Sunday, December 20, 2009
Maravilla: "The other don't ask, don't tell: adultery under the Uniform Code of Military Justice after Lawrence v. Texas"
Christopher Maravilla has published "The other don't ask, don't tell: adultery under the Uniform Code of Military Justice after Lawrence v. Texas," 37 Cap. U. L. Rev. 659-680 (2009). Here is an excerpt:
The U.S. military has a long standing prohibition, punishable by court martial, against adultery committed by service members whether it is between service members of the same rank, different ranks, or with civilians. [FN1] While the armed forces are a unique body in terms of constitutional jurisprudence and not necessarily subject to the same protections as civilians (generally with regard to the First Amendment right to free speech), [FN2] this doctrine is not absolute. The Supreme Court's decision in Lawrence v. Texas opened the issue whether consensual sexual activity between two adults is protected under the Constitution, specifically in homosexual relationships. [FN3] The Court of Appeals for the Armed Forces in United States v. Marcum sidestepped the issue by finding that Lawrence did not apply to the specific facts in that case. [FN4] Subsequent military courts have misread Marcum in holding that Lawrence either: (1) is applied only on a case by case basis, [FN5] or (2) does not apply in the military context at all. [FN6]
Adultery covers a wide range of conduct from one night stands, relationships with a co-worker, to long-term romantic entanglements. [FN7] Adultery among members of the Armed Forces is considered common. [FN8] For example, condoms have been made available for both married and unmarried sailors going ashore. [FN9] There are no statistics available for the rate of adultery among members of the armed forces. There is, however, what is considered to be an informal amendment to the prohibition of adultery: “[D]o what you want, but don't do it blatantly and don't get caught.” [FN10] In other words, the policy is another form of “Don't Ask, Don't Tell.” [FN11]
In interviews with soldiers stationed at Fort Bliss in El Paso, Texas, the New York Times found one soldier who said, “But everyone is human. It's going to happen.” [FN12] Another married soldier spent forty dollars to spend five minutes with a prostitute in a Mexican brothel. [FN13] To prosecute any one of these individuals for their conduct becomes almost arbitrary. Critics also argue that the military prosecutors' willingness to pursue charges against adulterers varies depending on the service and the commanders. [FN14] Lawrence J. Korb of the Brookings Institute also argues that these prosecutions when they do occur are more aimed at a member of the Armed Forces already in trouble for something else. [FN15] He likens it to “getting Al Capone on income tax evasion.” [FN16]
However, as this article argues, Lawrence applies to the military, and the crime of adultery in and of itself should no longer be barred by the military because it serves to merely enforce a moral code. Rather, adultery between service members of different ranks should be brought under the *661 prohibition against fraternization. [FN17] While this article does not reach “Don't ask, Don't tell,” many of the arguments presented resonate with that issue. This article will: (1) discuss the military's criminalization of adultery in light of Lawrence and Marcum, (2) argue that this prohibition serves only to enforce a moral code, and (3) that such prosecutions should be brought as fraternization, not adultery.
The abstract is also on SSRN.
Saturday, December 19, 2009
From CBC News:
Under the changes, people will have more access to legal advice from the outset, as well as to options like mediation, arbitration or collaborative law, which are much less combative than the court process.
That will also free up court time for cases that must be argued through the system, although those will now have less paperwork and fewer steps so that people can get to a judge, and a decision, sooner.
"It takes the time and expense that we spend on cases that shouldn't have that time and expense, and moves those resources to the cases that need more attention, helping them to be resolved faster and better as well," said Bentley.
As part of the redistribution, some of the $150 million committed to legal aid over the next four years, for instance, will go toward providing more access to legal advice for people getting divorced.
The article notes, however, that the use of existing funding will change,
but no supplemental funding will be given for the family law court system.
My initial thoughts turned to the studies that suggest that litigation is best for divorcing women, who tend to be detrimentally passive in mediation. However, I think providing legal advice on divorce early will be very effective because 1) I have read that many people change their minds after a divorce consultation, and 2) I know many people have misconceptions about divorce. We shall see the effectiveness of these changes.
Read the full CBC article here.
Friday, December 18, 2009
A New Jersey man embroiled in a long custody battle over his 9-year-old son living in Brazil has won custody of the child.
