Collateral Damage - Unintended Consequences

Collateral consequences to criminal convictions range from the immediate loss of liberty to future complications not imagined at the time of trial.  These range from possible deportation  to enhanced sentences for later crimes and a considerable amount in between.  Public housing agencies have rules and regulations regarding prior convictions: in Lowell Housing Authority v.Melendez, the Supreme Judicial Court ruled that a violent offense which occurred within one mile from the defendant’s home in a public housing complex was close enough to endanger the other tenants of the housing complex to permit the termination of the defendant's lease.  If the property is owned by Housing and Urban Development, entire families may be evicted due to the criminal drug offenses of one member. 

Additionally, driver’s licenses may be suspended and professional licenses revoked.  People with criminal convictions may be barred from creating business contracts with the government; employers may use criminal records to exclude candidates.  Those convicted of crimes may be required to submit their DNA to a national database, many will lose or have limitations on their right to access firearms; some may face civil commitment after the completion of their criminal sentence and some may be required to register as a sex offender which will carry additional restrictions on habitation and employment.  The overall cost to society for crime, punishment and collateral consequences is utterly unknown.  And, new questions arise on a regular basis in regard to the consequences of crimes.  Many of these issues are complex with sympathies and emotional pull for the victim but law and practicality on the side of the offender.

For example, at least one man in Pennsylvania is being sued for the purpose of purchasing his victim’s home.  The allegation is that the victim’s family moved into their home in 2005 at which time the victim was 2.  Their 65 year old neighbor, the defendant, befriended them gaining their trust and the trust of their daughter until such time, when she was 8, when he molested her.  Convicted of the offense, he was ordered to serve less than 2 years of incarceration after which time he moved back into his family home…next door to the victim.  The victim’s family has sued for damages related to the assault but also for what appears to be specific performance of purchasing their home.

The victim’s family’s suit claims that their house is unsaleable due to its proximity to a registered sex offender who is a child molester; yet the family is under duress to move due to the young victim’s trauma of seeing her rapist on a regular basis (although it is unclear why the victim's family did not seek to sell the house before the offender returned home from prison.)  Counsel for the defendant has asked for the court to dismiss that portion of the law suit requiring home purchase as stating a claim for which no relief can be granted…essentially comparing his client to a toxic waste dump.  The defense attorney cited a case where a plaintiff could not collect damages due to inability to sell his home despite living next to a toxic waste dump.

In another case – here in Massachusetts (but it is not unique) – the victim of a rape was impregnated (and, despite rhetoric to the contrary, that fact does not invalidate the crime of rape) and chose to carry the pregnancy to term, keeping the child.  The criminal court judge sought to transfer a portion of the case to Family Court in order to enforce child support payments upon the putative father.  The putative father averred that if he was to be ordered to pay child support payments then he would like to establish a relationship with the child and gain parental rights.  The victim, understandably, wants nothing to do with the father of her baby and has asked that the case not be transferred to the Family Court, but rather that restitution payments be ordered in the amount that would be ordered from Family Court by the Superior Court.  That case is pending in the Supreme Judicial Court under the caption Commonwealth v. Jaime Melendez, SJC-11326.

The victim's argument that the criminal court has no authority to transfer the case to the Family Court is unfounded.  Courts of limited jurisdiction can request such a transfer from the Chief Judge for Administration and Management (CJAM).  Before states will provide services, they require that the mother make every effort to identify the father and then hale the putative father in to pay his portion of child support.  Thus, the transfer seems to be a legitimate and, in many ways, prudent action by the Superior Court judge from a financial, if not emotional standpoint.

In Melendez, it appears that the victim wants it both ways: she wants the child support payments but also that the father be denied all other rights pertaining to the child.  Not only is this an inappropriate criminal sanction, and an almost assured violation of the Eighth Amendment and Art. 26, it is also an impossible restitution order (See, The Charge dated February 4, 2013).  That is, criminal restitution is to pay for damages incident to a crime, not for future contingencies and collateral consequences of that offense.  Even if ordered, criminal courts and probation offices are wholly incapable of enforcing this type of penalty, a function the Family Court conducts on a regular basis.  Not only would any restitution order be subject to the defendant's ability to pay, nothing in a restitution order would prohibit the putative father from taking an active role in the child's life by asserting an action in Family Court.  Clearly the victim’s solution cannot succeed.

But, if (and logically when) the Family Court takes jurisdiction over this case, what are the lifelong ramifications for the victim and her child?  As a single parent, the odds suggest that she will require public funds for everything from child care to educational benefits to housing preferences to supplemental nutritional assistance in addition to whatever contributions may be made by the biological father.  The average cost of raising a child in this country is in the hundreds of thousands of dollars.  When a child is born as a result of rape, does society accept the costs of raising that child because the mother of the child (understandably) does not want the father involved in her life or the life of her child?  Or, does a man convicted of rape gain full rights (and also responsibilities) of parenthood due to the result of his crime?  Does society gain some authority to encourage abortion or adoption over the public cost of raising a child?

