The Volokh Conspiracy

From today’s Massachusetts Supreme Judicial Court decision in E.C.O. v. Compton:

This case concerns whether a parent may seek an extension of an abuse prevention order under G.L. c. 209A to prevent his daughter, who was sixteen years of age [and thus above the age of consent in Massachusetts] from voluntarily engaging in a sexual relationship with an adult.

The answer, the court said, was “no,” reversing such an order that had indeed been issued:

General Laws c. 209A enables a person “suffering from abuse from an adult or minor family or household member” to obtain a protective order directing the defendant, among other things, to refrain from abuse or contact.... [F]amily or household members include persons who “are or have been in a substantive dating or engagement relationship.” “Abuse” is defined as “the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” The issuance of an abuse prevention order is a civil procedure, and abuse need only be proved by a preponderance of the evidence. A violation of an order to refrain from abuse or contact, however, is a crime, punishable by a fine or imprisonment in a house of correction, or both.

Here, as conceded by the father, the defendant has neither physically harmed nor attempted physically to harm the daughter. In addition, because she is over the age of sixteen, she is legally capable of “consenting” to sexual intercourse, and as admitted by the father, the defendant has not caused the daughter to engage involuntarily in sexual relations by force, threat, or duress. Thus, there was no basis for the judge to issue the extension order under G.L. c. 209A, § 1 (a) or (c).

The father contends that the defendant’s actions placed the daughter “in fear of imminent serious physical harm” under G.L. c. 209A, § 1 (b), because in suggesting that he was going to supply the plaintiff with alcohol, the defendant essentially offered to supply alcohol to a minor in violation of G.L. c. 138, § 34 (“whoever furnishes ... alcohol for a person under 21 years of age shall be punished by a fine ... or by imprisonment for not more than one year or both”). We disagree.

The definition of “abuse” under G.L. c. 209A, § 1 (b), closely approximates the common-law definition of the crime of assault, and we are guided by our definition in considering whether the defendant’s conduct rose to such level of “abuse” under the statute. We consider whether the defendant’s conduct placed the daughter in “reasonable apprehension that [the defendant] might physically abuse her.” The defendant’s passing references in his electronic communications with the daughter implying that he might furnish her with alcohol, while understandably reprehensible to the father, is not evidence suggesting physical abuse or evidence that the defendant planned to give alcohol to her in order to have involuntary sexual relations with her, certainly a form of physical abuse. We conclude that this conduct does not meet the definition of “abuse” under G.L. c. 209A, § 1 (b), and thus fails to serve as a basis for issuing the extension order. [Footnote: Were the defendant actually to furnish alcohol to the daughter, such conduct would violate G.L. c. 138, § 34 (furnishing alcohol to minor) and G.L. c. 119, § 63 (contributing to delinquency of minor), and would present a different circumstance than existed here.] Because the judge had no basis to issue the extension order, it must be vacated.

Unsurprisingly, given the pace of the civil justice system, the one-year order had already expired by the time of the decision; indeed, since the daughter was 16 in July 2011, when she met defendant, she must be either 18 or very nearly 18 now. But the court concludes the appeal isn’t moot, quoting an earlier case: “Notwithstanding that both the ex parte and the extension orders have expired, the appeal is not moot. The defendant ‘could be adversely affected by [the orders] in the event of future applications for an order under G.L. c. 209A ... [and] has a surviving interest in establishing that the orders were not lawfully issued, thereby, to a limited extent, removing a stigma from his name and record.’”

I was too swamped yesterday to blog about this, but Prof. Howard Friedman (Religion Clause) has a characteristically excellent summary:

This week, two federal district court judges in the Eastern District of California, in two separate cases, reached opposite conclusions about the constitutionality of California’s new law (effective Jan. 1, 2013) totally banning mental health care providers from engaging in efforts to change the sexual orientation of anyone under under 18 years of age. In Welch v. Brown (ED CA, Dec. 3, 2012), Judge William Shubb entered a preliminary injunction barring enforcement of the Sexual Orientation Change Efforts legislation against the three plaintiffs who were challenging it in that case. He concluded that the law is a content-based regulation of speech subject to strict scrutiny:

Especially with plaintiffs in this case, it is ... difficult to conclude that just because SOCE utilizing speech is a type of treatment, that the treatment can be separated from a mental health provider’s viewpoint or message.... Duk is a Catholic and, with patients that share his faith, he discusses [tenets] of the Catholic faith, including that “homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.” ... Similarly, Welch has explained that he shares the views of his church that homosexual behavior is a sin and that SB 1172 will “disallow [his] clients from choosing to execute biblical truths as a foundation for their beliefs about their sexual orientation.”

