In Re Lovell

Fitzgerald, J.

(dissenting). I respectfully disagree with the majority’s conclusion that the domestic assault statute applies to offenders who resided with the victim at or before the time of the alleged assault regardless of the victim’s relationship with the offender. I am in agreement with the three prior tribunals that heard appellant’s arguments that the domestic assault provisions of the assault and battery statute do not apply to the facts of this case.

The domestic assault provisions of the assault and battery statute, MCL 750.81(2); MSA 28.276(2), were enacted to provide increasing penalties for domestic violence. Subsection 81(2) sets forth three classifications of offenders to which the statute will apply: (1) those who presently or previously were married to the victim, (2) those who biologically parented a child with the victim, and (3) those who resided with the victim at or before the time of the assault. There is no question that the first two classifications of offenders involve persons who are or were involved in a romantic relationship with the victim, nor is there any question that a romantic relationship constitutes a domestic relationship. Because the statute specifically targets “domestic” offenders, however, it is not clear whether the Legislature intended the third classification of offenders to encompass all offenders who resided with the victim at or before the time of the assault regardless of the relationship between the offender and the victim. Under the reasoning of the majority, unrelated persons who reside together solely as college roommates could be charged with domestic assault. In my opinion, this would be an absurd result. In light of the purpose of the statute, as well as the fact that the common thread uniting the first two classifications of offenders is romantic involvement, I believe that the Legislature intended the term “resident of his or her household” to take on the same significance.¹ Offspring do not belong in this class. That this interpretation furthers the legislative intent underlying the statute, People v Burton, 219 Mich App 278, 286; 556 NW2d 201 (1996), is bolstered by the fact that subsection 1 of the same statute criminalizes assaults and assaults and batteries generally, imposing no limitation on the type of individual to which the subsection applies. Appellee could easily have been charged under this subsection.

1 In response to the majority’s discussion in footnote three that the statute would exclude assaults upon children by adults, I note that such assaults could be charged under subsection 1 of the same statute.