In 1988, Barry Bonds married Susann “Sun” Margreth Blanco, a native of Sweden, in Las Vegas.  The two had met the previous summer in Montreal while Bonds was playing for the Pittsburgh Pirates and Sun was working as a bartender.  The day before they were married, each signed a prenuptial agreement by which each waived any interest in the earnings of the other during marriage.  The agreement was prepared by Bonds’ lawyers, and Sun was not represented by counsel.  She was also unemployed at the time the agreement was signed.

In 1994, after six years of marriage and two children, Bonds petitioned for a legal separation, and his wife subsequently requested a dissolution of the marriage on grounds of physical abuse and infidelity (presumably involving Bonds infamous girlfriend, Kimberly Bell).  She also decided to contest the validity of the prenuptial agreement she had signed six years earlier. 

During the trial concerning the validity of the agreement, Bonds testified that he told his wife-to-be that he would not marry her unless she agreed to waive any right to his income during their marriage. 

He also insisted that his wife understood perfectly well what he was proposing. In contrast, Sun testified that in 1987 and 1988, her English was poor and that she often did not understand what Bonds was talking about.  She also claimed that she did not learn about the agreement until shortly before she was asked to sign it.

The trial judge found Bonds’ testimony more credible and ruled that the agreement was valid.  On appeal, the intermediate appellate court ruled by a split decision that Sun’s lack of legal assistance and the imminence of the wedding made her consent highly questionable, and remanded the case to the trial court with the direction that it needed to give much greater weight to such factors.  The majority made it clear that Bonds had to overcome a strong presumption of invalidity due to the circumstances of this case.  In re Marriage of Bonds, 71 Cal. App. 4^th 290, reh. den., 72 Cal. App. 4^th 94d (1999).

Bonds appealed this decision to the Supreme Court of California, which on July 21, 1999, agreed to hear the case.  The following year, in the case styled, In re Marriage of Bonds, 5 P.3d 815 (Cal. 2000), the state’s highest court ruled unanimously that the evidence at trial was sufficient to establish a voluntary waiver on the part of Blanco (or Sun Bonds, as she preferred to be called). Contrary to the holding of the appellate court, the Supreme Court found that the lack of independent counsel was not dispositive, given the lack of evidence of coercion and no real proof of a lack of understanding on the part of the plaintiff.  Consequently, it reinstated the judgment of the trial court.

The decision was handed down on August 21, 2000, a day on which Bonds’ Giants defeated the Florida Marlins 6-0 in San Francisco.  Bonds was in the line-up that day and went one-for-three with a walk and a run scored.  Sun petitioned for a rehearing, but on October 18, after the division champion Giants were eliminated in the National League playoffs by the New York Mets, the State Supreme Court denied this request.  By the date of the final decision, Bonds had arranged to have his marriage to Sun annulled by the Catholic Church and had remarried.  And, at least according to the book Game of Shadows, he had also just finished the second season in which he used anabolic steroids.

From a national perspective, the California Supreme Court’s Bonds decision was just one of several decisions handed down at the end of the twentieth century that appeared to represent a growing acceptance of the legitimacy of prenuptial agreements, which had historically been looked upon with disfavor.  However, not everyone viewed this as a positive development.

Bonds’ “pre-nup” case was followed with great interest in California, and public sentiment was clearly on the side of his ex-wife.  (Bonds’ growing reputation for moodiness and surliness in his dealing with the baseball public hardly helped here.)  In the next session of the California legislature, State Sen. Sheila Kuehl (D-Santa Monica and in another life, the actress who played the zany Zelda Gilroy on the 1960’s sitcom, The Many Loves of Dobie Gillis) introduced a bill that provided that for prenuptial agreements to be valid, both parties to the agreement had to be represented by their own lawyers. 

