Thursday, September 04, 2008

Palin's Pregnancy

Within the tabloid-worthy litany of Sarah Palin disclosures was this: "And she had waited until she was seven months pregnant to make public news that she was expecting a fifth child this year." (The New York Times story is here.) First, hiding being seven months pregnant is an impressive feat - think Seinfeld's Elaine in baggy coats and careful camera shots. Although, as one Alaska-based blog points out, "Remember, it was February in Alaska."

When should she have disclosed her pregnancy? Many things can distract a politician from his or her job - illness, divorce, wayward children. In other words, politicians are humans too. Pregnancy is unusual in that it is visible (except, apparently, in Alaska in February). Should we (and do we) require politicians to reveal illness?  When should a politician with prostate cancer reveal it?  A politician who is going through a messy and distracting divorce?  Or is there something special about pregnancy?

Posted by Verity Winship on September 4, 2008 at 09:09 AM in Gender | Permalink | Comments (3) | TrackBack

Wednesday, August 13, 2008

Women Lawyers on TV

This year's 50 Best Law Firms for Women survey is out (a good resource for students among other things).  An accompanying article provides a timeline of "TV's Leading Women in Law."  I'm not sure this subject has the appropriate gravitas for a real problem: the article and survey report that attrition rates for women at major law firms is about 76% by the fifth year and that 42% of women lawyers leave the profession at some point in their careers.  But I did take a quick look.  The premise is that "in pop culture, female lawyers are often powerhouses in their careers but struggle to fit family in - if at all."  Here's a sample:

1993-1999: Sylvia Costas, NYPD Blue.  Sylvia was a crusading ADA who fought to save her marriage to alcoholic detective Andy Sipowicz.  After a maternity leave, she returned to work only to be killed in a courthouse shooting.

1997-2002: Ally McBeal, Ally McBeal.  As a 28-year-old Harvard Law grad, Ally could only dream of babies.  However, her hallucinations turned real when her 10-year-old daughter, the result of an egg-bank mix-up, showed up on her doorstep.

I guess we have to look for our role models elsewhere....

Posted by Verity Winship on August 13, 2008 at 09:21 AM in Gender | Permalink | Comments (0) | TrackBack

Sunday, April 06, 2008

Bartow Alert

From today's story in the New York Times about the "emotional stress" of round-the-clock blogging, here's the cut-line under a photo of a blogger at work: "Matt Buchanan shows blogs may be a young man's game."

P.S.  I don't mean this sarcastically.  Writers are not responsible for photo cut-lines, and headlines and cut-lines are made to fit in small spaces.  But there was plenty of room for "person," wasn't there?  Or there somewhat more circuitous "a game for the young?"

P.P.S.  That said, I agree that constant blogging is stressful -- which is perhaps the reason why I've been remiss lately (that and the rising conviction, contary to blog culture, that if you have nothing to say, you shouldn't say anything).  But much of the story is, of course, hyperbole, as if the writer could not have justified the story absent a set of overstated claims.  Or implied claims, as the case may be: "To be sure, there is no official diagnosis of death by blogging, and the premature demise of two people obviously does not qualify as an epidemic...." 

Posted by Paul Horwitz on April 6, 2008 at 01:43 PM in Gender | Permalink | Comments (2) | TrackBack

Wednesday, March 12, 2008

Punishing Family Status: Application of the Family Ties Burden Framework

In today's installment of Punishing Family Status, we discuss, among other things, why incest laws should be abolished...

In this Part, we undertake some analysis of the various family ties burdens we identified here and here.   Recall that our framework asks the following questions.  First, assuming the burden is imposed only on individuals based on their family status or familial connection to the crime,[1] we must ask to what extent does the family ties burden in question implicate the normative costs of gender bias or unfair inequality?[2] Second, assuming the burden implicates one or more of these concerns, to what extent does the family ties burden vindicate a compelling state interest? In other words, given the disruption the burden promises to wreak on other values, what are the countervailing benefits promised by its imposition? Finally, we must ask whether there are other less troubling means — means that can be crafted in terms that are neutral to family status — available to protect the interest underlying the burden. In situations where the case in favor of the penalty on the family appears to make sense, we argue that the burden should not be imposed on the basis of traditional familial status, but rather on the basis of care-giving relationships of autonomous choice. 

            In what follows, we do not exhaustively analyze each family ties burden – even from within our own framework.  As we acknowledged at the very beginning, each of the burdens we’ve identified requires its own long-form analysis, taking account of its particularized context.  Accordingly, all we endeavor to do in this Part is furnish a feel for how our framework contributes to a more comprehensive accounting in thinking through each family ties burden.  We think our framework recommends caution about the bulk of the family ties burdens we’ve identified and urges creativity in redesigning these burdens to make them less discriminatory.

III.            Application of the Framework to Family Ties Burdens


A.        Omissions Liability

The question of omissions liability is a difficult one, and the analysis seems to vary according to the kind of status relationship at issue.  Let’s begin with the most common scenario where we see liability imposed:  prosecutions of parents who fail to protect their children from harm. As an initial matter, we need to acknowledge that imposing liability on a parent for failing to protect a child from harm certainly has the potential to perpetuate inequality and discrimination. It undoubtedly is facially biased against homosexual couples, many of whom cannot have legal children.  More, we know enough about prosecutorial practices to be concerned that omissions statutes are used in a way that may perpetuate stereotypes about gender.[3] Thus, in particular situations, it might be a male father who is battered, and our approach to omissions liability does not hinge on the precise identity of the defendant qua mother. But it is important to acknowledge that in some forty to sixty percent of cases where children are being battered, a parent (usually the mother) may be the victim of battering as well.[4]  The victims of violence may have few available options to remove their children from an abusive situation.  They may correctly perceive that attempts to leave will escalate the violence.[5]  They may have no economic options in terms of being able to find housing or a job that will provide sufficient income to support a family.[6]

Thus, it bears mention that there are practical options available to help mitigate the potential disparate impact of omissions liability.  For example, as a policy matter we should partner any attempts to hold parents accountable for their failure to protect with efforts to make it more viable for battered spouses to leave abusive partners – more funding for shelters, for example, and provision of job training and child care resources.[7] 

There could also be limitations to when we seek to impose liability.  First, in contexts where omissions liability is established in cases involving child abuse, we should limit liability to those circumstances where a parent had prior knowledge of past abuse and had the practical opportunity to seek help, such as access to a telephone to contact law enforcement authorities. Second, in many instances, parents who fail to protect in a case involving a fatality should not face the same homicide charge as the actual killer but instead should be charged under a separate statutory scheme, carrying lesser penalties, criminalizing a failure to protect.[8] A separate statutory scheme would better reflect the idea that there is a meaningful moral distinction between actually inflicting the fatal blows and, for example, making the mistake of leaving a child alone with an individual who has been abusive in the past.[9] 

But ultimately, imposing liability on parents for failing to protect their children vindicates a compelling state interest – the need to protect children from harm. It is in this scenario that our concerns about fostering the care-giving capacity of individuals reach their zenith.  Young children are simply helpless to protect themselves from harm; that responsibility must fall on the shoulders of those adults in the position to be a child’s only lifeline.[10]  Parents who have voluntarily chosen to retain the benefits conferred by the parent-child relationship should endure some burdens in return, and surely ensuring the safety of a child society has entrusted to the parent’s care represents the most fundamental of reasonable burdens. When a person opts to have children, the parent is, as we suggested earlier, signaling to the society and state that the parent will be a first responder.

In this respect, imposing a duty to rescue here is analogous to the imposition of liability on those people who have “waved away” others. Our goal, of course, is not to tie an albatross around the neck of every parent.  Omissions liability doesn’t create a responsibility to rescue against unreasonable risks.  It operates only to ensure that when a parent is in a position of protecting the child from imminent harm, the parent takes those measures. In practical terms, it’s a recognition that the parent is usually (but not always) in the best position to bear this burden – no other adult ordinarily has the same access to, or opportunity to observe, a child in situations that prove dangerous.

It is necessary to recognize an additional important caveat to the above discussion: not all children live with their biological parents.   A child could reside with another relative, such as a grandparent, or a family friend, or a foster family, to name just a few possible permutations.[11]  Therefore, limiting omissions liability to biological parents and their children has the potential to be under-inclusive, in that it does not recognize non-traditional relationships of care-giving.  An opt-in, or opt-out, system seems unsatisfactory when it comes to children, however, because children simply cannot be expected to utilize a registry and more fundamentally, children are without resources to avoid their own vulnerability or sufficiently protect themselves from harm through other means.  Therefore, we propose a test that focuses on something other than biological parenthood: does the individual in question stand in the position of a primary caregiver to the relevant child?[12]  If the answer is yes, then that individual can face liability for failure to protect on an omissions theory absent any relevant and compelling excuse or justification. This would avoid the over-inclusiveness problem of relying on biology too. There might be situations where a biological parent has parental rights terminated, and in those situations, we think there should be no duty to rescue under the criminal law.

What about children who are no longer minors? Do their parents still owe them a duty of care, or should we go further and impose a reciprocal obligation, in that adult children should be charged with a duty to protect their parents?  Adult children seem in a fundamentally different position than minor children – they can both utilize a registry system and have more options available to remove themselves from a dangerous situation.[13]  In addition, the dynamics of the relationship may be very different with an adult child; it may seem justifiable for parents to wish to sever a relationship with a child who has committed a heinous crime, or even victimized his parents, for example, whereas we would not allow parents of a minor child to walk away from their obligations to that child because of the child’s misconduct.

While the urge to promote an ongoing ethos of reciprocal care between parents and children is a powerful one in some cultures, we must bear in mind a child’s relationship with his parents is not voluntary in the same sense as a parent’s relationship to his children; after all, no child asks to be born, let alone to these parents. Thus, it is no surprise to us that many jurisdictions are reluctant to impose such liability now, even when that position leads to seemingly unjust results.[14] Because of the non-reciprocal voluntariness problem, an opt-in registry makes sense in the context of adult children who wish to signal their compacts of care with their parents. And if they want, parents can opt to signal their ongoing commitment to their children by agreeing to face liability for failing to protect them as adults.

As to spouses, this analysis calls for refinement. Any potential prosecution of a spouse for failing to protect his or her spouse from harm also has the potential to have a discriminatory impact, in a different and critical sense: it treats differently those who cannot, or who choose not to, enter a spousal relationship sanctioned by the state.[15]  For example, these laws currently do not clearly permit those who are family members of homosexual couples to take the same comfort in knowing that omissions liability is parceled out in a non-discriminatory fashion. One way to see this discrimination is through analogy: if omissions liability were restricted on the basis of race, such that whites had a duty to rescue their spouses but blacks did not, what message would that send? Clearly one that devalued the spouses of black people. The same is true by restricting omissions liability along lines that are tethered to the few family status relationships recognized by the state.  Why should a heterosexual man have an obligation to protect his spouse from harm when a gay man does not?[16]  Why should a close friend of many decades escape liability for failing to protect when a brand-new bride does not?  In both instances, imposing liability serves the same valuable functions: in concrete terms, it fosters safety, and in normative terms, it promotes an ethos of care. Thus, limiting omissions liability to those in a state-sanctioned relationship seems plainly under-inclusive – it leaves out those who choose not to be married and, more problematic, those who cannot get married because of a plainly troubling and blatantly discriminatory moral choice made by the state. 

For the most part, we don’t have much problem with marriage being an over-inclusive obligation because divorce is an option by which the obligation can be terminated. But because marriage is an underinclusive basis for imposing omissions liability, we would support decoupling omissions liability from marriage and instead ask both parties to a marriage to register as first responders for each other, the way we would ask any other person to signal his expression of commitment.[17] Thus, for example, individuals who voluntarily have chosen to live with a partner in a romantic relationship, regardless of whether that relationship is officially recognized by the state, would be able to signal their commitment of care.

What about relationships outside these two primary categories of spouses and parent-child, such as siblings or cousins or roommates? Any decision by the state to impose a legally enforceable relationship of care-giving seems most problematic here.  For those relatives outside the parent-child or romantic partner context, we simply cannot say these relationships have been entered into voluntarily – no one chooses their siblings or cousins (though maybe one does choose roommates after college…).  In the context of platonic roommates, imposing a duty of care would be a drastic restructuring of the traditional boundaries of that relationship. On the other hand, we certainly believe that individuals should be able to choose a legally enforceable relationship of care-giving through the use of a registry.  This allows individuals to signal their commitment both to each other and to those around them.  It is, of course, possible that very few individuals will choose to register – why would they voluntarily assume the risk of a legal liability that they currently do not face?  But if that is the outcome, we are no worse off than we are now, as these individuals do not currently face liability.

If, on the other hand, some individuals do choose to enter into a legally-recognized relationship of care-giving, the benefits that decision conveys in terms of promoting safety, and promoting an ethos of care and compassion, certainly seem worth the effort.  We can also imagine the state incentivizing such registrations through small tax breaks or norm entrepreneurs (think of faith groups) that mobilize “opt-in days” to foster solidarity among members of their communities or sub-communities. And because peoples’ relationships ebb and flow, we could imagine that the registry would permit people to withdraw from these covenants of care-giving if notice is given to the affected parties.[18]

Allowing more private-ordering in the context of criminal law regulation here (with sufficient attention to third-party harms) is consistent also with the suggestions we make next in the contexts of incest, bigamy, and adultery.

