Monday, December 27, 2010

Criminal considerations in divorce

Recent headlines shed light on a frightening application of Michigan law. On December 26, 2010, the Detroit Free Press reported that a Rochester Hills man faces up to 5 years in prison - - for reading his wife’s email.

Leon Walker of Rochester Hills is being charged with unlawfully reading his then wife’s email which substantiated that his wife was having an affair with a man who had once been arrested for beating her in front of her son.

As a Michigan divorce specialist, I am qualified to inform you that the conduct of a spouse is relevant in the division of property, an award of alimony and in custody and parenting time decisions. Specifically, evidence of Mrs. Walkers’ adultery was relevant evidence in the underlying divorce case.

Michigan law is clear. It is unlawful in Michigan to intentionally and without authorization access the email of another. The statute is Michigan Compiled Laws, section 752.795, P.A.1996, No. 326, § 1, Eff. April 1, 1997.

In addition, Mrs. Walker’s adultery was also unlawful in Michigan. Michigan law is equally clear. It is a felony to commit adultery in the State of Michigan. The statute is Michigan Compiled Laws, section 750.30, and the statute is current through P.A. 2010, No. 226, of the 2010 Regular Session, 95th Legislature.

A divorce can be a highly emotional event. Michigan law instructs judges to decide divorce cases based on equity (fairness) using statutes and case law for directions on what is fair.

The prosecution of Mr. Walker is troubling because it sends a message of fear to divorcing couples. As if the emotional cost of a divorce were not enough, now people have to fear going to jail if they divorce. If you stop and think about it, in almost every divorce case a crime is committed. Take the following statutes into consideration:

MCL 750.30: Adultery, a crime punishable by more than one year in prison;

MCL 752.795: Accessing computers to acquire . . . or use computer services; (e.g. reading email) a 5 year felony.

MCL 750.539a: Michigan Eavesdropping statute: To amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse. (e.g. recording of telephone calls, other audio and videotape recordings, reading text messages . . . )

18 USC sec. 2701 Store Communications Act: The act makes it a Federal offense to access an electronic communication while it is in an electronic storage system.

It is interesting to note that courts are split on the application of these laws in domestic relations cases and for good reason.

Imagine every case of adultery, a spouse reading an email, or text message being prosecuted as a crime in Michigan. How many politicians, doctors, lawyers, neighbors, friends, relatives would be convicted felons?

The selective prosecution of Mr. Walker is a troubling precedent.

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