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Thursday, March 13, 2008
Punishing Family Status: More applications of the Family Ties Burden Framework
Today is the last installment of Punishing Family Status. The post below includes discussion of why we should abolish bigamy and adultery laws, among other things.
D. Bigamy
Our analysis of bigamy takes some of its cues from the preceding discussion of incest. We begin by noting that statutes simply criminalizing polygamy appear to infringe on the fundamental rights of consenting mature individuals to enter covenants of care with other persons. Thus if we are to criminalize this behavior, the reasons should be very substantial. We recognize that various reasons have been offered in the recent past to be anxious about the repeal of bigamy laws. The first is that many polygamous practices are thought to entail the coercion of underage brides.[1] We view this as a very substantial consideration especially because such girls often have had little recourse to reach beyond the communities in which they were raised.[2] To be sure, the problems that arise in prosecuting persons guilty of misconduct – the unwillingness or inability of family members to testify against the perpetrator, the participation or enabling of the family members in the abuse – arise in monogamous situations too. But the problems are especially stark here, where an entire community may be supportive of the polygamist and not his underage wives. There is another important consideration related to the coercion of underage women. Some practitioners of polygamy seek to evade criminal sanctions by simply not having the parties enter into a formal marriage relationship. These minors, forced into a sexual relationship against their will yet not formally married, clearly need protection too. Yet, bigamy laws do not – and cannot – target this wrong. Indeed, they sometimes render the coerced parties as criminals.
The fact that we must vigilantly guard against harm to minors does not mean that we must necessarily prohibit the decision of three or more consenting adults to enter into a polygamous relationship. Using broadly-written polygamy bans to fight coercion or exploitation of minors is over-inclusive and facially discriminatory because it punishes those adults with polyamorous desires or dispositions willing to abide by norms requiring both consent and maturity.[3] There are ways that we can protect immature or unconsenting minors without infringing upon the associational rights of adults and minors.
First, as we suggested in connection with the discussion about incest, we would urge the adoption of laws prohibiting sexual (and marital) relationships between individuals in relationships of asymmetrical dependency. A child groom could be deemed dependent upon his adult “wife” for care, so under our guidelines that conduct would be prohibited (though the “poly” aspect of this prohibition is essentially irrelevant). We should also be vigilant about allowing parental authorization of marriages below an age of maturity and consent because that could facilitate abuse within communities committed to flouting those normative benchmarks. Yet, that concern for coercion is relevant in the context of both monogamous marriages and polygamous ones. In sum, although we believe we need laws that prohibit (or, per Prof. Markel, make substantially difficult,) the practice of polygamy that involves minors, we do not believe these laws need to unnecessarily infringe upon the rights of mature adults to structure their family lives in the way they feel appropriate.
A second reason to be worried about polygamy is that, on some views, it serves to facilitate the subordination of women.[4] Although bigamy statutes are facially neutral to women, and thus prohibit both polygyny and polyandry,[5] we acknowledge the sociological and anthropological evidence showing that polyandry is much rarer.[6] Nonetheless, the research on this topic indicates that claims of thoroughgoing subordination of women go too far in light of the diverse reasons that polygamy erupts and the diverse forms polygamy takes under different conditions.[7] Moreover, it’s a mistake to resist polygamy (or more specifically, polygyny) as oppressive to women without noting that the same norms that exist within some polygamous communities also exist within some monogamous communities.[8] The empirical evidence also indicates that abuse is no more likely in polygynous communities than monogamous ones.[9]
That means we have to sift carefully among the potential causes of harms. As Professor Shayna Sigman trenchantly writes: “The belief that polygyny causes gender discrimination or a low status of women in a given society is a classic example of the fallacy of post hoc ergo propter hoc. That polygyny can be found in societies that treat women poorly does not mean that the practice itself causes the gender inequality. Often, the true culprit of oppression merely lies in limitations on property rights for women, a practice that can be facilitated through polygamous life, but need not be. Indeed, where polygyny can help women economically by linking them with men who can provide more resources, it is the societies with less gender discrimination that are found to have this arrangement.”[10] Moreover, there is the quite powerful point that taking away a woman’s right to participate in a polygamous arrangement (whether with men or women or both) is itself a way of subordinating women. Again, as Professor Sigman observes: “prohibiting polygamy infantilizes women, declaring them incapable of providing consent and foreclosing true choice by criminalizing one of their options for family living.”[11]