B.         Vicarious Liability

The first three forms of vicarious liability discussed in Part I.A – truancy laws, curfew laws, and contributing to the delinquency of a minor – seem relatively uncontroversial to most people, because in those instances the adult in question has committed an affirmative act with a culpable state of mind, the traditional core requirements for a crime. So, in some sense, these are better viewed as “impure” vicarious liability laws.[19] But if the laws in question only create criminal liability on account of a person being part of a designated family relationship, where the absence of that family status wouldn’t trigger liability for the same conduct, then those laws warrant scrutiny under our framework.

As might be expected, we remain skeptical of these sorts of laws because to the extent that they reinforce special duties that flow in light only of state-sanctioned family status, they are simple family ties burdens. If an element of a vicarious liability crime is a relationship of family status, it would offend basic principles of equal treatment, since those in relationships of autonomous care-giving that behave identically but do not have ties of family would not be considered culpable.  That result cannot stand, if the liberal state takes seriously the idea of approaching all its citizens with equal concern and respect.  Accordingly, to the extent that the states that embrace these regulations think they are necessary, we would urge those legislatures to draft their laws in ways that do not burden the family directly.  We can imagine several ways around this problem, whether it involves exacting liability on all voluntary care-givers – or more carefully circumscribing these crimes so that family status is not used as an element.

More controversial still are the strict liability offenses.  Should a parent or other caregiver be prosecuted on a strict liability theory, facing criminal sanction simply because the child under her or his care has committed a crime?  Put most starkly, does one’s status as a caretaker suffice to warrant perhaps the greatest family ties burden of all: sanction through the criminal justice system for the criminal conduct of another solely because of family status?

We think the answer must be no in the absence of a blameworthy state of mind and an actus


by the caregiver in question.  As we have suggested in this Article, many family burdens imposed by the criminal justice system are in place because of the idea that they promote an ethos of care.  Yet, imposing criminal responsibility on a strict liability theory does not seem to promote more effective care-giving than a negligence standard would.

Let us illustrate with a concrete example.  Imagine a parent goes out on a date and leaves a twelve year-old alone in the house with unsecured firearms and an unlocked liquor cabinet, when the parent knows the child has attempted to play with the guns and drink liquor on prior occasions. If the twelve year old proceeds to get drunk and use the parent’s gun to shoot up the neighbor’s car, the parent has been reckless, or at a minimum, negligent by “failing to exercise reasonable control” over the child.  Imposing liability in this scenario will signal both to this particular caregiver, and other caregivers in the community, that caregivers must supervise their children more vigilantly.

But imagine instead that the child buys the gun in a school locker room with his money from an after-school job and shoots up the neighbor’s car on the way home from school, despite repeated admonitions by the parents to stay away from guns and people with guns. Under an ordinance like the one passed (and struck down) in


, parents could face prosecution on a strict liability theory because their child had been charged with a crime.  But such a prosecution would have no impact in terms of promoting better care-giving; there is no care-giving the parent could have done that would have prevented the crime in question, other than refrain from parenting altogether. If we are to believe that these standards of conduct are emitting signals to would-be parents, the strict liability standards would simply encourage people to forbear from parenting or to take their chances in the enforcement and genetic lottery. This is not purely hypothetical either. To the extent we want to use criminal law to project social norms about correct values, the strict liability standard in some vicarious liability statutes will deter people from becoming foster parents, adoptive parents of teenagers, or on the margins, parents of their own biological children. That’s not the signal regarding the promotion of care-giving that society should emit.

Thus, as a general matter, we are dubious about the value of these statutes both as to their capacity to reduce crime through parenting vigilance or to signal commitment to parenting values. Equally important, we note that limiting vicarious liability to those in a state-sanctioned family unit seems underinclusive and discriminatory. If these statutes are to do the work of crime-reduction that its supporters promise then they should be structured in such a way that they apply to all those who have voluntarily assumed care-taking and custodial responsibilities for the minors in their households. In other words, if vicarious liability is embraced by legislatures because of its crime-reduction promise, then it should be applied whenever there is a relationship of asymmetrical dependency and voluntary care-giving, and not just a strictly construed version of biological parent to child. For at least this way, more of the deterrence will be achieved by extending its ambit to same-sex or non-married child-rearing partners, and the importance of the care-giving value will be communicated to those who have opted to raise children.

C.         Incest

            As we discussed in Part I, there are various kinds of incest rules: some regulate conduct regardless of the age of participants, some regulate conduct regardless of the consent of the participants, and some regulate conduct among intimates regardless of an actual blood relationship. Unsurprisingly, there is overlap across these categories depending on the jurisdiction. 

            As we develop below, we think that at least as to some of these relationships, the state should step in to proscribe the sexual conduct – and with regard to others, the state should step aside. In order to determine whether there’s a kind of inequality or arbitrary discrimination apparent in the incest context, we need to have some baseline principles that would help us assess the state’s intervention in a specific situation. We can think of two relatively uncontroversial principles. First, because of the high likelihood of implicit or explicit coercion, prohibiting sexual relations between those sharing an asymmetrical relationship of dependency should be permissible, regardless of whether the dependency relationship is established through consanguinity, through marriage, or through the assumption of caretaking responsibilities.[20] Second, consensual sexual relations between mature adult individuals not otherwise in a relationship of asymmetrical dependency should be permitted. How do these principles apply in the context of the categories of incestuous relationships to which we adverted in Part I?

            As to relationships between non-dependent adults, we think it is straightforward that a respect for autonomy and limited government permits consenting individuals to engage in the sexual relations they deem appropriate without fear of criminal sanction.[21] That’s not to say we necessarily endorse any of these relations; rather, we simply think the state should not be treading upon the intimate associational rights of mature individuals.  As they stand, the current laws chill consensual activities by adults that should be unencumbered by threats of arrest, prosecution, and punishment.[22] We recognize the concern that incestuous relationships have the potential to be abusive and nonconsensual,[23] and we think that these concerns are substantial and important. But in the context of adults, these problems can ordinarily be punished through the traditional crimes tracking lack of consent: i.e., the crimes regulating sexual assault.[24]

            We acknowledge that in some circumstances those available laws may be unsatisfactory. For example, it is quite possible that the coercion involved in an incestuous relationship would be psychological rather than physical, and many states still do not consider psychological coercion sufficient to satisfy the required elements of their rape or sexual assault statutes.[25] Thus, although our background laws forbidding sexual assault and rape may be sufficient bases for prosecuting and punishing offenders in cases involving physical coercion, it is important to recognize that the current status of rape law may leave some non-consensual incestuous relationships outside the reach of criminal law sanctions, and reform of current rape laws continues to be an important goal.  But in those truly consensual mature relationships that are the focus of this section, prohibiting adult step-siblings or any other adult couple from having relations is a form of mere squeamishness – at least from a liberal criminal justice perspective which is not seeking to impose a particular sexual morality.[26]

            Some might raise objections to decriminalizing consensual adult incest based on fears about genetic repercussions.  But at least with respect to those not related by consanguinity, there is no basis for genetic fears at all. Admittedly, such fears increase when we’re talking about closely related persons, such as brothers and sisters.[27]  But as others have noted, “in no other legal realm does the government criminally prohibit two people from having children because their offspring are more likely to inherit genetic defects.”[28]  Put simply, we have long since retired the idea that eugenics preferences are a reasonable basis for criminal justice policy.[29] To wit, Tay Sachs disease and sickle-cell anemia could be nearly wiped off the face of the earth if we regulated who could reproduce with whom based on such genetic sensitivity.  We think there is good reason to acknowledge that the criminal law cannot be used to serve eugenic ends.

            Related to the genetics-based fears is concern for the economic costs of allowing incestuous relationships. In other words, some might be tempted to justify criminal law incest prohibitions to reduce the costs associated with increased medical care for children of consanguineous parents. Again, the solution of using incest prohibitions is both over-broad and under-inclusive. First, some couples deemed incestuous may choose not to have children or may not be able to have children, and yet their conduct would still be subject to criminal sanction. Second, we don’t use the criminal law as a tool to reduce potential medical costs in any other context. When we criminalize murder or theft, it is not because we want to keep insurance payments down: it is because murder or theft is wrongful. Third, if we were genuinely concerned about increased medical costs, we could means-test all couples contemplating having babies with high risks of disease or complications. But this would be both an offensive policy to many people and it would sweep in far more persons than those who are blood relatives.   

            Concerns about relationships between adults and minors are far more weighty than in the context of consenting adults.[30]  While all of us agree that the possibility of coercion is far more significant in this context and that it is less likely that the minor in question is capable of truly informed consent, we disagree among ourselves how much to credit the consent of minors who choose to have sex with adults to whom they are related, and what measures might be taken to prove such consent to the state.[31] Although many states have a variety of statutory rape laws available to punish and deter this kind of activity, these laws may not be sufficient to address all the possible permutations of relationships.  Thus, we should also adopt laws that prohibit sexual relations between asymmetrical dependents.[32] Examples of asymmetrical dependents include, on the one hand, foster parents, adoptive parents, step-parents, and biological parents and, on the other hand, all minors under their charge and responsibility until that dependent is no longer under their charge and responsibility. Such a law would emit a clearer signal of which relations are prohibited than the mishmash that characterizes current incest laws.[33] 

            As to sexual relations strictly among minors, we are not all of one mind – proving the point, perhaps, that our lens of access to these laws does not require a singular conclusion on all family ties burdens.  At least one of us (Markel) thinks that sex between minors should also be regulated in family-neutral ways.  This would mean that either the criminal law applies to prohibit sexual activity for all persons under a certain age or that the criminal law does not apply in the context of consensual relations among those credited with the capacity to consent. Thus, there would be no categorical rules prohibiting sexual conduct between, say, seventeen year olds on the basis of family status alone. Under this view, those worried about physical or psychological coercion or abuse or retaliation can simply rely on the laws available to punish that independent misconduct. If sexual relations are to be decriminalized for those over an age of consent, then it should be immaterial from the state’s perspective whether they are brothers or first cousins or friends. The key would be to ensure an absence of coercion or abuse.[34]

            But at least one of us (Collins) finds these conclusions troubling. Accordingly, sex between minor siblings, for example, does not implicate a significant liberty interest that is worth protecting.  In addition, some of the concerns used to justify incest bans take on heightened importance in the context of minors. For example, because the potential public health ramifications of incestuous sex are admittedly non-negligible – and because it would be extremely hard for minors to give meaningful consent to such complex sexual relations – there may be sound reasons to preserve criminal statutes against incestuous sex among minors. Minors, because of their emotional immaturity, are more vulnerable to forms of psychological coercion.  In addition, minors in incestuous sexual relationships may be less likely to seek outside help in ending the relationship.  It would seem far easier, for example, to report your 40 year old uncle to the authorities for pressuring you to have sex than it would to report your brother. One of us (Leib) can’t make up his mind, though his sympathies are largely with Collins.

                        However one redrafts criminal law in the incest arena to address the various difficult issues surrounding adult-adult, adult-minor, and minor-minor incest, we doubt we will gain much traction with the political community that favors these laws. In large part, these relationships are criminalized because Americans view them with distaste or because they are, in some situations, religiously proscribed.[35] Nonetheless, we have reason to believe that these prohibitions, regardless of their motivation or provenance, are problematic from a civil liberties perspective, especially in the context of mature individuals engaging in consensual relations.[36] And by operating in the rigid and uncritical manner that they do, most incest laws are an unjustifiable burden as currently crafted.

            In sum, when we apply our normative framework from Part II, we see that in many jurisdictions, incest laws by their scope – that is, by their failure to track consent – serve as a burden imposed on those engaged in otherwise legal conduct on the basis of a defendant’s familial status or familial connection to the crime. We find this burden constitutes a form of unwarranted discrimination, by inhibiting the intimate associational rights of consenting mature individuals, because it cannot be justified in light of other substantial  government interests – the plausible fears associated with abusive incestuous practices – that can be promoted through more narrowly tailored alternatives.

[1] Again, here we would refer the reader to our earlier stated conviction that most problems that have a disparate impact on families are best regarded as problems that need to be addressed in the criminal justice system for all those concerned, regardless of whom it affects. So if one has a particular problem, for example, as we do, with the war on drugs and how it often leads to over-incarceration, the solution is not to have a band-aid for families but rather to fix the underlying policy of over-incarceration.

[2] If there are concerns about accuracy or crime-creation, then those should also be noted. See id.

[3] The fact that a mother is charged in the failure to protect scenario is a powerful example of the “mother-blaming” phenomenon that affects not only our legal institutions, but also our cultural norms about parenting. As Professor Becker states, “[M]others are expected to be much better and more powerful parents than fathers, always putting their children’s needs above their own and protecting their children from all harm.” See Mary Becker, supra note 55, at 15; see also Naomi Cahn, Policing Women:  Moral Arguments and the Dilemma of Criminalization, 49 DePaul L. Rev. 817, 822 (2000) (“Cultural middle-class norms expect all women to be primarily responsible for their children.  The criminal justice system supports this norm by criminalizing the abusive and neglectful behavior of parents, punishing mothers particularly harshly.”); Jane Swigart, The Myth of the Bad Mother:  The Emotional Realities of Mothering 6 (1991) (“we live in a society that simultaneously idealizes and devalues the mother”).

