Punishing family status

Boston University Law Review

Volumn 88, Issue 5, 2008, Pages 1327-1423

  Collins, Jennifer M ^a   Leib, Ethan J ^b   Markel, Dan ^c  

^a WAKE FOREST UNIVERSITY   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

^c FLORIDA STATE UNIVERSITY   (United States)

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EID: 58149218265     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (500)

1. Justin Boggs, Parents of Slain Victorville Child Receive Long Prison Terms, DAILY PRESS (Victorville, Cal.), Dec. 30, 2005, http://archive.wdailypress.com/2005/113595069729822.html. For examples of other recent cases where states prosecuted mothers for failing to protect their children from harm inflicted by another,
2. see also Steven M. Ellis, Court Upholds Murder Conviction for Failing to Protect Son, METROPOLITAN NEWS-ENTERPRISE (L. A.), Mar. 12, 2008, http://www.metnews.com/articles/2008/rolo031208.htm (describing Sylvia Torres Rolon's conviction for second-degree murder after she failed to protect her one-year-old child from her boyfriend's severe physical abuse); Bill Scanlon, Mom Guilty in Baby's Death, ROCKY MOUNTAIN NEWS (Denver), Dec. 22, 2007, http://rn.rockymountainnews.com/news/2007/ Dec/22/scared-mom-talks-baby-death-trial/ (describing the case of Molly Midyette, whose ten-week-old son died from injuries inflicted by his father).
3. Although we use the phrase "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. Consequently, not all the practices we describe exist around the country in every single system and we try to explain how limited or pervasive the reach of each system is in the family ties burdens we examine.
4. See generally Dan Markel, Jennifer M. Collins & Ethan J. Leib, Criminal Justice and the Challenge of Family Ties, 2007 U. ILL. L. REV. 1147.
5. Id. at 1158-59, 1162-64, 1167-71;
6. 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. 131,145-49 (2007).
7. Markel, Collins & Leib, supra note 3, at 1190-99.
8. Id. at 1201-25.
9. As we explain later, these family ties burdens might also be referred to as family ties "duties," in the sense that particular obligations are imposed on individuals because of their family relationships. See discussion infra Part II.C. We have chosen to use the term "burdens" because we are focusing upon the state's decision to use the power of the criminal law to induce compliance with those duties in the first instance and to penalize any eventual non-compliance.
10. We recognize that this group of burdens may fall into a slightly different category than omissions liability, parental responsibility laws, or nonpayment of child or parental support because a desire to enforce a certain vision of public morality might motivate a state's decision to utilize the power of criminal law. We think it is important to recognize, however, that the state is promoting a certain vision of family within both categories of burdens, in that it is essentially trying to foster an environment in which caregiving can flourish, and we must consider whether the use of the criminal law in these contexts effectively serves that goal. In addition, these two categories of burdens are linked in the sense that the existence of a certain family relationship is a prerequisite for imposing liability, and thus both categories warrant analysis under our framework.
11. We acknowledge that some victims may feel that they, as well as defendants, have been harmed by family ties burdens.
12. Consider the example of omissions liability. Absent a contract or other special circumstances, 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. This pattern risks marginalizing persons who consider themselves family members but are not recognized as such by the state or other institutions. 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 the criminal law's tangible and expressive benefits.
13. There are some exceptions - largely those associated with incest and obligations to pay parental support - which we discuss. See discussion infra Part II.C.
14. We recognize this stands at odds with current constitutional doctrine that permits promiscuous use of severe criminal sanctions. See generally Sherry F. COLB, Freedom from Incarceration: Why Is This Right Different from All Other Rights?, 69 N.Y.U. L. REV. 781 (1994); Douglas Husak, The Criminal Law as Last Resort, 24 OXFORD J. LEGAL STUD. 207 (2004).
15. E.g., DONALD BRAMAN, DOING TIME ON THE OUTSIDE: INCARCERATION AND FAMILY LIFE IN URBAN AMERICA 30-35 (2004).
16. See id.
17. We recognize, however, that some judges might view these harsh drug laws as a means by which they can separate children from parents involved with dangerous drugs for the good of the child.
18. E.g., BRAMAN, supra note 13, at 5.
19. See Frontiero v. Richardson, 411 U.S. 677, 684 (1973);
20. LINDA K. KERBER, WOMEN OF THE REPUBLIC: INTELLECT AND IDEOLOGY IN REVOLUTIONARY AMERICA 138-55 (1980).
21. Statutes criminalizing polygamy raise similar problems as those prohibiting incest between consenting and competent adults. In the absence of a marital connection to a third person, X may marry Y. In states prohibiting polygamy, X may not marry Y on account of the prior relationship X entered into with Z.
22. In addition to creating criminal liability, family status is used in some jurisdictions as a basis for inferring a breach of trust that serves as an aggravating factor at sentencing. See, e.g., R. v. GLADUE, [1999] 1 S.C.R. 688, 740-41 (Can.) ("[T]he offence involved domestic violence and a breach of the trust inherent in a spousal relationship. That aggravating factor must be taken into account in the sentencing ....").
23. Diana Marrero & Shana Gruskin, Mom Arrested in Child's Death; Police: Woman Ignored Danger by Leaving Daughter with Boyfriend, SUN-SENTINEL (Fort Lauderdale), June 21, 2002, at 1B. One of the fascinating aspects of this case is that the boyfriend was eventually acquitted in the child's death, so only the mother's omission was punished. Susannah Nesmith, 3 Years Later, Man Cleared in Baby's Death, MIAMI HERALD, Feb. 11, 2006, at B4.
24. See 1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.2 (2d ed. 2003);
25. David A. Hyman, Rescue Without Law: An Empirical Perspective on the Duty to Rescue, 84 TEX. L. REV. 653, 655 (2006).
26. A very small number of states have adopted so-called "Good Samaritan" statutes, imposing criminal liability in limited circumstances upon those who fail to rescue persons in emergency situations. E.g., R.I. GEN. LAWS § 11-56-1 (2002);
27. VT. STAT. ANN. tit. 12, § 519 (2002).
28. Jones v. United States, 308 F.2d 307, 310 (D.C. Cir. 1962) (footnotes omitted).
29. JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 115 (4th ed. 2006).
30. Id. at 113;
31. see also State v. Walden, 293 S.E.2d 780, 786 (N.C. 1982) (denying "that parents have the legal duty to place themselves in danger of death or great bodily harm in coming to the aid of their children"); Andrew Ashworth, The Scope of Criminal Liability for Omissions, 105 LAW Q. REV. 424, 432-33 (1989) (discussing the requirement that the rescue must be an easy one).
32. Larry Alexander, Criminal Liability for Omissions: An Inventory of Issues, in CRIMINAL LAW THEORY: DOCTRINES OF THE GENERAL PART 121, 122 (Stephen Shute & A. P. Simester eds., 2002);
33. see. e.g., R. v. CONDE, (1867) 10 Cox Crim. 547, 549 (Cent. Crim. Ct.) (requiring a mens rea of "willfully" for conviction of murder and "negligently" for conviction of manslaughter in a case involving parents whose child starved to death after they did not give him food).
34. At common law, other status relationships could trigger a duty to rescue, such as the duty of a ship captain to the passengers. See generally State v. Mally, 366 P.2d 868 (Mont. 1961);
35. LAFAVE, supra note 21, § 6.2(a).
36. See Alexander, supra note 26, at 139.
37. E.g., Muehe v. State, 646 N.E.2d 980, 982 (Ind. Ct. App. 1995);
38. see also Michelle S. Jacobs, Requiring Battered Women Die: Murder Liability for Mothers Under Failure to Protect Statutes, 88 J. CRIM. L. & CRIMINOLOGY 579, 586-88 (1998).
39. E.g., Smith v. State, 408 N.E.2d 614, 616-17 (Ind. Ct. App. 1980);
40. State v. Schultz, 457 N.E.2d 336, 336-38 (Ohio Ct. App. 1982).
41. See, e.g., People v. Beardsley, 113 N.W. 1128, 1131 (Mich. 1907) (setting aside the manslaughter conviction of a married man whose mistress died after ingesting pills while in his home).
42. Id.
43. E.g., State ex rel. Kuntz v. Thirteenth Judicial Dist. Court, 995 P.2d 951, 956 (Mont. 2000) (holding that there exists a legal duty to summon medical aid if the couple cohabitate).
44. Id. at 956-58.
45. See Alexander, supra note 26, at 139.
46. See, e.g., ELIZABETH BARTHOLET, FAMILY BONDS: ADOPTION AND THE POLITICS OF PARENTING 48 (1993).
47. Compare State v. Miranda, 878 A.2d 1118, 1131 (Conn. 2005) (overruling the lower court's conclusion that a live-in boyfriend had a duty to rescue his girlfriend's child because it would be difficult to stop liability from extending to "other members of the extended family, to longtime caregivers who are not related to either the parent or victim, to regular babysitters, and to others with regular and extended relationships with the abusing parent and the abused victim"), with Leet v. State, 595 So. 2d 959, 962-63 (Fla. Dist. Ct. App. 1991) (finding that the live-in boyfriend of a child's mother had a legal duty to the child to prevent the mother's abuse after establishing a "family-like relationship").
48. E.g., Cornell v. State, 32 So. 2d 610, 612 (Fla. 1947) (upholding a grandmother's conviction for manslaughter by gross negligence based on facts independent of familial status);
49. see also supra note 24 and accompanying text.
50. Jill Smolowe, Parenting on Trial: A Couple Is Fined for a Son's Crimes, Time, May 20, 1996, at 50, 50.
51. Id.;
52. see also Pamela K. Graham, Note, Parental Responsibility Laws: Let the Punishment Fit the Crime, 33 Loy. L.A. L. REV. 1719, 1740-41 (2000).
53. For a sampling of the attention parental responsibility laws have received and their extended history, see generally Eve M. Brank et al., Parental Responsibility Statutes: An Organization and Policy Implications, 7 J.L. & FAM. STUD. 1 (2005);
54. Linda A. Chapin, Out of Control? The Uses and Abuses of Parental Liability Laws to Control Juvenile Delinquency in the United States, 37 SANTA CLARA L. REV. 621 (1997);
55. James Herbie DiFonzo, Parental Responsibility for Juvenile Crime, 80 OR. L. REV. 1 (2001);
56. Susan S. Kuo, A Little Privacy, Please: Should We Punish Parents for Teenage Sex?, 89 KY. L.J. 135 (2000);
57. Tammy Thurman, Parental Responsibility Laws/Are They the Answer to Juvenile Delinquency?, 5 J.L. & FAM. STUD. 99 (2003);
58. Leila Atassi, Parental-Responsibility Law Strikes a Chord: Maple Heights' Stance Draws Broad Response, PLAIN DEALER (Cleveland), Apr. 30, 2006, at B1.