Kuehl’s act also required that parties to such an agreement be given at least seven days to consider the proposal and that the agreement be explained to the partner in his or her native language (which in Sun’s case would have been Swedish).  Kuehl made no effort to deny that her bill was inspired by the outcome of the Bonds case, and in fact cited it repeatedly to garner support for the proposed act.  The bill easily passed both houses of the California legislature and was signed into law on September 12, 2001, by Gov. Gray Davis.  In its story reporting the passage of the bill the following day, the Los Angeles Times described it “as legislation sparked by the bitter 1994 divorce of baseball slugger Barry Bonds and the growing popularity of such accords.”  The statute is currently codified at Cal. Fam. Code §1615 (2009).

Although the legislative change came too late to help Sun Bonds, the ex-wife did receive some vindication on October 9, 2001, when a California appellate court in San Francisco ruled that the pre-nuptial agreement notwithstanding, Sun was still entitled to half the value of the two homes and an undeveloped lot that Bonds had purchased during their marriage. According to the San Francisco Chronicle, her interest in the three parcels was at least $1.5 million. After this decision, Bonds reportedly settled with his ex-wife for an amount in excess of the Chronicle’s estimate in exchange for her promise to stop suing him.

The October 9, 2001 ruling came only two days after the PED-fueled slugger blasted his seventy-third home run of the 2001 season, which remains, albeit shrouded in scandal, the all-time record.  But thanks to Barry Bonds, in California it is now far more difficult than it used to be to coerce a vulnerable spouse-to-be into signing a prenuptial agreement.  Also, since 2001, a growing number of jurisdictions have adopted a similar statute, or, as it might be called, “the Barry Bonds rule.”

But I am finishing (with Daniel Suhr ‘08) a paper on interpretation of marriage amendments using Wisconsin as a case study, so the topic is much on my mind.

First, a disclosure. I was a public proponent of Wisconsin’s marriage amendment and based my case on wholly secular grounds without reference to the morality of same-sex relationships. While I appreciate that my church believes such relationships to be morally impermissible, I am not persuaded by that judgment.

Nor do I disagree with Mr. Samis that gay and lesbian relationships, just as heterosexual unions, may — hopefully, will — exhibit the loving and supportive characteristics that he observed between his friends. I have observed the same in my own circles.

But where proponents and opponents of genderless marriage part ways is on the question of whether this resolves the matter. The latter focus not on merely on what may be similar about same-sex and opposite-sex intimacy, but also on what is distinctive.

In my estimation, the most persuasive case against redefinition of civil marriage to include same-sex couples lies in marriage’s public meaning and purpose. Marriage certainly involves the union of people who love and are committed to one another. It certainly involves the provision of certain benefits and protections that facilitate and structure that relationship. But that alone is not what marriage is for.

To the contrary, opponents of same sex marriage adhere to the conjugal model of marriage. Its purpose is to channel relationships between men and women –  who often experience their sexuality in different ways — into a setting which is optimal for the support of the children that these relationships may — often unintentionally — create. It is intended not only to provide benefits and protections to loving and mutually supportive relationships (there are many such relationships that are outside the scope of marriage), but to encourage the channeling of potentially procreative relationships in a certain way.

If you buy this (and there are many who don’t, believing that the decoupling of sexual relationships from procreation and marriage is a good thing), then there is no reason to extend marriage to same-sex couples. Society simply does not have the same interest in channeling gay and lesbian relationships into the same setting.

This argument is not undercut by the fact that not all marriages produce children.  The conjugal model of marriage — and the normative judgment that it is the proper place for sexual relations between men and women — is a norm, not a rule. Those who adhere to the norm, even if they do not have or cannot have children, reinforce it.

This may resolve the equal protection argument, but it doesn’t resolve all questions. Most significantly, it doesn’t quite tell us what would be wrong with extending marriage to same-sex couples, some of whom will be raising children (mostly from previous heterosexual relationships, but sometimes through adoption or artificial reproduction). We still need to know why adherence to the marital norm by same-sex couples would not reinforce it.