[4] See Bernardine Dohrn, Bad Mothers, Good Mothers, and the State: Children on the Margins, 2 U. Chi. L. Sch. Roundtable 1, 3–4 (1995) (discussing domestic violence and child abuse as strong predictors of each other).

[5] See Becker, supra note 55, at 19 (noting that women are sometimes murdered after leaving an abusive spouse).

[6] See id.

[7] See id. at 31-32 (urging the provision of stronger “safety nets” for women in abusive situations); see also Linda Gordon, Feminism and Social Control, in What is Feminism? 63, 69 (Juliet Mitchell & Annie Oakley, eds., 1986) (“Good social policy could address the problem of wife beating in part by empowering women to leave abusive situations, enabling them to live in comfort and dignity without men”).

[8] We say “in many instances” because presumably there may be some cases where the more passive parent is just as culpable as the actual abuser, by providing active encouragement or a weapon or the like.

[9] Finally, a spouse’s history of abuse should certainly be a relevant consideration for a judge at the time of sentencing.

[10] As Mary Becker has written, “[T]he assumption should be that the adult who was not literally a hostage—not literally coerced at every available second—could have acted to end abuse,” at least by picking up the phone and calling 911. Becker, supra note, at 55. Becker adds, “No matter how weak the mother, she is in a much better position than the child to prevent abuse and owes a duty of care to her children.”


[11] Indeed, the child at issue in Jones, supra note 7, resided with a family friend at the time of his death

[12] It is important to note that more than one individual could fall into this category – for example, both the mother and the father of the child, assuming they both live with the child, and a grandparent who also lives in the home.

[13] We leave aside for now whether the age of majority for this purpose should be dropped from 18 to a lower age, such as 16.

[14] See Billingslea v.


, 780 S.W.2d 271 (Tex. Cr. App. 1989) (adult child’s failure to seek medical care for ailing live-in parent does not constitute criminal negligence because there was no statutory duty to act).

[15] See, e.g., People v. Beardsley, 150


295, 113 N.W. 1128 (1907) (reversing manslaughter conviction of man who failed to aid his lover after she overdosed on morphine because he owed her no legal duty).  Indeed, some states have recently recognized that limiting liability to formal legal relationships would be plainly underinclusive. See State ex rel. Kuntz v. Montana Thirteenth Judicial Dist. Court, 995 P.2d 951 (Mont. 2000) (finding that woman who had lived with a man for six years owed him the same duty to aid as would a legal spouse, but holding turned in part on fact that defendant was the one who had placed victim in peril by stabbing him)); State v. Miranda, 245 Conn. 209, 715 A.2d 680, 682 (Conn. 1998)  (concluding that person who is not biological or legal parent of a child but who establishes a “familial relationship” with live-in girlfriend has duty to protect child from abuse); Leet v. State, 595 So.2d 959, 963 (Fla.App.1991) (concluding that the live-in boyfriend of a child's mother owed a legal duty to the child to prevent abuse by the mother after establishing a “family-like relationship” for an extended and indefinite period).  We believe all states need to move in this direction and have a proposed a clear mechanism by which they could do so.

[16] We were unable to find a reported case addressing this precise scenario.  In light of the extent of discrimination against gay individuals in this country, however, we think it far too risky just to hope that courts in all states would extend the same protections and obligations to individuals in a homosexual relationship as they would to individuals in heterosexual relationships.  As a point of comparison, states are split about whether to allow same sex partners to recover in tort for wrongful death or infliction of emotional distress, even those states with domestic partnership laws. See D. Kelly Weisberg & Susan Appleton, Modern Family Law: Cases and Materials 404 (3d. ed 2006) (describing split among states on issues regarding tort recovery for same-sex couples).

[17] By decoupling omissions liability and marriage, we don’t run the risk of punishing what amounts to a purely private breach of contract through criminal law. Since there’s no bilateral exchange or consideration with our omissions registry, but a declaration to the state, the state may decide to punish those who make false claims to the state, or those who lull the state’s agents into complacency vis-à-vis a particular person.

[18] Our focus on voluntary care-giving as providing a useful basis for “imposing” liability in duty to rescue cases is consistent with the recommendations in Ethan J. Leib, Friendship & the Law, 54 UCLA L. Rev. 631 (2007).




v. Garnett, 332


571 (1993) (Eldridge, J., dissenting) (distinguishing between “pure” and “impure” strict liability criminal laws).

[20] Asymmetrical dependency refers to relationships where one person possesses substantial authority and responsibility over another person who is largely dependent for his or her well-being on the authority-wielding person. Martha Fineman elaborates upon this notion. See Martha Albertson Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies 8 (1995).

[21] Here we largely agree with the observation Justice Scalia’s dissent in Lawrence v. Texas, in which he noted that the Court’s majority reasoning makes it difficult to resist the conclusion we draw regarding consensual adult relations.

[22] See Dan Markel, The Sex-Ed License, Redux, available at (Feb. 19, 2008) (discussing shadow effects of incest, adultery, polygamy laws); Kaye L. Levine, The Intimacy Discount: Prosecutorial Discretion, Privacy, and Equality in the Statutory Rape Caseload, 55 Emory L.J. 691 (2006) (lamenting shadow effects on consensual activity in statutory rape context).

[23] See Cahill, supra note 62, at 1569.  Cahill cites a number of courts that referenced these rationales in upholding incest laws.  See, e.g., In re Tiffany Nicole M, 571 N.W.2d 872, 878 (Wisc. Ct. App. 1997) (citing both the possibility of “genetic mutation” and the need “to protect children from the abuse of parental authority”); State v. Kaiser, 663 P.2d 839. 843 (Wisc. Ct. App. 1983) (same).  McDonnell cites a related concern of preventing the family from becoming “oversexualized,” with family members viewing other members as potential sexual partners.  McDonnell, supra note 65, at 353.

[24] See Note, supra note 61 (developing this argument).

[25] See, e.g., State v. Thompson, 792 P.2d 1103 (Mont. 1990) (concluding that a high school principal who threatened to block a student’s graduation unless she consented to sexual intercourse could not be convicted of crime of “sexual intercourse without consent”).

[26] We recognize that some proponents of incest laws may be sincerely motivated by religious views or other comprehensive moral views, but those views, in a liberal society sensitive to the rights of minorities, are not necessarily views that a liberal criminal justice system must abide by.  We also recognize there is a important separate issue of whether any incestuous marriages should be permitted; our inclination is to say that it’s not the state’s role to determine which adults should be entitled to receive the privileges of marriage.  Nonetheless, our focus here is on decriminalization and we restrict our discussion to that.

[27] Note, 119 Harv. L. Rev. at 2468 n. 31 (“The likelihood that offspring of very closely related partners (parent-child and siblings) will have a genetic disease is about 13%, which is much greater than the likelihood that two strangers, with no family history of the disease, will have a child with such defects, which is 0.1%.  Two less closely related partners, such as first cousins, have a slightly greater than 3% chance of having a child with a genetic defect.”) (citations omitted).

[28] Note, supra note 64, at 2468

[29] As to how these concerns are addressed outside the criminal justice system, we are more ambivalent. We recognize that some might try to distinguish eugenics (which might be thought to perfect a given gene pool) from genetics- based fears about incest, which are trying to avoid harms to future humans, as opposed to perfecting them. The problem with this distinction is that it assumes a moral baseline of non-incestuous relationships; if a community had endorsed incestuous relationships historically, then efforts to ban such relationships would be viewed by that community as “eugenics” by virtue of the goal of trying to improve the general issue of the community.

[30] It is our view that current incest laws are not terribly effective in regulating adult-minor sex. To the extent that incest laws produce sentencing discounts to sexually abusive family members, the incest regime is complicit in extending a family ties “benefit” with no adequate justification for under-punishing those who sexually abuse their dependents. See Markel, Collins, & Leib, supra note 2. Additionally, one of us has argued previously that our current laws fail to protect children from adult predators adequately, see Collins, supra note 2.

[31] Professor Markel, for instance, holds the view that if someone aged fifteen to eighteen invites and chooses consensual relations with another person aged 15 or higher, then that person should be able to engage in that relationship provided certain (admittedly difficult) conditions are satisfied. For example, we could have a policy by which sex education courses would be a prerequisite for sexual activity in the same way that driver education in some jurisdictions is a prerequisite for permissible driving. On this view, all persons under 18 wishing to have sex without fear of prosecution would have to secure a sex-education license, which they could get from a variety of possible private or public sources. See Dan Markel, Is Teen Sex Like Teen Driving? The Uneasy Case for the Sex-Ed License, at  The education would foster awareness of pregnancy, birth control techniques, genetic risks, disease, and physical and psychological coercion. Additionally, even with such a sex-education license, adult-minor or minor-minor sex (regardless of consanguinity) would be presumptively or categorically prohibited when there is a relationship of asymmetrical dependence or co-habitation or supervisorial relationship in school, work, or extra-curricular activities. Last, in situations where there is a substantial age difference which could imply coercion, the relationship’s sexual turn would have to be declared in advance to a regulatory agency (or designated authorities) to certify that these conditions have been satisfied. Prosecution for statutory rape would be threatened in the absence of compliance. See also Dan Markel, Sex With Minors, Sex Between Minors, at; Dan Markel, Marriage of Minors, Marriage Between Minors, at

[32] Such laws would also reduce (though, admittedly, not eliminate) “intrafamilial sexual jealousies and rivalries.” Unfortunately, many kinds of jealousies and rivalries are endemic to family life and it is not entirely clear there is a good basis to single out some concerns for criminal law sanction as opposed to the myriad other ones that could erupt in a given context.

[33] See Note, supra note 64, at 2469-70(detailing the confusing pattern of incest laws).

[34] As discussed above in note 175, we could permit or require the factfinder to infer that coercion is present in certain circumstances: e.g., do the participants live in the same home together, does one person serve in a care-giving or supervisorial role to the other? But both those questions would cut across family status blood lines. Concerns about medical risks and pregnancy would be addressed through the use of a sex-ed license, which would help secure a safe harbor from prosecution.

[35] See Mahoney, supra note 63, at 28(describing how “community norms” are one of the rationales for incest legislation).  She also offers religious history and family welfare as potential justifications for incest bans. 

[36] Cf. Lawrence v. Texas, 539 U.S. at 599 (Scalia, J., dissenting) (noting that the liberty rationale for invalidating bans on same-sex sodomy statutes entails the invalidation of much other morals legislation including bans on consensual incestuous relationships).

Posted by Administrators on March 12, 2008 at 10:32 AM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib, Gender | Permalink | Comments (2) | TrackBack

Tuesday, March 11, 2008

Where Were the Feminists When Elizabeth Vargas was Mommy-Tracked?

Feminists are speaking out in droves regarding Hillary Clinton’s presidential bid. Her treatment by the media, opponents, and pundits is getting careful scrutiny from women’s advocates. That’s great. But the attention has caused me to re-focus on a question I had two years ago, which still bother me.

Where were the feminists when Elizabeth Vargas – brief holder of the “permanent” anchor position at ABC World News Tonight – had to give up her post upon becoming pregnant?

There are two important aspects to the story that beg for feminist scrutiny. First, Vargas left her position early in her pregnancy, and “voluntarily” chose not to come back to the anchor-chair after giving birth. Press-release pleasantries aside, it sure looks like mommy-tracking. This is an issue that is explicitly legal in nature, as it raises the prospect of colorable employment-discrimination claims under federal law. Where were the feminist law professors to lend this story a critical eye, forcing these concerns into the national consciousness?

The second facet of ABC’s maneuver begging feminist scrutiny is that Vargas’s downgrade came after her male co-anchor, Bob Woodruff, was sidelined following a severe head injury suffered in a roadside bombing in Iraq. The questions raised by this aspect are less legal than social, but deserving of examination nonetheless: Did ABC decide it could tolerate a woman in the anchor chair only if the feng shui on set was put into balance by a male presence?

[More after the jump ... ]

The three major-network anchor chairs are positions of enormous influence and power – arguably more significant – and I know I’ll get flak for this – than seats on the U.S. Supreme Court. While each justice gets only one of nine votes on the Court, each national anchor is one of only three people who deliver, and thereby shape, the national news for millions upon millions of Americans. Anchors generally wield considerable power over story selection and editing as well.

There are few people suited for anchoring the national news. Candidates need to be able to use disarming ebullience in one instant, and mass-casualty gravitas in the next. They have to project a sense that they could share a good-natured laugh with you over coffee, yet be your polestar in times of history-turning tragedy.

It’s a talent that NBC’s recent hire, Brian Williams, appears to lack. He would deliver the news of National Candy Day the same as he does for genocide: Punching. Three words. In every sentence.

Katie Couric, the new face of the CBS Evening News, also seems to lack the ability. After debuting to considerable fanfare, her sinking ratings quickly became tabloid fodder.

Virtually everyone who has done the national anchor job brilliantly has been male – Peter Jennings, Tom Brokaw, Walter Cronkite. Yet Vargas possessed the rare gift. Perhaps ABC could not overcome the image of a male anchor in their mind’s eye. But isn’t that why we have federal employment discrimination law? Too bad public intellectuals didn’t force America to confront the issue.

