Growing Up Then and Now

My client told me he absolutely positively never had sexual intercourse with the nurse, but the genetic DNA test said he absolutely positively was the father.  My research informed me that it is possible to father a child without intercourse, such as by artificial insemination, but the nurse was insisting it happened by intercourse.  I was willing to concede that if there had been intercourse, then a man loses his right to choose.  Even if it was a leaky rubber, sex partners take on a known risk by having intercourse and need to accept the unintended consequences.  However, in a case like this, assuming the jury believed my guy’s version, a man retains the right to choose to be a parent or not up to the time he parts with his semen, and if he parts with his semen without intercourse (or without consent to artificial insemination) then he has chosen not to be a father.

I thought we had a good chance of winning because this conception was clearly by trickery.  If necessary, we would argue all the way to the United States Supreme Court that a stranger who scoops up sperm and artificially inseminates herself violates this constitutional right to choose to be a parent.  Sounds like a reasonable argument, right boys?  But where would you draw the line?  What if the woman tricked the man by saying she was on the pill?  Or that her ovaries had been removed?  Or what if you donated your sperm to a lesbian gay couple and they made an agreement to not come after you for child support?

These are questions I actually asked Jack & Nick (and their friends), and you know what Jack said?!:  “What about a child’s right to have two parents?  After all, there is an innocent child here who had nothing to say about how she came into the world.”  After some discussion (one time on the school bus carrying the junior high football team), most of the kids understood the balancing test the U.S. Supreme Court would have to apply in deciding this case:  Does a parent’s right to choose outweigh a child’s right to two parents who support him/her?

Every kid who weighed in on the question decided the child’s right was superior.  And when I told my client the bad news that the junior high kids were unanimously predicting defeat for us, even if the Jury believed his version of how conception occurred (not a sure thing either), we decided to settle the case with a one-time payment of a considerable sum in return for Mom’s dropping the paternity case.

Of course there’s a moral to this story.  Boys, Be Very Careful about parting with your sperm.  Even if the girl you’re with says she can’t get pregnant, you don’t have the right to choose if it turns out she was wrong.

P.S.  Some things never change.  Later on I learned from Nick that some of the boys on the bus got ribbed because they didn’t get it:  “Dad, some of the kids didn’t know what you were talking about.”  On the one hand I am so glad that 7^th Graders can still be innocent about sex, even in today’s modern morality.  On the other hand, pretty quick now would be the time to learn.

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Plea Bargaining – Another Part of our Criminal Justice System  [second daily dose of Criminal Defense Work]

Now I have lots of questions, but Harrison’s certainly not the monster one might have qualms about defending and he had no prior criminal record.  My questions go along the lines of what evidence would make him guilty or innocent in the eyes of a jury.  Did they force themselves on her?  How do you know she was willing?  Was she drunk?  Was she really having sex with others that day?  Are you guys really friends, and, if so, why would she accuse you and Latrelle but not the others?  Harrison had answers for every question but the last one.  There was no force.  She never objected.  She’d been drinking, but wasn’t drunk.  And yes, there were at least three other guys who’d say they had sex with her that day, and on many days before.

If the jury believed Harrison’s story, he’d likely be found innocent.  But Julie had a different version, as contained in the police report.  (By rule I could not force her to speak with me – and that didn’t happen.)  Julie told the cops she was forcibly raped – no bruises, just held against her will despite her pleas to stop.  Now my questions went along the lines of:  Is she lying and is there a way to prove it?

Latrelle had the same story as Harrison’s, but there were no other eyewitnesses.  Yes, the others at the party were willing to testify but the Judge made a ruling in advance of the trial that any other sex acts on her part would not be allowed as evidence based on Minnesota’s “Rape Shield Law” – just because a woman engages in sexual relations with others doesn’t mean this episode is consensual.      

Latrelle had his own lawyer, and by rule there would have to be two jury trials.  The Judge flipped a coin for who would get tried first.  We won the toss and, of course, elected to go second.  I watched all three days of Latrelle’s trial before an all-white jury – Julie, white, petite and only 19 years-old, was a very sympathetic witness; Latrelle, like Harrison, was a stripling, young, muscular Black man – it was no contest.  It took the jury only 45 minutes to convict for first degree criminal sexual misconduct, and the Judge immediately departed upwards from the sentencing guidelines and imposed a ten year sentence.

Well, I’m not sure all this fits with my sense of fairness – but all very real nevertheless.  So I tell Harrison I think I can work a plea bargain for him to plead guilty to third degree criminal sexual misconduct and only face 12 months in the workhouse for his sentence.  “But I’m not guilty!” he says.

“Well,” I tell him, “You may not be guilty of rape, but you’re sure guilty of some very poor judgment; you took advantage of someone who needed a true friend; can’t you see her pulling train was due to her insecurities?  To Harrison’s credit – he really was a decent human being – he saw that I was right, and could live with his own judgment about himself taking advantage of someone who needed help.  Twelve months later, the day he got out of the workhouse, he stopped by my law office (now on University Avenue) to thank me for the counsel I provided.  And his step-dad Bert came to think of me as part of the family, even invited me to visit him in Mississippi after he retired from being a mailman.

So plea bargains can help on fairness.