Whether adopted siblings who do not share a common ancestor are related “by blood” for purposes of CSC III under MCL 750.520d(1)(d); People v Zajaczkowski; MCL 710.60; Statutory interpretation; A “constructive crime”; People v Olson; Motion to withdraw a no contest plea; Factual basis requirement for a plea; MCR 6.302(D)

Holding that individuals who are related by adoption but do not otherwise “share an ancestor in common are not related ‘by blood’ for purposes of” CSC III under MCL 750.520d(1)(d), the court concluded “there was not an adequate factual basis for defendant’s” no contest plea to that charge. Thus, it reversed in part the Court of Appeals judgment that affirmed the trial court’s denial of his motion to withdraw his plea, and remanded to the trial court. The complainant was defendant’s adopted sister. In determining that they were related by blood, the Court of Appeals relied on MCL 710.60, part of the Adoption Code. The court noted that MCL 750.520d(1)(d) “does not define the word ‘blood’ or the phrase ‘related to the actor by blood.’” However, the court interpreted those terms for purposes of the CSC I statute in Zajaczkowski, where it noted, “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.’” It concluded those definitions were applicable here. “A relationship formed by adoption does not arise by descent from a common ancestor or by birth. Therefore, under the ordinary meaning of the statutory language, individuals related by adoption are not related by blood.” The court found the Court of Appeals’ analysis “flawed in a number of respects. First, numerous sections in the Adoption Code distinguished and continue to distinguish between relationships by blood and relationships by adoption. The Legislature has also continued this distinction in defining ‘related’ and ‘relative’ since MCL 710.60 was enacted.” In addition, the court noted that “the Adoption Code can only change the law, not the genetic makeup of an adopted child or his adoptive parents.” The focus of MCL 710.60 is “on the rights and duties and not the biological makeup. An adoptee has the same rights and duties as the natural progeny of the adoptive parents. But nothing in MCL 710.60 states that an adopted individual will be subject to criminal prosecutions as if the individual were a blood relative of the individual’s adoptive parents.” The court determined that Zajaczkowski’s analysis confirmed this point. Further, the court found that the Court of Appeals’ interpretation of MCL 750.520d(1)(d) “would create an impermissible constructive crime.” The court left the Court of Appeals’ determination “that defendant and the complainant are not related by affinity” undisturbed.

Concurring in part and dissenting in part, Justice Welch agreed “that adoptive siblings are not related ‘by blood’ for purposes of MCL 750.520d(1)(d).” She wrote separately because she concluded “that the Legislature considered adoptive siblings to be related by ‘affinity.’” She found that in the context of a criminal statute prohibiting “sexual conduct between family members, the term ‘affinity’ bears the meaning of familial relationships created by adoption just as easily as it bears the meaning of familial relationships created by marriage.”