Posted by Eric E. Johnson on March 11, 2008 at 07:56 PM in Gender, Workplace Law | Permalink | Comments (5) | TrackBack

Analyzing Family Ties Burdens: A Framework

In two previous posts, Ethan, Jennifer Collins and I identified some practices that we characterize as family ties burdens.  Here, we present a normative framework for analyzing whether such penalties or burdens can be justified.  First, we quickly explain why we adopt a defendant-centered perspective in this project. Then, we revisit some of the costs of family ties benefits that we adumbrated and explored last year to see if any retain applicability in this new context of family ties burdens. Finally, we highlight the voluntary care-giving feature we see in the structure of family ties burdens, a feature which we think can serve as a guide for scrutinizing burdens more generally. Informed by this obscured but intelligible principle, we offer some thoughts on how to restructure family ties burden allocations within the criminal justice system.

A.            Why a Defendant-Centered Perspective?

We must bear in mind that evaluating a policy from the defendant’s perspective is important because it is after all the defendant whose liberty the state seeks to place in peril. The conduct rules at the core of this Article are aimed at defendants – and it seems necessary to analyze those conduct rules on their own terms.  After all, it is the defendants who are coerced; and the criminal justice system’s coercive nature is its most important feature demanding justification.

But we aren’t naïve.  There is more to say on the matter. In characterizing family ties burdens, we have focused exclusively upon burdens imposed upon de-fendants and potential defendants, even though it is often the case that someone within the family – or “the family” as a social institution – could potentially be described as benefitting from the “burden.” In other words, what appears to be a penalty on familial status in an individual case could be imposed as part of a strat-egy to confer benefits to the social institution of the family as a whole.  For in-stance, the recent criminalization of nonpayment of child support looks like a “family ties burden” in the sense we defined it earlier.  That’s because, as a general matter, failure to pay debt is not a reason for criminal punishment.  Indeed, other legal mechanisms exist to help debtors, most prominently, bankruptcy.  But now, failure to pay child support, which is a form of debt, is a basis in many jurisdictions for criminal punishment.  Thus, failures to meet some kinds of intra-familial financial obligations are now penalized much more harshly than the failure to meet other financial obligations. That definitely creates a burden on a defendant, at least as we defined it earlier. Indeed, in some cases, the burden imposed on the defendant is also a burden on those whom it is allegedly supposed to help. Thus, for example, a woman whose ex-spouse is jailed for failure to pay child support may object on the ground that this burden imposes a terrible tax on her family as well as on the defendant, in that it reduces the ability of her children’s father to play any kind of meaningful role in their lives.  Thus, many of the practices we have described in Part I powerfully affect family interests beyond those of just the defendant.

Characterizing these practices as “burdens” might be further questioned if we alter the lens through which we are looking at the problem. The point of the recent criminalization efforts may be aimed at effecting the consilience of family life, in other words, keeping more families together by raising the costs of divorce.  If this is the purpose, the policy of criminalizing non-payment of child support might provide a benefit to both the offender and the institution of the family overall    

Indeed, the same frame might plausibly be applied to some of the other family ties burden we have discussed.  Consider the prohibitions upon incest and the creation of liability based on omissions and vicarious liability.  Even though all these practices impose a “penalty” on an offender on account of his familial status, these practices are arguably designed to facilitate a legal atmosphere conducive to the successful raising of children.  Accordingly, throughout our inquiry into a particular burden, we will have to focus careful attention upon whether it can legitimately be conceived as such from a more general sociological standpoint.  Although we feel justified in taking our “defendant-centered” approach to identifying burdens, when it comes to scrutinizing their ultimate justifications, some broader discussion of their sociological achievements will be necessary.  Yet our plan in what is to come is not to analyze any particular family ties burden exhaustively; we will feel satisfied if we can help others think about them differ-ently, focusing on underappreciated costs and underanalyzed alternatives to their design. 

These criminal liabilities or enhanced penalties might have different rationales too – aside from simply extending all-things-considered benefits to family life.  First, the various burdens placed on offenders may reflect imperfect or indirect choices of decision-makers in the criminal justice system to enhance distinctive criminal justice goals such as deterrence or retribution.  For example, having heightened penalties for certain incestuous relationships might be a way the state tries to compensate for the difficulty of getting incest victims to report their status as victims.  Heightened penalties are a plausible way of achieving greater deterrence in certain contexts where there is less likelihood of a victim coming forward.

Alternatively, the state legislature may be using the criminal justice system to communicate to offenders the value that when one commits a crime against certain family members, one is even more worthy of reproach and condemnation. In this respect, the penalties might be thought to advance the criminal justice system’s educative, expressivist, or norm-projection purposes, by revealing society’s deep values: that attacks upon, or neglect of, one’s family members are worse than attacks upon, or neglect of, non-family members because of the additional breach of trust that a caregiver signals when opting into a relationship of care-giving. If heightened penalties attach in the context of crimes against victims with whom one has opted-into a relationship of care-giving, then increased penalties might be justifiable because the offense (or omission) with respect to that particular victim is worse: when you hurt or fail to protect someone whom you’ve already signaled to society that you will care for, then one might plausibly say there is an extra wrong (a breach of an implicit or explicit promise) that has been committed. Or, as we suggest below, you’ve committed a different wrong, by lulling others into a false sense of security from which they fail to help the person in question.

A distinct but related idea is that these apparent penalties serve other legitimate social goals of the state that have little to do with deterrence or retribution or even the vitality of family life.  On this view, it might be that penalties imposed on the basis of familial connections to the crime stand to serve other purposes that, in fact, directly benefit the state.  For instance, the legislature might believe that imposing impediments to even consensual incest between adult siblings is important for reducing the prospects of increased social expenditures on food stamps and medical care, because they assume that incestuous relationships will be procreative of offspring who are more likely to require subsidized medical support.   Again, here, we will have to weigh very carefully these purported benefits in any one instance: if they serve compelling interests, perhaps discrimination on the basis of family status is justifiable.  But these compelling interests cannot be assessed in the abstract and must be pursued in the specific context of each burden, an analysis we undertake in the next Part.

Here we simply wish to reiterate that we don’t deny that one could reframe the inquiry to reflect how the criminal justice system seeks to promote “family values.” But in light of the fact that our work last year looked at the benefits the criminal justice system extends to defendants based on family status, we don’t think there is something inherently biased when we look at the burdens placed on family ties here.  Thus, to our minds, the inquiry at the core of this article is an essential one, and we can learn something important by asking three questions: what goals are we trying to advance when we impose a family ties burden on an individual for the conduct in question; second, does the sanction create benefits that can be more fairly distributed; third, does the sanction trigger unjust consequences that could be ameliorated through more careful drafting or revision?

B.                            Revisiting the Costs of Family Ties Benefits

                Given the various benefits and privileges afforded on account of family ties with which we concerned ourselves last year, it might be thought that the burdens more generally help to balance out this discriminatory treatment pervasive within the criminal justice system.  There is undoubtedly some force to the intuition that benefits and burdens might help balance each other out, or that both might serve a similar “protective” function.  But this analysis cannot be generalized too quickly. Consider: how do sentencing discounts for those with family ties and responsibili-ties (a benefit we examined in our framework last year) rest consistently with criminalizing those engaged in non-payment of child support or adultery or po-lygamy? The former is protective of family care-giving functions from a defen-dant’s perspective once he’s been accused while the others can be deemed “pro-tective” of such functions only from an ex ante perspective—before someone knows he’s going to commit that crime, because once the conduct in question has occurred, the care-giving potential of the defendant is impaired. Viewed together, these benefits and burdens are in tension. Moreover, since legislatures and scholars have not looked at these benefits and burdens systematically as designed to be off-setting, critical and independent analysis is warranted.

When we took to analyzing family ties benefits previously, we scrutinized the plausible justifications for getting the state to help the family. As before, it is critical to appreciate how the family both molds the individual and reduces the states’ burdens. Indeed, without repeating our views unnecessarily, we recognize that the institution of the family helps create and fashion our individual identities, our “historical,”  “constitutive”  or “situated”  selves that simply and utterly depend heavily on our families and our familial associations for survival and sus-tenance. 

Moreover, since the state either cannot or will not live in accordance with what Plato’s Republic idealizes for the Guardian class – no private families with all children being held in common  – the state needs to keep families together and solvent.  The state can draw from the rich panoply of resources naturally furnished and expended by the family in creating good citizens.  By giving families special support, the state can economize on expenditures that it would otherwise be forced to bear in educating its citizenry and preparing its members to contribute to the stability and flourishing of the regime. 

This is a crude way of thinking about the matter, to be sure.  But it is one that must have a grain of truth: the state simply cannot afford to provide all the services families routinely provide relatively efficiently and effectively, so it “subcontracts” such work to the family – and “pays” it accordingly.  Families will not be able to provide care services completely for free – and can rightfully demand that the state (which is parasitically living off of its successes) subsidize the hard work of helping children “take their place as responsible, self-governing members of society.”   The state helps itself when it subcontracts cheaply the “formative project of fostering the capacities for democratic and personal self-government”  – and leaves it in generally reliable hands.               Despite the recognition the family’s care-giving role properly warrants, and the risk states incur of irrelevance and illegitimacy when they fail to treat persons as constituted selves, we ultimately concluded that general arguments rooted in communitarian political theory were insufficient to underwrite special treatment of the family in the criminal justice system. In particular we noted how these benefits on account of familial status cause risks of inequality, gender bias, inaccuracy, and more crime. Consequently, we expressed hesitation and skepticism toward the benefits distributed on the basis of family status throughout the criminal justice system. It is, after all, a most basic liberal principle that punishment be meted fairly and accurately, without fear or favor for those of different status.

These reasons for our skepticism toward the distribution of family ties benefits inform our approach to thinking about family ties burdens. Specifically, we must address whether and to what degree the normative considerations we identified earlier in connection with families ties benefits – patriarchal domination and gender bias, inaccuracy, inequality, and crime-creation – apply in the context of family ties burdens. 

It is easy to see relatively quickly that two of these considerations – crime-creation and inaccuracy – are mostly inapplicable in the context of family ties burdens.  In other words, unlike family ties benefits, family ties burdens rarely trigger concerns that they will create more misconduct or impede the accurate prosecution of the guilty and the exoneration of the innocent.   Although it may be possible that these two costs will be implicated by a hypothetical burden which we haven’t identified here, we do not see them as generally applicable in the case of burdens and do not think it would be appropriate to criticize family ties burdens along these dimensions, as was justified generally in the case of family ties benefits. 

But two of the normative considerations that we identified earlier do seem generally relevant when analyzing family ties burdens: inequality (and its relationship to morally arbitrary discrimination) and gender bias.  Notice that although inequality and gendered effects of a neutrally-drawn criminal justice regu-lation would not come within the ambit of our discussion – for family ties burdens as we define them must facially discriminate against family status – they are normatively relevant effects in judging the viability of any particular burden.  So even though omissions liability, bigamy, and nonpayment of child support law are, for example, written in gender neutral terms, once they are identified as facially discriminatory against family members, it’s appropriate to ask whether they have effects that reinforce gender stereotypes.

1.            Inequality and Discrimination

                                                In many contexts, burdens risk treating similar conduct unequally – and affirmative discrimination against the family is hard to justify.  For example, incest prohibitions affecting consensual sexual relations among adults restrict liberties that would otherwise be unregulated and generally protected.  Non-payment of a debt becomes a criminal offense in one context (child support) while it remains a civil action in most others (e.g., bankruptcy).  Although it is obvious through the exaction of burdens that we are often seeking to have family members take special precautionary measures to protect vulnerable potential victims, the tool of punishing on the basis of familial status alone is surely worth scrutinizing more carefully, since it does implicate norms of equality and nondiscrimination that a liberal criminal justice system should embrace.   

                                                Indeed, as a general matter – and in ways we will expand upon presently -- we tend to think that targeting familial status is an overinclusive and underinclusive approach to achieving sound policy objectives.  It may make sense for the criminal justice system to try to protect our most vulnerable members of society; but many types of citizens are vulnerable and targeting the family is not a rational or remotely narrowly tailored means to achieving that objective.  Nothing about estranged family members, for example, necessarily renders them especially vulnerable to one another to justify the imposition of special burdens upon offenders and potential offenders. Thus, family ties burdens could be overbroad if they penalized, say, estranged siblings with omissions or vicarious liability. By contrast, many vulnerable citizens warrant protections that the criminal law currently and irrationally renders unavailable, such as the families of same-sex couples; thus family ties burdens that don’t protect people who would agree to such protection and such burdens ex ante, should be reconfigured to promote the underlying value of voluntary care-giving relationships.

                2.                            Gender Bias

                Imposing a burden or penalty on an individual in the criminal justice system solely on the basis of family ties enmeshes the state in an expressly normative dispute over who counts as family and who does not.  And the position the state takes is one that is not merely conventional: it also threatens to promote a discriminatory and gendered set of policies.  Thus, as alluded to above, in the context of family ties burdens, large numbers of persons who might (justifiably, in our view) see themselves as entitled to benefit from the imposition of family burdens (and family ties benefits, of course) are excluded. When the state makes choices regarding families, it risks marginalizing persons who consider themselves family members but are not recognized as such by the state. In this sense, use of the family as traditionally delineated is an under-inclusive (and at times, over-inclusive) mechanism to distribute the tangible and expressive benefits conferred by the criminal law when it targets persons with unusual treatment on account of familial status.

                More, in certain circumstances, family ties burdens are used in ways that reinforce gender stereotypes.  Although routinely drafted in gender-neutral terms, many family ties burdens raise substantial questions about policing gender relations more broadly – and once a burden is identified, it seems to be fair game to analyze whether the burden is contributing to gender bias more systematically.  We think that omissions liability, bigamy, and nonpayment of child support all show this pattern.