59. More often, however, parents are targets via other avenues for the misdeeds of their children: "statutory civil penalties for property damage caused by their children, eviction from public housing if criminal activity has occurred in their homes, and increased exposure to civil lawsuits filed by victims of youth violence." DiFonzo, supra note 41, at 3. A survey of the civil liability regimes around the country can be found in Brank et al., supra note 41, at 19-25. For a discussion of the efforts to impose tort liability on parents for the acts of their children, see Rhonda V. Magee Andrews, The Justice of Parental Accountability: Hypothetical Disinterested Citizens and Real Victims' Voices in the Debate over Expanded Parental Liability, 75 TEMP. L. REV. 375, 379-403 (2002). For a discussion of the use of civil damages as a means to reduce juvenile delinquency, see Chapin, supra note 41, at 629-38.
60. See Jerry E. Tyler & Thomas W. Segady, Parental Liability Laws: Rationale, Theory, and Effectiveness, 37 SOC. SCI. J. 79, 79 (2000) (noting that the Massachusetts Stubborn Child Law of 1646 authorized the imposition of fines on parents whose children were caught stealing);
61. see also Naomi R. Cahn, Pragmatic Questions About Parental Liability Statutes, 1996 WIS. L. REV. 399, 405-06 (noting that "[s]tates have been enacting laws holding parents criminally liable for the delinquent acts of their children for almost a century," primarily through the enactment of statutes making it a criminal offense to contribute to the delinquency of a minor). Cahn adds that parents were frequently prosecuted in juvenile courts under these laws during the first half of the twentieth century. Id. at 406-07.
62. See Leslie Joan Harris, An Empirical Study of Parental Responsibility Laws: Sending Messages, But What Kind and to Whom?, 2006 UTAH L. REV. 5, 6-7.
63. Given our focus on criminal law here, we note that unless otherwise specified, we will use the term "parental responsibility laws" to refer to those laws imposing criminal sanctions on parents in response to the misdeeds of the children under their supervision.
64. Audrey E. Stone & Rebecca J. Fialk, Criminalizing the Exposure of Children to Family Violence: Breaking the Cycle of Abuse, 20 HARV. WOMEN'S L.J. 205, 213-22 (1997) (listing and comparing statutes);
65. see also Paul W. Schmidt, Note, Dangerous Children and the Regulated Family: The Shifting Focus of Parental Responsibility Laws, 73 N.Y.U. L. REV. 667, 676 n.62 (1998).
66. Schmidt, supra note 46, at 675.
67. See, e.g., N.M. STAT. ANN. § 30-6-3 (LexisNexis 1994).
68. OR. REV. STAT. ANN. § 163.577(1) (West 2003);
69. see also Brank et al., supra note 41, at 10 (giving statutory examples from Georgia and Iowa).
70. See, e.g., N.Y. PENAL LAW § 260.10 (McKinney 2000).
71. OR. REV. STAT. ANN. § 163.577(1) (West 2003).
72. Id.
73. MAPLE HEIGHTS, OHIO, CODE OF ORDINANCES § 648.20 (2008), invalidated by Maple Heights v. Ephraim, No. 90237, 2008 WL 4174861 (Ohio Ct. App. Sept. 11, 2008).
74. MAPLE HEIGHTS, OHIO, CODE OF ORDINANCES § 698.02 (2008).
75. Ephraim, 2008 WL 4174861, at *8.
76. See SILVERTON, OR., CRIMINAL CODE ch. 9.24 (1994).
77. Atassi, supra note 41 (quoting Mayor Hector) (discussing the Maple Heights ordinance and comparing it to the Silverton ordinance).
78. See, e.g., IDAHO CODE ANN. § 32-1301 (2006) (authorizing counties and cities to establish ordinances based on the failure to supervise a child).
79. We have seen some estimates in the literature suggesting that in the last decade there were about seventeen states with criminal parental responsibility laws, but these numbers are misleading because some of the statutes cited are just general "contributing to the delinquency of a minor" statutes, which require specific wrongful acts or omissions by the adult and apply to all adults, not just parents or legal guardians. See Schmidt, supra note 46, at 675-82.
80. See LA. REV. STAT. ANN. § 14:92.2 (2004); OR. REV. STAT. ANN. § 163.577(1) (West 2003). The Louisiana statute 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. § 14:92.2. The statute allows a parent to escape liability if the parent seeks assistance from various agencies in modifying the child's behavior or if the parent refers "the child to appropriate treatment or corrective facilities." Id.
81. E.g., ELGIN, ILL., CITY CODE tit. 10, art. V, ch. 10.66 (1995); CORPUS CHRISTI, TEX., CODE OF ORDINANCES ch. 33, art. II, § 33-49 (2004);
82. see also Peter Applebome, Parents Face Consequences as Children's Misdeeds Rise, N.Y. Times, Apr. 10, 1996, at Al (observing the proliferation of "dozens" of ordinances in towns near Chicago in the "last two years").
83. E.g., St. Clair Shores, Mich., Code of Ordinances ch. 20.560 (2008);
84. SALT LAKE CITY, UTAH, CITY CODE tit. 11, ch. 11.60 (1995). See generally 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 13.4 (2d ed. 2003) (providing an overview of vicarious liability).
85. See Schmidt, supra note 46, at 682 n.102.
86. 400 A.2d 38 (N.H. 1979).
87. Id. at 39.
88. See id. at 40.
89. Doe v. Trenton, 362 A.2d 1200, 1203 (N.J. Super. Ct. App. Div. 1976).
90. Id. at 1203.
91. Williams v. Garcetti, 853 P.2d 507, 508 (Cal. 1993).
92. CAL. PENAL CODE § 272(a)(2) (West 2008). The amendment was enacted in response to the perception that California was in the throes of a "gang crisis."
93. See Williams, 853 P.2d at 510.
94. Williams, 853 P.2d at 509. The complainants' privacy challenge was dropped over the course of the litigation and thus was not ruled upon by the California Supreme Court. See id. at 509 n.3. The court summarily rejected the overbreadth challenge. See id. at 516-17.
95. Id. at 511.
96. Id. at 512.
97. Id. at 513.
98. Id.
99. See Harris, supra note 44, at 17. Harris's study of Oregon shows that about one-third of the municipalities participating in the survey had parental responsibility laws but they were rarely - if ever - enforced. Id. at 22-23.
100. See Schmidt, supra note 46, at 684 (citing OR. REV. STAT. § 163.577(3)-(4) (1995) as an example).
101. Jeff Jacoby, Hypocrisy on Adult Consent, BOSTON GLOBE, Aug. 28, 2005, at Cll (quoting sentencing judge).
102. Id.
103. Muth v. Frank, 412 F.3d 808, 811 (7th Cir. 2005).
104. See Courtney Megan Cahill, Same Sex Marriage, Slippery Slope Rhetoric, and the Politics of Disgust: A Critical Perspective on Contemporary Family Discourse and the Incest Taboo, 99 Nw. U. L. REV. 1543, 1546 (2005) ("[T]he very term 'incest' is a powerful way to provoke an almost visceral disgust toward any relationship to which it is compared.").
105. People v. Baker, 442 P.2d 675, 677-78 (Cal. 1968); State v. Scion Barefoot, 31 S.C.L. (1 Rich.) 209, 228-29 (S.C. 1845) (stating that at English common law, incest did not void a marriage but made it voidable); Graham Hughes, The Crime of Incest, 55 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 322, 323-25 (1964).
106. There are three states in which adult consensual consanguineous pairings are not prohibited: Rhode Island, Ohio, and New Jersey. Note, Inbred Obscurity: Improving Incest Laws in the Shadow of the "Sexual Family," 119 HARV. L. REV. 2464, 2469-70 (2006) [hereinafter Note, Inbred Obscurity].
107. States can also prohibit marriage between various pairings of relatives through their domestic relations statutes, even if they do not attach criminal penalties to the relationship. See Margaret M. Mahoney, A Legal Definition of the Stepfamily: The Example of Incest Regulation, 8 BYU J. PUB. L. 21, 27 (1993). We focus here on criminal statutes.
108. 41 AM. JUR. 2D Incest § 11 n.2 (2008). The defendant's awareness relates to his knowledge of the relationship, not his knowledge of the law that punishes incest.
109. Note, Inbred Obscurity, supra note 83, at 2465 ("The criminal incest laws in the vast majority of states apply to [consensual] incest as well by making the crime distinct from the crime of rape.").
110. AM. JUR. 2D Incest § 14 (2008).
111. Id.
112. See infra Part III.C.
113. See Brett H. McDonnell, Is Incest Next?, 10 CARDOZO WOMEN's L.J. 337, 348-49 (2004) (compiling the various state laws on incest). Ohio targets only parental figures for criminal liability for incest, and New Jersey does not penalize parties to incest when both are eighteen or older. Note, Inbred Obscurity, supra note 83, at 2469-70.
114. McDonnell, supra note 90, at 349.
115. See, e.g., State v. Johnson, 670 N.W.2d 802, 813 (Neb. Ct. App. 2003).
116. McDonnell, supra note 90, at 348-49.
117. See id.
118. Id.
119. See id.
120. Elise Soukup, Polygamists, Unite!; They Used to Live Quietly, But Now They're Making Noise, NEWSWEEK, Mar. 20, 2006, at 52, 52.
121. 11 AM. JUR. 2D Bigamy § 1 (2008). Interestingly, some states do not require X to actually marry Y in order to be guilty of bigamy; extramarital cohabitation suffices to trigger liability. Elizabeth F. Emens, Monogamy's Law: Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. REV. L. & SOC. CHANGE 277, 308 n.158 (2004). Some states also punish the single person who knowingly marries the spouse of another person.
122. AM. JUR. 2D Bigamy § 1 (2008). This type of legislation is not quite a conventional family ties burden because the state is not treating defendant X any differently on account of X's family status or connection; rather, it is because of X's would-be spouse's existing family connection. Thus, unlike the family ties burdens discussed in this Article, which focus on impositions of liability or enhancements on account of a defendant's familial status, this kind of legislation is formally quite different. That is not to say such legislation does not raise its own (quite similar) problems, but we are focused on those statutes that place burdens on persons because of their familial status.