A Brazilian federal court, in a closed session, ruled Wednesday that Sean Goldman should be returned to his father, David, at a U.S. Embassy on Friday.
Goldman has been working tirelessly for the past five years to get Sean returned to the United States. Bruna Bianchi, Goldman's ex-wife, took the child to her native Brazil in 2004 on what was supposed to be a two-week vacation.
She later remarried and died during child birth last year. Her Brazilian husband argued that he should have custody of Sean.
Over the summer, the boy's Brazilian family said Sean met with a psychologist and stated he wanted to stay there. Sean told the psychologist that if he was sent back to live with his father in New Jersey, he will "break down totally," according to a transcript of the interview with the child.
Over the summer, a lower court in Brazil had ruled that Sean be returned to the U.S. However, that decision was later put on hold by a Supreme Court justice based on a petition that argued removing Sean from his current family environment would hurt him.
However, during Wednesday's ruling the court agreed with Goldman that the boy belongs in New Jersey under an international treaty governing cross-border child abductions.
Read the full story here.
But see this CNN report on how the father's celebration was short-lived. Just hours after the appellate decree was entered, Brazil's high court issued an order prohibiting the father from removing his child back to the U.S. More on this case to come . . .
ABC News’ show 20/20 will be featuring a segment this Friday, with a brief appearance by Dr. Richard Warshak, the foremost author and psychologist on parental alienation syndrome, aka “children brainwashed to hate a parent.”
From Dr. Warshak’s site,
I expect this show to have a major impact in educating the public about the suffering of children who have been turned against a parent, and about what can be done to help ease a child’s transition back to a rejected parent.
The segment will be anchored by 20/20 reporter Chris Cuomo. This topic, mental child abuse, is vastly misunderstood by parents, therapists, judges, and lawyers alike, so I’m excited that it will be in front of a national audience. Dr. Warshak is the foremost authority on parent-child alienation, so ABC did great in choosing to interview him.
The segment should air in the first hour of the 2 hour show (9-11pm EST). expe
Thursday, December 17, 2009
Jennifer S. Hendricks has posted “Contingent Equal Protection: Reaching for Equality After Ricci and PICS,” 16 Michigan Journal of Gender & Law__, (2009), on SSRN. Here is the abstract:
The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court's long struggle with the desegregation of public schools. This Article examines the decision's implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de facto inequality. Recent developments in affirmative action cases, however, have made it increasingly plausible for the conservative plurality to claim that substantive equality is not even a legitimate state interest. The Article demonstrates that this claim is nonetheless a radical departure from existing precedent across a spectrum of equal protection cases. It explores the consequences of the plurality's view, including the threat to remedial programs ranging from Title VII's disparate impact rules to the Family and Medical Leave Act. It also suggests some possibilities for developing the opposite view into a more robust and substantive theory of equality enforceable under the Equal Protection Clause.
The D.C. Council gave final approval Tuesday to a bill to legalize same-sex marriage, setting off a wave of excitement in the gay community even as opponents vow to continue the fight on Capitol Hill. The bill, approved by a vote of 11 to 2, will now go to Mayor Adrian M. Fenty (D), who is expected to sign it before Christmas. The bill will become law in the spring if it survives a 30-day legislative review period.
See the Washington Post story here.