Massachusetts has reasonable access to abortion services.  Clearly the victim – for her own reasons which are unassailable and personal to her – chose not to have an abortion.  That is not always a choice.  Indeed, restrictions on abortion would often result in this very outcome which seems, well, wrong.  And, legislative solutions outside of freeing a woman to seek adoption or abortion without any involvement from her rapist cross over the line of constitutionality.

Massachusetts has a "slayer statute" prohibiting anyone charged with murder or manslaughter from taking distributions from the decedent’s estate; anyone convicted would be deemed to have predeceased the victim and therefore ineligible to claim rights of succession (however those found not guilty would be in the same stead as if never accused).  While this legislative response to prevent killers benefiting from their crimes suggests a legislative option for rapists, crafting a law that would de facto deprive a biological parent of parental rights would be impossible to devise within constitutional confines. One that would require payments in child support but deny parental rights is almost unthinkable, even for those convicted of serious offenses. Further, no rational law could aver that rape victims who carry to term will be eligible for all services without regard for the rapist as those kinds of laws are too susceptible to corruption and false claims.  Further, what happens if the male is acquitted? 

Women victims of rape, like all women, should have every option – safe, legal and accessible -  available to them in regard to any resulting pregnancy.  No one takes the idea of abortion any more lightly than carrying a pregnancy to term (oddly, the cost of the abortion fits easily into a criminal restitution argument and would be subject to such an order while child support payments, due to their variability, could not).  

In a twist to the well-intended but ill conceived "victim rights" movement which has distorted and confused the role of the public prosecutor, must a rape victim be informed that her rapist may also be attending soccer games in the future?  Who must provide this information to the victim and when?  With all of the collateral consequences defense attorneys must advise their clients before a guilty plea, is this a collateral consequence about which a prosecutor must advise the victim…even a prosecutor opposed to abortion (or to public funding for children of the indigent)...regarding carrying the pregnancy to term?  Must a prosecutor be in the position of informing a rape victim that she might have lifetime contact with its father or become ineligible for state or federal services?  For, without that knowledge, she cannot make a rational, informed decision whether or not to terminate her pregnancy. 

Query also the child male victim of statutory rape by a woman.  If the offender is impregnated and carries to term, must the victim pay child support?  If not, why not?  Just as a court or legislature could not, within the parameters of the Constitution, prohibit a biological parent's involvement in a child's life by virtue of the fact that he committed a heinous crime, neither could require such an offender to abort a fetus.  Offenders may be guilty of the statutory rape and still choose to carry to term: who pays for the care of that baby?  On the flip side, those who are raped are victims, but who pays for care of the resulting child?  

One strong argument is that the child is innocent and has its "right to life" thereby prohibiting forced abortion for an offender or a victim.  Another, that abortion should be available to the victim or offender along with information about the potential for the male party - offender or victim - to have a lifelong involvement with any resulting child.  As a society, are we prepared for the rapist coordinating schedules for weekend visits?  What about future consequences for the victim in a case of male rape by a woman?  Is the male involved in rape - offender and victim - more like the child molester-toxic waste site comparison, not responsible for the unintended, albeit foreseeable consequences?  

What is the cost of these crimes - these collateral costs that seem far removed and yet are intricately involved with these offenses?  These are not new problems.  Taking responsibility for offspring was often interwoven in the laws of intestacy where the child born out of wedlock was simply not recognized, perhaps the putative father would be required to pay a bond for the child's welfare, but just as easily, the child could become (with its mother) a ward of the state or sold in vendue to the lowest bidder.

In early America, abortion did not carry today's religious taboo, and adoption was widely practiced for out of wedlock pregnancies whether voluntary or not.  Indeed, the idea of the single mother intent on raising her own child - especially one who was the product of a rape - seems relatively new in comparison (undoubtedly it has always been a reality but rape was potentially a capital offense until 1976 and so the father would unlikely be asked for child support payments).   Still, the question remains as to who will pay the cost where the single mother is incapable of supporting herself and her child?  The rapist (or in the case of statutory male rape, the victim)?  The state without any involvement by the rapist (or victim)?  And regardless of cost, can the rapist (or victim) be prohibited from involvement in the child's life if the child is not placed into an adoptive home where parental rights have been surrendered?

A battle is raging in this country that is internally inconsistent and not reflective of reality. It is inconsistent to seek to abolish abortion in all cases and simultaneously argue for personal responsibility for all actions.  That places the woman rape victim in the impossible position of being intertwined with her rapist forever and the male rape victim responsible for the care and upbringing of his offender's child.  Further, reduced availability of state and federal aid will undoubtedly press courts to seek payments from rapists and victims in child support for the offspring of the crime, putting government in the unenviable position of requiring victims of crimes to have lifelong interaction with their assailants.

The pending Melendez case raises important and difficult questions not only for the parties but for society.  Historically, Americans have looked askance at single mothers, particularly those accepting public services.  At the same time, we have tremendous sympathy for rape victims and an inherent sense that women should have total control over their own bodies and destiny.  Is our disdain for delinquent fathers more powerful than our disgust with rapists who want to be involved in their child's life, especially those with the financial means to support the child?  And, in this nation, where our emotions drive our zeal to brand people as criminals and deprive them of dignity and resources otherwise inherent in citizenship, how and where do constitutional principles and protections fit into that charged landscape when a child is involved?