From: kevin@cfctech.cfc.com (Kevin Darcy)
Newsgroups: misc.legal
Subject: Re: Pre-Sex Contract
Keywords: sex, agreement, legal, contract
Date: 9 Jan 93 00:25:01 GMT
Organization: Chrysler Financial Corp., Southfield, MI

In article <19531@smoke.brl.mil> matt@smoke.brl.mil (Matthew Rosenblatt) writes:
>In article <6669@pdxgate.UUCP> a0cb@rigel.cs.pdx.edu (Chris Bertholf) writes:
>
>>matt@smoke.brl.mil (Matthew Rosenblatt) writes:
>
>>>Funny thing, though:  Neglecting one's children, failing to support
>>>them -- that's also a crime.  . . . If the "Fornication Contract" is 
>>>unenforceable because it entails the commission of the crime of "Male 
>>>Choice," the "Pre-Sex Contract" is equally unenforceable because it 
>>>entails the crime of child neglect.  And that's as it should be.
>>>[Matt Rosenblatt]
>
>>The funny thing is that, on the one hand you seem to support a
>>womans right to choose, but on the other, you do not support a
>>mans right to choose.  [Chris Bertholf]
>
>I suppport an equal right to choose for both men and women.  That 
>means that a woman should have the same right to choose not to be 
>a parent that a man presently has.  A man has the right to refrain
>from sexual intercourse; refraining from sexual intercourse will
>keep him from becoming a parent.  If he engages in sexual intercourse,
>he has the right to employ the most effective means of birth control
>he is willing to use.  And if he fails to use birth control, or if
>the birth control he uses fails and he conceives a child, he has no
>more right to choose.  That's all the "right to choose" a man deserves,
>and it ought to be enough "right to choose" for a woman, too.

Between conception and (potential) childbirth, a woman currently has the 
legal choices to both a) remove her physical connection to the fetus, and 
b) in one and the same act, avert all financial obligations to the child 
that that fetus would otherwise have become. Now, obviously, the biological
choice, i.e. choice (a), does not apply to the man, but why would you, who 
profess to support "an equal right to choose for both men and women" [sic] 
deny the man the same ECONOMIC choice as the woman, i.e. choice (b), which 
is perfectly within the state's power to allow him? Is it that some choices
are more "equal" than others?

>>Please, in understandable, non-emotional terms, explain why you believe
>>men should NOT have the right to choose, why our consent to sexual
>>relations implies a consent to childbearing, and why one person (the
>>man) should be held responsible for the other persons decisions, if
>>that decision was made after an agreement NOT TO BEAR CHILDREN was
>>executed.  [Chris Bertholf]
>
>I do not believe that "consent to sexual relations implies a consent
>to childbearing."
>
>There are many on the net who believe that the only things someone
>ought to be responsible for are things to which he has consented.
>I, on the other hand, believe that in addition to whatever responsibilities
>people may *consent* to, they also have responsibilities based on their 
>*status* or on their *actions*.
>
>In the case at hand, I believe that a man's duty to support his
>child exists independently of whether he consented to become a parent.

How is that essentially different than Matthew Rosenblatt's alleged duty to 
support Kevin Darcy independently of whether Matthew Rosenblatt consented to 
become Kevin Darcy's donor?

>The duty depends only on the father's *status* as the child's flesh-and-
>blood parent, and on his *actions* in performing the act of sexual 
>intercourse that conceived the child.  

Status, once a valid basis of law, is now just a smokescreen.

As far as punishing people for their actions, do you think 18+ years of
indentured servitude is a fair and just punishment for e.g. being the unlucky
victim of a broken condom, or e.g. being defrauded by a woman about her
fertility or birth control usage?

>I see no reason why his lack 
>of consent should excuse him from responsibilities which are the 
>consequences of his actions and his status.   (Think about it: does 
>a man's lack of consent to taxes mean he doesn't have to pay them?)

Taxes are, in theory, a _quid pro quo_. We pay into the pool, we get 
government services in return. I expand on this below. Thus, consent can be 
imputed. What is the _quid pro quo_ in the case of paternity child support? 
Hint: visitation is NOT a valid answer.

>>. . . and why I should be in any way
>>responsible for a choice which I did not make, had no choice 
>>in making, . . .  [Chris Bertholf]
>
>Why not?  The kid had no choice about whether to be born, and he
>needs support, and we're not gonna let him starve.  

But why does the child need support from THAT PARTICULAR source, Rosenblatt,
EVEN WHEN the source identified by the regular rule of law as most liable,
i.e. the mother, is amply capable of supporting the child on her own?

>Of all the people
>on Earth, it is his parents who are the best candidates for having
>to support him, because if they had not engaged in the act of sexual
>intercourse which conceived him, he would not have been born and he
>would not now be in need of support.

Returning to the old punishment scenario, eh? Isn't 18+ years of, say, 30%
of one's gross income, just a teensy weensy bit "excessive" as a "fornication
fine", where "excessive" here is to be read in the context of the 8th 
Amendment? 

