CSC and the requirement of a relationship by blood (birth).

In People v Zajaczkowski, __ Mich __ (#143736, 12/19/2012) the Michigan Supreme Court held that a defendant cannot be convicted of CSC 1^st under MCL 750.520b(1)(b)(ii) if the defendant is not related to the victim by blood.  Under MCL 750.520b(1)(b)(ii) the prosecution is required to prove: (1) sexual penetration, (2) a victim who is at least 13 years old but less than 16 years old, and (3) a relationship by blood or affinity to the fourth degree between the victim and the defendant.

A relationship by “blood” is defined as “a relationship between persons arising by descent from a common ancestor” or a relationship “by birth rather than by marriage.” In that regards the civil presumption of legitimacy in domestic related matters cannot be substituted for a blood relationship in order to fulfill this element of the crime charged.

The Court acknowledged the concerns by the prosecution that this interpretation will result in unintended consequences regarding adopted children because if the blood relationship element can only be established through a biological relationship, then a sexual penetration committed by a member of an adoptive family against an adopted minor child may not be punishable under MCL 750.520b(1)(b)(ii). However, such policy concerns are best left to the Legislature to address. It is this Court’s duty to enforce the clear statutory language that the Legislature has chosen.