Wednesday, December 16, 2009
Daniel Epstein has published "Romance is Dead: Mail Order Brides as Surrogate Corpses," 17 Buff. J. Gender, L. & Soc. Pol'y 61 (2009). Here is an excerpt:
The economic imbalance between the male purchaser and the foreign spouse serves as one of many catalysts of abuse. American men spend thousands of dollars in fees to use the mail-order bride services provided by international marriage brokers (“IMBs”). [FN11] The prospective brides are on sale from “economically depressed countries” and have minimal ability to speak English, leaving them with little bargaining power as they marry American men. [FN12] In addition to these economic imbalances, there is significant disparity in the legal rights of the purchasing male versus the purchased spouse. For one, these foreign-bought brides have no knowledge of the American legal system [FN13] and fall at the mercy of their citizen-husbands who hold the power of petitioning the prospective bride's citizenship status. [FN14] This knowledge barrier coupled *64 with the everpresent threat of deportation, [FN15] leaves abusers virtually immune from prosecution and further stymies the brides' access to legal help. [FN16] “Consumer husbands” is the foreign bride industry's term for the male purchasers who use the paid-for status of a relationship to exercise control over women. [FN17]
The International Marriage Broker Regulation Act of 2005 (“IMBRA”) reflects Congress's most recent attempt to resolve these problems in the mail-order bride system. IMBRA differs from past policies by focusing on the informed-decision making ability of the prospective brides. The Act requires that prospective brides receive critical information about potential buyers including background information on the prospective purchasers and legal information about conditional permanent residency and the battered spouse waiver. [FN18] Additionally, the United States now thoroughly profiles the men seeking to *65 purchase foreign spouses. [FN19] Despite Congress's continued progress in the regulation of the mail-order bride industry, the practice remains under the legal radar even though widely condemned. [FN20] Notwithstanding the country's negative opinion of sexual trade, this sexual “consumption” continues to define the mail-order bride industry and its players within the United States. [FN21]
This Article examines consumption in the mail-order bride industry as a normative explanation for the public health risks posed by sex trafficking. [FN22] Sex trafficking, when deconstructed into an epidemic of consumption, produces a conceptual tool for understanding the health risks of the *66 industry. [FN23] Consumption exposes the international trafficking of women as a manifestation of necrophilia. [FN24] Psychoanalyst Erich Fromm described necrophilia as representative of a disposition of manipulation, control, violence and force and not merely the attraction to and intercourse with dead bodies. [FN25] The public health risks posed by sexual trafficking are intimately related to the psychological health of the consumer husband-as-necrophile. [FN26] Part I of this Article explores the relationship between law and violence in the mail-order bride practice. The mail-order bride industry is widespread and the United States has devoted substantial legislative energy to curing the abuses that have resulted from the industry. Part II discusses how the economy of purchased sex perpetuates abuse. The economic basis of the mail-order relationship degrades the foreign spouse precisely because she is financially worse-off than her husband. Part III explores how the consumer husband is a symbol of the sexuality he consumes. The consumer husband's distorted view of sexuality is fueled through the dehumanization of women. Part IV connects the consumer husband's dehumanizing impulses to necrophilia.
This recent article in the Atlantic Monthly describes an emerging theory in behavioral science called, among other names, the “orchid hypothesis.” This theory posits that the genes associated with ADHD, depression, and anti-social behavior can actually provide stability and success for people if they, as children, were raised in stable environments. This theory may therefore have great implications for parenting and welfare policy.
Hat Tip: Elizabeth Ryznar
Tuesday, December 15, 2009
CBS News reports on a recent decision from the Irish supreme court:
The Irish Supreme Court ruled Thursday that a gay man who donated his sperm to a lesbian couple should be permitted to see his 3-year-old son regularly - in part because Ireland's constitution doesn't recognize the lesbians as a valid family unit.
The ruling was a legal first in Ireland, where homosexuality was outlawed until 1993 and gay couples are denied many rights given to married couples. Critics contend the case highlights how Ireland's conservative Catholic 1937 constitution conflicts with contemporary European norms and fails to address the reality that hundreds of gay couples in Ireland have children.
In their unanimous decision, the five judges of Ireland's ultimate constitutional authority said a lower court erred by trying to apply the European Convention on Human Rights in favor of the lesbian couple. The Supreme Court concluded that when the two are in conflict, the Irish constitution is superior to European human rights law.
In her written judgment, Supreme Court Justice Susan Denham said the lesbian couple provide a loving, stable home for their son - but that the constitution defines parents as a married man and woman, and gays are not permitted to marry in Ireland.
She said Irish law does identify the sperm donor as the father, and he therefore had a right to have a relationship with his son.
"There is benefit to a child, in general, to have the society of his father," Denham wrote. "I am satisfied that the learned High Court judge gave insufficient weight to this factor."
Read the full article here.
The Arizona Court of Appeals recently disagreed with the family court that "[an] increase in value of [a husband's] IRA Accounts can be attributed solely to the inherent nature of the investments," determining that instead the increase was partially due to community efforts. The court remanded for a recalculation of property awarded to the wife to reflect her efforts in increasing the IRA's value. See Quinlan v. Quinlan, 2009 WL 3644806 (Ariz. App. 2009), or see here for the opinion.
