[NOTE: The following is a reprint of an old post of mine. I thought that it would be an interesting one to revisit, in the light of the spotlight shed on the institution of marriage lately.]
Dean Esmay wrote a short post with the following statement that caught my eye:
…I still note with some mild annoyance that apparently it’s okay to loudly proclaim for “a woman’s right to choose,” and evil and wicked and oppressive to say that her right to choose might have limits, that she should use birth control and be more prudent… but if a man doesn’t want to be held fiscally and socially responsible for a woman’s choice for 18 years, he’s an evil scumbag who should keep it in his pants and use birth control and if he doesn’t like it too bad. He made his “choice” when he chose sex. She gets her choice well after the fact, and gets to hold him responsible for her choice whether he likes it or not.
Although I think I understand where Dean is coming from—on the face of it, it certainly seems an unfair situation, doesn’t it?—his words made me take a little stroll down memory lane, along some paths I haven’t visited in quite some time. Thus, this post.
One of the benefits of being a little (just a little!) older is being able to remember when things were very very different, and trying to apply that perspective to the issues of the day. I’m well aware that nothing I say here may convince Dean (or anyone else, for that matter) to see this issue any differently. But please hear me out.
I’ve done a bit of work off and on over the years in the fields of custody, child support, and the rights of fathers and mothers. Way back when I was first learning about this stuff, abortion was illegal, and divorce was granted on fault grounds (adultery, desertion, battery; that sort of thing). In fact, the family law of Massachusetts, the state I knew best, embraced some very strange principles, so strange that when I write about them you may not believe they were operating as recently as the late 60s and early 70s .
In fault divorces one person was the plaintiff and sued the other, alleging a marital offense; the other often countersued and alleged a different offense on the part of the original plaintiff. So the couple wasn’t just suing for a divorce, they were suing to see who would be judged the guilty party and who the innocent one.
Condonation was a possible defense against fault charges, and was defined as:
the act of forgiving one’s spouse who has committed an act of wrongdoing that would constitute a ground for divorce. Condonation generally is proven by living and cohabiting with the spouse after learning that the wrongdoing was committed.
So, to be crystal clear: if spouse A hit spouse B, this would ordinarily constitute a marital offense and B could sue A for divorce and win. But if A could successfully claim that at any time after the blow—even if it was months after—the two had slept together, then B could be denied a fault divorce on these grounds.
Then there was “collusion.” In a state such as New York, for example, adultery was one of the only grounds for divorce, and people often faked adultery in order to obtain a divorce. In those days there was actually a fairly lucrative business trafficking in women whom one could hire to go to a hotel and pretend to have an assignation with the husband for this very purpose.
So, collusion was:
an agreement between two or more persons that one of the parties brings false charges against the other. In a divorce case, the husband and wife may agree to use adultery as a ground in order to obtain a divorce more quickly, knowing full well that adultery was not committed. Collusion is illegal.
Illegal—meaning, if found to have occurred, no divorce.
And then there was a third strange legal principle. Memory fails me (and Google does, too; I can’t find the term anywhere) as to what it was called. But the idea was that if both parties alleged fault on the part of the other, and the court found that both their claims had merit, they could be judged to cancel each other out. Two wrongs apparently could make a right—and then, no divorce.
The utter absurdity of much of this underlines the timeless truth of the famous statement made by Charles Dickens’s character Mr. Bumble, about a different but highly related matter (that the law presumed a wife to be under her husband’s control):
Mr. Brownlow: The law assumes that your wife acts under your direction.
Mr. Bumble: If the law supposes that, then the law is a ass, a idiot! If that’s the eye of the law, then the law is a bachelor. And the worst I wish the law is that his eye may be opened by experience.
Fault divorce had its—well, it had its faults, to be sure. Now that it has nearly gone the way of the dodo, I don’t think too many people mourn it. At any rate, I’m certainly not one of them. The once-flourishing industry that provided fake mistresses (and real photographers to document the occasion) is no more, as well. But remnants of the old system remain in our family laws, like some sort of vestigial organ.
What was the point of all of this, anyway? The law was thought to have a strong interest in marriage because the institution constituted the bedrock of society and of childrearing. Breaking up a marriage was meant to be difficult, and only to be available under certain quite egregious circumstances. The lack of easy availability of divorce was often painful for everyone involved, and it led to terrible hardship—although, of course, the remedies making it easier have also led to terrible hardship.
I’m not suggesting we go back. But it’s useless to pretend that the law can ever solve the dreadful problems inherent in the fact that people are flawed, love doesn’t always last, and that the children of such unions need to be protected as much as possible from the mistakes of their parents.