However, in Pickup v. Brown (ED CA, Dec. 4, 2012), Judge Kimberly J. Mueller refused to grant a preliminary injunction to prevent the law from taking effect. She wrote in part:

Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct.... As SOCE therapy is subject to the state’s legitimate control over the professions, SB 1172′s restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test.

The Pickup opinion also rejected parents’ parental rights claims, as well as children’s right-to-hear-speech claims. Go to the Religion Clause post for the links to the opinions.

Both cases seem likely to be appealed, and the Ninth Circuit should decide on the question within several months. For more on the deeper underlying First Amendment question — what restrictions may the government impose on professional-client speech? — see this post; for the Ninth Circuit precedents, see Conant v. Walters (9th Cir. 2002) and National Ass’n for the Advancement of Psychoanalysis (9th Cir. 2000).

I’m inclined to think that Judge Shubb’s opinion, which holds that the law is unconstitutional, is more consistent with the Ninth Circuit precedents, and that Judge Mueller’s opinion is mistaken in concluding that SOCE therapy — which may include not just physical actions such as electric shock therapy, but also “attempting to alter thought patterns by reframing desires [and] redirecting thoughts” — was not “speech.” This having said, the broader question of when the government, whether through the legislature, through professional licensing boards, or through malpractice decisions, may restrict and impose liability for professional-client speech on the grounds that the relevant government agency thinks it’s harmful (or even just not helpful) remains open. And that’s especially so if the case goes beyond the Ninth Circuit to the Supreme Court, which it well might.

There’s been some recent buzz about this court decision, In the Matter of C (Romford County Ct. May 11, 2012); see, for instance, here, here, and here. I tend to think the court decision is correct, and here’s why.

The parents were nonobservant Jews for most of their marriage, but at the very end of the marriage, the father converted to Christianity (Anglicanism, specifically). The parents seem to have what in America would be treated as joint physical and legal custody, with the daughter spending roughly equal time with each, and with each having equal authority over the daughter’s upbringing. The daughter, who is apparently a quite intelligent 10½-year-old, decided she wanted to get baptised, which in the Anglican church involves taking baptism classes as well as going through the baptism ritual. The father had encouraged the daughter’s interest in Christianity, but the court concluded that the daughter genuinely did want to go through the baptism, and had been seeking to do so for about ten months; nor did the court note anything that it saw as undue pressure by the father that would bring this about (though of course it’s very hard to figure out what counts as undue pressure in such a situation).

It seems to me that there are four key facts here:

(1) The court had to decide whether to forbid father from taking the daughter to baptism classes and letting her go through the baptism ritual. The question wasn’t whether the mother could, during her parenting time, continue to expose the daughter to Jewish rituals (which she had started doing in some measure following the breakup, though only by “lighting a candle in the home on Friday nights and explaining its significance to the children,” and which she seemed to want to do to a greater degree in the future); for my views on that, in the American legal system, see Parent-Child Speech and Child Custody Speech Restrictions. The father was not seeking to stop the mother from engaging in such rituals with the child.

(2) The court had to decide what to do when the custodial parents disagreed. This did not involve parents who agreed with each other but disagreed with the daughter’s choice, or a contest between a parent who had primary legal custody and the child plus the other parent who had only visitation rights.

(3) The daughter seemed to genuinely want to be baptised, and wanted this over the span of several months.

(4) The daughter seemed to the court to be relatively intelligent and mature, even slightly more than a normal 10½-year-old would be.

Given this, what is the court to do? The usual rule in intact families, which is that the parents have the legal authority to control their children’s actions (to the point of getting the police to bring the children back if they go off without authorization, and to using the law against those adults who help the children go off without authorization), doesn’t apply here. Nor does the usual rule with divorced or never-married parents when one parent has legal custody, which is to say the legal power to make decisions about the child’s education, the child’s religious practice, the child’s medical treatment, and the like. How then is the court to decide?