Monday, December 14, 2009
A front-page article in the Sunday December 13 issue of the New York Times highlighted various problems that have been created by the lack or regulation of surrogacy. Some states, like Texas, provide regulations for what needs to be done to create an enforceable surrogacy agreement. Most states do not. So, it is not uncommon for parties to make surrogacy arrangements in situations that seem more likely to lead to problems. The Times article refers to cases when, for example, the mental health of the intended parents had not ben tested. Problems are also common when the surrogate has not given birth before. In many states surrogacy agreements are not legallly enforceable, so when the surrogate and the intended parents get into a dispute about who should have custody of the child, litigation is common.
Scientists working on mice have highlighted a specific gene that, although carried by both sexes, appears to be active only in males. They believe it allows males to grow bigger bodies - but at the expense of their longevity. The study, by Tokyo University of Agriculture, appears in the journal Human Reproduction. Although the study was conducted on mice, the researchers believe it could apply to all mammals - including humans.
They studied mice created with genetic material from two mothers, but no father. This was achieved by manipulating DNA in mouse eggs so the genes behaved like those in sperm. he altered genetic material was implanted into the eggs of adult female mice to create embryos. The resulting offspring, completely free of any genetic material inherited from a male, lived on average a third longer than mice with a normal genetic inheritance.
Read the full BBC article here.
From the Associated Press:
An estranged couple whose case was in family court Monday may be on the cutting edge of marital disputes. The issue: Whether their healthy, school-age daughter will be given the swine flu vaccine.
Dad says yes; Mom says no. Barring a last minute
agreement, a judge on the island of New Jersey will decide.
Sunday, December 13, 2009
Johnson: "A Suggested Solution to the Problem of Intestate Succession in Non-Traditional Family Arrangements – Taking the ‘Adoption’ (and the Inequity) Out of the Doctrine of ‘Equitable Adoption’"
Irene Johnson (Pace University School of Law) has posted "A Suggested Solution to the Problem of Intestate Succession in Non-Traditional Family Arrangements – Taking the ‘Adoption’ (and the Inequity) Out of the Doctrine of ‘Equitable Adoption’" on SSRN. Here is the abstract:
This article examines the judicially created doctrine of equitable adoption under which a child who has been raised by people who are not the child’s birth parents and who, in the traditional doctrine, had promised to adopt the child but had not done so will be permitted to inherit from the “parent” or “parents” who have raised the child if these “parents” have died intestate. After examining the traditional equitable adoption doctrine and demonstrating the several difficulties with the doctrine in terms of the theories on which it is based and the requirements imposed for finding an equitable adoption, the article proceeds to discuss the major difficulty with the doctrine – its under inclusiveness and the disproportionate impact that this under inclusiveness has on economically disadvantaged communities. The article proposes an amendment to intestate succession statutes which would permit many more children to inherit from the people who have raised them.
The article exposes an important defect with the current equitable adoption doctrine – the use of the term “adoption” to refer to a circumstance in which a legal adoption might not have been possible. The article also considers the issues of the modern family and how the equitable adoption doctrine is not responsive to the needs of members of non-traditional family arrangements, the reasons that people fail to adopt children about whom they may have promised adoption, the reasons that people die intestate rather than having a will, and the purposes to be accomplished by intestate succession statutes. The article concludes with a statutory proposal which would eliminate many of the inequities of the equitable adoption doctrine while still being consistent with the goals of intestacy statutes.
Saturday, December 12, 2009
Zhao Baige, vice-minister of National Population and Family Planning Commission of China (NPFPC), has been described to defend China's one-child policy in terms of the environment:
Meanwhile, she said studies have also shown that family planning programs are more efficient in helping cut emissions, citing research by Thomas Wire of London School of Economics that states: "Each $7 spent on basic family planning would reduce CO2 emissions by more than one ton" whereas it would cost $13 for reduced deforestation, $24 to use wind technology, $51 for solar power, $93 for introducing hybrid cars and $131 electric vehicles.
She admitted that China's population program is not without consequences, as the country is entering the aging society fast and facing the problem of gender imbalance.
"I'm not saying that what we have done is 100 percent right, but I'm sure we are going in the right direction and now 1.3 billion people have benefited," she said.