It is there that opponents turn back to the public meaning of marriage. That meaning affects not only its legal incidents, but its norms and mores and the way in which people conduct themselves in relationship to it. The argument is that these mores and norms — the “rule of two,” the norm of exclusivity, the presumption of permanence, and the value of fathers qua fathers – are rooted in the particulars of potentially procreative relationships, the need to bridge the sexual divide between men and woman, and a normative judgment about a child’s right to know and be raised, if possible, by her biological parents. It seems unlikely, they argue, that society could change the relationships to which marriage applies and not change its public meanings and norms.

Same-sex marriage would constitute a pubic endorsement of the creation of fatherless or motherless families, not as the best alternative when a child cannot be raised by her own father and mother, but as an equally desirable form of family structure. It is unlikely that this would not further alter our notions about the importance of intact families consisting of a child’s biological parents. It would involve the incorporation into marriage of relationships for which the biological facts that have structured marriage’s norms are absent. It is not clear why this could not affect those norms.

As I said recently at Prawfs, this is an argument that appeals more to people whose intellectual tastes are more Burkean and who are cautious about the unintended consequences of rapid social change.

That would be me.

It apparently would not be the justices of the Iowa Supreme Court.

Fair enough, but I would have appreciated more of an effort to address the arguments that opponents of same-sex marriage actually make. Most of the court’s analysis presumed a “close relationship” model of marriage, as if that model were somehow ordained by the Iowa Constitution. It failed to address — or even acknowledge – the defendants’ argument about the way in which the law of marriage operates, not only by legal fiat, but by the creation of norms. It concluded, in a dismissive footnote, that fathers as fathers do not matter to the well-being of children. What does, it said, is an involved “second parent,” basing its conclusion upon a body of social science evidence that has been subjected to withering criticism and which, at least as I read it, does not come close to “proving” what the Court said it does – much less precluding the state from concluding otherwise.

In an astonshing bit of circularity, it argued that one must engage in heightened scrutiny of laws restricting marriage to opposite sex couples because majorities keep insisting that is what marriage is. (This can, of course, constitute evidence of discrimination only if that insistence is somehow irrational.) In becoming one of the few courts to apply heightened scrutiny to classifications based on sexual orientation, it misstates traditional equal protection analysis regarding the determination of suspect or quasi-suspect classes by engaging in an acontextual analysis of whether sexual orientation is a trait that is unlikely to relate to any legitimate governmental purpose. It assumes, without evidence or prompting by the plaintiffs, that traditional marriage is nothing more than imposition of a religious view and, having assumed that it is, misstates the law regarding religious motivation of secular measures.

Beyond that, it seems to me that the very worst way to redefine marriage or to create an equivalent status for same sex-couples is by judicial fiat. Not only does doing so tax what I believe to be the outer boundaries of  judicial competence and require interpeting legal doctrine in a way that makes it radically indeterminate, it threatens to perpetuate social conflict that may have negotiated a truce through the political process. The suggestion that it could be otherwise recalls the naivete of the joint opinion in Casey v. Planned Parenthood, in which Justices Souter, Kennedy, and O’Connor somehow persuaded themselves that the Court  could call for the “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Courts can, of course, call for anything. It’s quite another matter for it to expect that doing so will quell passionately held beliefs.

The case involved David Oakley, who fathered nine children with four women and was impossibly behind on his child support payments.  Manitowoc County Circuit Court Judge Fred Hazlewood placed Oakley on probation following his conviction for refusing to support his children.  However, the probation was conditioned on Oakley having no more children until he could support the ones he already had.  A four-judge majority of the Wisconsin Supreme Court confirmed Hazlewood’s order. 

Commentators predictably discussed the decision’s ramifications for the right to procreate and the larger right to privacy. 

A few were also intrigued that all of the Court’s men were in the majority block while the three women on the Court dissented.  For my own part, I am most struck by the way all of the members of the Court, regardless of their positions on the constitutional law issues, appeared to agree in dicta that Oakley was the ultimate “deadbeat dad” and, by extension, a nefarious agent of poverty.  If we could only get the Oakleys of America to make their support payments and to live up to their responsibilities, the thinking went, we could relieve our society of an immense social problem. 

