Legal Commentary

Via the indefatigable Doug at SLP, I just came across this story detailing the planned incarceration of a father for the failure of his daughter to achieve a GED degree. I'm not kidding.

A man ordered by a judge to make sure his daughter hit the books has found himself in jail because she failed to earn a high school equivalency diploma. Brian Gegner, of Fairfield, was sentenced last week to 180 days in jail for contributing to the unruliness or delinquency of a minor. He was ordered months ago to make sure his 18-year-old daughter Brittany Gegner, who has a history of truancy, received her GED - something that hasn't happened yet. Brittany Gegner, who said Monday that she plans to take a required GED test this month, said her father shouldn't be blamed for her failure because she has been living with her mother. "It was my wrongdoing, not his," said Brittany Gegner, whose fiance and 18-month-old daughter also live at her mother's home in nearby Hamilton. "He shouldn't have to go to jail for something I did."  Her mother agrees. "Brittany is almost 19 years old now and I think it's unfair to put her father in jail," said Shana Roach. "She's an adult now, and it's not right to rip an innocent man from his home."

Brian Gegner's wife, Stephanie Gegner, said she and her husband are afraid he will lose his job if he remains in jail. She said they tried to keep his daughter in school.  "You'd take her to school and she'd go out the other door," Stephanie Gegner said.

It's possible there are facts here that the story omits. Indeed a little research via google reveals that the father was in fact living with his daughter when the truancy occurred.  And "she has since taken the GED exam and passed all but the math portion, which she has failed several times."

But the larger point remains: can the law justifiably punish a parent for the actions of a child? In our forthcoming article, Punishing Family Status (BU LRev 2008), Ethan, Jennifer and I address these vicarious liability laws and the way that they impose criminal liability by virtue of family status.  A snippet of that analysis follows after the jump.

The first three forms of vicarious liability discussed earlier ? truancy laws, curfew laws, and contributing to the delinquency of a minor ? seem relatively uncontroversial to most people, because in those instances the adult in question has committed an affirmative act with a culpable state of mind, the traditional core requirements for a crime. So, in some sense, these are better viewed as ?impure? vicarious liability laws. But if the laws in question only create criminal liability on account of a person being part of a designated family relationship, where the absence of that family status wouldn?t trigger liability for the same conduct, then those laws warrant scrutiny under our framework.

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

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

We think the answer must be no in the absence of a blameworthy state of mind and an actus reus by the caregiver in question.  As we have suggested in this Article, many family burdens imposed by the criminal justice system are in place because of the idea that they promote an ethos of care.  Yet, imposing criminal responsibility on a strict liability theory does not seem to promote more effective care-giving than a negligence standard would.

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

But imagine instead that the child buys the gun in a school locker room with his money from an after-school job and shoots up the neighbor?s car on the way home from school, despite repeated admonitions by the parents to stay away from guns and people with guns. Under an ordinance like the one passed (and struck down) in Ohio, parents could face prosecution on a strict liability theory because their child had been charged with a crime.  But such a prosecution would have no impact in terms of promoting better care-giving; there is no care-giving the parent could have done that would have prevented the crime in question, other than refrain from parenting altogether. If we are to believe that these standards of conduct are emitting signals to would-be parents, the strict liability standards would simply encourage people to forbear from parenting or to take their chances in the enforcement and genetic lottery. This is not purely hypothetical either. To the extent we want to use criminal law to project social norms about correct values, the strict liability standard in some vicarious liability statutes will deter people from becoming foster parents, adoptive parents of teenagers, or on the margins, parents of their own biological children. That?s not the signal regarding the promotion of care-giving that society should emit.

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