From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: Pre-Sex Contract
Keywords: sex, agreement, legal, contract
Organization: Who, me???
Date: Mon, 14 Dec 1992 07:25:42 GMT

In article <19434@smoke.brl.mil> matt@smoke.brl.mil (Matthew Rosenblatt) writes:
>In article <1992Dec4.171716.2926@rotag.mi.org> kevin@rotag.mi.org 
>(Kevin Darcy) writes:
>
>>In article <19419@smoke.brl.mil> matt@smoke.brl.mil (Matthew Rosenblatt) 
>>writes:
>
>>>In article <1992Nov28.034541.20599@rotag.mi.org> kevin@rotag.mi.org (Kevin 
>>>Darcy) writes:
>
>>>>. . . The ultimate solution to this problem is to PREVENT illegitimate 
>>>>children being born in the first place; throwing the man's money at them 
>>>>after the fact may help that one child, but prevention can help thousands, 
>>>>perhaps millions, from suffering the same fate.  [Kevin Darcy]
>
>>>But of course, Mr. Darcy's admirable goal of preventing the illegitimate
>>>children from being born in the first place goes only so far.  When the
>>>pursuit of that goal would interfere with the "right" of unmarried people
>>>to enjoy sex -- as, for example, assigning strict liability for child
>>>support to a man whose enjoyment conceives a child -- well, we can't
>>>have that, can we?   [Matt Rosenblatt]
>
>>What are YOU suggesting then? Forcing men to marry women they impregnate?
>>[Kevin Darcy]
>
>I'm not only suggesting, but saying outright, that the present system
>of holding men strictly liable for supporting their biological children
>operates to discourage some men from engaging in non-marital sex:

That's nice, but it doesn't answer my question. Let's see if I can rephrase
it:

	GIVEN, that despite your strenuous efforts to turn back the clock
	to the days of sexual repression, many men are simply going to
	thumb their noses at Fate and Matthew Rosenblatt, and continue
	having sex anyway, and GIVEN, that this will, despite the plans
	of mice, men, and contraceptive manufacturers, result in a certain
	number of unwanted pregnancies, and GIVEN that you believe in some
	strange Female Privilege whereby a woman may toss her man's 
	property rights to the four winds on a lark, how do you propose
	to REDUCE the incidence of these illegitimate children, other than 
	by forcing men to marry the women they impregnate?

>>>Yes, men are going to have non-marital sex whether we penalize it or not,
>>>but that's no argument against trying to discourage them from having it.
>>>How does Mr. Darcy know how many men have *refrained* from indulging
>>>in non-marital sex for the very reason that they were afraid they might
>>>be "stuck" having to support an unwanted child?  [Matt Rosenblatt]
>
>>Far too many, probably. It's saddening that although the medical technology
>>exists to deal with unwanted pregnancies, socio-legal backwardness is still
>>preventing men and women from expressing their natural sexuality.
>>[Kevin Darcy]
>
>And it seems that Mr. Darcy believes that the present system of strict
>liablity "probably" does indeed operate to discourage some men from
>engaging in non-marital sex.  

Strict liability. That's a laugh. It may be "strict liability" in EFFECT,
Mr. Rosenblatt, but I'd love to see you defend the practice using the
usual arguments for strict liability. Hint: it's the WOMAN who has most
control over the risk factors, not the man, so if there was to be a 
consistent application of strict liability, it would attach to her instead
of him.

>Now, no illegitimate child will be born
>to a man who refrains from non-marital sex, so the present system
>"probably" operates "to PREVENT illegitimate children being born
>in the first place" -- which is Mr. Darcy's "ultimate solution" to
>the problem.  Where we disagree is on the price being paid: ...

Actually, that is not our only source of disagreement. I also disagree
that your "solution" is even EFFECTIVE. You're trying to legislate against
some basic human drives here, and that has a long and depressing history
of failure. My "solution" on the other hand, offers women incentives for 
cost-reduction; a methodology with a proven track record of success.
So, even beyond the fact that I think your "solution" is unjust and unfair,
I also consider it impractical.

Continuing...

>...I see
>*nothing wrong* with "preventing men and women from expressing their
>natural sexuality" if doing so keeps illegitimate children from being
>born.  I see *nothing wrong* with the postings from various girls and
>ladies here on the Net telling men who don't want to be liable for
>child support to "keep their zippers zipped."

Do you see *anything wrong* with telling women that they can spread their
legs all they want, without fear of crushing, involuntary financial
burdens, but if a man unzips himself once, he may be forfeiting a signficant
chunk of his total lifetime earnings?

Are these "traditional values", Rosenblatt? Sound like you're rewriting
history here -- this is NOT how values used to be.

>>Okay, let's say for the sake of argument, that fornication is BadEvilYukky,
>>and we want to stamp it out. One of the themes running through legal
>>philosophy is that of RESTORATION, i.e. that once a wrong is redressed, 
>>that all concerned parties should, as much as possible, get back to the same 
>>position they were in before the wrong was committed. Aggrieved victims get
>>compensated, for instance, and criminals who commit offences against "the
>>people" get punished and rehabilitated. All is restored to its former state.
>>[Kevin Darcy]
>
>If Mr. Darcy read misc.legal regularly, he would know that I see
>"rehabilitation" as only an *incidental* function of the criminal
>justice system.  