Another reason some might think criminalizing polygamy is appropriate is based on the economics of social welfare. If a person has eight spouses (and their offspring) for whom she or he must provide care and resources for, there is greater concern that these people might become charges of the welfare state. The problem with this argument is that the economics of polygamy are quite complicated in individual cases and thus might not justify any encroachments on the rights people have to intimate association. First, the state could take a more narrowly tailored measure to ensure financial viability: means-testing of those who want to add extra spouses. Indeed, one could insist that adding more spouses is subject to higher taxes or proof of assets -- both of which are non-criminal rules that can achieve the same end of reducing numbers on the dole. Obviously, these rules should be crafted in gender-neutral terms.[12]
Second, in any given polygamous cluster, there might be economies of scale that attach to family units that allow for optimization of human capital. One woman who’s a polygamy activist in Utah
Finally, some propose banning polygamy because of the general harms it ostensibly imposes on the state. Professor Strassberg argues, with respect to some polygny practices in some communities,[15] that children from polygamous unions impose an unusual burden on the state in part because they are often concealed; such practices conduce to create theocratic communities that fail to abide by or support the government’s rules; that these practices create a secrecy that leads to the denial of individual civil rights; and, last, that these polygynous communities fail to pay sufficient taxes.[16]
These arguments, while well-motivated, are largely misplaced. Concealment-based harms are only a challenge in the context of a state that criminalizes polygamy. There’s no legal need to conceal polygamous relations when polygamy is decriminalized. If we were worried that people were denied their civil rights, then that would be a separate reason to intervene in these communities. If we’re worried about other legitimate harms resulting from the theocratic tendencies of certain polygynous communities, we have separate laws available to punish violations of any given law. It’s not as if polygamous communities are the only communities in which fundamentalist views pose a threat to the vitality and security of a liberal state. Using polygamy bans to remedy these harms on these grounds is essentially irrational as a government policy.[17]
Assuming multiple covenants of care are objectively choice-worthy or are at least morally defensible on grounds of respecting the autonomous and honest choices of mature adults, then it seems that the state should be leaving the business of prohibiting polygamy and letting private ordering determine who marries whom. This would entail, of course, that same-sex polys should be able to group together as well without fear of prosecution. In practical terms, we would start with the presumption that bigamy should be decriminalized and that partners who wanted to secure exclusivity of marital relations could contract around such a rule through a private contract with liquidated damages. This would place the burden of talking about the preference for imposing the family ties burden on the person who wanted the family ties burden imposed. In light of our general leeriness about family ties burdens, this burden-shifting makes sense in light of the contract law theory of default rules.[18]
Several advantages from this regime obtain. First, it encourages couples to discuss in advance of their marriage whether both parties have a desire to keep it monogamous. Second, it allows couples the flexibility to work these issues out without fear of the criminal law sanction. In other words, couples could create agreements in which polygamy is prohibited, but without the involvement of criminal law penalties. Third, it allows those who want the benefits that accrue from having a penalty operate to opt-in to a regime of regulation by contract. To be sure, a statute like this one still forces individuals to have conversations that might be deemed uncomfortable, but it seems that such a statute would prove to be a powerful information-forcing device prior to marriage. Fourth, because liquidated damages provisions are only enforceable to the degree that they are a reasonable estimation of the damages to an individual, they can be set at a level sufficient to communicate condemnation of the breach of trust, while still ensuring that the breacher can remain a productive member of society and care-giver to any dependents.
It goes without saying that the fact that we are against traditional bans on polygamy does not entail that we personally encourage “poly” relationships. Emphatically, our view is limited to the scope of the criminal law. Our argument does not require that the state forbear from promoting certain kinds of relationships through the civil system – and if the state wanted to cater to those views which believe children are better raised through monogamous relationships then it could so through the use of civil subsidies and taxes, rather than criminal ones. We don’t necessarily agree that the state should use the civil justice system in this way, but at the very least, the civil justice system’s carrots and sticks don’t trigger the most fundamental liberty interests of citizens.