The characterization of Oakley and the analysis of poverty as a social phenomenon were too simple.  Born in prison, virtually uneducated, and never able to hold a job, Oakley exemplified an impoverished life as much as he caused poverty.  The embarrassing reality of poverty in America cannot be eliminated by making Oakley and people of his ilk pay up.  We instead need substantial income support for single-mother families, expanded public child care, and extensive training and employment programs.  But alas, it’s easier to point at individual failures and weaknesses than to address the immense inequities built into the very structure of our society.

It is a point of pride for me to be involved in two institutions that are well aware of these gaps and are doing what they can with limited resources to assist: Marquette Law School and the Legal Aid Society of Milwaukee. Both the Law School and the Legal Aid Society confronted these issues long before the current downturn. Moreover, their focus has not been on criminal representation, important as it is, but on the unmet needs of indigents faced with a raft of traditionally civil legal problems. My purpose is to familiarize those who may not be aware of these efforts as well as to underscore the affinity between these institutions.

The Legal Aid Society, founded in 1916, is Milwaukee’s oldest and premiere legal services agency. It annually provides legal services to 8,000 of Milwaukee’s most vulnerable persons, including abused and neglected children, the disabled, battered women, the mentally ill, persons living with HIV/AIDS, and the homeless. And this is done despite a precipitous drop in funding, including WisTAFF’s plunge from $244,000 in 2008 to just $77,000 in 2009. The Society’s Guardian ad Litem Division advocates on behalf of thousands of Milwaukee’s children each year. Its Mental Disability Law Division defends persons subject to mental commitments and protective placements. And the Society’s Civil Division provides a broad array of types of legal representation in family law, consumer and bankruptcy matters, housing issues, public benefits, and civil rights. In short, the Legal Aid Society addresses many of today’s hottest legal problems.

The media has occasionally flashed the spotlight on some of the Society’s success stories, including the defense of an elderly woman facing foreclosure because of an unscrupulous contractor, the reopening of $600,000 in small claims default judgments brought by a slumlord who failed to properly serve inner-city tenants, and a long-standing legal battle with the county over deplorable overcrowding in the jail. Currently on the front burner are the Society’s efforts to provide meaningful relief to those facing foreclosure without benefit of legal counsel.

Marquette Law School, too, has a rich tradition of public legal service which I have witnessed while on the faculty. Within recent memory one has only to think of its clinical outreach to the elderly that began in the 1970s. The late Dean Howard Eisenberg further infused the tradition by promoting pro bono service by students while encouraging it in countless ways, not the least of which was his own indefatigable representation of indigent prisoners. The commitment has been institutionalized in numerous forms, including the Marquette Volunteer Legal Clinic, which provides free legal services to those with limited or no access on a variety of civil matters; the VITA program, which provides tax services to the disadvantaged; and the Howard and Phyllis Eisenberg Loan Repayment Assistance Program for graduates who choose to work in traditionally low paying public service jobs. These and many other initiatives are more fully described in the “Public Service” tab at the Law School’s website. The Law School’s depth of commitment and the expanding range of these programs are further evidenced by Dean Joseph Kearney’s appointment of an Assistant Dean for Public Service, Daniel Idzikowski. On February 20, 2009, the Law School’s Public Service Conference for policymakers, academics, and community representatives will focus on the challenges of effectively reintegrating prison inmates into the community. Both the curious and the interested are cordially invited to the 16^th Annual Howard B. Eisenberg “Do Gooders” Auction on February 27, 2009, which raises money to support service scholarships and programs.

As I suggested earlier, there is a longstanding affinity between the Legal Aid Society and Marquette Law School. It truly started at the creation; one of the founding incorporators of the Legal Aid Society in 1916 was a Law School faculty member. The current executive director of the Legal Aid Society is Tom Cannon, a former faculty member himself who has selflessly devoted his time and energy to the Society’s and the community’s best interest. The Society also employs many of the Law School’s graduates, including Shelia Hill Roberts (Law ‘86), the chief staff attorney for the GAL Division at the Children’s Court. And each year roughly 20 students intern in a variety of capacities at the Society. Finally, within the next year Tom Cannon’s scintillating history (I’ve read drafts) of the Legal Aid Society will be published, fittingly enough, by the Marquette University Press.

