Punishing Family Status: More Examples

During the previous two weeks, I alluded to an article by Ethan, Jennifer Collins, and myself, entitled Punishing Family Status. Here's the abstract, the introduction, and the first half of Part I, where we talked about vicarious and omissions liability and incest. Below we discuss some of the other sites where the criminal justice system discriminates against defendants based on their family status --that is, places burdens on defendants that would not otherwise exist in the absence of a particular family status: bigamy, adultery and failure to pay child support.  Please note that we have removed the formatting and footnotes in the excerpt below.

D.            Bigamy

Marlyne Hammon knows what it’s like to feel hated and hunted. In 1953, when she was an infant, her father—along with dozens of other men in her tiny community of Short Creek, Ariz. — was arrested and sent to jail on charges of polygamy. She, her mother and siblings were forcibly exiled from the community and sent to live with a family in a nearby city. Her father was released after a week, but because the family feared further prosecution, they lived apart and corresponded in secret for the next six years. “Our community had this idea that we should live our lives quietly to avoid trouble,” she says. “We were taught not to make a big ruckus.”

                Not anymore. Hammon, who’s involved in a polygamous relationship, is a founding member of the Centennial Park Action Committee, a group that lobbies for decriminalization of the practice. She’s among a new wave of polygamy activists emerging in the wake of the gay-marriage movement—just as a federal lawsuit challenging anti-polygamy laws makes its way through the courts and a new show about polygamy debuts on HBO. “Polygamy rights is the next civil-rights battle,” says Mark Henkel, who, as founder of the Christian evangelical polygamy organization TruthBearer.org, is at the forefront of the movement. His argument: if Heather can have two mommies, she should also be able to have two mommies and a daddy. Henkel and Hammon have been joined by other activist groups like Principle Voices, a Utah-based group run by wives from polygamous marriages. Activists point to Canada, where, in January, a report commissioned by the Justice Department recommended decriminalizing polygamy.

Although there is some variation around the edges of incest prohibitions, no such ambivalence exists regarding criminal laws prohibiting polygamy.  These bigamy laws are universal around the country.  Yet, these prohibitions raise substantial questions about the proper scope of the criminal law and its relationship to issues of family status. 

Bigamy laws in the United States, broadly stated, prohibit an individual from entering into multiple and simultaneous marriages, when the first spouse is still alive and that initial marriage relationship has not been terminated.  The rationales for prohibiting polygamy are familiar and, in America, deeply rooted.  They are nonetheless under-scrutinized. 

As a recent study of polygamy avers, many “[p]opular depictions of polygamists in the media and in society generally focus on the prevalence of underage brides, accounts of sexual abuse, and the subservient role of women in these relationships.”  Indeed, historically, polygamy has been decried as a tool to subordinate women. But the same has been said many times about marriage itself and the legal institutions accompanying it. If anti-subordination is the goal, then a critical empirical question is whether plural marriage prohibitions in fact achieve marginal harm reduction. In light of the fact that many prominent feminists have over the years argued for decriminalizing bigamy, including active support by Susan B. Anthony and Elizabeth Cady Stanton, we should evaluate more carefully blanket claims made in the absence of hard empirical evidence.   

Moreover, as the critics of bigamy note, the presence of abuse or coercion, while important to acknowledge and address, is something that can be independently punished through the use of other criminal laws.  It also seems necessary to develop empirical evidence about whether abuse or coercion is in fact more prevalent in the plural marriage context than the single marriage context.   Indeed, perhaps because of the marginalization of polygamous practices, polygamy supporters argue that it is harder for victims or allies of victims to report abuse because it might lead to bad consequences for the victim.  Of course, this same dynamic is a concern even in monogamous relationships; but unlike monogamous relationships, the victims of abuse in polygamous relationships might face serious collateral consequences from the state, such as the termination of parental rights. Despite the appeal of some of these recent arguments in favor of legalizing polygamy, opposition to the practice continues to be deep-rooted in American society:  as of 2004, 92% of Americans still viewed polygamy as immoral. 

E.            Adultery

“John R. Bushey Jr. was finally brought to justice in a small courthouse in Luray, Va. Bushey, the former town attorney, stood before the court as an accused criminal with reporters from all over the state in attendance. The charge was adultery. Like 23 other states, Virginia still might prosecute if a husband or wife has consensual sex outside the marriage. Ten states, including Virginia, have anti-fornication statutes as well, prohibiting sex before marriage.”  Bushey was prosecuted because his spurned lover went to the police to complain when the affair ended.  He eventually pled guilty and was sentenced to twenty hours of community service.