C.            Uncovering a Structure of Family Ties Burdens: Voluntary Care-giving

Many of the family ties burdens we find in the law – omissions liability, vicarious liability, bigamy, adultery, non-payment of child support – reflect a pat-tern that, to our mind, hasn’t been sufficiently emphasized.  This pattern suggests an internal structure critical to rethinking family ties burdens in our criminal justice system. Specifically, most burdens that exist occur in the context of relationships that have a voluntary or “opt-in” nature, meaning that the individual who faces the burden imposed by the criminal justice system has consensually entered into the relationship that serves as the basis of potential subsequent liability for doing or forbearing from actions that would otherwise be lawful.  Some applications of incest prohibitions break out of this pattern, to be sure. But if you were to look at the dominant practices with respect to family ties burdens, they are imposed on defendants in two kinds of relationships: spouse to spouse and parent to child.

Though we don’t see this pattern as itself authoritative, we do think it can be justified and illuminating in various ways. First, when family ties burdens are limited to relationships reflecting this voluntary nature, we find the imposition of these burdens more attractive. The voluntary nature at the heart of these obligations takes at least some of the bite out of the charge of discrimination: if parties freely choose relationships that themselves trigger liability after fair notice, liability on the basis of family status seems more defensible, at least up to a point. That’s because there’s a basic trade-off going on: if you want to take advantage of the ways in which society privileges building family relationships through institutions of distributive justice (say, through tax credits), then you need to be aware that society is placing greater burdens on you to ensure you assume your care-giving responsibilities. By contrast, extending family ties benefits only to those who have opted in to relationships of care-giving seems to discriminate more against those who are deprived of the opportunity to develop those relationships of care-giving. In other words, not everyone can choose (or wants to choose) to marry or procreate—and those who do not make this value-neutral choice should generally not be treated disfavorably by the criminal justice system. 

To be sure, voluntary relations can be fuzzy at the margins:  Have we really chosen our in-laws even if they have not chosen us?  Have we always really chosen to have children, when a pregnancy is the result of failed birth control methods?  Still, we think the relatively easy cases of spouse and parent-child help expose an important insight about appropriate burden distribution: that they generally seem more palatable in the context of voluntary relationships of care-giving.

Why should voluntariness matter?  For one thing, restricting the imposition of family ties burdens to those who choose to bear them is a way of respecting one’s autonomy; if we forced all sorts of obligations on family members who didn’t choose to enter a relationship of care with someone, we’d be impinging on their reasonable liberty interests. 

Additionally, the special obligations some family ties burdens impose can be understood in terms of signaling theory.  On this view, family ties burdens are appropriately imposed on someone who has voluntarily entered into and maintained a relationship because by their consent to that relationship they are signaling to others that they are going to be “first responders;” society can then trust them to look after the people with whom they have created a covenant of care-giving. The germ of this idea appears in omissions liability/duty to rescue law. 

Generally, in the absence of a contractual basis, one doesn’t labor under a duty to rescue other people.   But there are widely acknowledged limits to this no-duty principle. For instance, if Alice is walking by the beach and sees Charlie drowning, and then waves off Bob, who was also on his way to rescue Charlie, Alice is now under a special obligation to go rescue Charlie. She can’t just walk away at that point absent special justification  (like a new threat to her life).  The actions of marrying or parenting can be interpreted to be creating similar statements about responsibility. When a person enters into a covenant of care in the form of marriage or parenting, she is telling society that she will be a “first responder” to the person with whom she’s covenanting when that person is in danger.

It follows, we believe, that if voluntariness matters, then a “family ties burden” should not be placed on someone who has had a familial status imposed upon him. Consider siblings.  Almost no child freely chooses whether or not to have a sibling; that decision is generally left up to his parents. Unsurprisingly, the law ordinarily does not impose special obligations upon an individual to take or face risks on a sibling’s behalf. Other family relations fall into the same category; almost no one freely chooses whether or not to have an aunt, uncle or cousin – and when people do take on an unrelated aunt or uncle, the law generally ignores that status.

By this logic, it seems clear that some family relationships are involuntary in the sense that they were not deliberately entered into by the relevant parties.  The more difficult question is whether there are family relationships that are in fact truly voluntary. At first blush, the most obvious example of a voluntary relationship would seem to be that of spouses – it is certainly true for most cultures in this country that no one is forced to marry, and individuals may freely choose their own partner. To be sure, some human trafficking victims are coerced into marriage, but that is an instance of legal wrongdoing, not an instantiation of what we think to be marriage’s nature. Thus, although some have argued that social and economic forces render marriage compulsory,  we think such conclusions are generally unpersuasive.  Certainly, there is strong social and economic pressure to marry; but this doesn’t vitiate the kind of voluntariness that can render people’s decisions their own for the purposes of being responsible to take on burdens and benefits. Current government policies and social norms undoubtedly reward an individual’s decision to marry, but these rewards nonetheless stop far short of compelling an individual to do so. By the same token, some government policies and social norms also prevent an individual from marrying a person of his or her choice, and that, to our mind, is an undue intrusion of the state, since it denies opportunities and expressive benefits on grounds we find morally irrelevant.

As to the parent-child relationship, we see this relationship as generally a voluntary one (whatever pressures exist to reproduce).  A mother who does not wish to parent is legally free to use very reliable birth control methods – and she may terminate her pregnancy or place a child up for adoption. To be sure, there are complications with this general observation:   Most obviously, fathers have long been held by courts to be forced to parent against their will in the sense that they are subject to child support obligations even if they take affirmative steps to avoid fatherhood.  Still, for the most part, these complications are indicative of the exceptions, not the general case. Most parents want and choose their children.  This is not to say that the laws that attach to parents as family ties burdens are always justified.  Rather, the fact that these relationships are usually voluntary helps us understand the underlying structure of burden allocation by the criminal justice system.

D.            Overcoming Family Status through a Focus on Voluntary Care-Giving

Notwithstanding the ambiguities that might attach in particular situations regarding whether a familial relationship is voluntary, using voluntariness, rather than familial status, as a basis for distributing these kinds of obligations is initially quite attractive. Indeed, using voluntariness as a criterion helps us solve the under- and over-inclusive problem that family status alone triggers. Importantly, it allows us to encompass those who view themselves as obligated to others through their own actions regardless of the delineations of an “acceptable” family established by the state. Thus, same-sex partners, unmarried heterosexual partners, grandparents caring for extended family members, even platonic or polyamorous friends living together in a committed care-giving relationship—all of these people are engaged in voluntary relationships who may both want and deserve the protections and expressive benefits of burdens solely allocated on the basis of family ties in our current policy environment.

But is voluntariness alone sufficient? How do we go about limiting the ex-tension of such burdens that the state is expected to prosecute with its criminal justice resources? Can a child choose his third closest friend from kindergarten as the person to whom he owes a special obligation of protection?  If she does, should scarce criminal justice resources be used for these purposes?  We need answers, in other words, for both who decides and by what criteria that a particular relationship should be deemed a voluntary relationship in which the party is willing to assume obligations toward another. Moreover, we also need answers to whether an obligation can be imposed even in the absence of a voluntary relationship.

In our view, voluntariness as a stand-alone criterion is insufficient for as-sessing whether it is just and attractive to impose or enhance criminal penalties on the basis of a relationship. We suggest that voluntariness be used in conjunction with whether the relationship exhibits a relationship of care-giving.  Our sense is that many sorts of people assume these care-giving roles and not all of them are familial in nature.  Roommates, for example, might choose to adopt an ethos of mutual care over a period of time. If that relationship is freely entered into and maintained, we don’t see why they shouldn’t be able to enter into the compacts of care that characterize spousal or parental relationships.   Thus, if we are going to be recognizing care-giving responsibilities they should not be restricted to ones that are familial. 

That said, we do think one’s familial status qua spouse or parent to a child may be presumptively used to establish that the relationship involves voluntarism and care-giving. After all, one almost always chooses their spouses and having children is also a choice, generally speaking. The presumption in other relationships would not attach but the connection of care-giving could be established by other evidence.  In the end, then, familial status as such would be neither necessary nor sufficient to justify a “family ties burden.” For, in our scheme, even a parent might be able to rebut assignments of family ties burdens when the child lives far away with grandparents or with one parent and a step-parent.

That raises the question of whether voluntary assumptions of responsibility can ever be terminated.  Imagine that after years of enduring abuse, one has lost all affection for one’s spouse.  Still, the law still places a burden of omissions liability on the reluctant spouse.  What is to be done?  Or imagine giving up one’s biological child to a friend across the country because money is tight.  Should the biological parent be punished on account of family status under vicarious liability laws?

In the context of married couples, divorce would be the appropriate way to signal an opting-out of the special duties of marriage.  And in the context of the parent giving up his or her child to friends across the country, termination of pa-rental rights is the way to opt out of the special duties of parenthood.  But it isn’t obvious to us that these potentially costly signaling mechanisms should be the only ways to break the covenants that trigger the special responsibilities of voluntary care-giving.  Although for the average dyad (whether parent-child or spouse-spouse), the legal opt-out might not be unduly burdensome, there certainly will be cases when it seems very unfair to require divorce or termination; perhaps in ex-ceptional circumstances parties to these special relationships ought to be able to show that they should be deemed “equitably” divorced or terminated for the pur-poses of the family ties burdens.  One way to determine the bona fides of these parties is to see whether they have tried to capture family ties benefits through either the criminal or the civil system (say by claiming a dependent for tax purposes); in such situations, we can envision the very rare case when parties should be saved the pain and cost of an official divorce and termination.

Spousal relationships, however, should not be treated the same as parents’ obligations toward their children. After all, minor children cannot avoid their own vulnerability.   Thus, although letting spouses opt out in their adulthood doesn’t generally offend a sense of fair play, letting parents ditch their vulnerable children without their consent (for minors can’t always consent) quite centrally violates the most basic tenets of what many think parents owe their children.   But that is just another way of specifying why allowing parental opt out without termination should be even rarer than allowing spousal opt-out without divorce.  Nevertheless, just because it should be rare doesn’t mean it must be categorically proscribed.  Indeed, if we are right that voluntary care-giving underwrites and furnishes justificatory principles for status-based burdens in the criminal justice system, we should seek ways to narrowly tailor the family ties burdens to capture only the right kinds of offenders.  If we had to give up our children to good friends for several years because of illness or incapacitation, for example, it would seem sensible, at least to some, to enable one to opt-out of certain special parental duties short of terminating one’s parental rights. But all things considered, that should be a high bar to surmount; the obligation to raise a child should not be blithely compared to joining a bridge league.

For most other relationships outside of child-rearing, however, we think a registry could be created in which people opt-in and opt-out of relationships of care-giving so long as they provide notice to and secure consent from the affected parties.  This strategy would allow adults to select a discrete number of additional persons eligible for receiving the adult’s responsibility.  If unrelated roommates wanted to sign up they could do so, signaling commitments of care for each other, to each other, and to those around them.

To be sure, there is something cheaply administrable when the law selects simply a few family status relationships instead of having to create a registry for relationships of voluntary care-giving. But it does not seem that much more difficult to use a registry of the sort we describe,  especially when it lends promise to the prospect of all sorts of people pledging their hearts and sense of obligation to others around them. Moreover, as alluded to above, the administrability of this system can be rather cheaply achieved by requiring that spouses and children occupy a special role with respect to family ties burdens—i.e., certain duties can be imposed on parents and spouses to ensure they meet the responsibilities they agreed to when they volunteer to be a spouse or parent.  Our registry network, in other words, would supplement the core relationships of spousal and parental obligation, not supplant it.

In short, adopting a quasi-voluntarist approach to burden distribution in the criminal justice system harmonizes well with what we think the system appears to seek for itself, albeit imperfectly.  Moreover, it might provide for a better intellectual fit with the competing interests in promoting freedom and autonomy, which is thought by many to undergird the no-duty-to-rescue pattern of law.   Additionally, the difficulties associated with the under and over-inclusive nature of family status can be remedied in large measure by use of a registry where one can declare who counts within one’s sphere of accepted responsibility for the purpose of some of the crimes discussed here. This would strengthen voluntary assumptions of care-giving responsibilities (of which the family is sometimes a great example) rather than rely upon inflexible categories based upon antiquarian notions of status.

E.            Bringing It Together: How To Scrutinize a Family Ties Burden

                                In light of all these various considerations, we propose that family ties burdens – whether the ones we described in Part I or some others that might be contemplated – undergo scrutiny, using a set of normative speed-bumps designed to track our discussion here. Our general approach in light of the foregoing is that special criminal justice burdens based on familial status alone require extra justification. Perhaps unsurprisingly, just as we exhibited a tendency to be skeptical toward particular benefits afforded to the family in the criminal justice system in our Article last year, we are also inclined to protect individuals from penalties or burdens based simply on familial status.  However, because we are sensitive to the care-giving contributions that might stand in need of special protection from the state, we believe that many of the concerns people might have about abandoning family ties burdens can be addressed instead through careful drafting that substitutes attentiveness to voluntary relationships of care-giving in the place of familial status alone. In the context of family ties benefits, we were more skeptical to them be-cause of the costs they imposed on the criminal justice system, even if they were re-drafted in a way that was somewhat neutral to family status. Re-drafting along family-neutral grounds was, for us, a decidedly second-best alternative in those cases where the criminal justice system’s commitments to equality and accuracy were impeded. But in the context of burdens, as we will see, most of these costs are either not triggered or, if they are, they are substantially ameliorated when drafted along terms that respect voluntary care-giving rather than family status alone.