The economic and social forecast strongly suggests that the need for legal services by both institutions will only grow over the next several years. The community is fortunate to have such a solid foundation on which to build. Your participation is also appreciated.

On Monday a federal judge issued an order blocking most parts of the statute as unclear, leaving in place only the provisions requiring that porch lights be extinguished and that there be a sign announcing that no candy would be given out at the offenders’ residences. Opponents of the law had argued that it was unclear; for example, did it prohibit contact between the sexual offenders and their own children on Halloween even if such contact would not be prohibited on other days? Would a convicted sexual offender have to avoid the decoration section of stores if children were there picking out their pumpkins? Opponents also argued that the law was an unfair double punishment for a crime for which a sentence had already been served.

Did the court make the right decision? I would say yes.

The image of a sexual offender luring an unsuspecting trick-or-treater into his or her home is unsettling to be sure. However, forbidding the offenders from offering treats at their homes addresses this issue quite adequately. It hardly seems necessary from a child protection perspective to subject the sexual offenders to a form of house arrest and deny them virtually all participation in Halloween activities. There is nothing about Halloween itself that makes sexual offenders more likely to offend again, other than the temptation of children appearing on their front porches – but that has already been addressed by the statute. Many sexual offenders have parole terms that limit their contact with children anyway, so trying to limit such contact further does indeed seem like a type of blanket punishment imposed upon people who have already been punished in other, individually determined ways.

I think that this Halloween law is indicative of a larger, uncomfortable truth: many people regard sexual offenders as ghouls and vampires who are not quite human. Since Halloween is the holiday dedicated to such creatures, it may seem that sexual offenders would naturally join the ghosts and goblins in wreaking havoc on the rest of us. We already live in a society where we can easily locate registered sexual offenders and, presumably, avoid them (see for example www.familywatchdog.us/ to map the location of sexual offenders near your home). Another truth is this: sexual offenders are human beings who have committed serious crimes. If they have been tried and convicted, they have served time. If they have been released, then they may need further rehabilitation. They should not be punished indiscriminately, however, when there is no proof of further crimes.

Perhaps the most frightening truth is this: it is the unidentified sexual offenders who have not been caught, tried or convicted who pose the greatest risk to our children. We can’t protect our children against those people with Halloween laws. We will have to rely instead on supervising our children closely and teaching them common sense ways to protect themselves when we cannot be with them.

Bayne, who was living in an apartment in the Bahamas provided by Earl (and paid for with his wife’s money), did not know about Earl’s marriage for the first few years of the relationship.  Once she found out, however, she remained in the relationship.  Bayne, Earl, and Carolyn moved to various locations to pursue Earl’s business ventures with Carolyn bankrolling both the business ventures and the lavish lifestyle enjoyed by the three.  

Eventually, all three shared the same apartment, with Bayne and Earl sharing one bedroom while Carolyn had the other.  Bayne moved out in 2000, returned to England in 2002, and sued Earl for palimony in 2004, claiming that Bayne had breached his promise to marry and to support her, and noting that she could not maintain her previous lifestyle on her own.  A trial court award of $384,000 was overturned by the appellate court, which found that there was no express or implied promise of lifetime support.  The opinion noted that palimony is “not recompense for years spent in a failed relationship” but is “the enforcement of a broken promise for future support.”  The court was almost certainly persuaded partly by the fact that Earl had never had the independent ability to support Bayne or even himself in a lavish lifestyle, since he was always only spending Carolyn’s money.  The opinion also noted that it was Bayne who left Earl and not the other way around.

Palimony cases have presented troubling legal issues since 1976, when the term was first coined in reference to Marvin v. Marvin, a California case widely known as the first to recognize the possibility of a support obligation owed after the end of a relationship by one member of a cohabiting couple to the other member.  In the uproar over the creation of marriage-like protections for couples who have never been married, it is often forgotten that Lee Marvin never actually had to pay any palimony to his ex-live-in-girlfriend Michele, partly because on remand the trial court found no express or implied contract, no damage to Michele, and no unjust enrichment of Lee.