I didn't say "rehabilitation" (except in passing), I said "restoration". Those
are not the same thing, and RESTORATION was the thrust of my point. 

>My primary concern is that government fulfill its
>main justification for existence (see the Declaration of Independence),
>which is to secure the rights of the people -- especially weaker people
>-- against the depredations of stronger people who would harm them.

But who is going to protect us against people like you who want to 
compromise our "liberty" and "pursuit of happiness" by telling us whether we
can or cannot unzip ourselves?

>>Now, we have two people who fornicate, and get caught. We punish them and
>>rehabilitate them. Everything is as it was. Well, not quite. See, there's
>>this little detail about the accidental pregnancy. Now, if the pregnancy
>>is considered a BENEFIT to the woman carrying it, we can hardly condone
>>its continuation, can we? I mean, that would be like receiving stolen goods.
>>The fetus is "fruit of the poisoned tree" in the eyes of the law. 
>>[Kevin Darcy]
>
>The "fruit of the poisoned tree" doctrine refers to the non-admissibility
>in a criminal trial of evidence derived from illegally obtained evidence.
>It has *nothing to do* with someone's receiving a benefit to which she
>is not entitled.  

What a marvellously Pavlovian response! Pray tell, Rosenblatt, what is there 
about the phrase "fruit of the poisoned tree" that FORBIDS it from being used
generally for ANY kind of ill-gotten benefit, hmmm???

If I had meant to use the phrase in terms of admissability of evidence, I
would have cited _Wong Sun v. U.S._, 371 U.S. 471. But I didn't. Even in
misc.legal, I assumed, naively perhaps, that the law had no exclusive 
claims on figures of speech occurring in natural English.

>To my way of thinking, a girl who is pregnant is
>*entitled* to be pregnant simply because she was born a girl.

Even if the pregnancy is the result of what you seem to be branding
"illicit" sex? This sounds like a massive rationalization to me. Either
the act of sex outside marriage is bad & evil, and therefore the pregnancy
is "tainted" by that badness & evil, or the act of sex outside marriage is
acceptable, in which case the state shouldn't be trying to punish men OR
women for engaging in it (which is what you seem to be advocating).

Consistency check, Rosenblatt: which do you choose?

>>. . . Let's look at it from the other point of view now. If the
>>pregnancy is to be considered a PUNISHMENT for fornication, then the law
>>can't countenance this either, since there is no equivalent punishment
>>for the man, and Equal Protection demands that there not be such a huge
>>discrepancy between the punishments of two people who were equally guilty
>>of the same crime.   [Kevin Darcy]
>
>First of all, the "Equal Protection" clause does not demand any such
>thing when it comes to gender-based distinctions.  Gender is not a
>"suspect classification" for purposes of the Equal Protection Clause.

	Suspect Classification.  With regard to test to be used in determining
	whether statutory classification constitutes a denial of equal
	protection, "suspect classifications" are those based on race, 
	alienage, national origin and sex.  _Anderson v. City of Detroit_,
	54 Mich. App. 496, 221 N.W.2d 168, 169.

	(Black's, 5th Ed.)

>Second, pregnancy is not a "PUNISHMENT," but the natural (statistical)
>consequence of the sex act that the girl has engaged in.  Biology is
>neutral: whether the sex act was "right" or "wrong" does not affect
>whether the girl becomes pregnant.

Well, BECOMING pregnant is not a punishment, _per se_, but forced 
CONTINUATION of the pregnancy can be seen as punishment, and isn't forced
continuation of pregnancy what you pro-lifers support?

>So, again, the law must look unfavorably at the
>>continuation of the pregnancy.  Restoration requires that the woman return 
>>to her un-pregnant state.   [Kevin Darcy]
>
>I disagree with this whole line of reasoning, because I cannot
>accept its premises.

Maybe you'll reconsider, given the above.

>>It is my genuine belief, in fact, that if the 
>>prevention of fornication were a valid and compelling state objective, that 
>>FORCED abortion would be the order of the day.  [Kevin Darcy]
>
>If there are two ways of achieving a "valid and compelling state
>objective," the State must choose the method that has the least
>harmful side effects.  So if it is possible to decrease the incidence
>of fornication by using the non-violent means of financial responsibility
>to scare some men away from fulfilling their "natural sexuality," and
>it is also possible to decrease the incidence of fornication by using
>the violent means of forced abortion to scare girls and ladies away
>from fulfilling *their* "natural sexuality," the non-violent method
>is to be preferred.  And sure enough, the non-violent method of holding
>men financially responsible for their children is the method we use.

No-one I know is advocating "forced abortion", Rosenblatt. Quit with the scare 
tactics. They are, however, asserting that making BOTH partners FULLY 
responsible for their respective actions and inaction in the chain of events 
leading to the birth of a child _will_ reduce the incidence of illegitimate 
children, perhaps even more than your "solution" would, and in any case would 
not have the "side effect" of forcing on men the intolerable choice between 
abstinence and a substantial risk of financial ruination. I consider this 
method more constitutionally valid, given your analysis of "least harmful side 
effects", than the approach you are defending.

							- Kevin
Newsgroups: misc.legal