                Thus our skepticism toward family ties burdens does not entail eliminating all such burdens. Instead, we propose that such burdens undergo a set of searching inquiries. 

                First, we propose that those seeking to impose a burden on someone in the criminal justice system on account of that person’s familial status should ask: to what extent does the family ties burden in question trigger concerns about gender bias or inequality and arbitrary discrimination — the normative costs of family ties benefits that retain applicability in the family ties burden context? (If there are concerns about accuracy or crime-creation, then those too should also be weighed. )  But if the burden was not imposed only on individuals based on their family status, it is not a family ties burden in the sense we mean, even if the policy ends up substantially hurting those with families.

                Second, assuming the burden implicates one or more of these concerns, to what extent does the penalty or liability vindicate a compelling state interest that justifies the use of the burden in the criminal justice system? In other words, given the disruption the burden promises to wreak on other values (like, say, nondiscrimination, autonomy, liberty, and equality), what are the countervailing benefits promised by its imposition?

                Finally, and most critically important, we must ask whether there are other less troubling means — means that can be crafted in terms that are neutral (or more neutral) to family status — available to protect the interest underlying the burden? In situations where the case in favor of the family ties burden appears to make sense, we argue that the family ties burden should not be imposed on the basis of traditional familial status, but rather on the basis of care-giving relationships of autonomous choice. Thus, burdens that are imposed on spouses or parents for the crimes of their spouses or children may be permissible, but burdens placed on individuals on account of crimes committed by their siblings (absent special circumstances or voluntary acquiescence) would be inappropriate.  This will undoubtedly leave some questions open at the margin – but we can live with some indeterminacy, especially once we announce a more specialized focus on voluntary relationships of care-giving. 

This kind of scrutiny will not, to be sure, resolve all questions; inevitably disputes about the strength of competing claims will persist.  But, as we hope we achieved last year in our systematic inquiry into family ties benefits, we hope to do some important work in helping clarify the problems under consideration and alerting lawyers, policymakers, and judges to some of the potentially hidden costs of family ties burdens in the criminal justice system.

Posted by Administrators on March 11, 2008 at 10:24 AM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib, Gender | Permalink | Comments (0) | TrackBack

Monday, March 10, 2008

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, 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.

Posted by Administrators on March 10, 2008 at 10:17 AM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib, Gender | Permalink | Comments (0) | TrackBack

Friday, February 29, 2008

Punishing Family Status: Some Examples (Part I)

Yesterday, I posted the introduction to a working draft of a paper, Punishing Family Status, by Ethan, Jennifer Collins and myself.  Today we provide the first half of an overview of places within the criminal justice system where defendants are burdened in some way on account of their family status.  I should note that what's below is not intended to be comprehensive; for instance, we have very recently come across some statutes that make it a crime for persons to not support their parents--filial responsibility statutes. We don't discuss these statutes in the paper below, but we plan on discussing them more in our book version of the project.  Of course, if you have any thoughts about other criminal laws that should fit into our analysis described below, please let us know via email. Please excuse any formatting errors that might arise in the reproduction here--and note that we have omitted our footnotes here.



Certain crimes permit prosecution of a defendant for conduct that would not otherwise be unlawful in the absence of a defendant’s familial connection to the crime. Examples include certain vicarious and omissions liability statutes, incest, bigamy, adultery and nonpayment of child support. Thus, to illustrate, incest statutes proscribe sexual conduct even between mature, consenting individuals, and other statutes impose criminal liability for the nonpayment of child support, even though we do not ordinarily criminalize a failure to satisfy a debt. In all of these examples, the familial status alters the blameworthiness the criminal justice system assigns to the underlying conduct. We examine these kinds of crimes in turn. Although these examples are not necessarily exhaustive, we believe they are the most frequently found examples of the criminal justice system’s decision to criminalize certain conduct on the basis of family status.


A. Omissions Liability


In June 2002, a 21 year-old mother named Shavon Greene was charged with aggravated manslaughter after her boyfriend allegedly beat her 21 month-old daughter to death. The prosecutor did not allege that Greene was even present during the beating; instead, she was charged because she had disregarded warnings from a social services investigator not to leave the child alone with her boyfriend. Greene eventually pled guilty to culpable negligence in the child’s death.

 At a high level of generality, the dominant rule in American criminal justice (as well as tort law) systems remains that citizens are under no obligation to rescue each other. In other words, even if the failure to act to help another person in distress would constitute a moral failing, the criminal justice system does not generally impose liability on those who simply keep on walking.

The exceptions to the general rule are well-known, though the prospect of criminal law enforcement of an exceptional duty to rescue is much more unusual than tort law enforcement. As the D.C. Circuit stated in Jones v. United States: 

There are at least four situations in which the failure to act may constitute breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntary assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

It is the second category that is of special interest here, for the status of husband to wife and parent to child are paradigmatic, even if not exclusive, examples of status relationships in which one owes a duty to rescue sufficient to trigger criminal responsibility (rather than mere tort liability). Accordingly, parents are regularly held criminally liable for neglect for failing to protect a child who was being sexually abused by another individual, and held criminally liable for manslaughter for failing to protect a child from fatal physical abuse inflicted by another. These prosecutions exemplify the family ties burden phenomenon by which persons in certain family relationships are held accountable for harms to others even when those harms are inflicted by another independent actor.

  Not surprisingly, such prosecutions have been hotly debated by the legal academy. Some of the debate has revolved around whether the passive parent should be entitled to argue that her status as a battered person herself should excuse her failure to act. Perhaps the most highly publicized case in this regard involved Lisa Steinberg, who was beaten to death by her father while her mother, Hedda Nussbaum, allegedly did nothing to prevent the abuse. After Nussbaum established that she too had suffered serious physical abuse at the hands of Joel Steinberg, the prosecutor’s office elected to drop charges initially filed against her.

What are the problems with failure to prevent abuse prosecutions? First, critics charge that such prosecutions disproportionately target women. Indeed, women are more likely to bear the brunt of such prosecutions than men simply by virtue of the fact they are more often the custodial parent. Further, women are typically held to a higher standard of care in childrearing relative to men. As Naomi Cahn and Marie Ashe have argued, “Cultural middle-class norms expect all women to be primarily responsible for their children. The criminal justice system supports this norm by criminalizing the abusive and neglectful behavior of parents, penalizing mothers particularly harshly.”  But supporters of prosecutions of passive parents counter that even a parent’s status as a victim of domestic violence cannot categorically excuse her failure to act to prevent the abuse of her child. For example, Mary Becker has suggested that “mothers, even when abused themselves, should be held to a high standard of care for their children and should normally be held responsible for their own abuse or neglect of their children and for failing to protect their children from others’ abuse and neglect, provided that they knew or had reason to know of the harm to their children.” That’s because even though the mother may have been weakened physically or mentally by virtue of the abuse she has suffered, unless she is “literally a hostage,” she still has options to employ in an attempt to protect her child that are not available to the child itself; young children, after all, are utterly defenseless and completely dependent upon adults for their protection.


B. Vicarious Liability

  In St. Clair Shores, Michigan, Susan and Anthony Provenzino were charged with a misdemeanor for failing to “exercise reasonable control” over their sixteen year-old son. Alex Provenzino had committed a number of crimes, including burglarizing churches and homes and attacking his father with a golf club. Despite knowledge of some of his burglaries, the Provenzinos had supported Alex’s release from juvenile custody, after which he continued to commit crimes. The jury convicted the Provenzinos after just fifteen minutes of deliberation. The parents were each fined $100 and ordered to pay $2000 in court costs.


In the civil justice system (rather than in criminal justice), courts will sometimes hold a defendant (like an employer) liable for compensatory damages to an injured party even if the employer is not personally at fault for his employee’s misconduct. It’s often thought that such vicarious liability can be justified because if an innocent enterprise is made to recompense the victim, the enterprise can more easily absorb the cost of the tort and pass on the cost to consumers, which has the effect of minimizing burdens on any single tort victim. This rationale for vicarious liability erodes, however, when the liability leads to a criminal penalty against an individual rather than a civil payment for compensatory damages. After all, in the context of fines, the victim is not being paid; rather the state is. And the defendant is not being forced to merely pay for harm; the defendant is being condemned through punishment for wrongdoing that someone else committed even if the defendant was unaware of and did not participate in the wrongdoing and even if the defendant instructed the wrongdoer that such misconduct was forbidden.

Despite this disjunction between rationale and scope, jurisdictions regularly impose vicarious criminal liability. We sometimes see vicarious criminal liability in the context of public welfare offenses to ensure public health and safety. We also see vicarious liability in the context of the crime of conspiracy; co-conspirators have been held liable for substantive crimes committed by another member of the conspiracy, through the Pinkerton doctrine, even if not present at the scene of that crime or aware of the crime’s commission. These efforts are controversial and have been subject to substantial criticism.

But in the family context, we have seen the envelope of vicarious liability pushed even further. In the Pinkerton scenario, for example, some precursors for liability are that the actor commit the criminal act of joining the conspiracy and that the additional crime at issue be committed in furtherance of the conspiracy and be reasonably foreseeable. But when it comes to family members, we are seeing efforts to impose liability in the complete absence of criminal conduct by the parents.. Although such efforts have a long history, there has been a new spate of such laws in recent years. In the last year, for example, a Cleveland suburb adopted an ordinance holding parents criminally liable if their children are charged with a crime; a third conviction under the statute could result in parents serving 180 days in jail. Although an Ohio court recently ruled the Cleveland ordinance unconstitutional, it remains true that the renewed enthusiasm for vicarious parental liability commands attention. One community in Alabama recently proposed that parents be held criminally liable when minors consume alcohol in their homes, even if the parent had no knowledge at all that the alcohol was being consumed.

  According to one commentator, criminal parental liability statutes fall into four categories. “The first two categories, truancy and curfew laws, generally impose criminal liability on a parent who knowingly allows his or her child to commit acts (staying out past an established curfew; not attending school) which would not be criminal if committed by an adult.” The third category, “contributing statutes,” impose liability on parents, or potentially any adult, who affirmatively contributes to the delinquency of a minor for, by example, “sending a child to a brothel” or providing a weapon.

The fourth category is the most controversial and is exemplified by the Cleveland ordinance referenced above – statutes that in essence convict parents for crimes committed by their children, or even for “unsavory activities engaged in by children,” on a “failure to supervise” theory or the like. For example, Louisiana has a statute subjecting parents to up to six months’ imprisonment for permitting an unlicensed minor driver to drive a vehicle if the minor ends up involved in an accident that resulted in death or serious bodily injury to another person. The statute also makes it a crime for a parent, “through criminal negligence,” to permit “the minor to associate with a person known by the parent” to be a gang member, a convicted felon, or a drug dealer or user. A parent convicted under this particular provision faces up to thirty days in a jail and a $250 fine. The statute allows a parent to escape liability under these latter provisions if they sought assistance from various agencies in modifying the child’s behavior or if they referred “the child to appropriate treatment or corrective facilities.”

There are two separate inquiries related to these legislative efforts: First, are they likely to be effective at reducing the incidence of crime by minors? Second, even if effective, is it just to hold parents liable for crimes committed by their children? Professor Dan Filler suggests that such statutes could be effective if the consequences for violation were sufficiently severe and certain, although of course we might not be willing to live with stakes of such high magnitude. For example, if parents whose children threw an alcohol-filled party for their friends faced a felony conviction and a lengthy jail term, most reasonable parents would quickly “lock up the booze and perhaps install a nanny-cam to monitor the house.” It is also important to note that these statutes are only likely to be effective if they are enforced more than just occasionally; even though these statutes are on the books in a number of states, criminal prosecutions remain relatively rare. Still, there have been some high-profile prosecutions, including the St. Clair prosecution discussed above.

But even if these statutes were made effective, would it be just to use them against parents? Support for these statutes is apparently motivated by the belief that “poor parenting” is a root cause of much of the juvenile crime in this country. As one family outreach worker exclaimed, “We have an adult problem, not a children problem . . . If we can get our adults together, the children will naturally fall in line.” One commentator has suggested that that “the rationale behind the parental liability laws – punishing the parents to reduce acts of juvenile delinquency by their children – must be based on a series of interconnected assumptions:” first, that the nature of the child’s behavior is directly – if not primarily – caused by the quality of the parenting in the household; second, that we can somehow create a “universal model of adequate parenting,” which all parents can and should adopt regardless of their circumstances; and third, that the threat of punishment will induce parents to adopt this government-sanctioned model of parenting.

Critics of these statutes, on the other hand, argue that the link between poor parenting and juvenile crime is far less certain than proponents suggest. Juveniles are no doubt also profoundly influenced by their peers, by their schools, by their communities, by the media, and perhaps by their genetic make-up. In addition, the threat of criminal liability might actually negatively impact parenting, rather than enhance it. One critic suggests that parental responsibility statutes will induce some parents to “over-parent[], that is by either severely restricting their child’s freedom or by excessively punishing the child.” Other parents might respond by “under-parenting,” that is, by distancing themselves from their children “by filing ungovernability or similar petitions to transfer responsibility to the state.” In either case, the relationship between parent and child would become more adversarial and negative, rather than more productive and positive.