123. We use the term "bigamy" to refer to the criminal laws prohibiting the practice of polygamy, or taking on more than one spouse, regardless of gender. For a collection of bigamy statutes, see Emens, supra note 98, at 290 n.51.
124. See, e.g., Kirk Johnson & Gretel C. Kovach, Daughter of Sect Leader Gets Additional Protection, N.Y. Times, June 4, 2008, at A16 (discussing the conviction of Fundamentalist Church of Jesus Christ of Latter Day Saints sect leader, Warren Jeffs).
125. For our particular purpose, we are focused on adultery laws that operate in jurisdictions where fornication (defined as sexual relations between non-married partners) is not prohibited. To the extent that jurisdictions impinge on all consensual sexual relations outside marriage between mature individuals, there is no specific family ties burden, but it goes without saying that our liberal commitments would trigger hostility to such laws, which persist in various forms in ten states and the District of Columbia. See Emens, supra note 98, at 290 n.49 (collecting statutes).
126. Jonathan Turley, Of Lust and the Law, Wash. Post, Sept. 5, 2004, at B1.
127. See supra note 101.
128. 2 AM. JUR 2D Adultery & Fornication § 4 (2008). Some jurisdictions retain laws punishing an unmarried person for engaging in sexual relations with a married person. See Emens, supra note 98, at 290 n.49. Our analysis is restricted to laws punishing married persons who engage in extramarital sex.
129. See Emens, supra note 98, at 299 n.107 (citing a 1994 National Health and Social Life Survey reporting that thirty-five percent of American married men and twenty percent of American married women have adulterous sex).
130. See id.at 290 n.49 (collecting the statutes of twenty-three states plus the District of Columbia that continue to criminalize adultery).
131. Lynn D. Wardle, Parental Infidelity and the "No-Harm" Rule in Custody Litigation, 52 CATH. UNIV. L. REV. 81, 95 n.57 (2002) ("According to the Washington Post/Kaiser/Harvard Survey Project in 1998, eighty-eight percent of Americans believe that adultery is immoral, while only eleven percent find it morally acceptable.").
132. See Martin J. Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30 J. FAM. L. 45, 45 n.5, 53 nn.54-57 (1991), for a general history of the criminal treatment of adultery in America since the time of the colonists.
133. See John F. Kelly, Virginia Adultery Case Roils Divorce Industry: Conviction Draws Attention to Little-Used Law, WASH. POST, Dec. 1, 2003, at B1;
134. John F. Kelly, Virginia Man Challenges State's Adultery Law; ACLU Joins Appeal, Cites Privacy Issue, WASH. POST, Feb. 26, 2004, at B8.
135. See Melissa Ash Haggard, Adultery: A Comparison of Military Law and State Law and the Controversy This Causes Under Our Constitution and Criminal Justice System, 37 BRANDEIS L.J. 469, 469-70, 476-77 (1998); James M. Winner, Beds with Sheets but No Covers: The Right to Privacy and the Military's Regulation of Adultery, 31 LOY. L.A. L. REV. 1073,1073-74 (1998).
136. See generally C. Quince Hopkins, Rank Matters but Should Marriage?: Adultery, Fraternization, and Honor in the Military, 9 UCLA WOMEN'S L.J. 177 (1999) (analyzing criminal regulation of sexual infidelity in both the military and civilian contexts);
137. Military Gets New Rules on Adultery: It's Still a Crime, but Not All Cases Will Be Prosecuted, CHI. TRIB., July 29,1998, at C1.
138. See, e.g., Bradley Graham, Military Leaders Worry Privately About Impact; Some Troops Offended by Double Standard, WASH. POST, Sept. 15, 1998, at A10.
139. Cf. Christopher R. Leslie, Creating Criminals: The Injuries Inflicted by "Unenforced" Sodomy Laws, 35 HARV. C.R.-C.L. L. REV. 103, 110 (2000) (arguing that even unenforced laws are not harmless because they create a criminal class).
140. Outside of Massachusetts and Connecticut, same-sex marriage is illegal in the United States, and thus adultery laws apply as a class only against those who are married, i.e., heterosexuals. Jesse McKinley & Laurie Goodstein, Bans in 3 States on Gay Marriage, N.Y. Times, Nov. 5, 2008, at A1. In light of the recent events surrounding Proposition 8 in California, the status of same-sex marriage is still unresolved in that state, most especially for the 18,000 same-sex couples who were legally married before the passage of Proposition 8. Bob Egelko, Anti-gay Marriage Group Steps Up for Prop. 8, S.F. Chron., Nov. 11, 2008, at B-2. Few proponents of adultery laws purport to have this discrimination in mind, but in fact they are likely the result of a cultural erasure of the existence of a gay and lesbian monogamous community.
141. Press Release, Office of the Governor, State of Alaska, Parent Sentenced for Failure to Pay Child Support (Feb. 9, 1999), http://www.csed.state.ak.us./ PressReleases/fisher.html.
142. Id.
143. Obviously, the failure to pay tax liabilities to the government is criminal. But generally private parties cannot generally the criminal justice system to enforce debts outside the child support context.
144. See Ronald K. Henry, Child Support at a Crossroads: When the Real World Intrudes upon Academics and Advocates, 33 FAM. L.Q. 235, 240 (1999).
145. See id.; Posting of Nate Oman to Concurring Opinions, http://www.concurringopinions.com/archives/2007/05/debt-status-and.html (May 25, 2007, 12:34).
146. 18 U.S.C. § 228(2000).
147. Deadbeat Parents Punishment Act, Pub. L. No. 105-187,112 Stat. 618 (1998).
148. Id.
149. SCOTT SUSSMAN & COREY MATHER, CENTER ON FATHERS, FAMILIES, AND PUBLIC POLICY, CRIMINAL STATUTES FOR NON-PAYMENT OF CHILD SUPPORT BY STATE 1 (2003), www.cffpp.org/publications/pdfs/crimstat.pdf. States have also tried a number of other measures to enforce child support orders, from garnishing wages to suspending drivers' licenses to booting cars. Solangel Maldonado, Deadbeat or Deadbroke: Redefining Child Support for Poor Fathers, 39 U.C. DAVIS L. REV. 991, 1000 (2006);
150. see also Jennifer Goulah, Comment, The Cart Before the Horse: Michigan Jumps the Gun in Jailing Deadbeat Dads, 83 U. DET. MERCY L. REV. 479, 486 (2006) (describing how some states post "wanted" posters of deadbeat dads and others send birthday cards, reminding parents of their child's birthday and urging them to pay).
151. For background information and history on filial responsibility laws, see generally Ann Britton, America's Best Kept Secret: An Adult Child's Duty to Support Aged Parents, 26 CAL. W. L. REV. 351 (1990);
152. Shannon Frank Edelstone, Filial Responsibility: Can the Legal Duty to Support Our Parents Be Effectively Enforced?, 36 FAM. L.Q. 501 (2002);
153. Seymour Moskowitz, Filial Responsibility Statutes: Legal and Policy Considerations, 9 J.L. & POL'Y 709 (2001);
154. Matthew Pakula, A Federal Filial Responsibility Statute: A Uniform Tool to Help Combat the Wave of Indigent Elderly, 39 FAM. L.Q. 859 (2005);
155. Andrea Rickles-Jordan, Filial Responsibility: A Survey Across Time and Oceans, 9 MARQ. ELDER'S ADVISOR 183 (2007);
156. Katie Wise, Caring for Our Parents in an Aging World: Sharing Public and Private Responsibility for the Elderly, 5 N.Y.U. J. LEGIS. & PUB. POL'Y 563 (2002).
157. See Moskowitz, supra note 123, at 713-14.
158. See Rickles-Jordan, supra note 123, at 199.
159. See id. at 199 n. 136.
160. See Terrance A. Kline, A Rational Role for Filial Responsibility Laws in Modern Society?, 26 FAM. L.Q. 195,196 (1992).
161. CAL. PENAL CODE § 270c (West 2008).
162. MASS. GEN. LAWS ch. 273, § 20 (2007).
163. See infra Part III.G.
164. See infra Part III.B.2.
165. See discussion supra Part I.F.
166. Cf. JOHN RAWLS, A THEORY OF JUSTICE 10-15 (rev. ed. 1999).
167. This strategy draws on the insight that heightened penalties are a plausible way of achieving greater deterrence in certain contexts where there is less likelihood of a victim coming forward. See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169, 180 (1968);
168. A. Mitchell Polinsky & Steven Shavell, Punitive Damages:An Economic Analysis, 111 HARV. L. REV. 869, 888 (1998).
169. See, e.g., R. v. Gladue, [1999] 1 S.C.R. 688, 740-41 (Can.) (discussing the breach of trust associated with violence against one's spouse as an aggravating factor).
170. But see Jennifer M. Collins, Crime and Parenthood: The Uneasy Case for Prosecuting Negligent Parents, 100 Nw. U. L. REV. 807, 820 (2006) (discussing a study showing that in practice, parents who lose children through negligent conduct are often treated more leniently than unrelated caregivers who cause death).
171. As discussed in Part III.C, one can design policies to accommodate these concerns in several ways.
172. We looked at familial status defenses, pretrial release, exemptions from prosecution for harboring fugitives, testimonial privileges, prison accommodations, and sentencing practices. See generally Markel, Collins & Leib, supra note 3.
173. In our forthcoming book, see supra note א, we discuss how these benefits and burdens might interact and what we learn about how we value family when we look at the various benefits and burdens together.
174. See Markel, Collins & Leib, supra note 3, at 1171-78.
175. Id. at 1187-90.
176. Id. at 1188.
177. See GEORGE P. FLETCHER, LOYALTY: AN ESSAY ON THE MORALITY OF RELATIONSHIPS 16(1993).
178. See Meir Dan-Cohen, Responsibility and the Boundaries of the Self, 105 HARV. L. REV. 959, 961 (1992).
179. See MILTON C. REGAN, JR., ALONE TOGETHER: LAW AND THE MEANINGS OF MARRIAGE 200 (1999); Milton C. Regan, Jr., Spousal Privilege and the Meanings of Marriage, 81 VA. L. REV. 2045, 2050 (1995).
