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Punishing Family Status PUNISHING FAMILY STATUS JENNIFER M. COLLINS,∗ ETHAN J. LEIB,∗∗ AND DAN MARKELℵ INTRODUCTION ............................................................................................. 1329 I. AN OVERVIEW OF FAMILY STATUS AND CRIMINAL JUSTICE BURDENS ........................................................................................... 1334 A. Omissions Liability for Failure to Rescue................................. 1335 B. Parental Responsibility Laws .................................................... 1338 C. Incest ......................................................................................... 1343 D. Bigamy....................................................................................... 1345 E. Adultery ..................................................................................... 1346 F. Nonpayment of Child Support ................................................... 1347 G. Nonpayment of Parental Support .............................................. 1348 II. A FRAMEWORK FOR ANALYZING FAMILY TIES BURDENS ................ 1349 A. A Defendant-Centered Perspective, Among Others .................. 1350 1. The Defendant as the Object of Punitive Coercion ............. 1350 2. Family Members as the Object of Harm ............................. 1350 3. Burdens as Devices for Promoting “Family Life and Values”................................................................................ 1351 ∗ Associate Professor of Law, Wake Forest University School of Law; B.A., Yale; J.D., Harvard. ** Associate Professor of Law, University of California – Hastings College of the Law; B.A., Yale; M.Phil., U. of Cambridge; J.D., Yale; Ph.D., Yale. ℵ Assistant Professor of Law, Florida State University College of Law; A.B., Harvard; M.Phil., U. of Cambridge; J.D., Harvard. For comments and conversations about this project, we are very grateful to Kelli Alces, Tommy Crocker, Dave Fagundes, Brian Galle, Carissa Byrne Hessick, Rick Hills, Rob Kar, Zak Kramer, Wayne Logan, Melissa Murray, Michael O’Hear, B.J. Priester, Alice Ristroph, Jonathan Simon, Jason Solomon, Jeannie Suk, Fernando Teson, Steve Vladeck, Lesley Wexler, Ron Wright, and Ekow Yankah; and to our hosts and participants at workshops at the 2008 Law and Society conference in Montreal, Hofstra, University of Arizona, Prawfsfest!-Loyola (L.A.), and Florida State, where earlier versions of this project were ventilated. We thank Katherine Kao, Eli Mark, Megan Schanbacher, Brandy Mills, and our schools’ librarians, who provided helpful research assistance; and, for editing assistance, we owe thanks to our team at Boston University Law Review. Last, we are grateful to each other, and most of all, to our families for their enduring patience and love. This article will be part of a revised and expanded book published next year: DAN MARKEL, JENNIFER M. COLLINS & ETHAN J. LEIB, PRIVILEGE OR PUNISH: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES (Oxford University Press, forthcoming Apr. 2009). Please feel free to contact us with comments or questions: [email protected]; [email protected]; [email protected]. 1327 1328 BOSTON UNIVERSITY LAW REVIEW [Vol. 88:1327 4. Burdens as Devices to Serve Goals Beyond Family Promotion ............................................................................ 1352 5. Burdens in Relation to Family Ties Benefits....................... 1353 B. Revisiting the Costs of Family Ties Benefits.............................. 1355 1. Inequality and Discrimination ............................................. 1357 2. Gender Bias, Heteronormativity, and Repronormativity..... 1358 C. Uncovering a Structure of Family Ties Burdens: Voluntary Caregiving ................................................................................. 1359 D. Overcoming Family Status Through a Focus on Voluntary Caregiving ................................................................................. 1363 E. Bringing It Together: How to Scrutinize a Family Ties Burden ....................................................................................... 1366 III. APPLICATION OF THE FRAMEWORK TO FAMILY TIES BURDENS........ 1369 A. Omissions Liability for Failure to Rescue................................. 1370 1. Parental Duties to Rescue Children..................................... 1370 a. Voluntary Caregiving and Liberty Interests.................. 1371 b. Minimalism and Means Analysis................................... 1375 c. Gender, Inequality, and Discrimination........................ 1376 2. Spousal Obligations to Rescue Each Other ......................... 1380 3. Duties to Rescue in Other Relationships ............................. 1383 B. Parental Responsibility Laws .................................................... 1384 1. Voluntary Caregiving and Liberty Interests ........................ 1385 2. Minimalism and Means Analysis ........................................ 1385 3. Gender, Inequality, and Discrimination .............................. 1389 4. Summary ............................................................................. 1390 C. Incest ......................................................................................... 1390 1. Voluntary Caregiving and Liberty Interests ........................ 1392 2. Minimalism and Means Analysis ........................................ 1395 3. Gender, Inequality, and Discrimination .............................. 1398 4. Summary ............................................................................. 1399 D. Bigamy....................................................................................... 1401 1. Voluntary Caregiving and Liberty Interests ........................ 1402 2. Minimalism and Means Analysis ........................................ 1402 a. Coercion and Minors..................................................... 1402 b. Economics ..................................................................... 1404 c. Bigamy Laws as a Safeguard Against Defiance of the Liberal State .................................................................. 1405 3. Gender, Inequality, and Discrimination .............................. 1406 4. A Solution............................................................................1409 E. Adultery ..................................................................................... 1411 1. Voluntary Caregiving and Liberty Interests ........................ 1411 2. Minimalism and Means Analysis ........................................ 1412 3. Gender, Inequality, and Discrimination .............................. 1412 4. A Solution............................................................................1413 F. Nonpayment of Child Support ................................................... 1416 1. Voluntary Caregiving and Liberty Interests ........................ 1416 2. Minimalism and Means Analysis ........................................ 1417 3. Gender, Inequality, and Discrimination .............................. 1419 4. A Solution............................................................................1420 2008] PUNISHING FAMILY STATUS 1329 G. Nonpayment of Parental Support .............................................. 1420 1. Voluntary Caregiving and Liberty Interests ........................ 1420 2. Minimalism and Means Analysis ........................................ 1421 3. Gender, Inequality, and Discrimination .............................. 1421 CONCLUSION................................................................................................. 1422 This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of “family ties burdens” or laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support. Part II develops a framework for the normative assessment of these family ties burdens. We first ask how these laws can properly be understood to be “burdens.” We then look at these sites synthetically and contextually to uncover a pattern underlying most of these family ties burdens; namely, they tend to promote voluntary caregiving relationships. We endeavor to explain why this rationale is instructive and normatively attractive for the design of family ties burdens within a criminal justice system committed to what we call “liberal minimalism.” We conclude Part II by articulating the contours and basis of a critical scrutiny that should attach to family ties burdens in the criminal justice system. Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status but are still capable of promoting and vindicating voluntary caregiving relationships. INTRODUCTION In 2005, Christina Madison watched while her new husband repeatedly punched her four-year-old son in the stomach after the child refused to get dressed for school. Madison did nothing to stop her husband from hitting the child. The child eventually died from internal bleeding as a result of a tear in his intestine. Prosecutors charged
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