C. Incest

  In 1997, Allen and Patricia Muth were convicted of incest after they entered into a sexual relationship and had four children. Allen and Patricia were biological brother and sis-ter, although they did not meet until Patricia was eighteen because she had been in foster care since she was a baby. At the time of their convictions, Allen was 45 and Patricia was 30. At the time of sentencing, the judge stated “I believe severe punishment is war-ranted in this case. . . . I think they have to be separated. It’s the only way to prevent them from having intercourse in the future.” The judge then sentenced Allen to five years in prison and Patricia to five years. Their parental rights to at least some of their children were also terminated because of the incestuous relationship.


Incest remains one of the enduring sexual taboos. It is also yet another compli-cated example of a situation where criminal liability may attach to a person only on ac-count of some familial status. While prohibitions of incest are usually made in a blan-ket form, in theory they can be grouped into three different categories: first is regulation of sex between adults; second is regulation of sex between an adult and a minor, and third is regulation of sex between minors. Most jurisdictions are unlikely to make these distinc-tions in part because they don’t even inquire into whether the participants jointly consent to the sexual activity. This raises normative questions we address in Part III.

Forty-seven states criminalize some forms of consensual sexual relations be-tween family members, although there is some variation between the states in terms of what relationships are prohibited. All states with criminal incest statutes ban sexual re-lationships between parents and their children, regardless of the child’s age. And all of those states but one also ban sexual relationships between siblings; most ban relationships between aunts and uncles and their nephews and nieces. There is more divergence on the question of cousins; only eight states criminalize sexual contact between first cous-ins, but twenty-five states do not permit first cousins to marry. Some states also extend their prohibitions beyond blood relationships: “twenty-two states criminalize sex between stepparents and stepchildren” and some (but not all, interestingly) states treat adopted children the same as biological children for purposes of incest prohibitions.

What are the rationales behind these incest prohibitions? The most commonly cited rationale for prohibiting consensual relations is that incestuous relationships have the potential to create children with genetic problems if the parties decide to reproduce. Moreover, incestuous relationships have special potential to be abusive and nonconsen-sual, and this coercion may be difficult to detect. Additionally, some have viewed the incest taboo as a way to “prevent intrafamilial sexual jealousies and rivalries” or to facili-tate the purported “social advantages of forming ties outside the family.” But these ra-tionales cannot account for the breadth of the incest prohibition in many states; for exam-ple, consensual relationships between adult adopted siblings raise neither genetic difficulties nor the specter of coercion. It is therefore impossible to underestimate the influence of the “disgust factor.” In large part, these relationships are criminalized be-cause Americans view them with distaste or because they are, in some situations, relig-iously proscribed.

The topic of consensual adult incest has actually been the subject of some legal and political discourse of late because of its links to the same-sex marriage debate. Some have suggested – with an intention to alarm – that if we legalize same-sex marriage, the legalization of incest is sure to follow. But in contrast to the issues of gay rights and same-sex marriage, there is no committed mainstream advocacy movement of which we are aware that is currently arguing for the liberalization of incest laws.

Similarly, there is very little legal scholarship seeking to make an affirmative case for greater recognition of intra-familial romantic relationships; rather, discussions about incest usually involve simply pointing out that many of the arguments made in fa-vor of the laws are problematic. For example, commentators remark that the evidence related to the possibility of genetic harm is far less certain than once believed, and, in any event, many of the relationships currently prohibited do not trigger this concern at all.

There are a few recent exceptions in the academic literature to this general pat-tern. For example, Christine Metteer argues that the individual’s constitutionally pro-tected right to marry trumps the state’s interest in prohibiting incestuous marriages when the parties are related only by affinity rather than consanguinity. More provocative is a recent article by Ruthann Robson, who suggests that “the proffered explanations for in-cest prohibitions should be deeply problematic for any same-sex marriage advocate.” She argues that attempts to justify prohibitions against incest by appealing to religion or longstanding community mores should be soundly rejected, because “tribal customs should not govern our current cultural mores and constitutional notions any more than Leviticus should prevail.” She also argues that we should reject the genetics justifica-tion, because it “rests upon identity between marriage and procreation – the same logic that is used to resist same-sex marriage.” Whatever one makes of these normative arguments, incest laws fit the more general pattern of punishing family status in certain circumstances within the criminal justice system.

Posted by Administrators on February 29, 2008 at 12:34 PM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib, Gender | Permalink | Comments (1) | TrackBack

Thursday, February 28, 2008

Punishing Family Status: An Introduction

Earlier this week, I mentioned that Ethan, Jennifer Collins and I have completed a working draft of our paper, Punishing Family Status, and have shipped it off to a number of law reviews.  Today I reprint below the introduction--sorry for the formatting bloopers. In subsequent posts, I'll share the following sections of the paper. We're grateful for any comments or questions sent via email to us. When we've done some more revising, we'll put a version up on SSRN. This paper will be part of our book project, tentatively entitled, Privilege or Punish: Criminal Justice and the Challenge of Family Ties.  I'll be presenting this paper a couple times in the next month and we are excited to share our findings and conclusions more broadly. Here's the intro.

On December 21, 2007, Molly Midyette was convicted of knowing and reckless child abuse as a result of the death of her ten-week-old son. The prosecutors did not allege that Molly beat her son to death, but instead that she failed to protect her son from repeated beatings inflicted by her husband Alex. At the time of his death, the baby was suffering from 27 fractures and a brain injury. Midyette faces a mandatory sentence of 16 to 48 years in prison because of her failure to act.[1]

Stories like Molly Midyette’s abound. In the absence of her family status, Molly’s omission, or failure to rescue her child, would trigger no criminal liability. But because of it, she faces a very significant sentence. In this article, we examine the various places in the American criminal justice system where the law imposes burdens on defendants on account of their familial status or familial connection to the crime.[2] Where do these burdens exist? Why do we have them? What’s wrong, if anything, with them, andhow can they be reformed? These questions are at the heart of our project, a project that picks up the story from where we last left off just a year ago.

Specifically, in a study we published last year,[3] we examined how in many instances the criminal justice system affirmatively privileges defendants who are members of a state-sanctioned family unit. Our study uncovered a range of what we called “family ties benefits”: for example, in some states family members who harbor their fugitive relatives are exempt from prosecution; many states exempt family members from testifying against each other even in the most serious felony cases, and individuals who kill or rape family members are often subject to less serious penalties than those who attack acquaintances or strangers.[4] In that article, we argued that extending such privileges on the basis of family status can incur serious but often obscured costs in the criminal justice system, particularly in terms of ensuring gender equality, fairness across similarly situated offenders, accurate outcomes, and crime prevention in the criminal justice system. We suggested that more careful design of such policies could help avoid many of the costs associated with what we called “family ties benefits.”[5]

But standing alone that picture is incomplete and with this companion article we now try to round out the picture. As mentioned above, some forms of criminal liability are triggered because of one’s familial status – and for reasons that seem to have nothing to do with compensating for the “family ties benefits” we have already identified. These crimes include vicarious liability imposed on parents because of crimes committed by their children, omissions liability for failing to prevent harm to family members, and criminal liability for nonpayment of child support. Defendants are also burdened on account of their family status when they face prosecutions for incest, adultery, and bigamy. In all six of these instances, in the absence of the particular familial status of the defendant, the action or omissions at issue would largely be ignored by the criminal justice system or, in some cases, treated more leniently.

This Article analyzes these “family ties burdens” and asks whether they are justifiable or could be justified if reformed somewhat. Although scholars have considered some of these burdens individually, our contribution here is viewing these burdens synthetically and explaining what sense can be made of them once taken as a whole. Thus, in Part I, we survey the various sites in the criminal justice system where defendants who are members of families face special burdens, either through the creation of liability or the enhancement of punishment, that would not be visited upon individuals who are not members of a family unit.

We begin Part II by explaining why we have generally taken a “defendant-centered” perspective in thinking about the sites of family ties burdens, since many “burdens” on defendants based on family status may conversely serve to advantage the family members of such defendants (and potential defendants).[6] Focusing on family ties burdens from the defendant’s perspective helps raise awareness of why such burdens are normative red flags. As we explain, most centrally, they have tremendous potential to discriminate. Consider the example of omissions liability. When the state charges an individual because of his or her failure to protect another human being from harm, the state is signaling that the relationship at issue is one worthy of special protection from the state. But in the context of family ties burdens, large numbers of persons who might justifiably, in our view, see themselves as entitled to benefit from the “omissions” burden are excluded. A hypothetical Jill cannot rely upon the state to signal to her life partner Denise that Denise is obligated by law to prevent harm to Jill. When the state makes choices regarding families, and uses the criminal justice system to send normative signals about those choices, it risks marginalizing persons who consider themselves family members but are not recognized as such by the state. In this sense, targeting persons with unusual treatment on account of familial status is an under-inclusive (and, at times, over-inclusive) mechanism to distribute both the tangible and expressive benefits conferred by the criminal law.

The rest of Part II constructs a normative framework to explain under what circumstances burdening family status might be justified. We highlight that the vast majority of the burdens implicate the core functions of families – the care-giving function. We impose liability on parents for their omissions because we believe they have a special obligation, one worthy of enforcement through the criminal justice system, to care for their children by protecting them from harm. If we structure burdens to revolve around the care-giving function, rather than on an individual’s status as a member of a state-sanctioned family, we have the potential to be far more inclusive, and indeed more protective, than if we base burdens on family status alone.

But we also show that there is, we think, an underappreciated (albeit imperfectly executed) method to the criminal justice system’s allocation of family ties burdens. The criminal justice system tends to enforce family ties burdens against those who have voluntarily chosen their care-giving role. That is, the care-giving function of the family is relevant to criminal justice especially in those cases where an individual has voluntarily entered into a status relationship and enjoyed the privileges associated with that relationship, making it seem more just to be required to carry some burdens in return. Building upon this internal coherence, we suggest that a voluntary care-giving orientation to burden allocation in the criminal justice system is much more attractive than allocation on formal familial status alone.

Part III rethinks the family ties burdens we identify in Part I, in light of the normative framework in Part II. We hope to show how many of the criminal justice system’s family ties burdens can be preserved in some form, so long as they are reconstructed to avoid the substantial costs of using family status alone to distribute burdens. In some cases, this won’t be possible, and we explain why and what to do about it.

One important caveat. There are many wonderful studies of the way the criminal justice system causes devastating harm to families and communities, especially in light of our incarceration practices.[7] There is no doubt that many of the criminal law’s policies and practices disadvantage families in many ways – and without attention to this sort of disparate impact against families, policy designers risk tearing our social fabric at the seams. We agree that this lens is a critically important one in evaluating criminal justice policies. Nevertheless, this lens tends to track indirect results of other policies. For example, although lengthy jail sentences for minor drug crimes result in the tragic situation of too many children growing up without access to a parent, surely the primary intent of drug sentencing laws is not to separate children and their parents.

Our focus here is different and has yet to be sufficiently addressed by the community of scholars interested in how the criminal law pressures families. Here, we examine those distinctively purposeful practices that consciously target members of families for special burdens on account of their familial status. Scholars have been successful in analyzing the effects of certain criminal justice policies and practices on the family. But most scholars have not recognized the panoply of laws expressly written to disadvantage family status in some areas. It seems important and necessary to pause and think through how and why our laws intentionally punish family status, and how the underlying goals of such a choice might better be served. This Article hopes to clear that ground.

In defining our focus this way, we do not intend to suggest that the particular liabilities addressed in this Article are necessarily guided by the intent of hurting or burdening family life as such. Indeed, it may be that many burdens on family status are “remedial” or intended to benefit family life even if they penalize particular defendants on account of their familial status. But it is worth remembering that many laws disadvantaged women, for example, in the name of “protecting” them. Our purpose here is to excavate the family burdens currently imposed by the criminal justice system and to assess their desirability both now and as they could be.

[1] Bill Scanlon, Mom Guilty in Baby’s Death, Rocky Mountain News (Dec. 22, 2007).

[2] Although we use the phrase the American criminal justice system, there are actually many criminal justice systems in the United   States operating at the local, state, and federal level under a host of laws, ordinances, principles and policies. Not all the practices we describe exist around the country in every single system but they are by no means atypical either.

[3] See Dan Markel, Jennifer M. Collins & Ethan J. Leib, Criminal Justice and the Challenge of Family Ties, 2007 U. Ill. L. Rev. 1147.

[4] See id.; see also Jennifer M. Collins, Lady Madonna, Children at Your Feet: The Criminal Justice System’s Romanticization of the Parent-Child Relationship, 93   Iowa L. Rev. 131 (2007).

[5] See Markel, Collins & Leib, supra note 2, at 1190-1199.

[6] We acknowledge that in some instances victims may feel as if they too, as well as defendants, have been harmed by family ties burdens.

[7] See, e.g., Donald Braman, Doing Time on the Outside (2004).

Posted by Administrators on February 28, 2008 at 10:56 AM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib, Gender | Permalink | Comments (4) | TrackBack

Monday, February 25, 2008

An Abstract of Punishing Family Status

I'm very happy to announce that Ethan Leib, Jennifer Collins and I have just shipped off a draft of our paper, Punishing Family Status, to a bunch of law reviews. 

