Sure, anybody can sue. It’s possible that the law would require child support in such a case. I still think it’s immoral. I hope we all agree on that…
~Max
Great cite. I actually read that one during the build up to writing this topic. But that was concerning parental rights after conception. In the example I crafted for this topic, among other tangible differences, the “child” is still unborn. The custody battle would take place before birth.
~Max
Broomstick,
As far as moral analysis goes, I really appreciate this post. It is excellent.
On the issue of the right to abortion vs the right of the father/rape victim, I see abortion as less about privacy and more about personal autonomy. My interpretation on current jurisprudence regarding abortion through privacy (not to be confused with my opinion on proper interpretation of constitutional law) happens to concur with my personal view on the morals of infringing upon personal autonomy - under both approaches, the personal right of the mother is balanced against the interests of the state, not of the father. Pitting the father’s rights directly against the mother’s rights is a losing battle, I think, because before delivery it is the mother who physically provides for the child. We can’t have rapist fathers forcing victim mothers to carry their pregnancies to term just because the father claims a parental right; likewise, we can’t have victim fathers force rapist mothers to carry their pregnancies to term just because he claims a parental right.
As a matter of equity, perhaps there is a comparison to be made because of the murder. In a sense Mary took a child away from John & wife, the latter of whom had to go through pregnancy and more to raise their daughter. Nothing can replace that child entirely - time and love once spent can never be reinvested. But in a very superficial, eye for an eye mentality - here is another child that the Does want and have a connection to, that Mary does not want. She almost owes it to them as restitution - provided that no medical situation comes up. But then again, there’s no such thing as 100% safe childbirth, and it has been pointed out to me before that giving birth can result in lifelong physiological changes or ailments.
Separately there is the question of the state’s interests. Here the fetus is far too young to be considered viable, so under normal circumstances (Roe v. Wade or Planned Parenthood v. Casey) the mother’s rights would prevail - morally speaking, and legally speaking under current jurisprudence. But when the pregnancy is a result of the mother’s own decision to rape a man, and when she is convicted on a theory that she wanted to rape him, and wanted to become pregnant, so that she could abort the resulting pregnancy, I think that changes things. I think that really gives the state a leg up, because the state can say that letting her get an abortion is letting her get away with it.
When I add these two together, I come to a conclusion that agrees with yours in all points. It’s very interesting to me, the different paths we took to get there.
I also envy your conciseness.
~Max
Because in this case the father is deceased he no longer has any rights.
His surviving family does have an interest, but not the dead man himself.
Nope, I’m sorry - one person does not replace another. You can’t hand a baby over in “restitution”. Hence why I say there needs to be a lawyer for the baby independent of anyone else to look after the best interests of that child as opposed to any other interest. Yes, there is a strong likelihood adoption by the murder/rape victim’s widow will be that choice but I do feel that the entire situation should be examined.
I’m not going to extend much, if any, sympathy to a woman who committed rape and murder and as a result had “lifelong physiological changes or ailments” as a direct result of her own criminal actions. The phrase “you reap what you sow” comes to mind. Of course, she should receive any medically necessary treatment for those changes/ailments but beyond that I don’t give a damn.
This - in this very particular and isolated case an abortion would be a continuation of her crime.
Yes, we did arrive at the same place through different routes.
In terms of the legal questions (not weighing in on practical or moral ones): you can’t file for custody of an unborn child, and the state doesn’t have to “grant” an abortion. The woman has a right to obtain one.
This may surprise you, but the rules are a bit different for prisoners. They can’t just waltz down to the local clinic whenever they want. Prisoners get what medical assistance the state provides, and many states are not in the business of aborting fetuses without a compelling medical reason. Prisoners have restricted rights.
If you have a legal argument that a prisoner doesn’t have a right to an abortion I would be delighted for you to make it.
Sure, but there are things she could do while in prison to make spontaneous miscarriage/abortion likely, assuming they don’t confine her to a cell in a straitjacket.
As opposed to benign castration?
She might for awhile, at least.
If a man can function sexually given that set of facts you can rest assured he’d be in prison as a co-conspirator.
… ah, once again the myth that men can’t be forced to engage in sexual acts rears its ugly head!
Men certainly can be raped. I’m sorry if you don’t believe that. Attitudes such as yours just makes it harder on the survivors.
Sure, anything is possible. Maybe I was on the grassy knoll in 1963 and the oldest person ever lived to 122 and smoked cigarettes for over 100 years.
I clearly stated my comment was “given that set of facts”. Had the man been sodomized then the rape is very possible. However that isn’t the point of the OP. Maybe with a near fatal dose of viagra the scenario is possible but I doubt it would convince a jury. At least it would make a fascinating episode of dateline.
I’m aware of prison programs that allow mothers to have a period of time in which they can care for and bond with their newborn babies. But I don’t know of any prisons in this country which allow mothers (or fathers) to raise their children in prison. So if Mary Moe receives a normal sentence for the crimes the OP describes, somebody else is going to be awarded custody of Baby Moe.
Getting an erection, even if it’s naturally occurring, does not imply consent.
Here is a male rape victim’s story.
In the scenario I wrote up, the father (John Doe) survives.
~Max
I tried to raise one possible legal argument - that the prisoner’s right to abortion can be overcome by a valid “penological interest” - both when I described the jail/state’s position in the OP and also when I cited Doe v. Arpaio in post #13 (emphasis omitted):
~Max
If you’re asking for my moral analysis, the state should not be permitted to force anyone to remain pregnant by denying them an abortion. Likewise no person should have standing to force another person to remain pregnant, no matter how many lurid scenarios we concoct to justify it. Specifically the fact of a castration shouldn’t permit someone to use someone else as a slave reproductive vessel.
I don’t believe in the death penalty, so basically any reason should be good enough to let someone live, and pregnancy certainly qualifies.
I think John should be permitted to sue for full custody of his child, if (and only if) the mother allows it to be born.
Again, there’s no situation where I agree that the state or any other person should force someone else to give birth.
That’s a really good point… if Ms. Moe starts trying to hurt herself that would force the jail to restrain her. Nine months of solitary confinement with physical restraints while pregnant… restraining a pregnant woman is usually seen as a violation of human rights… if that isn’t cruel and unusual, I don’t know what is.
The question for me is whether that constitutes punishment, and whether it is justified, given these particular circumstances.
~Max
Malicious castration is the technical term for this kind of crime. The act I wrote into the hypothetical might be described as a crude and involuntary vasectomy - I was thinking she just cut the tubes, not that she cut anything off.
~Max