Adultery laws, at least as crafted in some jurisdictions without fornication statutes,  prohibit a married individual from engaging in extramarital sex, notwithstanding that such sexual relations would not otherwise be subjected to legal sanction.   Perhaps because of the pervasiveness of adultery,  a bare majority of states have gotten out of the business of regulating extramarital relations,  even though large majorities of Americans continue to view adultery as immoral.   Regardless of the cause of adultery’s relative demise as a crime, we recognize that most jurisdictions do not actively prosecute or punish this misconduct anymore, even though 23 states and the District of Columbia still have statutes criminalizing this conduct   Nevertheless, some states have recently self-consciously refused to abandon their adultery laws: Maryland even tried to expand its adultery statute to “modernize” it, attempting to criminalize extra-marital affairs with same-sex partners. 

Although one might be tempted to dismiss the significance of adultery laws today, we are loathe to do so in light of continued enforcement of such laws in some jurisdictions,  especially in the military.  Indeed, although civilian courts have generally seen a decrease in adultery prosecutions, there is a veritable explosion of such prosecution in military courts, often traced to the integration of women into the armed forces in the late 1970s.   And during the Clinton-Lewinsky scandal, many members of the armed forces were especially critical of their commander-in-chief, who undoubtedly would have faced a court-martial on adultery-related charges if he had been a mere service member.

Moreover, there is an odd discrimination resulting from adultery laws against heterosexuals, which we think needs some articulation and evaluation.   It goes without saying that as applied to the defendant who is married, adultery laws are a clear and conventional family ties burden. Whether these burdens can be persistently justified in the criminal justice system is an issue we hope to address in what follows.

F.            Nonpayment of Child Support

In 1997, an Anchorage, Alaska father was sentenced to serve five days in prison and spend five years on probation for failing to pay almost $98,000 in child support.  A government official stated that “Our job is to collect money for children. Parents need to realize there are penalties for ignoring their children.”

Ordinarily, the failure to pay a debt to a non-governmental entity (like your local utilities provider) is not a criminal act;  an aggrieved party is forced to pursue civil remedies to obtain redress.   In contrast, failure to pay child support is a crime.  For example, the Child Support Recovery Act  (amended in 1998 as the Deadbeat Parents Punishment Act)  makes it a federal crime to owe more than $5000 in child support or to be in arrears for longer than one year if the child owed the support lives in another state than the delinquent parent.  In addition, many states have statutes criminalizing a parent’s failure to pay child support.   This is yet another way family status can turn a non-criminal act into a criminal one.

Critics of efforts to punish “deadbeat” parents charge that many parents fail to pay because of poverty, and not because of willful indifference to their children’s needs.   Further, incarcerating these parents obviously severely restricts, if it does not eliminate altogether, these parents’ ability to pay any support and, more importantly, to have a meaningful relationship with their children.  Indeed, placing so much emphasis on parents’ economic contributions has the potential to devalue the non-economic contributions that parents make to their children, such as disciplining and nurturing them.   This is amplified given the reality that it is by and large men who are jailed for failure to pay child support, reinforcing a view of the father as meeting his parental obligations (and discharging them completely) through financial contributions.

What could be the justification for incarceration in the child support context?   Perhaps child support debts are different in kind than other debts and failure to pay is therefore more reprehensible; it should be viewed as the equivalent of “stealing from your kids.”   As Professor Oman has written, “the law insists that the failure to support one’s children is an act of particular blameworthiness that we are willing to accept extra costs to avert and that we are willing to punish with greater severity than other kinds of non-payment of debt.”   Or, perhaps, these laws can be vindicated as a form of the “omissions liability” statutes we’ve considered above: parents have a non-waivable duty to protect and support, which is parallel to the duty to protect and rescue in the omissions liability context.   

The Ninth Circuit emphasized these kinds of rationales in finding the Child Support Recovery Act constitutional.  The Court emphasized that a child support debt is fundamentally different than other debts:  “We note that the obligation in question is not an ordinary debt; it is an award imposed by a state court to ensure the sustenance and well-being of the obligor’s children.”   The Court then added:

We start with the self-evident observation that the relationship between parent and child is much more than the ordinary relationship between debtor and creditor. The parent is responsible for bringing the child into the world and in so doing assumes a moral obligation to provide the child with the necessities of life, and to ensure the child’s welfare until it is emancipated and able to provide for itself. When parents neglect their children, this raises more than a private legal dispute. It is a matter of vital importance to the community, and every state now enforces, by means of criminal sanctions, the parent’s obligation to support children within his custody.

Another way to understand stiff penalties for non-payment of child support is through the utilitarian lens of norm projection and general deterrence. Thus, even if putting one caring parent in prison hurts the relationship between that parent and his or her particular children, the credible threat of stiff penalties might serve to educate the public about the seriousness with which society views parental obligations to children as well as encourage those parents who might otherwise shirk those obligations to fulfill them.