E. Adultery
Almost half the states in the US
Yet others, like us, regret that adultery laws work largely for the benefit of partners to heterosexual marriages and not to gay unions. Our sense is that some of the concerns raised by adultery laws can be better avoided through more careful drafting of the criminal law. In keeping with our framework from Part II, we think these laws should be redrafted to avoid family ties burdens that are not of a voluntary nature. We can see the viewpoint that at least in certain contexts, adultery statutes help punish and deter injury to persons who didn’t consent to extramarital sex. But what many adultery laws don’t permit is a life in which both parties consent to one or both parties living in marriage but outside the bonds of monogamy.[19] Thus, we think that if adultery statutes are to be retained, they should be redrafted in such a way that they reduce injuries to persons’ well-being in a more fine-grained manner.
To begin with, we view adultery laws that criminalize the extramarital sex of married persons as facial family ties burdens; that’s because, in the absence of such laws, the proscribed activity would otherwise be lawful. Given that adultery laws are drafted in gender-neutral terms across the country, we don’t believe they raise issues of patriarchy or gender bias against women.[20] Nonetheless, because same-sex marriage is not permitted in almost all American jurisdictions, adultery laws protect the interests of (potentially) betrayed heterosexual partners while not being similarly available to those in same-sex partnerships. For us, that is a basis for rethinking adultery laws.
Assuming that adultery statutes could be made indifferent to sexual orientation, would there be any reason to retain them in some fashion? We think the strategy we endorsed in the polygamy context is instructive. We would begin with a statute creating a default rule that decriminalizes adultery because of the way adultery intrudes on the choices of autonomous and consenting individuals. But we would encourage prospective partners to contract around that default rule by agreements that called for liquidated damages.[21] As with polygamy, several advantages from this regime obtain.
First, it encourages couples to discuss in advance of their marriage whether both parties have a desire to keep it monogamous. Second, it allows couples the flexibility to work these issues out without fear of the criminal law sanction. Couples could create agreements in which adultery is prohibited, but without the involvement of criminal law penalties. Third, it allows those who want the benefits that accrue from having the penalty operate to opt-in to a regime of regulation by contract. To be sure, a statute like this one still forces individuals to have conversations that might be deemed uncomfortable, but it seems that such a statute would prove to be a powerful information-forcing device prior to marriage. Fourth, because liquidated damages provisions are only enforceable to the degree that they are a reasonable estimation of the damages to an individual, they can be set at a level sufficient to communicate condemnation of the breach of trust, while still ensuring that the breacher can remain a productive member of society and care-giver to any dependents.
Let’s emphasize that the burden for contracting around the default rule of permitting adultery falls upon the individual who has information regarding his or her preference for monogamous relations. Thus the person wanting the family ties burden imposed has to raise the issue and force a conversation about monogamy. We think that, in light of the difficulties raised by many family burdens, this is where the burden should lie. This is also consistent with our sense that if we are to have other family burdens like vicarious or omissions liability, they should be available for a wide range of persons who either have signaled their care-giving commitments through parenthood or partnership or those not in such relationships but nonetheless want to create a covenant of care-giving.
Admittedly, we toyed with an idea -- inspired by an article by Professor Elizabeth Emens -- that parties should be able to opt into a regime of voluntary criminal law regulation, such that breach of a contract for monogamy could lead to criminal prosecutions for bigamy or adultery.[22] But upon further consideration, we recognized the unfairness of using public resources to investigate, prosecute, and punish conduct that amounted to a breach of private promises to each other. The notion that average people would have to pay more taxes or suffer the effects of diverting scarce prosecutorial resources to prosecute the failure of a private party to live up to its contractual expectations seemed ultimately unsupportable. By contrast, even in the absence of “contractual criminal law regulation” of adultery or polygamy, parties of any sexual preference can contract for monogamous commitments on pain of liquidated damages, and that would be a way private ordering could supplant the clunky machinery of the state’s prosecutorial apparatus.[23]
It’s hard to say whether decriminalization of adultery works to create, in the language of contract theory, a penalty default rule or a market-mimicking default rule.[24] Such a statute serves as a penalty default rule if we assume most people want their marriages to look more like “covenant marriages.”[25] If couples want exclusivity, the law will force them to take active steps to communicate and discuss that preference. On the other hand, it may be possible to infer (based on patterns of non-prosecution for adultery) that most people don’t want to have the criminal law enforce these matters even if they view adultery in low regard. In that respect, the statute serves as a market-mimicking default rule.
One flag of caution we want to raise is that if a jurisdiction adopted a default rule, it has to be aware of how default rules can be “sticky,”[26] and how such stickiness might affect the prospect of law’s ability to affect behavior. For example, if we create a rule that defaults to allowing extramarital sex without any legal stigma, it might actually encourage that behavior even if the goal of the default rule is simply to encourage partners to have conversations and agreements about the scope of their relationship to each other. Of course, this result might occur if we simply decriminalized adultery without giving the opportunity for partners to secure promises of exclusivity through marital agreements.