180. See Roderick M. Hills, Jr., The Constitutional Rights of Private Governments, 78 N.Y.U. L. REV. 144,174 (2003).
181. See PLATO, THE REPUBLIC 158 (G. R. F. Ferrari ed., Tom Griffith trans., 2000).
182. Linda C. McClain, Care as a Public Value: Linking Responsibility, Resources, and Republicanism, 76 CHI.-KENT L. REV. 1673,1674 (2001).
183. Linda C. McClain, Negotiating Gender and (Free and Equal) Citizenship: The Place of Associations, 72 FORDHAM L. REV. 1569, 1569 (2004);
184. see also MARTHA ALBERTSON FINEMAN, THE AUTONOMY MYTH, at xviii (2004). Although space constraints prevent us from giving the subtle and important work of McClain and Fineman their due, we think it important to give a flavor of this form of argument.
185. See Markel, Collins & Leib, supra note 3, at 1226-27.
186. Id. at 1190-1200.
187. Id. at 1190.
188. Id. at 1195-98.
189. Id. at 1193-95, 1199-1200.
190. Id. at 1190-93,1195-98.
191. See supra Part I.C.
192. See supra Part I.F.
193. See generally Dan Markel, Against Mercy, 88 MINN. L. REV. 1421 (2004) (suggesting that grants of mercy are problematic from the perspective of equal liberty under law).
194. See supra notes 31-38 and accompanying text.
195. On "heteronormativity," see, for example, Nancy J. Knauer, Heteronormativity and Federal Tax Policy, 101 W. VA. L. REV. 129, 133 (1998).
196. See generally Laura T. Kessler, Transgressive Caregiving, 33 FLA. ST. U. L. REV. 1 (2005) (suggesting that caregiving performed outside of traditional family contexts can work to subvert family law's discriminatory ideologies).
197. See, e.g., Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 COLUM. L. REV. 181, 184 (2001);
198. Martha T. McCluskey, Caring for Workers, 55 ME. L. REV. 313, 315 (2003); Symposium, The Structures of Care Work, 76 CHI.-KENT L. REV. 1389 (2001);
199. cf. Mary Becker, Care and Feminists, 17 WIS. WOMEN'S L.J. 57, 68 (2002) (acknowledging that "women face social pressures to be mothers");
200. Sasha Roseneil, Why We Should Care About Friends: An Argument for Queering the Care Imaginary in Social Policy, 3 SOC. POL'Y & SOC'y 409, 411 (2004) (rethinking the focus of reproduction within the heterosexual family as the most significant productive activity and space).
201. See supra Part I.C.
202. See supra Part I.G.
203. See Larry Alexander, Consent, Punishment, and Proportionality, 15 PHIL. & PUB. AFF. 178, 178(1986).
204. Cf. ERIC POSNER, LAW AND SOCIAL NORMS 24 (2000) (discussing how an actor's willingness to bear certain costs or consequences can be a way of "establishing or preserving one's reputation").
205. See, e.g., Williams v. State, 664 P.2d 137, 139 (Cal. 1983) ("As a rule, one has no duty [under tort law] to come to the aid of another.");
206. FOWLER V. HARPER ET AL., HARPER, JAMES AND GRAY ON TORTS 874 (3d ed. 2007);
207. LAFAVE, supra note 21, at § 6.2(a).
208. See supra Part I.A.
209. See supra notes 23-24 and accompanying text.
210. The metaphor here reaches a bit too far since admittedly the state does not closely supervise adults, ready to step in at any point as part of its own duty to rescue or support. Nonetheless, with every marriage or choice to parent, the actors are explicitly or implicitly stating their intention to care for and support the other person in the relationship.
211. Cf. LAFAVE, supra note 21, § 6.2(a)(1) (listing parent/child, ship captain/seaman, and employer/employee as the most common personal relationships with affirmative duties).
212. Cf. id.
213. See supra Part I.G.
214. See supra note 127 and accompanying text.
215. For disturbing counter-examples, consider the allegations made against Warren Jeffs, who was charged with forcing young girls into marriages with older men, some of whom were closely related to the brides. See, e.g., John Dougherty, Polygamist Is Indicted in Assault of a Child, N.Y. TIMES, JULY 23, 2008, at A14; John Dougherty & Kirk Johnson, Sect Leader Is Convicted as an Accomplice to Rape, N.Y. TIMES, Sept. 26, 2007, at A18.
216. See generally HENDRIK HARTOG, MAN AND WIFE IN AMERICA: A HISTORY (2000) (charting changes in law and its effects on the American institution of marriage).
217. See, e.g., Ruthann Robson, Assimilation, Marriage, and Lesbian Liberation, 75 TEMP. L. REV. 709, 777-800 (2002).
218. See Andrews, supra note 42, at 415 ("[P]arents, generally speaking, have made a choice to parent. This choice, in most cases, represents voluntary action...."). Repronormativity is a real issue and underwrites skepticism about some of the family ties burdens that seem drawn with a vision about reproduction in mind. See sources cited supra note 163. Still, we do not think repronormativity implicates the voluntariness of the choice to procreate for the purposes of burdening that choice.
219. Some have argued that women have little freedom to reject society's expectations that they will choose to mother. See, e.g., Bartholet, supra note 36, at 35 ("Women are taught from birth that their identities are inextricably linked with their capacity for pregnancy and childbirth and that this capacity is inextricably linked with mothering.");
220. Robson, supra note 178, at 814. Others may perceive a religious obligation to procreate and parent despite their desire otherwise.
221. See Ethan J. Leib, A Man's Right to Choose: Men Deserve Voice in Abortion Decision, 28 LEGAL TIMES 60, 60 (2005) [hereinafter Leib, Man's Right]. Although it is undoubtedly true that most "deadbeat" fathers are not individuals who had children against their will, in the sense that they attempted to use birth control, had semen stolen from them in a sexual act without vaginal penetration, or were encouraged in sexual situations by partners that were dishonest about their fertility status. It is still likely true that many fathers have support obligations to children they affirmatively would have chosen not to have were the reproductive freedom choice solely within their discretion.
222. The age of the person matters as does the mental competence; we can imagine excluding from criminal liability those whose competence was below a minimum standard.
223. We use "compacts" instead of contracts, because we do not think there must be bilateral exchange or consideration to make the declaration of intent to care for another legally binding in this context.
224. One of us has written that an opt-out should be available to fathers before birth under certain circumstances. See Leib, Man's Right, supra note 181, at 61. But this is a very special case, and it presumes a lack of consent on the part of the father of ever entering the relationship of father-child. Id. Obviously, different concerns are presented when an adult consents to care for a child and then attempts to withdraw such consent.
225. For a provocative discussion of what parents owe their children (which also explains why parents cannot opt out), see Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries, 81 VA. L. REV. 2401, 2402 (1995).
226. For more details on how one such registry could function, see, for example, David L. Chambers, For the Best of Friends and for Lovers of All Sorts, A Status Other than Marriage, 76 NOTRE DAME L. REV. 1347, 1348 (2001). Vermont and Hawaii already have "reciprocal beneficiary" statutes that cover some of this territory.
227. See HAW. REV. STAT. ANN. § 572C-1 to -7 (LexisNexis 2005);
228. VT. STAT. ANN. tit. 15, §§ 1301-1306 (2002). The state could create a legal registry to signal who is in one's circle of care, what obligations one has assumed, and what exposure such information should have to the public beyond law enforcement.
229. See supra Part I.G.
230. See, e.g., Marin Roger Scordato, Understanding the Absence of a Duty to Reasonably Rescue in American Tort Law, 82 TUL. L. REV. 1447, 1452-55 (2008). We may disagree with the no-duty-to-rescue pattern for other reasons, but if we are to have it and its exceptions as they are, the doctrine should at least be operationalized in a way that better promotes the underlying interests.
231. See generally Markel, Collins & Leib, supra note 3.
232. We should note that one can be a "liberal" with regard to the criminal justice system - meaning here, concerned with consent - but status-oriented in other areas of the law, such as family law and civil law. More importantly, to adopt a moral theory about obligation that is non-liberal in the context of family and other close relationships does not decide the question about how the related legal system should be designed. In thinking of institutional design, the choice about how much to build off voluntarism and how much to build off relational obligations is very much contingent on context. See Ethan J. Leib, Responsibility and Social/Political Choices About Choice Or, One Way to Be a True Non-Voluntarist, 25 LAW & PHIL. 453, 456 (2006). For more on building a moral theory of obligation relationally rather than from consent, see Samuel Scheffler, Relationships and Responsibilities, 26 PHIL. & PUB. AFF. 189,195-96 (1997).
233. See RAWLS, supra note 133, at 220 ("Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.");
234. JOHN STUART MILL, The Subjection of Women, in 21 COLLECTED WORKS OF JOHN STUART MILL: ESSAYS ON EQUALITY, LAW, AND EDUCATION 259, 262 (John M. Robson ed., 1984) ("[T]he burthen [sic] of proof is supposed to be with those who are against liberty [and] who contend for any restriction or prohibition.... The à priori presumption is in favour of freedom....").
235. The phrase "equally effective" is important. As the criminal law involves powers of norm expression, we must carefully assess whether non-criminal alternatives including social norms carry similar expressive force.
236. Richard S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: "Proportionality" Relative to What?, 89 MINN. L. REV. 571, 576 (2005);
237. Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 VA. L. REV. 677, 709 (2005);
238. Alice Ristroph, Proportionality as a Principle of Limited Government, 55 DUKE L.J. 263, 270 (2005).
239. See Husak, supra note 12, at 207 (stating that a condition of minimalist theory is the use of criminal law as a last resort);
240. Nils Jareborg, Criminalization as Last Resort (Ultima Ratio), 2 OHIO ST. J. CRIM. L. 521, 524 (2005). See generally Douglas Husak, OVERCRIMINALIZATION (2008) (offering a set of constraints designed to slow the growth of the criminal law).
241. SEE SUPRA Part II.B.2.
242. See, e.g., Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 520-21, 2002 SCC 68 (Can.) (analyzing felon disenfranchisement law by examining the legitimacy of the law's objective and the proportionality of the means used to achieve the objective).
243. If the burden was not imposed 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. Here we 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 generally, regardless of whom they affect. See supra notes 13-15 and accompanying text.
244. Markel, Collins & Leib, supra note 3.
245. See supra Part I.A.
246. Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) ("[T]he family itself is not beyond regulation in the public interest.... [T]he state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare ....").
