From: matt@smoke.brl.mil (Matthew Rosenblatt)
Newsgroups: misc.legal
Subject: Re: Pre-Sex Contract
Summary: No free ride for Studs'n'Sluts
Keywords: sex, agreement, legal, contract, Studs'n'Sluts
Date: 21 Dec 92 15:11:15 GMT
Organization: U.S. Army Ballistic Research Lab, APG MD.

It may be a little hard to keep track of who wrote what when, but 

>>>In article <19419@smoke.brl.mil> matt@smoke.brl.mil, I wrote:

>>>>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]

And in article <1992Dec4.171716.2926@rotag.mi.org> kevin@rotag.mi.org
Kevin Darcy) replied:

>>>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]

Now, in article <1992Dec14.072542.22891@rotag.mi.org> kevin@rotag.mi.org,
(Kevin Darcy) writes:

>In article <19434@smoke.brl.mil> matt@smoke.brl.mil (Matthew Rosenblatt) 
>writes:

>>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:
>>[Matt Rosenblatt]

>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?

And the answer remains the same:  "GIVEN, that . . . many men are simply
going to . . . continue having sex anyway," it remains true that many
OTHER men -- "Far too many, probably," in Mr. Darcy's view (although
not enough men, probably, in my view) -- are going to suppress "their 
natural sexuality" and refrain from having non-marital sex because 
they KNOW that they will have to support any child whom they conceive 
and whose mother chooses to bring to birth.

>>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.  [Matt Rosenblatt]

>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.   [Kevin Darcy]

The Constitution, as interpreted in _Roe v. Wade_, 410 U.S. 113 (1973),
prevents "a consistent application of strict liability" that applies
as much to the mother as to the father.  So we cannot Constitutionally
tell the mother, "if you have sex and conceive a child, you are strictly
liable to bring it to birth and support it."  But we *can* Constitutionally
tell the father that he has to support any child he conceives who is born.
It is the Constitutional interpretation that leads to what Mr. Darcy
perceives as inequity.

>>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: ...
>>[Matt Rosenblatt]

>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.   [Kevin Darcy]

If strict male liability deters even a few illegitimate pregnancies,
it is effective to that extent.

>>...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."  [Matt Rosenblatt]

>Do you see *anything wrong* with telling women that they can spread their
>legs all they want, without fear of crushing, involuntary financial
>burdens, . . .  [Kevin Darcy]

If she bears her child, she, too, is liable to support him -- that's a
financial burden.  And I did not write the decision that excuses her
from having to bear her child.

>. . . but if a man unzips himself once, he may be forfeiting a signficant
>chunk of his total lifetime earnings?  [Kevin Darcy]

The man acts in full knowledge of the risk he is taking, and if he
nevertheless goes ahead and takes that risk, I see nothing wrong 
with holding him to the consequences he had every reason to expect.

The mother has an "out" that the father does not have.  That may be
cause for the father to ENVY the mother, but if there's any one
consistent thread that has run through all my postings on this
and other subjects, it is that we have no business letting our
policies as a society be influenced by ENVY.  That's why I am a
Republican and not a Democrat or Socialist.

>>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.
>>[Matt Rosenblatt]

>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?   [Kevin Darcy]

Let's see some historical evidence for the proposition that the
"liberty" and "pursuit of happiness" envisioned by the framers
of the Declaration of Independence in 1776 included the liberty
to fornicate and then walk away from one's children.

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

>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, . . .  [Kevin Darcy]

In logic, the "genetic fallacy" consists of reasoning from the goodness
or badness of the origin of a thing to the goodness or badness of the
thing itself.  And that's what is going on here.  By this reasoning,
if the "tainted" pregnancy is carried to term and a child is born,
he, too, is "'tainted' by that badness & evil"!

See, I can recognize the "genetic fallacy" because I don't hesitate
to use it plenty myself:  Very often, I will condemn some idea for 
no other reason than that it originated with some Femi-nazi.  But 
that doesn't make this kind of reasoning any less bogus, nor does it 
mean that I have to refrain from bringing Kevin Darcy's use of it here 
to the attention of our readers.

>. . . 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).
>[Kevin Darcy]

How can I seem to be advocating punishment when I wrote, in the very
article to which Mr. Darcy is replying:

>>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.   [Matt Rosenblatt]

>>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.
>>[Matt Rosenblatt]

>	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.)

At most, this shows that sex-based classifications are "suspect" in
Michigan.  Where's the corresponding U. S. Supreme Court case?

