossible to determine if one or both sides are lying, because implied consent really depends on the behavioral norms in the marriage. The example of reaching over and grabbing your wife’s breast is a good example - it’s entirely possible in some marriages that this is an allowed, or even welcome touch. In others, it may not be. If it’s just your word against your wife’s, how does a court decide?
In this case, the husband claims that the wife left her passwords on a notepad beside the computer. In that case, she would have no expectation of privacy, because the husband could assume that she password protects her mail for protection from others, but not from her husband. And many marriages maintain completely open E-mail policies between spouses. But if one spouse suddenly claims that no such unspoken agreement exists, how can the courts possibly decide?
Very often it comes down to what seems reasonable for a theoretical person, not whether there was an actual unspoken agreement between these two people.
As was done so eloquently lo those 26 posts ago.
That may be the standard for tort law, but not for criminal law. There you need only show reasonable doubt.
Reasonable doubt that once the questions of law and fact are resolved that the accused committed the acts that he or she is charged with, not reasonable doubt that an implied agreement existed.
Wow. Its a FELONY!
Wonder if that would hold up to constitutional scrutiny.
What kind of constitutional scrutiny do you thnk that would fail?
Dunno. I’m a scientist, not a lawyer.
Maybe similar arguments to Lawrence vs. Texas (…“The majority held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment”…*)? Bricker could probably shed some light.
*cribbed from Wikipedia
The issue of whether a crime is classified as a felony or a misdemeanor is very unlikely to create any substantive due process issue, or any kind of constitutional issue. Lawrence didn’t say you could make certain kinds of sex misdemeanors but not felonies.