In sum, because we believe the protections of the criminal law should not be arbitrarily denied to couples of different stripes, we would support the decriminalization of adultery laws altogether if such laws could not be redrafted to include those in voluntary care-giving relationships. However, if same-sex marriages were recognized, as we would prefer, we think that parties should be able to contract around adultery laws, and in truth, even today, they might be able to do so through private ordering.[27] As we explained above, we would prefer to set the default rule in a way that incentivized the person wanting the family taxes imposed to ensure the agreement of the other spouse.
Thus far, we haven’t said much about what criminal law consequences, if any, should be visited upon a person who has sexual relations with a married person.[28] (Recall that in some jurisdictions, adultery statutes encompass the “outside” person who intrudes upon the marital relationship.) We think the reach of these statutes goes too far and that such adultery statutes should be modified to end criminal liability for those persons. But our liberty-respecting basis for arriving at that conclusion admittedly has nothing to do with our approach to family ties burdens. When the adultery statutes extend criminal liability to those third persons, there is no family ties burden imposed on that person on the basis of that person’s familial status or familial connection to the crime. Properly understood, those provisions of adultery laws are not family ties burdens as we define them.
F. Nonpayment of Child Support
There is no disputing the reality that nonpayment of child of support is a serious problem in our society.[29] It harms single parents in one-income households who are left to care for their children alone – and it is usually mothers, of course, who bear the brunt of single parenthood and its unique challenges.[30] And it obviously harms children, who rely on support payments for subsistence. It is, accordingly, unsurprising that our criminal justice system takes especial interest in child support debts. Although all unpaid debts risk harming classes of creditors, when we know the classes of creditors are especially vulnerable (children and single parents) with very little recourse to self-help options, we can see why it would be attractive to policy-makers to use the criminal justice system to make sure these debts gets paid.
Of course, as we have already highlighted above, using the criminal justice system in this manner is not necessarily good – or effective – policy. It risks putting “deadbeat” parents in prison, where they certainly won’t be able to earn money to help support their children; it prevents parents from having meaningful relationships with their children – even if their only failure as parents was being too poor to pay support; it focuses too narrowly on the economic aspects of parenthood, devaluing other important contributions to parenthood; and it further reinforces outdated and pernicious views about fathers as discharging their parental obligations through money rather than direct care-giving. Although these criticisms of imprisoning “deadbeat” parents do not obviously close debate on the difficult public policy questions about how to incentivize good parenting, we think our normative framework provides yet another perspective on the issue: that punishing “deadbeat” parents is a clear family ties burden that stands in need of justification as such.
Criminally punishing parents for debts they have to their children and former spouses clearly triggers the concern that most family ties burdens do: it punishes the same conduct – failure to pay a debt – differentially, depending on the familial status of the offender. This is the paradigmatic concern that we have with family ties burdens, for it raises the specter of discrimination.
But the case of nonpayment of child support may here reveal a limitation of our approach because one could plausibly retort that it is too facile to say that the nonpayment of a contractual debt to a phone company, for example, is the same conduct as the nonpayment of child support. Indeed, one could argue that our society has differential views about the blameworthiness of these two forms of nonpayment precisely because we see them as different sorts of conduct, not as the same conduct treated differentially on the basis of status. Although we cannot deny that this re-description of the burden has some rhetorical force, we still think our organizing principle (of looking at examples in the criminal justice system where the same conduct is treated differentially on the basis of status) helps expose something deep, systemic, and pervasive about how the criminal justice system in the United States interacts with a normative conception of the family.
Thus, even were we to concede that the concerns about equal treatment of offenders and discrimination against familial status is mitigated to some degree by a general societal belief in the more serious blameworthiness of nonpayment of debts in the child support context, we would still maintain that the promotion of a particular normative conception of the family through criminally punishing mostly men for failure to pay child support raises serious concerns from the perspective of entrenching gender biases in our society at large.
