Tuesday, August 23, 2011 Court of Appeals Uses Paternity Act to Justify Criminal Sexual Conduct ConvictionIn a decision dated July 26, 2011, People v. Zajaczkowski, the Michigan Court of Appeals determined that the defendant convicted of Criminal Sexual Conduct, 1st Degree, was “related to the victim by blood or affinity to the fourth degree” even though a DNA test showed that he was not the biological son of the victim’s father. The defendant was charged and convicted of Criminal Sexual Conduct under statutory provisions requiring sexual penetration with a victim who was at least 13 but less than 16 years of age and related to the defendant by blood or affinity to the fourth degree. MCL 750.520b(1)(b)(ii) In an unusual twist of events, the defendant, who had been raised to believe the victim was his half-sister, claimed that her father was not his biological father. Subsequent genetic testing confirmed his claims. The defendant had been named an issue of the marriage between his mother and her husband in the Judgment of Divorce in 1979. It was therefore left to the Court of Appeals to determine whether the Judgment or the genetic testing would determine the relationship between the defendant and the victim for the criminal sexual conduct charges.
After defining “by blood” to mean “related by descent from a common ancestor,” the court looked to the Paternity Act and MCL 552.29 to determine whether the defendant could challenge his paternity (who the court believed his father to be). In Michigan, a person who is conceived and born during a marriage is presumed to be the legitimate “issue” of that marriage. That means that it is presumed that the wife is that person’s mother and the husband is that person’s father. Only the mother or the presumed legal father has the power to challenge that presumption under the Paternity Act, and then only during the pendency of the divorce proceedings. Without an affirmative finding by a family court that the defendant was not a legitimate issue of the marriage, the defendant did not have the standing (authority) to challenge the presumption that the man married to his mother when he was conceived and born was his father. Since in the eyes of the law that man was the defendant’s father, the victim, that man’s daughter, was the defendant’s half sister. Therefore, the conviction of Criminal Sexual Conduct, 1st Degree, was upheld.
Interestingly, very little emphasis was placed on the legislative intent behind the statute – “to protect minor children from sexual abuse by persons with whom they have a close relationship.” Even though this legislative intent would permit the broad interpretation of “related by blood” that the court used, it gave the purpose scant mention. That purpose, it would seem, would provide a superior reason to convict in this particular case – to protect the 15 year old victim from the abusive acts of someone she believed to be her much older half brother.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime. |