247. See supra Part I.A.
248. See supra Part II.C.
249. LAFAVE, supra note 21, § 6.2.
250. Id.
251. For example, a man may volunteer to have sex but not consent to have a child from that sex. See Sherry F. Colb, When Oral Sex Results in a Pregnancy: Can Men Ever Escape Paternity Obligations?, FindLaw, Mar. 9, 2005, http://writ.news.findlaw.com/colb/20050309.html. Or one may claim, under the circumstances of rape or stolen sperm, that he did not even volunteer to have procreative sex.
252. See Leib, Man's Right, supra note 181, at 60.
253. One's response here hinges on whether one believes a person who takes precautions against pregnancy still assumes the risk of being commandeered into parenting by the state and the other partner. It might be a remote but foreseeable risk, thus the question then is whether it is just to impose this consequence on the person. Perhaps one should be able to insure against the risk, though it raises moral hazard issues. Professor Collins is of the view that a man should be on the hook unless his sperm was effectively purloined through deception or coercion. Professors Leib and Markel think a man should not be commandeered into parenting obligations by the criminal law's apparatus if he takes due care prior to and during sex. Leib and Markel believe, for example, if the male discusses the issue with his partner in advance of sexual relations, and they agree to use reliable birth control methods, then if birth control fails the man will not be responsible for more than his fair share of an abortion.
254. June Carbone, The Legal Definition of Parenthood: Uncertainty at the Core of Family Identity, 65 LA. L. REV. 1295, 1330 (2005).
255. Indeed, the child at issue in Jones v. United States, 308 F.2d 307 (D.C. Cir. 1962), resided with a family friend at the time of his death. Id. at 309.
256. See infra Part III.A.l.c.
257. See generally Laura Rosenbury, Between Home and School, 155 U. PA. L. REV. 833 (2007) (arguing that much of childhood takes place in spaces outside the home).
258. Id. at 843-44.
259. In establishing the criteria to answer this question, legislators, prosecutors, or courts may want to consider a variety of factors including: co-residence between defendant and minor; whether the defendant provides financial support to the child; and whether the defendant has formally terminated parental rights, or instead made statements to the public or the government regarding the relationship for purposes such as taxes or other government benefits. On the features that generally trigger legal recognition of parenthood,
260. see David D. Meyer, Parenthood in a Time of Transition: Tensions Between Legal, Biological, and Social Conceptions of Parenthood, 54 AM. J. COMP. L. 125, 132-43 (Supp. 2006).
261. The other aspects of the omissions liability doctrine should attach; for example, the rescue has to be one that is actually achievable and does not pose undue risks to the rescuer. LAFAVE, supra note 21, §6.2(c).
262. Cf. Carol Sanger, A Case for Civil Marriage, 27 CARDOZO L. REV. 1311, 1311-12 (2006) (discussing marriages based on contract law, as opposed to status-based statutes);
263. Edward A. Zelinsky, Deregulating Marriage: The Pro-Marriage Case for Abolishing Civil Marriage, 27 CARDOZO L. REV. 1161, 1164 (2006) (stating that eliminating marriage as a legal construct would make the status of parties as married or unmarried legally irrelevant).
264. MODEL PENAL CODE § 3.02 (1985).
265. Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905).
266. Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 854-55 (1984).
267. See Hyman, supra note 21, at 656.
268. We leave aside for now whether the age of majority for this purpose should be dropped from eighteen to a lower age, such as sixteen.
269. There is a problem with this rationale: it might be said about any norm of responsible behavior; there really is not a single unified theoretical account that adequately explains what the boundaries of criminal law are. See Antony Duff, Theories of Criminal Law, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward Zalta ed., Fall ed. 2008), http://plato.stanford.edu/archives/fall2008/entries/criminal-law/. Still, that most spouses will comply is not a good reason to do without the law. Will the law "crowd" out otherwise trust-based conduct, as some have suggested? It is hard to see how it would, even if there is some value in compliance outside the law. For a discussion of the "crowding" thesis and its rejection,
270. see Ethan J. Leib, Friends as Fiduciaries, 86 wash. u. L. Rev. (forthcoming Feb. 2009) (manuscript at 59-64, on file with author),
271. and see also Frank Cross, Law and Trust, 93 Geo. L.J. 1457, 1545 (2005) ("Whatever the intuitive appeal of the claims that legalization undermines trust, they cannot be sustained once they are subjected to scrutiny and empirical testing.").
272. Mississippi prohibits "[a]doption by couples of the same gender." MISS. CODE ANN. § 93-17-3(5) (West 2007). Florida goes further and prohibits all "homosexual[s]" from adopting, whether coupled or not. FLA. STAT. ANN. § 63.042(3) (West 2005). However, about half the states now "permit same-sex couples to raise children together through second-parent adoptions or through entry into marriage or a marriage-like union." Meyer, supra note 212, at 135.
273. See supra Part I.A.
274. That is not to deny that ex ante Y may feel denigrated on the basis of sexual orientation discrimination.
275. Of course, some traditionalists might argue that children are harmed when entrusted to the care of homosexual couples or those in polyamorous unions. E.g., Press Release, Christian Inst., Blair's Gay Adoption Plans Will Harm Children (May 7, 2002), http://www.christian.org.uk/pressreleases/2002/may- 7-2002.htm.
276. 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, "mothers 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." Mary E. Becker, Double Binds Facing Mothers in Abusive Families: Social Support Systems, Custody Outcomes, and Liability for the Acts of Others, 2 U. CHI. L. SCH. ROUNDTABLE 13, 15 (1995);
277. see also JANE SWIGART, THE MYTH OF THE BAD MOTHER: THE EMOTIONAL REALITIES OF MOTHERING 6 (1991);
278. Naomi Cahn, Policing Women: Moral Arguments and the Dilemmas of Criminalization, 49 DEPAUL L. REV. 817, 822 (2000).
279. See Melissa Murray, The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, 94 VA. L. REV. 385, 450 (2008).
280. We are grateful to Professor Murray for alerting us to this point.
281. Cf Carol Sanger, Separating from Children, 96 COLUM. L. REV. 375, 441 (1996) (discussing the role law has played in changing attitudes towards mother-child separations over time);
282. Erik Eckholm, Older Children Abandoned Under Law for Babies, N.Y. TIMES, Oct. 3, 2008, at A21 (showing parents abandoning children well past infancy when they are promised immunity from prosecution for neglect).
283. See supra Part I.A.
284. See Nancy S. Erickson, Battered Mothers of Battered Children: Using Our Knowledge of Battered Women to Defend Them Against Charges of Failure to Act, in 1A CURRENT PERSPECTIVES IN PSYCHOLOGICAL, LEGAL AND ETHICAL ISSUES: CHILDREN AND FAMILIES: ABUSE AND ENDANGERMENT 197, 199 (Sandra Anderson Garcia & Robert Batey eds., 1991).
285. See sources cited supra note 225.
286. Cahn, supra note 225, at 822.
287. See Bernardine Dohrn, Bad Mothers, Good Mothers, and the State: Children on the Margins, 2 U. CHI. L. SCH. ROUNDTABLE 1, 3 (1995) (discussing domestic violence and child abuse as strong predictors of each other).
288. Cf. Nicholson v. Scoppetta, 344 F.3d 154, 158 (2d Cir. 2003) (disapproving of a city agency's practice of removing children from a custodial parent based on a parental failure to prevent the child from witnessing domestic violence).
289. See Becker, supra note 225, at 19.
290. Id. at 18.
291. See id. at 31-32 (urging the provision of stronger "safety nets" for women in abusive situations);
292. Linda Gordon, Feminism and Social Control: The Case of Child Abuse and Neglect, in WHAT IS FEMINISM? 63, 69 (Juliet Mitchell & Ann Oakley eds., 1986).
293. Becker, supra note 225, at 32 (arguing that regardless of abuse, mothers should still be held responsible for their abuse or neglect of their children and for failing to protect their children from others' abuse and neglect). Becker further argues that "we must also change other parts of the social and legal system to make it easier for women to escape abusive households with their children." Id.
294. See id. at 21.
295. Id. ("The 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.").
296. There may be some cases where the more passive parent is just as culpable as the actual abuser, by providing active encouragement, a weapon, or the like.
297. See, e.g., Nina Callaway, Your Wedding Vows: Samples of Wedding Vow Wording, ABOUT.COM, http://weddings.about.com/cs/ bridesandgrooms/a/vowwording.htm (showing traditional wording of vows promising mutual care).
298. See supra Part II.C
299. See discussion supra Part III.A.2.
300. See, e.g., People v. Beardsley, 113 N.W. 1128, 1131 (Mich. 1907). Indeed, some states have recognized that limiting liability to formal legal relationships would be plainly under-inclusive. Leet v. State, 595 So. 2d 959, 963 (Fla. Dist. Ct. 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); State v. Caton, 739 N.E.2d 1176, 1181 (Ohio Ct. App. 2000) ("Whether a person stands in loco parentis is a factual question. The term does not signify a formal investiture ...." (citation omitted)). We believe all states need to move in this direction and we have proposed a clear mechanism by which they could do so. See supra Part II.D.
301. In light of the extent of discrimination against gay individuals in this country, we think it far too risky to hope that courts in all states would extend the same protections and obligations to individuals in a homosexual relationship. 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 in those states with domestic partnership laws. D. Kelly WEISBERG & SUSAN FRELICH APPLETON, MODERN FAMILY LAW: CASES AND MATERIALS 404 (3d ed. 2006).
302. We note that some civil union laws, such as Vermont's, offer same-sex couples the same panoply of rights and responsibilities that exist with heterosexual marriages. See VT. STAT. ANN. tit. 15, § 1204 (2002). However, discrimination persists against those involved in voluntary and committed polyamorous relationships or in non-sexual unions who nonetheless seek to enter covenants of care with each other.
303. Cf. Ethan J. Leib, Friendship & the Law, 54 UCLA L. REV. 631, 633 (2007) [hereinafter Leib, Friendship] (stating that while other relationships are recognized and protected by the law, friendships receive no such recogntion);
304. Laura A. Rosenbury, Friends with Benefits?, 106 MICH. L. REV. 189, 191 (2007) (arguing that a failure to recognize friendship impedes the elimination of state-supported gender role expectations).
