Should Criminal Law Be Used to Enforce Family Responsibilities?

Posted on Categories Criminal Law & Process, Family Law, Legal Scholarship

This important question is explored in a forthcoming mini-symposium in the Boston University Law Review. The lead article, written by Professors Jennifer Collins, Ethan Leib, and Dan Markel, argues that if criminal law is going to be used to enforce the responsibilities of family members to one another, then there also ought to be ways for people in other types of caregiving relationships to make their responsibilities criminally enforceable.

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).

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