She said some 85 percent of the Chinese women in reproductive age use contraceptives, the highest rate in the world. This has been achieved largely through education and improvement of people's lives, she said.
China’s implementation of the one-child policy in 1979 had little to do with this type of reasoning, but it’s interesting to see continued support for the policy from Chinese officials. Read more from the China Daily here.
Friday, December 11, 2009
The North Dakota Supreme Court heard a case last week questioning whether a wife's breast implants and surgical eye improvements (through Lasik) are marital assets to be divided on divorce.
"Do we have any lines to be drawn? Is dental work a marital asset? Is a hip replacement a marital asset?" Justice Daniel Crothers asked attorney Christina Sambor during Supreme Court arguments on Thursday.
Sambor represents Erik Isaacson, of Mandan, who is appealing South Central District Judge Robert Wefald's decision to exclude the value of his former wife Traci's breast implants and Lasik vision improvement surgery from a list of their assets and debts. Sambor said the expense should be included in instances when a medical expense is "clearly cosmetic, elective, (and) non-necessary." Insurance companies often make those judgments in deciding what to cover, she said.
I think the district judge's comments about the issue are great:
"I can't imagine people would actually waste time thinking that breast implants are marital assets. It just defies common sense. I don't know how you would expect me to award breast implants, if you want me to have them cut out and given to Mr. Isaacson. It is absolutely nonsense."
Read the news report here.
On December 10 a California court of appeal heard arguments from Mr. Polanski's lawyers to the effect that his conviction should be dismissed due to judicial and prosecutorial misconduct in the earlier trial in 1978. The primary evidence brought forth by Mr. Polanski's lawyers is a statement made by a former prosecutor in a filmed interview that he improperly communicated ex parte with the judge about Mr. Polanski's sentencing. Both lawyers for Mr. Polanski and lawyers for the victim of Mr. Polanski's sexual conduct urged the court to dismiss the case. Lawyers for the State of California urged the appellate court to affirm the ruling of the trial court that Mr. Polanski did not have the right the challenge his conviction due to his unlawful flight from California. The appellate court should rule on the appeal in the near future.
Benjamin Shmueli has posted Tort Litigation Between Spouses: Let's Meet Somewhere in the Middle, 15 Harvard Negotiation Law Review__ (forthcoming 2010), on SSRN. Here is the abstract:
In the past, and, to a certain extent, even at present, immunities existed in common law against tort litigation within the family. Is it appropriate today to block such claims, or should they be considered in the same way as any other tort suit? The present essay will address this question, by examining the possibility of establishing a delicate balance between the individualistic approach, which focuses on realizing the autonomy of the individual to sue for harm done to him, and the family-collectivist approach, which attempts to determine what is best for the family as a whole, and is concerned that legal intervention in its affairs may be more detrimental than beneficial.
The assumption in this essay will be that, although we are talking of a claim under tort law, rather than under family law, and that this claim may be consistent with the goals of tort law, one cannot ignore the fact that this is not a suit involving two strangers. Moreover, since these are particularly charged, emotional claims, the real remedy desired may at times not be financial compensation at all, but some other remedy, an emotional one, which the law cannot provide, but which might be provided specifically through extrajudicial proceedings. But requiring the parties to take part in such a proceeding under the auspices of the court (e.g. mandatory mediation) is itself problematic, since these are essentially voluntary proceedings.
I will propose a desirable model that balances the two approaches, the individualistic and the family. This model will present a theoretical and practical framework for hearing such claims, applicable to the different stages of tort proceedings in the courts, while also making use, in the framework of such proceedings, of quasi-mandatory extrajudicial processes.
Thursday, December 10, 2009
From the Associated Press:
WASHINGTON- The divorce rate in the armed forces continues to edge higher, despite efforts by the military to help struggling couples.
There were an estimated 27,312 divorces among roughly 765,000 married members of the active-duty Army, Air Force, Navy and Marine Corps in the 12 months that ended Sept. 30, the Pentagon reported Friday.
That's a divorce rate of about 3.6 percent,
compared with 3.4 percent a year earlier, according to figures from the Defense Manpower Data
To read more, and to learn of the stark contrast in divorce rates between men in uniform and women, see here.
Hat Tip: Brad Kukuk