305. By decoupling omissions liability and marriage, we do not run the risk of punishing a purely private breach of contract through criminal law. Since there is no bilateral exchange or consideration with our omissions registry, but only a declaration to the state with binding consequences, 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. The lulling notion, of course, applies only to those few situations where the state already has reason to be mindful of the vulnerability of a particular person.
306. Professor Leib has some sympathy with the idea that voluntary friendships can trigger substantial legal duties. See Leib, Friendship, supra note 247, at 633. Few of these envisioned duties for friendship are criminally punishable upon breach but, admittedly, some are. Leib's approach to friendship - and his resistance to registries in that context - is, in some ways, inconsistent with the approach taken here.
307. Id. at 662-67. To the extent that the approaches differ, Leib is willing to concede that the use of a registry for substantial criminal law liability may be the better way to allocate friendship's burdens. But the private civil law is another story.
308. DRESSLER, supra note 24, at 91.
309. See supra Part I.B.
310. See sources cited supra note 41.
311. Brank et al., supra note 41, at 3.
312. E.g., IDAHO CODE ANN. § 32-1301 (2006);
313. LA. REV. STAT. ANN. § 14:92:2 (2004).
314. DiFonzo, supra note 41, at 59 n.261 (listing state statutes which use language similar to "failing to exercise reasonable control").
315. See supra notes 51-57.
316. Cf. Paul H. Robinson, Competing Conceptions of Modern Desert: Vengeful, Deontological, and Empirical, 67 CAMBRIDGE L.J. 145, 149-50 (2008) (explaining that when the criminal law tracks a community's notion of justice, the law earns moral credibility and the ability to shape societal norms);
317. Paul H. Robinson & John M. Darley, The Utility of Desert, 91 NW. U. L. REV. 453, 482 (1997) (same).
318. Brank et al., supra note 41, at 3 ("All of the states have some form of civil parental liability."); Chapin, supra note 41, at 633-34 (discussing the compensation and deterrence rationales of civil liability statutes).
319. United States v. Pinkerton, 328 U.S. 640, 647 (1946).
320. See Alex Kreit, Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton, 57 AM. U. L. REV. 585, 590 (2008).
321. See, e.g., Paul Marcus, Criminal Conspiracy Law: Time to Turn Back from an Ever Expanding, Ever More Troubling Area, 1 WM. & MARY BILL RTS. J. 1,6-7(1992).
322. Pinkerton, 328 U.S. at 647-48.
323. Kreit, supra note 260, at 598-605.
324. See DRESSLER, supra note 24, at 556-61.
325. See Posting of Dan M. Filler to Concurring Opinions, www.concurringopinions.com/archives/2006/07/strict-liabilit.html (July 6, 2006, 11:30). There apparently have been few recent empirical studies assessing the effectiveness of these laws. OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, JUVENILE JUSTICE REFORM INITIATIVE IN THE STATES 1994-1996, http://ojjdp.ncjrs.org/pubs/ reform/ch2-d.html (bemoaning the lack of data about whether these statutes are effective);
326. see also Chapin, supra note 41, at 653-54.
327. Filler, supra note 265.
328. Harris, supra note 44, at 10.
329. See supra notes 39-40.
330. Courtney L. Zolman, Comment, Parental Responsibility Acts: Medicine for Ailing Families and Hope for the Future, 27 CAP. U. L. REV. 217, 229 (1998) (quoting a statement by Nia Keeling, a family outreach worker) (internal quotation marks omitted);
331. see also Tyler & Segady, supra note 43, at 80 (quoting the statement "[s]how me a bad kid and I'll show you a bad parent," made at a city council meeting in Southfield, Michigan that ultimately authorized a parental responsibility ordinance (internal quotation marks omitted)).
332. Chapin, supra note 41, at 624.
333. For a discussion of whether poor parenting is in fact a substantial contributing factor to juvenile delinquency, see id. at 664-71.
334. See DiFonzo, supra note 41, at 44;
335. see also Cahn, supra note 41, at 425-27 (identifying other causes of juvenile delinquency, such as "deficiencies in early childhood education, peer pressure, and inadequate employment opportunities");
336. Amy L. Tomaszewski, Note, From Columbine to Kazaa: Parental Liability in a New World, 2005 U. ILL. L. REV. 573, 583-85 (discussing how factors like the media and biology might contribute to juvenile delinquency).
337. DiFonzo, supra note 41, at 47; see also Cahn, supra note 41, at 416-17 (suggesting that some parents do such a poor job of parenting, such as engaging in physical abuse, that their children might appropriately reject their supervisory efforts).
338. DiFonzo, supra note 41, at 48.
339. Id. DiFonzo also argues that jailing a parent deprives the youthful offender and any siblings of a parental influence in the home.
340. Id. at 48-49. This criticism is obviously less persuasive if the parenting at issue was truly inadequate or even affirmatively harmful.
341. 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). Our vision of who stands in relationships of asymmetrical dependency does not rest necessarily upon residency, but we recognize its general significance.
342. See Maldonado, supra note 122, at 1008-12.
343. See supra Part I.C.
344. See infra note 297 and accompanying text.
345. See U.S. SENTENCING GUIDELINES MANUAL § 3B1.3 (2007) (providing a sentencing enhancement for abusing a position of trust). Notice that this use of sentencing enhancements is fine under our framework: they are not family ties burdens because they apply to all positions of trust. Professor Leib discusses how this provision can be used to protect friendship as a caregiving relationship in Leib, Friendship, supra note 247, at 691 n.324.
346. E.g., Carolyn S. Bratt, Incest Statutes and the Fundamental Right of Marriage: Is Oedipus Free to Marry?, 18 Fam. L.Q. 257, 259 (1984). This may help explain why adoptive children are sometimes excluded from such prohibitions.
347. See Cahill, supra note 81, at 1569. Cahill cites a number of courts that referenced these rationales in upholding incest laws.
348. Id. at 1570 nn. 105-06 (citing State v. Kaiser, 663 P.2d 839, 843 (Wash. Ct. App. 1983);
349. In re Tiffany Nicole M., 571 N.W.2d 872, 878 (Wisc. Ct. App. 1997)). McDonnell cites a related concern of preventing the family from becoming "overly-sexualized," with family members viewing other members as potential sexual partners. McDonnell, supra note 90, at 353.
350. CLAUDE LÉVI-STRAUSS, THE ELEMENTARY STRUCTURES OF KINSHIP 479 (Rodney Needham ed., James Harle Bell & John Richard von Sturmer trans., 1969);
351. Note, Inbred Obscurity, supra note 83, at 2464.
352. Note, Inbred Obscurity, supra note 83, at 2469-70.
353. See McDonnell, supra note 90, at 352 (suggesting that states could take a narrower approach by allowing incestuous couples to marry but making it illegal for them to have children). McDonnell does not grapple with the question whether such a statute would be constitutional.
354. Id. at 353. Margaret Mahoney makes the point that the genetic issue also cannot justify those state statutes criminalizing relationships between step-parents and step-children. Mahoney, supra note 84, at 28. Mahoney also suggests, however, that many of the concerns raised by incest could be present even in relationships between two adults; an incestuous relationship could undermine family harmony no matter the ages of the two parties involved.
355. Id. at 32.
356. Cahill, supra note 81, at 1578-83 (discussing how disgust and revulsion drive much of incest regulation).
357. See Mahoney, supra note 84, at 29 (describing how religious history, family welfare, and "community norms" are invoked as potential justifications for incest bans).
358. As we noted in Part I, only three states do not punish consensual adult sibling sexual conduct. See supra note 83.
359. Professors Collins and Leib would add that a past asymmetric dependence relationship would also be justifiably precluded based on concerns of vulnerability. Professor Markel disagrees; on his view, genuine and mature consent may plausibly exist even between adults who were once in a relationship of asymmetric dependence.
360. See Note, Inbred Obscurity, supra note 83, at 2469-70.
361. In other contexts, Professor Markel suggests possibilities including registering the relationship with the government if it fits into a certain category of risk, and requiring participants to the relationship to take a sex-education course. See infra note 305. These possibilities might be appropriate in this context as well.
362. Here we largely agree with the observation in 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. Lawrence v. Texas, 539 U.S. 558, 597 (2003) (Scalia, J., dissenting).
363. See Posting of Dan Markel to PrawfsBlawg, http://prawfsblawg. blogs.com/prawfsblawg/2008/02/the-sex-ed-lice.html (Feb. 19, 2008, 18:32) (discussing the shadow effects of incest, adultery, and polygamy laws);
364. see also Kay L. Levine, The Intimacy Discount: Prosecutorial Discretion, Privacy, and Equality in the Statutory Rape Caseload, 55 EMORY L.J. 691, 746 (2006) (lamenting shadow effects on consensual activity in the statutory rape context).
365. Cahill, supra note 81, at 1578-83.
366. See supra note 282 and accompanying text.
367. See Note, Inbred Obscurity, supra note 83, at 2467-68.
368. See, e.g., State v. Thompson, 792 P.2d 1103, 1106 (Mont. 1990) (concluding that a principal who threatened to block a student's graduation unless she consented to sexual intercourse could not be convicted of the crime of "sexual intercourse without consent").
369. 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 an important and complicated separate issue of whether any incestuous marriages should be permitted. Our focus here is on whether current criminal conduct should be decriminalized or reformed, and we will restrict our discussion to that subject.
370. While a sentence enhancement may, to some, signal that one victim seems to be "worth more" than another victim, we think there is less reason to be worried about it since an offender in that context has voluntarily created the trust relationship, and the breach of it makes the conduct more reprehensible. That seems a sufficient basis to rebut a possible allegation of unfair treatment of the victim as signaled by the sentence to the offender.
371. McDonnell, supra note 90, at 350-51.
372. Note, Inbred Obscurity, supra note 83, at 2468 n.31.
373. Id. at 2468.
374. 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.
375. 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.
376. See Markel, Collins & Leib, supra note 3, at 1190.
377. Professor Markel, for instance, holds the view that if someone aged fifteen to eighteen invites and chooses consensual relations with another person aged fifteen or higher, that person should be able to engage in the 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's education in some jurisdictions is a prerequisite for permissible driving. On this view, all persons under eighteen 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. Posting of Dan Markel to PrawfsBlawg, http://prawfsblawg.blogs.com/prawfsblawg/2008/02/is-teen-sex-lik.html (Feb. 15, 2008, 17:17) (discussing the logistics of sex-ed licenses). 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, co-habitation, or a 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 designated authorities to certify that these conditions have been satisfied. Prosecution for statutory rape would be threatened in the absence of compliance.