>Weren't American fathers responsible for supporting their children
>in 1955?  Was it wrong then?  Why should it be wrong now?

Women gained a legal choice circa 1973 which largely obsoleted the principles 
underlying the old methods of assigning paternity child liability.

It's not the least bit unusual for sweeping Constitutional precedents to
have ripple effects on other statutes. What IS unusual, though, is that the
paternity child support statutes have continued to stand, shakily, even after
their linchpins were removed... 

>>. . . and have no legal recourse against (for now).   [Chris Bertholf]
>
>There's a difference between choosing to make something happen, and
>taking the risk that it might happen.  No one chooses to get into
>an auto accident, but if I get behind the wheel I am taking the risk
>that I may cause an accident.  I can choose not to drive, and that
>amounts to a definite, effective choice never to cause an accident.
>But when I choose to get behind the wheel, I am choosing to take
>the risk of causing an accident, and if in fact I cause one, the law
>will hold me responsible for the consequences of the risk I chose
>to take.

Well, since you brought up an auto accident liability analogy...

Previous to auto no-fault, if Driver A found himself in a hazardous situation
on the road, but SOME OTHER DRIVER, let's call her Driver B, had the Last 
Clear Chance to avoid the impending accident, and failed to exercise 
prevention, would Driver A be as responsible as Driver B for the resulting 
accident damages?

After you answer that question, try giving some thought as to who in the
hypothetical paternity child support situation has the Last Clear Chance to 
avert the birth of the child, and all of the child support "damages" arising
therefrom. Who then should be assigned the greater liability for those 
"damages"?

>>Somehow, I see the issues of CHOICE and RESPONSIBILITY FOR THE CHOICES
>>ONE MAKES as intertwined.  If I am responsible enough to discuss it
>>before sexual relations and it is agreed that we will not have children,
>>then the only one responsible for the child should be the mother, if she 
>>chooses to have a child that is the product of my seed against my will,
>>and against OUR agreement.   [Chris Bertholf]
>
>Why should people's only responsibilities be for the CHOICES they have
>made?  When society decides that poor people need food to survive, the
>majority enacts tax laws, and each citizen is responsible for obeying
>those laws and paying his taxes even if he, on his own, would not have
>CHOSEN to provide the poor with food.  

Keeping the poor from starving is a valid state objective, and the property
deprivations that it entails are defensible under Due Process.

Depriving a man's property for 18+ years as a punishment for a broken condom, 
on the other hand...

>The law says that he must pay 
>taxes because of his *status* as a resident of his State and country,
>not because of any choice he has made.  Does Chris Bertholf believe
>that only those who agree to pay taxes should be responsible for
>paying them?

In the final theoretical analysis, taxes are voluntary. If one is willing to 
forgo all (or almost all) income, one need not pay income taxes. If one is 
willing to forgo all real estate ownership, one need not pay property taxes 
(at least not directly). So, "status" is once again exposed as a false 
concept to be sliced away by Occam's Razor. One only pays taxes because of 
VOLUNTARY ACTIONS, e.g. earning income, purchasing property, NOT because of 
one's alleged "status". 

>In the same way, the law says that a man must support his children
>because of his *status* as their father.  

I.e. because he had sexual intercourse, which happened to result in conception,
and, due to the mother's failure to abort, eventually a child. "Status" plays
no part in that construction.

>The requirement to support
>one's children makes as much sense as the requirement to pay taxes,
>and I support both requirements.

Every taxpayer gets, in return for their federal, state and local tax dollars,
at the very minimum: 

	o  national defense

	o  police protection

	o  relatively clean air & water 

	o  routine checking of foodstuffs for contamination, and labelling
	   of said foodstuffs with valuable nutritional information

	o  a commercial atmosphere within which free trade can be conducted,
	   contractual obligations can be enforced (except of course pre-sex
	   contracts), etc. 

	o  use of a national transportation system

	o  enforcement of professional standards for a variety of professions:
	   doctors, builders, engineers, etc.

	o  the list goes on and on...

Given the list of governmental services which are supported by taxes, and the
fact that taxpayers (even so-called tax protesters) not only routinely partake 
of those services, but even enough to take them completely for granted, I 
think it's fair to impute consent to taxation -- I don't know many people who 
live in a cave, grow their own food, build their own tools, implements, 
housing structures, roads etc. from raw materials, repel foreign invaders etc. 
WITHOUT relying on governmental help. 

On the other hand, men who wish no familial ties whatsoever get absolutely 
NOTHING of value to them in return for their "fornication tax" payments. 

That's why paternity child support cannot be validly defended as a form of
"taxation", besides, of course, the technical problem of taxation being
defined as support of GOVERNMENT, which would seem to exclude specific 
one-to-one transfer payments between individual citizens.

								- Kevin

P.S. I do congratulate you on being somewhat more coherent than usual, Matthew.
     Have you dropped the "Stud's 'n' Sluts" rhetoric, and the endorsements of
     chemical assault permanently, or are they just on hiatus?
Newsgroups: misc.legal,talk.politics.misc,alt.president.clinton