The Unwelcome Cohort: When the Sentencing Judge Invades Your Bedroom

INTRODUCTION Every convict knows that if you do the crime, you must do the time. But what exactly can the government force you to do to "do the time"? It is clear that people who are incarcerated, on parole, and on probation are subject to restrictions that limit their rights, even those fights protected by the Constitution. (1) These invasions can be obvious safety provisions, such as denying the right to carry a gun in prison, or restrictions to prevent future infractions, such as mandatory rehabilitation programs. Although these provisions are intrusive, they are fairly straightforward and generally accepted; however, some restrictions are not so obviously within the government's power. For most Americans, the decision whether to have a child is between them, their partners, and the powers that be; however, in a number of recent cases, courts have begun to restrict the right to procreate as it applies to those people who have been convicted of certain offenses relating to their children, namely failing to pay child support. One such case is State v. Talty, (2) in which an Ohio man was sentenced to make reasonable efforts not to have another child as part of the conditions of his probation for failing to support several of his children. (3) This sentence raises several issues relating to civil liberties in criminal sentencing and begs the question: Just how far into one's personal life can the courts go? This Note discusses the various issues of civil rights and criminal law associated with the sentence in the Talty case and those issues that might arise from similar sentences. Part I outlines the facts and history unique to the Talty case. Part II discusses the privacy issues at play in a sentence dealing with procreation and sexuality. This Part explains the procreative rights involved in cases of sterilization, birth control, and abortion, and fleshes out the issues of privacy involved in cases of nonprocreative sexuality. In addition, this Part illustrates the various limits on privacy inherent in a criminal conviction, along with the ramifications that such limits have on the constitutionality of governmental restrictions on behavior. Part III of the Note discusses the fundamental right to marriage and how it might affect the strength of privacy and procreative rights. Part IV illustrates the various issues involved with requiring birth control in a setting in which such an order contradicts religious teachings. Additionally, Part IV discusses generally the Free Exercise Clause and elaborates on the hybrid rights exception. Ultimately, this Note concludes that courts are allowed to restrict procreative rights in criminal sentencing except in cases where the right to free exercise of religion is used in combination with the fundamental right to marry. I. CASE FACTS AND HISTORY On February 27, 2002, Sean E. Talty, a resident of Medina County, Ohio, was indicted for failing to pay child support for three of his seven biological children. (4) Mr. Talty initially pled not guilty to the charges, but eventually changed his plea to no contest. (5) The trial court accepted the plea and requested that each side prepare a brief regarding whether or not a court is permitted to order a convicted criminal to not impregnate a woman while on probation if such an order is reasonably related to his offense, as it was in that case. (6) Briefs from both sides were considered as was a brief filed by the American Civil Liberties Union of Ohio, which supported the position that such a restriction could not be imposed. (7) In a journal entry dated September 6, 2002, Judge James L. Kimbler of the Medina County Court of Common Pleas sentenced Mr. Talty to five years of community control and nonresidential sanctions, (8) which included basic supervision by the Adult Probation Department, and further ordered that Mr. Talty "make all reasonable efforts to avoid conceiving another child. …