Since Marvin, various courts have struggled with the question of whether it is appropriate to protect the financially weaker party in a broken marriage-like relationship.  Usually the claims are based in contract, and the couple’s behavior is used to support theories that there was an agreement, as well as to support a finding that each party supplied consideration.  (An early barrier to these agreements was the assumption that the consideration was inherently sexual, which many courts believed amounted to enforcing a contract for prostitution.  Since Marvin, courts have acknowledged that there are many other services inherent in intimate relationships that could serve as consideration.)  A difficult threshold question has been whether a given couple’s relationship is enough like a marriage to even reach the question of whether the parties had an agreement that one would support the other after the end of the relationship.  Last summer, another New Jersey case sent shock-waves through the profession when the court held in Devaney v. L’Esperance that cohabitation was not strictly necessary in order to have a successful palimony claim, thus setting New Jersey apart from every other state with respect to its palimony rules.   The court maintained the rule that the relationship must be a “marital-type relationship,” however, and went on to hold that the plaintiff, Devaney, had not proven that she had had such a relationship.  Perhaps the court was merely recognizing the growing numbers of commuting married couples or acknowledging the reality that there is no universal model for a “marriage-like relationship.”  Nonetheless, palimony cases in general, and Devaney in particular, fueled concerns that soon every dating relationship would be fair game in a court case for support.

Getting back to Baynes and the Johnsons, the New Jersey court took an important step back from making every dating relationship the potential target of a palimony suit.  By refusing to award damages for years wasted in a broken relationship or for lost opportunities or disappointed hopes, the court moved the inquiry back to where it belongs:  the actual promises expressed by the parties or implied by their actions.  Pursuing a long-term relationship with a man known to be married to another, not to mention a man known to be supported by his wife, hardly sustains a claim that Fiona Bayne and Earl Johnson had a contract that he would support her indefinitely at a standard of living that only his wife could afford.  Palimony cases are meant to protect starry-eyed lovers from exploitation by partners who promise everything, but honor nothing.  They are not meant to elevate every ill-advised affair to the social or legal status of marriage.

The fiancée, Doreen Noone, claims that the two lived together for eight months during the 1990s and that Mr. Prior paid most of her bills.  She also claims that she spent four or five nights a week with him in his parents’ basement, where he later moved, returning to her own parents’ house only when he was on duty at the firehouse.  Prior’s parent flatly deny her account, insisting that none of their boys were allowed to “have girls overnight” in the house.  Although they concede that their son had paid approximately $7,000 of Noone’s bills over a three-year period, the Priors contend that the couple did not share budgeting.  “All that happened was they had plans for a wedding, and those plans were interrupted,” they say.  Mr. Prior’s best friend, Sgt. Edward Wheeler (who is now married to Ms. Noone), supports Ms. Noone’s version of the relationship.

Many people who hear about this case will conclude that the legislature made a mistake with its decision to include “domestic partners” in the list of potential pension recipients along with parents and spouses.  People who have this response may disapprove of co-habiting arrangements as too immoral, informal, or inappropriate to deserve statutory protection; or they may simply disapprove of relatively fuzzy terms in a statute.  After all, we can establish who is a parent or spouse of a decedent by looking at public records, but the determination of who is a domestic partner will require case-by-case fact-finding by the court.  In an age of over-crowded dockets, a bright-line rule has a lot of appeal.

