A critique of the strict liability standard for determining child support in cases of male victims of sexual assault and statutory rape.

• Author: London, Ellen

INTRODUCTION

S.F. also contends that he did not have consensual intercourse with T.M. and that he was a victim of a sexual assault by T.M.... We note that S.F. does not contest that he is the biological father of T.M.'s child. A father has both a legal and moral duty to support his minor children. (1)

Victims have rights. Here, the victim also has responsibilities.

A 34-year-old woman seduces a 15-year-old boy and becomes pregnant. She gives birth to a daughter and thereafter applies for Aid to Families with Dependent Children. Is the child's father obligated to pay child support even though he is a victim of statutory rape? (2)

So long as a man engages in an intimate sexual act resulting in his depositing of his sperm with a woman who then becomes pregnant, he is liable for child support. (3)

As illustrated by the above quotes, U.S. courts use strict liability as the standard for determining child support liability in the case of unmarried parents. The man or woman legally required to make payments each month is the one biologically linked to the child, with no weight given to the existence of any social, psychological, emotional, or other ties between them. Courts give no consideration to the circumstances leading up to or involved in that biological connection, and they do not require consent to the sexual relation. That accountable person is almost always the father, and with the common use of DNA testing, it is practically impossible for a man to deny biological paternity. (4) While there are good arguments for a bright-line rule (e.g., simplification of the process of securing child support for single mothers), the use of strict liability has problematic implications for societal conceptions of gender. This rigid legal standard is justified by traditional notions of aggressive men, weak women, and the nuclear, heterosexual family. The discourse employed by the courts denies male victimization and ensures that women remain subordinate in the traditional hierarchy, and the underlying assumption of such discourse is that men are responsible for their sexuality, or that they have agency, (5) in a way that women do not. The purported "best interests of the child" objective of this strict liability standard (6) is a simplistic phrase employed uncritically by courts that do not want to involve themselves in the dynamics of gender and sex in the cases before them. (7) In this Comment, I argue that strict liability is an inappropriate standard to use, illustrated by an analysis of two cases involving male victims of statutory rape and sexual assault. Before examining these cases, I briefly discuss why scholars and policymakers should engage this issue. I also argue that feminists, (8) in particular, should be challenging this use of strict liability.

Much energy currently is being devoted to reproductive rights, especially as prochoice groups are fighting the Partial-Birth Abortion Ban Act (9) in the federal courts. (10) The Left is at a critical juncture, and, in light of the enormous obstacles presented by this Act and its supporters, a challenge to a child support standard, which brings much-needed funding to single mothers and their children, appears inconsequential or even offensive. (11) This is the challenge taken up by feminist scholars and activists Wendy Brown and Janet Halley in their collaborative collection entitled Left Legalism/Left Critique. (12) They argue that critiquing leftist projects is not only necessary, but is also empowering in that it paves the way for innovative thinking and coalition-building, even at a time when important rights are at stake. (13) Brown and Halley assert that the very process of critique is valuable, in part because it offers a way to analyze our present discourses, structures of power, political choices, and the sources of such choices. (14) It also "invites us to dissect our most established maxims and shibboleths, not only for scholastic purposes, but also for the deeply political ones of renewing perspective and opening new possibility." (15)

Thus, scholars and policymakers must not be paralyzed by the debate over abortion. In fact, the encroachments on, and threats to, reproductive freedom are added reasons to engage in critique, to re-examine the discourses that they employ, and as in the child support cases involving male victims, to question even those laws that may at first glance appear liberal, (16) and even feminist. (17) This is a historic moment in which the hegemony of many traditional norms related to gender, sex, and the family is being highly contested, (18) and leftist activists have a unique opportunity to advocate for changes in long-held beliefs and institutions.

Cases of male victims of sexual crimes who are required to pay child support may seem an odd choice for analysis and critique. These cases are not, however, simply aberrations within family law. Rather, these seemingly extreme situations are "border cases" (19) that illuminate broader legal issues involving gender and sexuality. In these cases--as opposed to those raising issues such as misrepresentations regarding birth control (20)--the facts present clear, bodily invasion and lack of consent on the part of the male victim. Scholars of gender and sexuality will hopefully lay the groundwork for further analysis of the less clear cases.

Some people, namely the so-called fathers' rights groups, do not consider these border cases to be marginal in the least. (21) These groups claim that men are treated unfairly in the family law context and that many of the current regulations (such as child support determinations) are unreasonable. (22) The fathers' rights groups are interesting in the context of this Comment, as many of the organizations present an alternative image to the "deadbeat dad"; these groups assert a more nuanced version of masculinity that encompasses themes of equal responsibility and care for children. For example, the American Coalition of Fathers and Children maintains that "through our involvement and dedication, we can have a positive effect on the emotional and psychological well-being of children." (23) The arguments made by these groups are simplistic and often antifeminist and overly hostile, (24) but they represent a viewpoint largely ignored by both the legal system and social critiques and are not entirely at odds with leftist goals. These organizations also emphasize the broader point that these cases involve issues of reproduction and the family that are complex and political, as well as deeply personal, for both men and women.

These cases also highlight the tremendous impact of the regulatory state and judicial decision making on the day-to-day details of a person's life. (25) When a state involves itself in childrearing (or its financing), it directly asserts its sometimes heavy-handed influence on the family. Specifically, the state implements guidelines for determining the exact amount of child support owed, a calculation requiring the disclosure of an individual's personal financial information. (26) In addition, a judge has the power to shape public perceptions of a sexual or other personal encounter by the manner in which she conducts a trial or writes an opinion. (27) In analyzing these cases, it is clear that the judicial presentation of the relationships involved is shaped by individuals' gendered assumptions, and it is equally clear that judges may not be aware of their own use of gendered discourse. In determining child support liability, the court essentially dictates the meaning of the initial sexual connection, delineating the legal definition of sexual agency that individuals have vis-a-vis their partners. As Brown and Halley conclude, "law and the state are ... importantly productive of identity and subjectivity." (28)

These questions and problems address just one aspect of an entire system in need of examination. The issues of strict liability and child support in cases of statutory rape and sexual assault are deeply connected to an ever-increasing array of questions arising in the context of new reproductive technologies. (29) While many of these questions are beyond the scope of this Comment, Part III will provide suggestions, applicable beyond the two cases examined below, for a more critical approach to the issues related to childrearing and the family.

In Part I of this Comment, I present the current legal situation regarding child support and describe how this situation plays out in two different cases. In Part II, I critique this legal standard, using ideas from feminist writers and masculinity studies. Finally, in Part III, I present some suggestions, possibilities, and hopes for the future. In doing so, however, I keep in mind the following assertion by Brown and Halley: The "aim of critique is to reveal subterranean structures or aspects of a particular discourse, not necessarily to reveal the truth of or about that discourse. What critique promises is not objectivity but perspective...." (30)

1. THE CURRENT SITUATION: A STRICT LIABILITY THEORY OF SPERM

   Child support has "come of age." (31) Once the "stepchild" of family law, it is now central in discussions and regulations of the family. (32) June Carbone traces the change in child support policy from its previous emphasis on marriage to its current emphasis on the parent-child relationship. (33) Child support began in England several hundred years ago both as a penalty for those who violated social custom and as a way to offset public expense. (34) The advent of state aid to dependent children--and the subsequent federal version in 1935 (35)--brought further moral policing as the states were given the discretion to exclude nonmarital children. (36) This changed in the 1960s when barriers to these children were deemed invalid. (37) With more children eligible for child support, Congress shifted its focus to finding fathers and enforcing individual support...