>>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.  [Matt Rosenblatt]

>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?  [Kevin Darcy]

Having to do *anything* that one does not feel like doing "can be seen 
as punishment."  Having to serve in the Armed Forces "can be seen as
punishment."  Having to pay debts that one has incurred "can be seen 
as punishment."  Having to pay taxes "can be seen as punishment."  
Having to pay to support one's unwanted biological children -- or for
that matter, one's formerly-wanted children with whom one is now bored
-- "can be seen as punishment."  That doesn't *make* any of these
obligations punishment.  And in the days when contination of pregnancy
was mandatory and the only available abortions were illegal ones, it
was not childbirth, but *illegal abortion*, that feminist Andrea Dworkin 
characterized as punishment:

    "Admitting to an illegal abortion is like admitting to 
  having been raped: whoever you tell can see you, undress you,
  spread your legs, see the thing go in, watch the pain, almost
  touch the fear, almost taste the desperation.  The woman who
  admits to having had an illegal abortion allows whoever hears
  her to picture her -- her as an individual in that wretched
  body -- in unbearable vulnerability, as close to being punished
  for being female as anyone ever comes.  It is the picture of a
  woman being tortured for having had sex."
     -- _Right-Wing Women_  (New York: Perigee, 1983), p. 73f.

Now, today's "safe and legal" pregnancy-control centers usually
do provide some sort of anaesthesia.  But all the rest of what
Miss Dworkin describes is *still there*, facing the poor girl
who signed the "Pre-Sex Contract" but changed her mind when she
found out she was pregnant and is about to terminate her now-
wanted pregnancy because she will not be able to support her 
child without the paternal support that the "Contract" has
enabled his father to avoid.  The undignified physical position,
the "desperation," the "fear," the "unbearable vulnerability," the
"punish[ment] for being female" -- they're still there.  They didn't
magically vanish with a stroke of Mr. Justice Blackmun's pen.  They're 
what the *female* signer of the "Pre-Sex Contract" has to face, while 
the male signer gets off with writing a check for 50% or 100% of 
Planned Barrenhood's fee.

But that's too bad, right?  She signed a *contract*, and now
she has to be held to its terms no matter what, *just like a man*.
What is it that the contract is forcing her to part with?  Could
it be a one-pound fetus?  How fitting, that this poor mother should
be forced by a signed piece of paper to have to part with A POUND 
OF FLESH in order to make things financially easier for the Stud 
who knocked her up!  Maybe Mr. Darcy ought to take another look
at Shakespeare's play, _The Merchant of Venice_, to find out how
favorably the law ought to look at this kind of "contract."

>>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.   [Matt Rosenblatt]

>Maybe you'll reconsider, given the above.  [Kevin Darcy]

A law is not unfair simply because it treats men and ladies differently
on the basis of their gender.  Indeed, any law that treats men and
ladies *the same* ought to be scrutinized to see whether it is unfair.
(E.g., laws subjecting both mothers and fathers of small children to
jury duty or the Armed Forces draft).

A law is not unfair because it deters men from expressing their
sexuality outside marriage, as "strict liability" for child support
does.  If that's all it takes to make a law unfair, where do we
draw the line?  Is Mr. Darcy next going to tell us that laws against
incest, adultery, sodomy, pederasty and bestiality are "unfair" 
because there are some men whose sexual expression these laws deter?

>>>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]

>No-one I know is advocating "forced abortion", Rosenblatt. Quit with 
>the scare tactics.   [Kevin Darcy, in a subsequent article]

I'm not the one who brought up "forced abortion."  For the record, I do
see the prevention of fornication as a valid objective, but I reject
Mr. Darcy's conclusion that the logical pursuit of such an objective 
would make "FORCED abortion . . . the order of the day."  It's quite 
enough that the possibility of having to pay a couple of decades' worth 
of child support scares some men into acting responsibly, viz., into
refraining from non-marital sex.

>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. 
>[Kevin Darcy]

I disagree with Mr. Darcy's characterization of sexual abstinence
outside of marriage as an "intolerable choice."  Quite the contrary.
I see that choice -- "Settle down and marry me and be ready to support
me, or you don't get any from me" -- as a principal foundation of
civilized societies from time immemorial.  A culture where men can
opt out of supporting their biological children is either one where
many of those children are starving, or one (like West Baltimore)
being propped up by massive support from outside.  I find it far
more intolerable to let children starve, or to impose a burden on
honest citizens who are already supporting their own families,
than to put a damper on the lust of hedonistic Studs'n'Sluts.

					-- Matt Rosenblatt
                                        (matt@amsaa.brl.mil)

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