I want to offer a different take on this, though.  Inheritance laws are meant to carry out the probable intent of the average decedent, and where the law does not accomplish this it is often because the law has not caught up with social realities.  Fifty years ago, many if not most state intestate laws gave a substantial proportion of a decedent’s intestate estate to his descendants, with a correspondingly lesser sum going to the surviving spouse.   Today, most statutes give most or all of the estate to the surviving spouse as long as any descendants were descendants of the marriage.  Why the change?  Surveys and ordinary experience of estate planners showed that the spousal relationship has become more and more important in American society, and most testators elect to give most or all of the estate to their surviving spouses unless there are children from previous marriages.  The New York statute’s inclusion of domestic partners in the group of persons eligible to collect the 9/11 police and fire pensions acknowledges the current social reality that a significant percentage of couples, particularly those in the age group of many of the 9/11 casualties, live together before or in lieu of marriage.  Often these relationships are serious and stable, and often they include children.  To the participants, they represent family relationships of the utmost importance.  In effect, the New York Legislature wanted to allow the courts to make individual determinations about what the deceased police and firefighters would have wanted to happen to their pensions, given that for many the relationship with their domestic partner was the most important relationship in their lives.

Sadly, what has gone wrong in the Prior case is an older story: since the versions are so contradictory, it is apparent that at least one party is not telling the whole truth.  There is a lot of money at stake here, but I suspect that, as is usual in estate disputes, each party is trying to hang onto a piece of the decedent by claiming his property.  Despite the fact that the individualized fact-finding required by the statute gives the parties more of an opportunity to lie and thus makes the court’s job harder, I believe that the individual fact-finding also makes it more likely that the truth of the decedent’s intent will be discovered and followed.

As any child advocate will tell you, the facts of cases such as this one are horrifyingly familiar: brutal beatings and sadistic tortures by one adult (in this case, the little girl was tied to chairs, held under cold water, and forced to use a litter box instead of a toilet), chilling acquiescence by another adult, and mistake after mistake by whatever public agency is supposed to prevent this kind of thing by early intervention into suspicious circumstances.  Nearly two decades ago another notorious New York case, which involved the beating death of another little girl, triggered a national discussion about accountability and responsibility on the part of the “passive” parent.  In that case, 6-year-old Lisa Steinberg was beaten unconscious by Joel Steinberg (who had illegally adopted her) while Steinberg’s partner, Hedda Nussbaum (pictured above), was in the next room.  Steinberg left the apartment for three hours, leaving the girl unconscious, and Hedda did not call for help until the next morning, when the child stopped breathing.  In the Steinberg case, though, Joel was convicted of the killing while all charges were ultimately dropped against Hedda.

Why the difference in outcomes? 

Readers who recall the Steinberg case may also recall that news photos of Hedda Nussbaum showed a woman who had herself been so badly beaten that former friends barely recognized her: she was covered in bruises, and her nose had been broken numerous times.   The argument was made that she, too, was a victim, and that her fear of Joel Steinberg made it impossible for her to stand up and protect her child.  The prosecutors used her testimony to get Joel Steinberg convicted, and then they let her go on with her life.  Even at that time, child advocates were aghast: surely Hedda could have done something, even if it was only to call the ambulance as her child lay dying on the bathroom floor!  In a society that expects its mothers to be child-centered and self-sacrificing, Hedda Nussbaum presented a troubling image.  Hence a push began to draft statutes that made it a crime to fail to act to prevent the abuse or neglect of a child, and to enforce such statutes where they already existed. 

Wisconsin’s version of such a statute can be found in Wis. Stat. §948.03.  Wisconsin’s version makes it a felony to fail to act to prevent bodily harm to a child where a person having responsibility for the child’s welfare has knowledge of the harm or intended harm and, while “physically and emotionally capable” of taking preventive action, fails to do so.  It is not always immediately clear when someone is “physically and emotionally capable” of action, however.  Hedda Nussbaum was a very troubled person emotionally, and it appears that Nixzmary’s mother, Nixzaliz Santiago, is also troubled.  Her lawyers say that she had learning disabilities as a child, and was living with her four children in a homeless shelter by the time she was 22 years old.  After she miscarried a pregnancy, she is said to have kept some of the fetal tissue in a jar at home.  Not surprisingly, the prosecution paints a different picture of Santiago, describing her as a manipulative person who actually encouraged her husband to discipline the girl, never intervening when his beatings went out of control.

