The defendant and the 14-year-old victim in this criminal sexual conduct case share the same legal father; the defendant was conceived and born during the marriage of his mother to his legal father, and a 1979 divorce judgment identifies the then-boy as the child of the marriage. The defendant seeks to reduce his first-degree CSC charge – an element of which is that the defendant is related to the victim “by blood or affinity” – on the basis of DNA testing that shows he is not his legal father’s biological son.
Jason Zajaczkowski was born in January 1977, during the marriage of Walter and Karen Zajaczkowski; when Walter and Karen divorced in 1979, the divorce judgment identified Jason Zajaczkowski as the “minor child of the parties.” But DNA testing later established that Walter was not Jason’s father. Walter later entered into a relationship with another woman, with whom he had a daughter, the victim in this case.
When the victim was 14 years old, Jason Zajaczkowski fathered a child by her. The prosecutor charged Zajaczkowski with first-degree criminal sexual conduct under MCL 750.520b(1)(b)(ii), which provides that “[a] person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists: . . . (b) [t]hat other person is at least 13 but less than 16 years of age and any of the following: . . . (ii) [t]he actor is related to the victim by blood or affinity to the fourth degree.”
Zajaczkowski argued that he was not guilty of first-degree criminal sexual conduct, because it is undisputed that he is not Walter’s son, and does not have a blood relationship with the victim. At most, Zajaczkowski argued, he was guilty of third-degree criminal sexual conduct, pursuant to MCL 750.520d(1)(a), under which, “[a] person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if . . . [t]hat other person is at least 13 years of age and under 16 years of age.” He filed a motion to dismiss the first-degree criminal sexual conduct, or to reduce the charge to criminal sexual conduct in the third-degree.
The prosecution opposed the motion, noting that the 1979 judgment of divorce between Walter and Karen identified Zajaczkowski as the “minor child of the parties.” The prosecution contended that, because Walter was married to Karen when Zajaczkowski was born, and because Walter had been decreed to be Zajaczkowski’s father at the time of the divorce, Walter and Zajaczkowski were related by affinity. In any case, argued the prosecutor, regardless of whether Zajaczkowski and Walter were actually related by blood, Zajaczkowski was Walter’s legal son, while the victim was Walter’s legal daughter. The trial court denied the motion to dismiss, and Zajaczkowski agreed to plead guilty as charged to first-degree criminal sexual conduct (as a fourth offender), under a plea bargain that reserved his right to challenge on appeal the conclusion that he was guilty of first-degree criminal sexual conduct, rather than third-degree criminal sexual conduct, and with the further agreement that the trial court would impose a sentence using the guidelines for third-degree criminal sexual conduct (fourth felony offense).
The Court of Appeals affirmed in a published opinion. The panel agreed with the prosecutor that the absence of a biological relationship does not affect the legal conclusion that Zajaczkowski and the victim are brother and sister because they share the same legal father. The criminal sexual conduct statute does not, the panel noted, define the terms “related by blood” or “affinity.” Looking to the case law addressing the presumption of legitimacy in the divorce, paternity, child custody, child protective proceeding, and intestate succession contexts, the Court of Appeals concluded that, “because defendant was conceived and born during his mother’s marriage to the victim’s father, the strong presumption of legitimacy arose.” Thus, because, “defendant lacks standing to challenge that he is the legitimate issue of the victim’s father,” it follows that “as a matter of law, defendant and the victim are related by blood—brother and sister sharing the same father—and they are related within the second-degree of consanguinity by descent from a common ancestor.”