378. See Posting of Dan Markel to PrawfsBlawg, http://prawfsblawg. blogs.corn/prawfsblawg/2008/02/sex-with-minors.html (Feb. 7, 2008, 16:31) (providing hypothetical scenarios regarding sexual relations with minors);
379. Posting of Dan Markel to PrawfsBlawg, http://prawfsblawg.blogs.com/ prawfsblawg/2008/02/marriage-of-min.html (Feb. 8, 2008, 12:13) (providing hypothetical scenarios regarding marriages with and between minors).
380. See, e.g., N.Y. PENAL LAW § 130.65 (McKinney 2008).
381. We could permit or require the fact-finder to infer that coercion is present in certain circumstances; for example, do the participants live in the same home together; does one person serve in a caregiving or supervisorial role to the other? But both those questions would cut across family status blood lines. For Markel, 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.
382. Cf. Christine S. Scott-Hayward, Explaining Juvenile False Confessions: Adolescent Development and Police Interrogation, 31 LAW & PSYCHOL. REV. 53, 62 (2007) (explaining why juveniles are more susceptible to police coercion).
383. See, e.g., Lawrence v. Texas, 539 U.S. 558, 590 (2003) (Scalia, J., dissenting) (suggesting that the constitutionality of laws prohibiting adult incest were called into question by the Court's decision in Lawrence);
384. Cahill, supra note 81, at 1544;
385. Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, in 55 SUP. CT. REV. 27, 60-65 (Dennis J. Hutchinson, David A. Strauss & Geoffrey R. Stone eds., 2003). The same slippery slope concerns about incest were also raised by opponents to the legalization of interracial marriage. For a very interesting discussion on that topic,
386. see Cahill, supra note 81, at 1554-57.
387. Bigamy is also increasingly on the agenda.
388. See Jeffrey Michael Hayes, Comment, Polygamy Comes Out of the Closet: The New Strategy of Polygamy Activists, 3 STAN. J. C.R.&C.L.99, 104-13 (2007).
389. See, e.g., Sunstein, supra note 309, at 62 (stating it cannot be said that incest "prohibitions run afoul of some emerging national awareness"). One organization, however, is seeking to liberalize cousin marriage. Cousin Couples, http://www.cousincouples.com (last visited Oct. 1, 2008).
390. See, e.g., McDonnell, supra note 90, at 352-53;
391. Note, Inbred Obscurity, supra note 83, at 2465-66.
392. Christine McNiece Metteer, Some "Incest" Is Harmless Incest: Determining the Fundamental Right to Marry of Adults Related by Affinity Without Resorting to State Incest Statutes, 10 KAN. J.L. & PUB. POL'Y 262, 272-73 (2000);
393. see also Bratt, supra note 281, at 259-67. At least one state supreme court has agreed with this general proposition.
394. See Israel v. Allen, 577 P.2d 762, 764 (Colo. 1978) (striking down a state statute prohibiting marriage between brother and sister related only by adoption as unconstitutional).
395. Robson, supra note 178, at 762.
396. Id. at 763.
397. Id. at 764.
398. Cf. Lawrence v. Texas, 539 U.S. 558, 599 (2003) (Scalia, J., dissenting) (concluding that the liberty rationale for invalidating bans on same-sex sodomy statutes entails the invalidation of other morals legislation including bans on consensual incestuous relationships).
399. For legal background on American bigamy laws, see generally Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890);
400. Murphy v. Ramsey, 114 U.S. 15 (1885);
401. Reynolds v. United States, 98 U.S. 145 (1878).
402. See Shayna M. Sigman, Everything Lawyers Know About Polygamy Is Wrong, 16 CORNELL J.L. & PUB. POL'Y 101, 106 (2006). Sigman's article and some others provide an exception to this pattern of neglect.
403. See id.;
404. see also Emens, supra note 98, at 362;
405. Keith E. Sealing, Polygamists Out of the Closet: Statutory and State Constitutional Prohibitions Against Polygamy Are Unconstitutional Under the Free Exercise Clause, 17 GA. ST. U. L. REV. 691, 737-57 (2001);
406. Maura I. Strassberg, The Challenge of Post-Modern Polygamy: Considering Polyamory, 31 CAP. U. L. REV. 439, 439 (2003) [hereinafter Strassberg, Post-Modern Polygamy].
407. See Hayes, supra note 310, at 105.
408. See Sigman, supra note 319, at 169-74.
409. Maura Strassberg, The Crime of Polygamy, 12 TEMP. POL. & CIV. RTS. L. REV. 353, 405-12 (2003) [hereinafter Strassberg, Crime of Polygamy].
410. This was a particular problem with the recently convicted Warren Jeffs, who married off barely post-pubescent girls in his community and at the same time effectively banished teenage boys from the community to "make more girls available for marriage to the elders." Julian Borger, Hellfire and Sexual Coercion: The Dark Side of American Polygamist Sects, GUARDIAN (London), June 30,2005, at 15.
411. See sources cited supra note 176.
412. See, e.g., Geoffrey Fattah, Bigamy Law Debated, DESERET NEWS (Salt Lake City), Feb. 3, 2005, http://deseretnews.corn/article/l,5143,600109729,00.html (debating the application of a bigamy law to a man with a "spiritual" third wife).
413. But see State v. Holm, 137 P.3d 726, 732 (Utah 2006) (holding that the bigamy statute in Utah covers both state-sanctioned marriages and those that are not state-sanctioned).
414. See, e.g., Feminist Majority Foundation, Utah: Plural Wife Is First Woman Charged in Polygamy Case, FEMINIST DAILY NEWS WIRE (Oct. 16, 2002), http://feminist.org/news/newsbyte/ uswirestory.asp?id=7073.
415. See supra Part III.C. 1.
416. See Sigman, supra note 319, at 151-55 (considering the various economic theories which may encourage polygamy).
417. See Emens, supra note 98, at 315-17.
418. See Sigman, supra note 319, at 152 n.430;
419. see also ROBERT WRIGHT, THE MORAL ANIMAL: THE NEW SCIENCE OF EVOLUTIONARY PSYCHOLOGY 96-99 (1994).
420. We presume most people will not be comfortable with this solution. But we are not convinced there is a problem to solve in the first place; if there is, this is one natural conclusion among others.
421. It is important to note that the official Mormon institutions no longer support or encourage polygamy, but there are communities that are Mormon-inspired and continue these practices; it is largely on these off-shoots that Professor Strassberg focuses. Strassberg, Crime of Polygamy, supra note 322, at 354.
422. Id. at 405-12.
423. Professor Strassberg has emphasized the harm of polygamous communities to liberal democracies on different grounds. Drawing on a Hegelian perspective, for example, Strassberg indicated that polygamous marriage cultivates despotism or inhibits the development of liberal values such as equality among persons.
424. See, e.g., Maura I. Strassberg, Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage, 75 N.C. L. REV. 1501, 1537 (1997) [hereinafter Strassberg, Distinctions] (commenting that monogamous marriage is "peculiarly suited to cultivate the freedom to pursue particular ends and the freedom of self-governance by rational ethical principles which must be characteristic of citizens of a free state"). In response, Professor Sigman persuasively notes that the social science literature does not "significantly substantiate the theory that polygamy bars the development of romantic love within a private intimate sphere, that polygamy causes despotism, or that monogamy causes the development of the liberal state." Sigman,
425. supra note 319, at 176. From a theoretical perspective, moreover, we are puzzled why Professor Strassberg would be willing to tolerate the decriminalization of laws limiting polyfidelity involving mature individuals if these Hegelian concerns were paramount.
426. See Strassberg, Crime of Polygamy, supra note 322, at 429 (concluding that there is little evidence to justify bans on polyamory when it involves mature individuals). Additionally, our sense is that liberal regimes retain their credibility by reducing the instances in which they use the criminal law to interfere with the autonomous and consenting choices of the individuals involved. Taking a firm stand against polygamy requires liberal regimes to abandon their commitment to respect most forms of private ordering in the absence of obvious and substantial negative externalities.
427. E.g., Reynolds v. United States, 98 U.S. 145, 166 (1878).
428. See Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 colum. L. Rev. 641, 648-49 (2005);
429. Martha M. Ertman, The Story of Reynolds v. United States: Federal "Hell Hounds" Punishing Mormon Treason, in FAMILY LAW STORIES 51, 54-56 (Carol Sanger ed., 2008).
430. Historical opposition to polygamy sometimes invoked explicitly racist rationales, for example, that polygamy was something that was "almost exclusively a feature of the life of Asiatic and of African people," not something that was appropriate "among the northern and western nations of Europe." Reynolds, 98 U.S. at 164;
431. see also Francis Lieber, The Mormons: Shall Utah Be Admitted into the Union?, 5 PUTNAM'S MONTHLY 225, 234 (1855).
432. It seems that much of the historical American animus against polygamy is rooted in religious discrimination against the Mormon faith tradition and its adherents. See, e.g., Martha M. Ertman, "They Ain't Whites, They're Mormons": An Illustrated History of Polygamy as Race Treason 2 (Univ. of Md. Legal Studies Research, Working Paper No. 2008-37, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1270023. Additionally, many Christians traditionally viewed polygamy with disdain and continue to do so today.
433. Sigman, supra note 319, at 142-43.
434. Sigman helpfully explains why polygamy may be more marginally abusive to women but also why these claims are suspect.
435. See Sigman, supra note 319, at 172-73. She states: (1) polygamy invites secrecy, undermining women's ability to get help if needed; (2) the structure of polygamy suggests that the husband will not have sufficient time to devote to each wife or their children; (3) the treatment by other wives may be abusive; and (4) the types of people who voluntarily choose polygamy may be attracted to the uneven power dynamic. However, there is no evidence that polygamy per se creates abuse or neglect. Having sister wives can be a support network. The status of senior wives versus junior wives and the relationships among these women vary between cultures. In fact, by banding together, women sometimes wield more power to change their husband's problematic behavior. Yet sometimes co-wives are perpetrators [of the abuse against women].
436. Id.
437. Cheshire Calhoun, Who's Afraid of Polygamous Marriage? Lessons for Same-Sex Marriage Advocacy from the History of Polygamy, 42 SAN DIEGO L. REV. 1023, 1039 (2005) ("What these historical details remind us is that gender inequality is a contingent, not a conceptual, feature of polygamy.").
