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

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

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

III.            Application of the Framework to Family Ties Burdens

            

A.        Omissions Liability

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

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

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

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

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

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

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

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

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

For the most part, we don?t have much problem with marriage being an over-inclusive obligation because divorce is an option by which the obligation can be terminated. But because marriage is an underinclusive basis for imposing omissions liability, we would support decoupling omissions liability from marriage and instead ask both parties to a marriage to register as first responders for each other, the way we would ask any other person to signal his expression of commitment.[17] Thus, for example, individuals who voluntarily have chosen to live with a partner in a romantic relationship, regardless of whether that relationship is officially recognized by the state, would be able to signal their commitment of care.

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

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

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

B.         Vicarious Liability

The first three forms of vicarious liability discussed in Part I.A ? truancy laws, curfew laws, and contributing to the delinquency of a minor ? seem relatively uncontroversial to most people, because in those instances the adult in question has committed an affirmative act with a culpable state of mind, the traditional core requirements for a crime. So, in some sense, these are better viewed as ?impure? vicarious liability laws.[19] But if the laws in question only create criminal liability on account of a person being part of a designated family relationship, where the absence of that family status wouldn?t trigger liability for the same conduct, then those laws warrant scrutiny under our framework.

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

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

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

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.

C.         Incest

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

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

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

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

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

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

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

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

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

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

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