We think it is undeniable that punishing mostly men for failing to pay child support contributes to a gender stereotype that assumes that men are supposed to be breadwinners and women are supposed to be care-givers. Although the statutes that punish “deadbeat dads” criminally are drafted in gender-neutral ways, fathers are most often the ones imprisoned under these laws.[31] Moreover, women bear the cost of having our criminal justice system reinforce the idea that men are primarily breadwinners – and that men can discharge their parenting responsibilities through paychecks. This system contributes to and reinforces gender hierarchy in our society – and it therefore runs afoul of our general concerns about family ties burdens.
We cannot deny that there are countervailing values that justify these laws in many people’s minds. As we suggested, these debts, when unpaid, can largely harm vulnerable children and care-givers. So what does our particular framework offer to the public policy community on the issue of nonpayment of child support? Must the legal system get out of the business of these prosecutions?
First, we think it is worth noting that a number of other non-criminal enforcement mechanisms already exist to induce individuals to comply with their mandated child support payments. For example, wages can be garnished, tax refunds can be intercepted, and licenses and passports can be suspended.[32] Further, these remedies can often be pursued outside the criminal courts, for example through state administrative agencies or through mediation. These civil proceedings can potentially promote the important ends that animate the current laws with more sophisticated, more sensitive, and less troublesome means. Primarily, these other enforcement mechanisms might be sufficient to keep “deadbeat” parents in their children’s lives while at the same time ensuring that children receive the funding to which they are entitled.
We cannot avoid the core question, however: when these mechanisms fail, should enforcement through the criminal justice system, and in particular the use of incarceration, be an option of last resort? There is at least one study, albeit somewhat dated, that suggests that criminal sanctions can be effective. Professor David Chambers “found a close parallel between payments and jailing: the counties that jailed more did in fact collect more.”[33] But other mechanisms have been shown to be even more effective than incarceration, with suspension of driver’s licenses being the most effective stick.[34]
Thus, in light of the fact that other mechanisms can be even more effective than incarceration, the fact that the policy may be enforced in a way that doesn’t as clearly contribute to reinforcing images of fatherhood as a strictly financial obligation, and the fact that incarceration affirmatively impedes care-giving rather than fostering it, we think incarceration for failure to pay child support ultimately cannot be justified. That is not to say the criminal justice system cannot play any role in regulating parental behavior; fines and probation may well be valuable in inducing a potential defendant to pay. But incarceration should not be an available sentencing option.
Second, although we applaud the drafting of these laws in gender-neutral language, we think more work can be done to take focus off the family in particular, and trying not to target familial status for special treatment.[35] Because our general approach is to deflect attention away from state-sanctioned families and promote the reorientation of “family ties burdens” to target relationships of voluntary care-giving, we suggest broadening the ambit of whatever approach the law takes to the punishment or treatment of nonpayment of debts of child support to include all nonpayment of debts of support to those in asymmetrical relationships of voluntary care-giving. In sum, we would favor a solution to get the law to stop assuming that traditional families are the only ones in relationships of voluntary care-giving that subject individuals to special duties whose violations can trigger criminal law enforcement.
Conclusion
We hope to have accomplished three things here. Most concretely, we have demonstrated that there are a series of burdens that defendants face in the criminal justice system on account of their family status, when that status is recognized as part of a state-sanctioned family unit. Although our previous work on the range of family ties benefits might suggest that family status could only help a defendant, our exploration here reveals that that picture is incomplete. There are many ways that the criminal justice system goes out of its way to punish family status. It hasn’t been noticed before and we hope to get scholars and policymakers to take interest in these findings.
Second, we made an effort to organize a normative framework for thinking through whether special penalties should attach to family status. What we discovered is that these sorts of penalties are most palatable when they are efforts to reinforce relationships of voluntary care-giving. Given that underlying structure to the most sound of the family ties burdens, we think focusing the criminal law on that general goal can reorient family ties burdens in normatively attractive ways.
Finally, we tried to spell out how our normative framework might contribute to thinking through each of the family ties burdens we were able to identify here. Ultimately, it was beyond the possible scope of this Article to analyze each family ties burden exhaustively – for they are each embedded within a policy space of their own and each burden functions differently to control different kinds of conduct. Nevertheless, our hope has been to contribute to the debates surrounding each particular burden by revealing each burden to be part of a systematic effort to punish family status in several ways – and by revealing how we think they can be reoriented and rethought in a more normatively attractive light.
[1] This was a particular problem with the recently convicted Warren Jeffs, who married off barely post-pubescent girls in his community and at the same time effectively banished teenage boys from the community to “make more girls available for marriage to the elders.” Julian Borger, Hellfire and Sexual Coercion: The Dark Side of American Polygamist Sects, Guardian, June 30, 2005, at 15.