438. Sigman, supra note 319, at 161-63.
439. See id. at 163-64 ("Rather than the gender biased monolith some have made it out to be, polygyny is a multi-faceted choice of family structure, rooted in the economic, sociological, cultural, and biological particulars of a given society.");
440. see also Remi Clignet & Joyce A. Sween, For a Revisionist Theory of Human Polygyny, 6 SIGNS 445, 467 (1981) (demonstrating the diversity of polygynous marriages).
441. E.g., Strassberg, Distinctions, supra note 335, at 1589 ("[M]onogamous marriages in nineteenth-century America were based on the same patriarchal ideas about women's nature and gender roles as polygamous Mormon marriages.").
442. See Sigman, supra note 319, at 173 nn.595-96;
443. see also Hayes, supra note 310, at 107 n.47 ("If there are crimes being committed, and underage child brides, that needs to be prosecuted .... [But,] what's the difference between that and other lifestyles with children in them?" (citing Interview with Nancy Perkins, Reporter, Deseret Morning News (Apr. 12, 2006))).
444. See Hayes, supra note 310, at 107.
445. Cf. Janet Elliott et al., CPS Calls Sect Its Largest Case Ever, HOUSTON CHRON., Apr 8, 2008, at Al (describing the adversarial custody hearings which would begin for each child found in the polygamous compound).
446. Sigman, supra note 319, at 164 (footnotes omitted).
447. Id. at 172.
448. See sources cited supra note 214.
449. See Nancy L. Rosenblum, Democratic Families: "The Logic of Congruence" and Political Identity, 32 HOFSTRA L. REV. 145, 162 (2003).
450. Cf. Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment and the Supreme Court, 101 HARV. L. REV. 1388, 1436 (1988) (describing similar "level-up"/"level-down" options in the context of distribution of the death penalty based on the victim's race).
451. It is hard to say whether a rule that defaults to decriminalization of bigamy would be a penalty default rule or a market-mimicking rule. Although the overwhelming majority of Americans oppose polygamy, the pattern of non-prosecution for most instances of polygamy over the years suggests (weakly) that there is not much support for enforcing polygamy bans.
452. See Sigman, supra note 319, at 140-41 (observing a lack of prosecutions over much of the last fifty years, and general apathy among Utah law enforcement to prosecute polygamists);
453. Dirk Johnson, Polygamists Emerge from Secrecy, Seeking Not Just Peace but Respect, N.Y. TIMES, Apr. 9, 1991, at A22 ("[I]n recent years, as state law enforcement officials have adopted an unwritten policy of leaving them alone, polygamists have gone public").
454. Cf. Leah Sears Ward, A Case for Strengthening Marriage, WASH. POST, Oct. 30, 2006, at A17 (arguing that society should focus on encouraging marriage).
455. AEI STUDY IN PUB. OPINION, AM. ENTER. INST., ATTITUDES ABOUT HOMOSEXUALITY AND GAY MARRIAGE 51 (2004).
456. See supra note 106.
457. See supra notes 108, 110 and accompanying text.
458. See Joanna Grossman, Punishing Adultery in Virginia: A Cheating Husband's Guilty Plea Is a Reminder of the Continued Relevance of Adultery Statutes, FINDLAW, Dec. 16, 2003, http://writ.news. findlaw.com/grossman/20031216.html.
459. See supra Part II.E.
460. Indeed, many states have a multitude of civil law mechanisms which signal disapproval of adultery and encourage monogamy. In North Carolina, for example, spousal support laws are used to send very powerful messages: if a judge finds that the "supporting spouse" engaged in an act of "illicit sexual behavior," the judge must award alimony to the dependent spouse. N.C. GEN. STAT. § 50-16.3A(a) (2007). On the other hand, if the dependent spouse engaged in sexual misconduct, the judge cannot award alimony, no matter how destitute the dependent spouse may be.
461. See id.
462. Some have argued that the United States military actually has an implicitly gendered approach to prosecuting adultery within courts-martial.
463. See Hopkins, supra note 111, at 234-35.
464. See supra Part III.D.2.
465. See Mary Anne Case, Marriage Licenses, 89 MINN. L. REV. 1758, 1779 & n.87 (2005) (suggesting that perhaps marriage one day could "mov[e] closer to a system of default rules within which couples could structure their own lives," for example by choosing to have "reliance or expectation damages" available for the breach of certain promises).
466. See supra Part III.D.4 (listing the advantages of having couples address the issue of monogamy on their own without fear of criminal law sanction, regulating any monogamy agreement by contract, and allowing couples the ability to set liquated damages so they communicate condemnation of the breach of trust while still ensuring the breacher remains a productive member of society).
467. It is hard to say whether decriminalization of adultery works to create a penalty default rule or a market-mimicking default rule. It is a penalty default rule if we assume most people want their marriages to look more like "covenant marriages," which require higher entry and exit costs.
468. See generally Steven L. Nock et al., Covenant Marriage Turns Five Years Old, 10 MICH. J. GENDER & L. 169 (2003) (describing the terms of covenant marriage and analyzing satisfaction rates of those who have chosen them). If couples want exclusivity, the law will force them to take active steps to communicate and discuss that preference. On the other hand, it may be possible to infer (based on patterns of non-prosecution for adultery, and assuming prosecutorial responsiveness to majoritarian will) that most people do not want to have the criminal law enforce these matters, even if they view adultery in low regard. In that respect, the statute serves as a market-mimicking default rule. One flag of caution we want to raise is that if a jurisdiction adopted a default rule of decriminalization, it has to be aware of how default rules can be "sticky," and how such stickiness might affect the prospect of law's ability to affect behavior. For example, if we create a rule that defaults to allowing extramarital sex without any legal stigma, it might actually encourage that behavior even if the goal of the default rule is simply to encourage partners to have conversations and agreements about the scope of their relationship to each other. Of course, this result might occur if we simply decriminalized adultery without giving the opportunity for partners to secure promises of exclusivity through marital agreements. On "sticky" default rules,
469. see generally Ronald J. Mann, Contracts - Only with Consent, 152 U. PA. L. REV. 1873 (2004);
470. Brett H. McDonnell, Sticky Defaults and Altering Rules in Corporate Law, 60 SMU L. REV. 383 (2007).
471. Emens, supra note 98, at 361-75.
472. Id. at 365.
473. We note that Professor Emens, after weighing various costs and benefits, ultimately preferred simple decriminalization of adultery statutes, noting the possibility that these statutes might be unconstitutional after Lawrence.
474. Id. at 374-75.
475. On the particular issue of post-Lawrence constitutionality, our sense is that if adultery statutes are drafted to be more respectful of the autonomous choices of individuals opting into a regime of regulation to prevent the kinds of harms that might materialize both to betrayed spouses and to any children of such a marriage, then it is likely they would survive constitutional scrutiny. Nonetheless, we too prescind from "contractual criminal law regulation" but principally for reasons having to do with fairness and externalities.
476. One way to reduce the externality, however, would be to have the social cost of the sanction placed on the contracting parties. Thus, if the sanction was capped as a misdemeanor punishable only by a sentence of community service with no collateral consequences, it would dramatically reduce the concern of a socially costly punishment. The imposition of that penalty could be permitted by statute to vest in those civil or family courts adjudicating the breach of the contract. We also note that there are some cases that have invalidated various contracts made between spouses, but the agreements we are discussing here are antenuptial; those are usually enforced if both parties are informed by counsel and reflect a basic fairness in exchange between the parties.
477. The family law implications of these proposals for property distribution or other issues are matters beyond the scope of our criminal law focus here. However, our liberty-respecting framework for polygamy raises important and interesting questions about the reach of family ties benefits, such as whether a person with several spouses should be entitled to spousal privileges with all of them, etc. This is a topic we hope to take up in our book, where we can better juxtapose these issues for the reader.
478. The "outside" person, X, is (knowingly or unknowingly) intruding upon the marital space between Y and Z. Our analysis of what penalty should attach to X is contingent upon X's marital status. If X is unmarried, no penalty should attach, in our view, assuming X is a competent and mature individual. If X is married, his treatment at the hands of the criminal law should be contingent upon what kind of exclusivity his marital contract calls for.
479. See supra note 104.
480. See supra Part I.F.
481. Cf. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 529-30 (2001) (stating that legislators have a great incentive to appeal to voters by both generating outcomes and taking symbolic stands).
482. See Maldonado, supra note 122, at 1008-12.
483. See id.
484. See generally Dan Markel, Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 VAND. L. REV. 2157 (2001) (discussing the use of guilt punishments as alternative sanctions not involving public shaming).
485. See Maldonado, supra note 122, at 1000.
486. See, e.g., WEISBERG & APPLETON, supra note 246, at 700-01 (describing various enforcement mechanisms).
487. DAVID L. CHAMBERS, MAKING FATHERS PAY: THE ENFORCEMENT OF CHILD SUPPORT 84 (1979). Chambers studied enforcement efforts in Michigan between 1972 and 1975.
488. Id.,
489. see also Drew A. Swank, The National Child Non-Support Epidemic, 2003 MICH. ST. DCLL. REV. 357, 375-78.
490. See Swank, supra note 379, at 378.
491. A woman has been jailed for failing to pay child support in at least one case. See David Stout, In Rare Role Reversal, Mother Is Jailed for a Failure to Pay, N. Y. TIMES, July 26, 1995, at B5.
492. It is critical to remember that in thinking about these burdens from an ex ante/ex post perspective that we be especially mindful of how gender affects this particular context. See discussion supra Part II.A.3. Assuming a veil of ignorance in designing these policies, no one knows what gender they will be; and these policies quite clearly impact the genders differently, however facially neutral they are drawn.
493. To the extent that nonpayment of child support can be thought of as a form of omissions liability, we have already acknowledged above that omissions liability can be justified under several circumstances; these justifications could also apply in this context as well.
494. See supra Part III.A.
495. See supra Part I.G.
496. Kline, supra note 127, at 196.
497. Id. at 205-06.
498. Cf. Billingslea v. State, 780 S.W.2d 271, 276 (Tex. Crim. App. 1989) (holding that an adult child's failure to seek medical care for an ailing live-in parent does not constitute criminal negligence because there was no statutory duty to act).
499. Rickles-Jordan, supra note 123, at 199 n.l36.
500. See generally Markel, Collins & Leib, supra note 3.