Michigan abortion law also bans cohabitation, adultery, sodomy and blasphemy — at least one county prosecutor is willing to enforce it

LANSING — The controversial abortion law currently being argued in Michigan courtrooms is only a piece of a much larger puzzle, much of which remains law today.

Following the overturning of Roe v. Wade, Michigan reverted back to Chapter 750 of Act 328 of the Michigan Penal Code, which outlaws administering or selling drugs with the intent to "procure miscarriage" or "produce abortion" unless necessary to preserve the life of the mother.

More:Michigan judge issues indefinite ban on criminalizing abortions in key counties

More:Why Michigan abortion law confusion will linger until November

Michigan Gov. Gretchen Whitmer, a Democrat, argues the law violates the state's constitution. But it's not the only piece of Act 328, which codified a slew of offenses under the Michigan Penal Code, that prosecutors consider antiquated.

Numerous laws within the act, effective September 1931, have been repealed over the years — including those addressing incest, dueling and fortune telling. But others remain, including laws against adultery, blasphemy, cursing and swearing, sodomy, gross indecency, cohabitation and seduction.

And at least one county prosecutor is willing to enforce them.

'The best interest of justice'

Just this month, a student at Western Michigan University pleaded guilty to seduction in exchange for dropping a charge of third degree criminal sexual conduct. But many prosecutors say charging someone with seduction outright simply isn't done.

"Obviously, there's a number of considerations that go into charging anything, and that's not just based on my own view," said Eli Savit, prosecutor for Washtenaw County. "It's based on the ethical duties that bind prosecutors.

"We're required ethically, per the American Bar Association, to charge only cases where the evidence is sufficient to prove beyond a reasonable doubt in court, but also to only charge cases that are in the best interest of justice."

Savit says antiquated laws, like many of those included in Act 328, don't fall under that category.

"You take something like adultery and I think, as a community and society, whatever you may think in terms of morality, most people would say this isn't something for the criminal legal system," he said. "What people do romantically, the awesome power we have shouldn't be involved in.

"It's a decision matrix we and our assistants make day-in and day-out, and with some of these antiquated laws, there's no question. They're archaic, old and have all but formally been discarded. It's not in the interest of justice to pursue them."

You'll find seduction and blasphemy often listed in articles on weird laws. But even though these articles are lighthearted and silly, Savit says, it's not all that funny when you think about it.

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"Think about a prosecutor actually prosecuting that law," he said. "That can ruin people's lives and destroy trust in the legal system even more broadly. It can impact families and kids, and that's why we have the ethical duty of charging only in the best interest of justice. It's important to be clear, we're focused on the crime that really matters."

That hypothetical scenario is reality in Kent County, one of the fastest-growing counties in Michigan, where prosecutor Christopher Becker says he cannot ignore a validly passed law.

"If a report is presented to this office, we will review it like we do any other report of possible criminal behavior," Becker wrote in a statement announcing he intends to enforce the abortion piece of Act 328. "We will make the decision to charge, or not to charge based on the facts presented in the report and the applicable Michigan law."

When asked via email if that stance was true for laws on seduction, adultery, blasphemy, cursing and sodomy, Becker wrote simply: "Yes." When asked again for clarification, he wrote, "Yes, I would review a complaint if presented to the office."

Prosecutor Jerard Jarzynka of Jackson County told MLive of the abortion law in June: “I’m going to follow the law. It’s a validly passed statute — I’m not going to ignore it. If a law enforcement agency investigates a violation (of the law), I would review that like any other criminal case and look at the evidence, and make a determination if there’s enough evidence to prove a criminal charge beyond a reasonable doubt.”

Jarzynka's office did not return an email request for comment on whether he shares the same belief for other pieces of the same legislation.

Wasting resources

For Oakland County Prosecutor Karen McDonald, there are bigger problems.

"We only have so many resources," she said. "Right now, Michigan is eighth in the nation for human trafficking, we have all-time high gun violence, our homicide numbers are up. Which one of these crimes should we take resources away from?

"It wouldn't be responsible, and that's not the job I was elected to do."

McDonald says there's nothing wrong with a prosecutor announcing they won't use precious resources to prosecute certain crimes.

"It's inaccurate to say you have a duty to charge every crime that's presented to you," she said. "All we have to do is look at the data to know that statement isn't true. These prosecutors aren't prosecuting a lot of charges presented to them. I'm not aware of any charge of infidelity or cohabitation — and that's a law on the books. It's just not a consistent position."

When children are dying from the ongoing opioid crisis and loved ones have been murdered, McDonald said, it's important to see the big picture.

"I have to make decisions every single day and use my discretion to determine which areas we'll focus on," she said. "And my number one goal is public safety."

Read the full laws here:

Adultery. "Any person who shall commit adultery shall be guilty of a felony; and when the crime is committed between a married woman and a man who is unmarried, the man shall be guilty of adultery, and liable to the same punishment."

Chronic Female Complaints. "The publication or sale within this state of any circular, pamphlet or book containing recipes or prescriptions in indecent or obscene language for the cure of chronic female complaints or private diseases, or recipes or prescriptions for drops, pills, tinctures, or other compounds designed to prevent conception, or tending to produce miscarriage or abortion is hereby prohibited."

Cohabitation.  "Any man or woman, not being married to each other, who lewdly and lasciviously associates and cohabits together, and any man or woman, married or unmarried, who is guilty of open and gross lewdness and lascivious behavior, is guilty of a misdemeanor."

Blasphemy. "Any person who shall (willfully) blaspheme the holy name of God, by cursing or contumeliously reproaching God, shall be guilty of a misdemeanor."

Cursing and Swearing. "Any person who has arrived at the age of discretion, who shall profanely curse or damn or swear by the name of God, Jesus Christ or the Holy Ghost, shall be guilty of a misdemeanor."

Sodomy. "Any person who shall commit the abominable and detestable crime against nature either with mankind or with any animal shall be guilty of a felony." It should be noted that, in prosecution for sodomy, "any sexual penetration, however slight, shall be deemed sufficient to complete the crime."

Gross Indecency. Laws exist "between male persons," "between female persons," and between "male and female persons," and can be broken "in public or in private."

Seduction. "Any man who shall seduce and debauch any unmarried woman shall be guilty of a felony."

— Contact Cassandra Lybrink and Sarah Leach at newsroom@hollandsentinel.com.

This article originally appeared on The Holland Sentinel: Michigan abortion law also bans cohabitation, adultery & blasphemy