The following is an illustration of just how far the law used to be willing to go to protect the children. There was a rule in Massachusetts that all divorces were conditional when granted, and that they only became official six months after the final hearing. The reason? Way back when this rule had been written, there was no way to be certain that a woman wasn’t pregnant at the time of the divorce, and the court didn’t want to make bastards of the children born after the hearing, if in fact the pregnancy had occurred during the marriage. Back in those quaint days, being illegitimate had huge negative ramifications for the child, and the court would go far to prevent a child from being placed in that legal no man’s land.
What’s more, there was another odd and related rule: a man was (and in many cases, still is) “estopped” from claiming he was not the father of any child born of his marriage—that is, conceived within the time frame of the marriage. And this not only included cases in which the child was not in fact his because his wife had had an affair, it included pregnancies that began when he was away from home and could not have possibly been the father.
Talk about lack of father’s rights; a man was (and, as I said, often still is) actually required to support a child that was not his! And why was/is the law being such a dreadful, abominable ass? The rationale behind the idea, archaic though it may seem, was that (a) the rights of a child to be legitimate were paramount, and (b) when you got married, you made your bed and had to lie in it (even if someone else had been lying in it as well).
I am most definitely not saying I approve of such laws. I’m merely trotting them out from the dustbins of memory (and please, let me know if I’m wrong about any of this, because I’m doing this entirely from my own recollection) to illustrate just how far the pendulum has swung in recent years towards protecting the rights of parents versus those of the child.
Yes, with abortion and birth control and divorce on demand and most of the people involved in these cases not ever having been married in the first place, it does seem as though a man should be able to say, “Whoa! I never bargained for this! You got pregnant, you decided not to have an abortion (the solution I would have preferred), you decided to keep the baby. Why should I have to pay for the next eighteen years?”
This is the way it used to be explained, anyway: when two people sleep together, both of them—man and woman—are presumed to assume the risks that go along with the act. And what are these risks?
The first is that every single act of intercourse might end in pregnancy (unless the woman is past menopause, which of course is irrelevant to these cases). Despite birth control, despite assurances that all is taken care of and that it can’t happen, despite whatever people tell themselves and each other, despite truths and despite lies—it’s still possible. And everyone is presumed to know it’s possible. And if they don’t, they very well should.
But all is not equal. By the act of sleeping together (with or without birth control), the man and the woman assume different risks, and there’s no way around some of those differences, because they are rooted in biology. The woman runs the risk of becoming pregnant. Pregnancy means a woman is faced with the associated health risks, which can be considerable; the associated decisions (because—and there’s no way around this—she carries the fetus around within her body) as to whether to bear or not bear the child and whether to keep the child, if borne (if she gives birth and wants to give the baby up for adoption, the father can in many cases sue to block the adoption and raise the child himself. But that’s a different situation than we’re faced with in Dean’s example, in which the father neither wants the child nor wants to pay for it).
In addition to the risks and responsibilities of pregnancy itself, the mother who chooses to give birth and give the child away bears the pain associated with that. And, if she chooses to keep the child and raise it, she—no less than the father—takes on the responsibility of supporting it financially. As custodial parent, she takes on the task of raising it as well, in the emotional sense.
The father takes on a different responsibility, and different risks. He knows he does not have any chance of becoming pregnant (at least that was true when last I checked). But he knows he runs the risk that his partner might, and that if she does she’ll have the right to make the major decisions about that pregnancy. He also knows that, if she happens to decide to keep the baby, he will be required to support it financially, although his emotional connection to it cannot be forced. And he knows, and assumes the risk, that she might even keep the fact of a pregnancy from him, and/or abort the baby without his knowledge.
That’s a lot of freight associated with one act of sex, isn’t it? Not too many people think about it that way—and, to be realistic, they probably never will. It’s perhaps the very last thing most young people think of when they hop into bed together.
But the law doesn’t really care; it’s that much of an ass, and a party pooper as well. Because the law still contains that remnant—that vestigial organ, as it were—of being more interested in the welfare of the child than the rights of either parent.
You may disagree with the results—I don’t like the results all that much myself. But my observation is that there’s no good solution and probably never will be, human nature being what it is. And the law we’ve got right now is as good as any I can come up with, I’m afraid—even though it may still be an ass.
[NOTE 1: For all you English majors out there: yes, I know the original quote is "The law is a ass."]
[NOTE 2: In my research, I found this unrelated NY Times article with the amusing title "If the law is an ass, the law professor is a donkey," about the prevalence of Democratic professors in law schools.]