[2] We note also that teenage boys can suffer harm from polygamous practices as well; for example, by being cast out of polygamous communities so as not to compete with older men for the available women.
[3] It seems that much of the historical American animus against polygamy is rooted in religious discrimination against the Mormon faith tradition and its adherents. Today, it’s hard to say that anti-Mormon bias alone is what keeps polygamy bans on the books; as some commentators have noted, it’s possible that anti-Islamic bias works to build coalitions against polygamy.
[4] Sigman helpfully explains why polygamy may be more marginally abusive to women but also why these claims are suspect. See Sigman, supra note 88, at 172-73 . She notes “(1) polygamy invites secrecy, undermining women's ability to get help if needed; (2) the structure of polygamy suggests that the husband will not have sufficient time to devote to each wife or their children; (3) the treatment by other wives may be abusive; and (4) the types of people who voluntarily choose polygamy may be attracted to the uneven power dynamic. However, there is no evidence that polygamy per se creates abuse or neglect. Having sister wives can be a support network. The status of senior wives versus junior wives and the relationships among these women vary between cultures. In fact, by banding together, women sometimes wield more power to change their husband's problematic behavior. Yet sometimes co-wives are perpetrators [of the abuse against women].” Id.
[5] Cheshire
[6] Sigman, supra note 88, at 161-163 (summarizing research explaining the rareness of polyandry).
[7] See Sigman, supra note 88 at 163-64( “Rather than the gender biased monolith some have made it out to be, polygyny is a multi-faceted choice of family structure, rooted in the economic, sociological, cultural, and biological particulars of a given society.”); see also Remi Clignet & Joyce A. Sween, For a Revisionist Theory of Human Polygyny, 6 Signs 445 (1981) (demonstrating diversity of polygynous marriages).
[8] E.g., Strassberg, supra note 88, at 1589 ( “monogamous marriages in nineteenth-century America
[9] See Sigman, supra note 88 at 173 nn. 595-96 (citing studies).
[10] See id. at 164.
[11] See id. at 172.
[12] The Koran actually instructs Muslim men not to take on more wives than they can afford to keep in equal comfort. See id. at 158 n.485 (citing The Qur'an: A New Translation 4:34 (M.A.S. Abdel Haleem trans., Oxford University Press, 2004).
[13] See Emens, supra note 84, 315-17
[14] See Sigman, supra note 88, at 152 n.430 (citing to relevant study of the economics of polygamy); see also Robert Wright, The Moral Animal: The New Science of Evolutionary Psychology 96-99 (1994) (offering theoretical support for polygamy under certain material conditions).
[15] It’s important to note that the official Mormon institutions no longer support or encourage polygamy but there are communities that are Mormon-inspired and continue these practices; it is largely on these off-shoots that Professor Strassberg focuses.
[16] Maura Strassberg, The Crime of Polygamy, 12 Temp. Pol. & Civ. Rts. L. Rev. 353, 405-12 (2003).
[17] Professor Strassberg has emphasized the harm to liberal democracies on different grounds, which we also find unpersuasive. Adopting a Hegelian perspective, Strassberg has indicated that “monogamous marriage is a fundamental aspect of the liberal state, because monogamy fosters the development of autonomous individuals who fall in love, based on unique characteristics. These fully-developed autonomous individuals are then able to interact within private spheres to fulfill their emotional and intimate needs, as well as in public spheres that recognize rights and liberty. When the state recognizes marriage, the individuals are able to connect the existence of the state to individual freedoms, and the transcendence of individuality gives rise to an ordered state.” The social science literature does not seem to support this view. See Sigman, supra note 88, at 175-76. Moreover, from a theoretical perspective, liberal regimes retain their credibility by reducing the instances in which they use the criminal law to interfere with the autonomous and consenting choices of the individuals involved. Taking a firm stand against polygamy requires liberal regimes to abandon their commitment to respect for most forms of private ordering in the absence of obvious and substantial negative externalities.