The lead prosecutor in the Santiago case characterized the conviction as “a good day for the children” because parents are now on notice that what they don’t do counts as much as what they do.  I hesitate to use the word “good” in association with any part of this case.  However, overall, I believe that the law should punish a parent’s failure to protect a child in any case where a parent had an opportunity to save the child without risking the parent’s own immediate death or injury.  I am troubled, however, by the possibility that the punishment imposed on the passive mother might exceed that imposed on the actual murderer.  In that case, I think the mother may well be the victim of an injustice: the imposition of a higher standard on her than on the stepfather.  Since the passive parent is invariably female, and the active abuser is almost always male, this introduces a possible claim of gender bias, and a return to the “blaming the victim” claims that surrounded the Lisa Steinberg case.

What’s going on here, and what can we learn from it?

The most obvious lesson is the old drafting lesson: when drafting legislation, watch out for unintended consequences. If a law is intended to protect infants, then it should include qualifying language limiting its reach to infants. Nebraska legislators are no doubt embarrassed by this oversight.

The second lesson is harder to swallow, however. There is obviously a large unmet need in society if parents and guardians feel so desperate and overwhelmed that they try to sever all ties with their children. All states have child-related services, and there are opportunities to sever parental rights in circumstances where this is necessary to protect children. Termination of parental rights is not intended to relieve frustrated parents of their financial and emotional responsibilities, however. What can parents do when they are faced with recalcitrant teens who do not respond to the parenting techniques or therapies available to them? It is fine to say that parents should not run away from their responsibilities, but what if they truly can’t cope? Rebellious teens may run away from home, but studies have shown that a significant percentage of runaways are actually “throwaways,” meaning that their parents have told them to leave. Kids who find themselves out on the street are more likely to be victims of crime, and are more likely to be involved with drugs or prostitution. (See e.g. www.runawayteen.org/statistics.) The Nebraska legislative fiasco suggests that parents of troubled teens need better and more accessible support.

The third lesson is that citizens may invoke laws to achieve results that the laws neither intend nor are particularly well-suited to provide. In the latest act of the Nebraska drama, the Iowa grandparents who deposited their granddaughter at the Nebraska hospital yesterday have reclaimed her, stating that they just wanted to teach her a lesson. This sort of thing happens in family law all the time, from the spouse who files for divorce hoping to shock the other spouse into getting marital counseling, to the disgruntled heir who contests a will as much to prove that he was loved by the testator as to get an inheritance. So today I again find myself mulling over the question about whether it is legitimate to expect law to fulfill a therapeutic role for citizens such as the parents in Nebraska. I don’t have an answer for the distraught Nebraska parents, and neither, it seems, does the Nebraska legislature.

Consider, for instance, the duty to rescue. Normally, the criminal law does not require private citizens to save one another from harm, but, if a parent does not attempt to rescue a drowning child (or a wife a drowning husband), the failure to rescue may result in liability for criminal homicide. Collins et al. argue that people in other sorts of relationships ought to be able to opt into similar duties to rescue. They envision a state-administered registry for this purpose. Thus, unmarried partners (heterosexual or homosexual) would be able to register as care-givers for one another, thereby assuming a criminally enforceable duty to rescue one another from peril.

In my response to the lead article, I argue that the proposed expansion of criminal liability would accomplish little, and might even be counterproductive: I doubt that many people would register, or that many registrants would actually act any differently for having registered, and I am concerned that prosecutors would enforce the law in ways perceived by others to be discriminatory. Better, I think, to rein in family-based criminal liabilities than to expand them beyond the conventional family setting.

Collins et al. reply to my response here. The published mini-symposium will also include a response by Professor Rick Hills. Readers interested in the intersection between family law and criminal law may also enjoy this thought-provoking new article by my colleague David Papke, which (among other things) explores the ideology underlying the punishment of deadbeat dads. This piece nicely complements an earlier article of his regarding the famous (infamous?) Oakley decision by the Wisconsin Supreme Court: State v. Oakley, Deadbeat Dads, and American Poverty, 26 Western New England Law Review 9 (2004).