Continue reading ‘English Court Lets 10-Year-Old Girl Choose to Be Baptised, Over Jewish Mother’s Objections (but with Christian Father’s Permission)’ »

The bill is SB 1172, and it bans “psychotherapy” of under-18-year-olds “aimed at altering the sexual or romantic desires, attractions, or conduct of a person toward people of the same sex so that the desire, attraction, or conduct is eliminated or reduced or might instead be directed toward people of a different sex.” This so regardless of whether the patient or the patient’s parents want the therapy to take place.

The bill also regulates such psychotherapy for adults, but the outright prohibition applies only to under-18-year-olds.

From BK v. New Hampshire Dep’t of Health and Human Services (D.N.H. Mar. 7, 2012):

This case raises the potentially important issue of whether state authorities violate the free exercise rights of children, or their parents, under the First Amendment by placing the children with foster families who subject them to practices abhorrent to their faiths. In this case, the plaintiffs are Hindi who allege that the foster families fed the children beef and took them to Christian religious services.

The court, however, has not yet dealt with this issue; the March 7 decision deals only with the state sovereign immunity question, and concludes that some defendants are entitled to such immunity and others aren’t.

What happens when divorced parents with joint legal custody disagree about whether their child should be given the routine childhood immunizations? That’s the issue in Grzyb v. Grzyb (Va. Cir. Ct.), decided in mid-2009 but just uploaded to Westlaw a day or two ago.

The Grzybs were the divorced parents of a 3-year-old girl, with “joint legal custody of the child, which implicitly included joint decision-making regarding the child’s medical and health care.” The father wanted the daughter immunized, but the mother had a religious objection to the immunization:

Mrs. Grzyb ... testified that she first formed a religious objection to vaccinations when she was pregnant with the child, that she “prayed about it a lot,” and felt “led by the Holy Spirit” to the conclusion that the child should not receive routine immunizations. She testified that “I never felt so strong about anything outside of faith as I do about vaccination.” ... Ms. Grzyb’s pastor, the Reverend Scott Mauer, ... [testified] that it was not a tenet of his religion that children remain unvaccinated. Rather, he testified that “this falls into an area that we would consider to be what the Bible often refers to as disputable matters, which are areas that the Bible does not necessarily address directly.” He continues:

in those cases, historically the position that the Baptist Church has taken is that a person should apply the best understandings of our truth of the scripture and also the sensitivities believing as the Holy Spirit and come to a conviction about it. And that furthermore if they do come to a conviction based upon those things, that they are then to be obedient to that conviction because the Bible is clear that, if a person has come to a conviction that they do believe is from God, that to the best of their ability that they believe that in good faith before the Lord, that if they do not then pursue that directive of that decision that they are in sin.

Now if this were just a matter of whether two parents acting together (or a sole custodial parent) were exempt from the Virginia immunization requirement, Mrs. Grzyb’s religious objection would give her a statutory immunity (see subsec. D(1)). But in this case, the question was what should be done to the child when the two parents who share legal custody disagree. The common answer is such situations is to conclude that joint legal custody isn’t working out on this question — since joint custody presupposes an ability to agree — and one parent should be given sole custody as to medical matters. But which parent?

Here’s the court’s analysis: The court concludes that (1) getting immunized would indeed be in the child’s best interests, given the medical expert testimony that, “the risk of ‘serious complications’ [from vaccines] was ‘very low’ and that [the child] is ‘at greater risk of the diseases that the vaccines protect against, absolutely.’” But the court also observed that (2) the mother was more actively involved in the child’s medical care:

Continue reading ‘Children’s Immunizations, and Disputes Between Divorced Parents’ »

So held the Hawaii Supreme Court, in Hamilton ex rel. Lethem v. Lethem (Haw. Feb. 7, 2012), interpreting the Hawaii Constitution, though in reasoning that could be seen as applicable to the federal Constitution and to other state constitutions. And the court concluded that even a noncustodial parent retains this right “with respect to that child’s conduct during the visitation period.”

Based on this constitutional right, the court concluded that, to warrant the issuance of a domestic restraining order based on alleged child abuse, there must be (1) a finding that “the parent’s discipline is [not] reasonably related to the purpose of safeguarding or promoting the welfare of the minor,” (2) taking into account “factors such as [a] the nature of the misbehavior, [b] the child’s age and size, and [c] the nature and propriety of the force used.”

The court left it for a lower court to apply this standard to the facts of the case. Here, though, are the facts as alleged by the child (a 15-year-old girl), which led to the issuance of a restraining order against the father:

Continue reading ‘Constitutional Right to Moderately Corporally Punish One’s Child’ »