[18] It’s hard to say whether a rule that defaults to decriminalization of bigamy would be a penalty default rule or a market-mimicking rule. Although the overwhelming majority of Americans oppose polygamy, the pattern of non-prosecution for most instances of polygamy over the years suggests (weakly) that there’s not much support for enforcing polygamy bans. See Sigman,supra note 88, at 140-41 (noting lack of prosecutions over much of the last 50 years and general apathy among Utah law enforcement to prosecute polygamists); see also Dirk Johnson, Polygamists Emerge From Secrecy, Seeking Not Just Peace but Respect, N.Y. Times, Apr. 9, 1991, at A22 (“[I]n recent years, as state law enforcement officials have adopted an unwritten policy of leaving them alone, polygamists have gone public.”).
[19] One might fairly ask why get married if one wants to preserve options for nonexclusivity. We recognize that some people’s assessments of their own preferences and values might evolve or the circumstances might become sympathetic. For instance, one can imagine a situation where a spouse becomes ill and unable or unwilling to engage in sexual relations but that spouse is willing to let the other spouse engage in extramarital sex; indeed, the healthy spouse might still love and cherish her ill spouse, which is a relationship of which the state should be respectful. The problem is that under typical adultery statutes such extramarital sex would be forbidden.
[20] Some have argued that the United States Hopkins
[21] See generally Mary Anne Case, Marriage Licenses, 89 Minn. L. Rev. 1758, 1779 & n. 87 (suggesting that perhaps marriage one day could “mov[e] closer to a system of default rules in which couples could structure their own lives,” for example by choosing to have “reliance or expectation damages” available for the breach of certain promises).
[22] We note that Professor Emens in the final analysis preferred simple decriminalization of adultery statutes, in part because of her concerns that they were unconstitutional after Lawrence
[23] One way to reduce the externality, however, would be to have the social cost of the sanction placed on the contracting parties. Thus, if the sanction was capped as a misdemeanor punishable only by a sentence of community service with no collateral consequences, it would dramatically reduce the concern of a socially costly punishment. The imposition of that penalty could be permitted by statute to vest in those civil or family courts adjudicating the breach of the contract.
[24] Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87, 90-91 (1989).
[25] Covenant marriages require higher entry and exit costs to marriage. Such measures might include mandatory counseling before marriage and before any divorce. A few states have embraced covenant marriage statutes: Ariz. Rev. Stat. Ann. § 25-901 to -906 (West 2003); Ark. Code Ann. § 9-11-801 to -810 (Michie 2003); La. Rev. Stat. Ann. § § 9:272-9:274, 9:307 (West 2000). See generally Steven L. Nock, Laura Sanchez, Julia C. Wilson, & James D. Wright, Covenant Marriage Turns Five Years Old, 10 Mich. J. Gender & L. 169, 170-72 (2003).
[26] On “sticky” default rules, see generally Ronald J. Mann, Contracts -- Only with Consent, 152 U. Pa. L. Rev. 1873 (2004); Brett H. McDonnell, Sticky Defaults and Altering Rules in Corporate Law, 60 SMU L. Rev. 383 (2007).
[27] The family law implications of these proposals for property distribution or other issues are matters beyond the scope of our criminal law focus here. However, our liberty-respecting framework for polygamy raises important and interesting questions about the reach of family ties benefits, such as whether a person with several spouses should be entitled to spousal privileges with all of them, etc. This is a topic we will take up in our book, where we can better juxtapose these issues for the reader.
[28] The “outside” person (X) is (knowingly or unknowingly) intruding upon the marital space between Y and Z. Our analysis of what penalty should attach to X is contingent upon X’s marital status. If X is unmarried, no penalty should attach, in our view, assuming X is a competent and mature individual. If X is married, his treatment at the hands of the criminal law should be contingent upon what kind of exclusivity his marital contract calls for.
[29] See sources cited supra notes 113-119.
[30] See id.
[31] A woman has been jailed for failing to pay child support in at least one case. See http://query.nytimes.com/gst/fullpage.html?res=990CE7D9113EF935A15754C0A963958260
[32] See, e.g., Weisberg & Appleton, supra note __, at 700-01 (describing various enforcement mechanisms).
[33] David Chambers, Making Fathers Pay: The Enforcement of Child Support 84 (1979). Chambers studied enforcement efforts in Michigan
[34] See Swank, supra note 204, at 378.
[35] To the extent that nonpayment of child support can be thought of as a form of omissions liability, we have already acknowledged above that omissions liability can be justified under several circumstances; they could also apply in this context as well. As in that context, we try to take focus off the family in particular.
Posted by Administrators on March 13, 2008 at 10:37 AM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib | Permalink
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