This paper tries to break ground by providing analysis of two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of “family ties burdens” or penalties that impose punishment upon individuals on account of their familial status. The six we train our attention on here are vicarious and omissions liability, incest, bigamy, adultery, and failure to pay child support. Part II develops a framework for the normative assessment of these family ties burdens.

By looking at these sites synthetically, we uncover what might be thought of as the secret ambition of these family ties burdens: namely, the promotion of voluntary care-giving relationships. We explain the nature of this rationale and its implications for proper policy design—particularly whether its intrusion into the criminal justice system can withstand critical scrutiny. Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status and instead capable of promoting voluntary care-giving.

We’re very excited about this paper, which is part of a larger book project -- tentatively entitled: Privilege or Punish? Criminal Justice and the Challenge of Family Ties -- that has received offers of publication from three top university presses: OUP, Yale, and CUP. Over the course of the next few weeks, we will be sharing  highlights and excerpts of the paper. We welcome your substantive feedback via email or in comments here at least until summer 2008, as we will be revising this and our  earlier effort together while integrating them into a unified book length treatment on how and why the criminal justice system  discriminates against defendants (positively and negatively) on the basis of family ties or status.  Stay tuned. And if you're interested in the whole draft of Punishing Family Status right away, please feel free to email me. We still have a bunch of comments we're responding to so we haven't yet put it up on SSRN, but we will in the next month or so.

Posted by Administrators on February 25, 2008 at 03:41 PM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib, Gender, Legal Theory | Permalink | Comments (0) | TrackBack

Wednesday, September 19, 2007

(Re-)Introduction (Blumenthal Guest)

My apologies for getting a late start on this welcome opportunity to reappear.  PrawfsBlawg was kind enough to invite me back; I hope I can have something to say over the next couple weeks.  For starters, a Happy and Healthy New Year to anyone celebrating it (what the heck, even if you're not . . .).

Shortly I'd like to post about Chief Justice Roberts's visit today (right now) to Syracuse University, where he delivered speeches marking the dedication of a new building at the Newhouse School of Communication.

Thanks again for having me back.

Posted by jeremy_blumenthal on September 19, 2007 at 03:23 PM in Gender | Permalink | Comments (0) | TrackBack

Saturday, June 30, 2007

Copyrights and Pornography

Until 1979, copyright protection was effectively unavailable for "obscene" pornography. Then in Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir.), cert. denied, 445 U.S. 917 (1979) and Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir.), cert. denied, 459 U.S. 826 (1982), two courts expressly found obscenity protected by copyright law.  Courts are not in compete accord on this issue as William Patry noted at his blog:

In the SDNY, then Judge Martin refused to grant a preliminary injunction and a pretrial impoundment and seizure order for movies he believed to be obscene writing, "Given the clearly criminal nature of plaintiff's operations, it is self-evident that the Court should not use its equitable powers to come to the aid of plaintiffs and should invoke the doctrine of clean hands and leave the parties where it finds them," Devils Films, Inc. v. Nectar Video Corp., 29 F. Supp.2d 174, 175 (S.D.N.Y. 1998).

As Patry also noted, in Nova Products, Inc. v. Kisma Video, Inc., 2004 U.S. Dist. LEXIS 24171 (S.D.N.Y. Dec. 1, 2004), Judge Baer decided to follow Mitchell Brothers, writing:

In its well-reasoned and scholarly opinion, the Fifth Circuit reviewed the history of the copyright legislation and found that all-inclusive language of the Copyright Act of 1909, 17 U.S.C. § 34 (1970) (repealed), which encompassed "all the writings of an author," did not bespeak of an obscenity exception to copyright protection. The Fifth Circuit further reasoned that the existence of other restrictions in the related areas of trademarks and patents, together with the need for a uniform system of copyright, which could be fragmented by the community-driven obscenity standard, counseled against finding an obscenity exception. Finally, the Court was reluctant to stifle creativity and enlist "the judgment of government officials regarding the worth of the work."

Congress never addressed this issue in the copyright, and with the exception of Bill Patry, copyright scholars haven't had much to say about pornography specifically, even though many high profile copyright cases (such as this recent one and this golden oldie) involve pornographic content. I think studying and theorizing the roles that copyright law plays in the production, distribution and consumption of pornography would be useful and instructive in many regards (as I noted here and here), but I'm not sure how likely it is to happen.  Some law profs think that pornography is socially beneficial (see e.g. this and this), but I disagree (e.g. here and here) as do others. Because the IP Clause of the U.S. Constitution authorizes copyright law only to the extent that it promotes the progress of science and the useful arts, one might expect the copyrightability of pornography to be more controversial than it has been so far, given the incentives that copyrights provide and the government resources that are required to sustain the copyright legal regime. That both policy makers and legal scholars choose to ignore these issues gives pornography a privileged position with respect to more interrogated categories of created works such as mainstream music and non-pornographic movies. I'm interested in any opinions about whether pornography should be copyrightable, and why so many people are willing to assume that it should be without reflection.

Posted by Ann Bartow on June 30, 2007 at 06:42 AM in Gender | Permalink | Comments (11) | TrackBack

Monday, June 18, 2007

" can use sex to sell jewelry and cars, but you can’t use sex to sell condoms."

That post heading is  a quote from this NYT piece, which reports that CBS and Fox have refused to run a Trojan Condoms commercial described in the article as follows:

In  a commercial for Trojan condoms that has its premiere tonight, women in a bar are surrounded by anthropomorphized, cellphone-toting pigs. One shuffles to the men’s room, where, after procuring a condom from a vending machine, he is transformed into a head-turner in his 20s. When he returns to the bar, a fetching blond who had been indifferent now smiles at him invitingly.

Directed by Phil Joanou (“State of Grace”), with special effects by the Stan Winston Studio (“Jurassic Park”), the commercial is entertaining. But it also has a message, spelled out at the end: “Evolve. Use a condom every time.” [You can watch the ad here.]

The quote is catchy, but it is wrong. Using sex to sell condoms is apparently only problematic if there is a focus on women's issues. David S. Cohen blogged an appropriately critical take on CBS and Fox's  refusal to run the ad here.  The NYT article points out that both CBS and Fox had run advertisements for Trojan Condoms before, "which urged condom use because of the possibility that a partner might be H.I.V.-positive, perhaps unknowingly," and the article's author, Andrew Adam Newman concluded that those networks found a disease prevention message much more palatable than a pregnancy prevention one.   He based this conclusion in part on Fox's written statement to Trojan asserting: "“Contraceptive advertising must stress health-related uses rather than the prevention of pregnancy.” Since pretty much every use to which a condom is put (excepting filling them with water and throwing them from the roof) involves sex,  this rigid preference for a focus on disease prevention seems to be based in a very male oriented view of condom utility.

Another related and gendered  anomaly is the fact that condoms are advertised as tools to reduce the risk of catching or spreading H.I.V. and other STDS, but rarely if ever specifically mention HPV.  In a very provocative  essay entitled "The Left, HPV, and Cancer," Richard Leader writes:

Conservative men would rather their daughters die of cervical cancer than give them a vaccine that would allow them to make their own sexual choices in life. That’s the theory given by any number of liberal writers in the political debate over Merck’s Gardasil product. They very well might be correct.

What about men on the Left though? What would we prefer for women? All evidence seems to point to the fact that we really don’t care what kind of cancer they die from, so long as they keep putting out.

He notes that the causal link between HPV and cervical cancer has been known for well over a decade, there has never been a campaign aimed at stopping the spread of HPV through condom use, and his theory is this is because it causes cancer primarily in women, the people with cervixes. It is only now that cervical cancer has become a commodity as a consequence of the marketing campaign for Merck's Gardasil, he asserts, that HPV is receiving sustained media attention.

Like Leader, I have been struck by the fact that the Gardasil vaccine is recommended only for women and girls, and in fact has only been tested for safety and efficacy on women and girls, a clear signal that stopping the spread of HPV is viewed as the sole responsibility of females.  Leader concludes:

Inflicting cervical cancer upon someone was never a consideration  of men. HPV strains that did not burden a male with unsightly warts were deemed not worth testing for by the medical establishment; out of sight, out of mind. There were no marches. Penises were never called “the original cancer sticks.” No man ever curtailed his sexual behavior on account of it, admitting that even condoms not might prevent its transmission.

And yet that same generation of Leftist men, cure in hand, now accuses religious fundamentalists of murderous indifference.

It is only now that women can be saved—and pockets can be lined—that women are allowed to fear HPV and the very worst of its effects. Indeed, they are even encouraged to fear it. Before, it was merely part of heterosexual life for women, an uncommon yet ordinary consequence of all we ordained as “natural.” Bad luck, or the Will of God, cancer was seen as outside the domain of male control.

I know that Leader's essay will strike non-feminist Prawfsblawg readers as somewhat extreme, and perhaps difficult to read and process, but agree or disagree, he will make you think about this issue in ways you probably haven't before.

Posted by Ann Bartow on June 18, 2007 at 03:14 PM in Gender | Permalink | Comments (24) | TrackBack

Thursday, June 07, 2007

Politics As Usual: He's A "Stud" While She "Works The Pole."

This is a photograph of possible '08 Presidential candidate Fred Thompson with his spouse, Jeri Kehn:

AaaaSee also. The New York Post has referred to Kehn as Thompson's "Babe Wife." This article also observed:

"Kehn scored a coup in convincing Thompson, who had won the nickname "The Tennessee Stud" during his D.C. bachelorhood, to meet her at the altar."

A Boston Herald columnist, Margery Eagan, had this reaction to the photo:

Flashed around the country Thursday was yet another full cleavage shot of Fred Thompson’s child wife looking almost as well-endowed as Alex Rodriguez’s stripper/pole-dancer girlfriend. “That was quite a dress,” said one GOP analyst, breathless.

Perhaps Fred’s wife “Jeri” - yes, with an “i” - helps Fred with AARP, Viagra-ed up men: “You still got it goin’, Fred, you dirty dog.”

MSNBC's Imus replacement commentator, former Republican Congressional Representative Joe Scarborough, recently had this on air exchange about Kehn:

SCARBOROUGH: Have you seen Fred Thompson’s wife?
CRAWFORD: Oh, yeah.
SCARBOROUGH: You think she thinks she works the pole?
CRAWFORD: That’s what a Hollywood career will do for you, I guess.
SCARBOROUGH: What do you mean?
CRAWFORD: You get wives like that.
SCARBOROUGH: I mean, look at that guy. God bless him, I love his voice. But I mean, you know. He ain’t Robert Redford in “Butch Cassidy and the Sundance Kid.”
CRAWFORD: Well I would like to see him back into politics because I think he’s a lousy actor.

You can watch the video here. According to this USA Today article:

Video of MSNBC's Joe Scarborough bantering on the cable news network Friday about whether Fred Thompson's wife "works the pole" is sparking criticism of Scarborough from the right, left and in between. A spokesman for the news network said this afternoon, though, that the comment has been taken out of context and that it is "irresponsible" to suggest Scarborough was employing sexual innuendo. "Works the pole" could have been a reference to poles that some strippers use in their acts. MSNBC says it was a reference to an exercise routine that a growing number of women are performing.

As both an actor and politician, I have to assume Thompson understands the importance of his public image, and that of his wife.  Kehn is described in the NY Post article linked above as "a former Senate staffer and Republican National Committee mouthpiece" and "a sassy political pro who could help his cause in the White House." It is difficult to divine what, if anything, her style of dress says about Thompson's perceptions of the current electoral zeitgeist. Is Kehn willing to be publicly portrayed as a "pole worker" to burnish Thompson's reputation as a "stud," or did the media coverage turn out differently than they expected? If Thompson didn't anticipate this kind of reaction, his political instincts probably aren't all that good.

Posted by Ann Bartow on June 7, 2007 at 11:15 PM in Gender | Permalink | Comments (9) | TrackBack

Tuesday, June 05, 2007

Male Attorney More Effective As Female Online

Over at Madisonian Theory,  Fred Yen notes:

Today’s has a interesting story about law firms conducting investigations to enforce clients’ IP rights on the Internet. It describes how a Covington and Burling lawyer impersonated a “flirtatious 27 year old female programmer” in chat rooms to identify software pirates and have them arrested.  The rest of the story discusses online IP enforcement as a major growth area for law firms as clients spend significant resources to stop the sale of infringing goods. ...

The referenced article starts out:

On the Internet, no one knows if you're a dog. Or a well-tailored lawyer in the London office of Covington & Burling. That fact has guided Peter Anaman's entire career over the last seven years. The 33-year-old British-trained attorney is the head of Covington's Internet monitoring and investigation unit, and he uses multiple online personas to nail bad guys: sellers of counterfeit goods and pirated software, hackers, phishers, you name it. ...

The article doesn't explain how many of Anaman's "multiple online personas" claim to be female, but notes that he "managed to infiltrate [a software infringement] ring in a matter of months by pretending to be a flirtatious 27-year-old female programmer who complained a lot about her boss in online chat rooms."  Perhaps it amuses Anaman that the folks he sent to prison erroneously believe they were betrayed by a women. Or maybe he correctly deduced that his targets would assume a woman was powerless and harmless, and easily let their guards down around her. I think Fred Yen is correct that using subterfuge to identify infringers is potentially unethical or illegal.

Posted by Ann Bartow on June 5, 2007 at 09:26 PM in Gender, Law and Politics | Permalink | Comments (4) | TrackBack