Juris Magazine- Spring 1983

SPRING 1983

THE DUQUESNE lAW SCHOOL NEWSMAGAZINE

EQUALITY A HUMAN DILEMMA

Editor's Note his issue had its inception well over one year ago. Last spring the new T Editorial Staff committed itself to the production of one "thematic" issue.

It was intended that the topic chosen would be of current interest to the general community while at the same time lend itself to the particular interests of members of the legal profession. "Women" seemed to be such a topic.

During the production stages which followed it was referred to as the "Women's Issue". It seemed appropriate. Well, at least it seemed appropriate until it was time for me to write this editorial and decide on a title for the cover page.

This is NOT a "Women's Issue". Indeed, the articles contained herein do address areas of concern in which women appear to be the focus. Certainly, however, we all have learned not to be deceived by appearances. How can problems which affect the lives of one-half of the population not also affect the lives of the other half? The simple answer is, they cannot. The issues addressed by the authors of the various articles are of dire consequence to both men and women.

They are matters which must be recognized and dealt with by both men and women. Each man and each woman must realize that they are part of a society whose membership is after all, human.

Humanity, therefore, must be as strong today as it has been weak in the past.

In its weakness it allowed itself to be fooled by the differences in sex, resulting in an antagonism between men and women. This antagonism created prejudices and necessarily discriminated against humanity. In its strength, humanity must confront those prejudices and rid itself of the crippling effects which these conflicts create.

Thus, this is not a "Women's Issue". Rather, it is one which attempts only in some small way to speak up about equality, a human dilemma.

Sincerely,

Roseann LaRosa Editor-in-Chief

VOL. XVII No.3-Spring 1983 Editor-In-Chief Roseann LaRosa Associate Editors Sharon Bogarad Donna Rae Lisa Rich Assistant Editors Cheryl Croyle James Gaston Shirley Novak James Orie Business Editor Gery Nietupski Faculty Advisor Patrick J. Basial Cover Art Randy Bogarad Photography Gery Nietupski Feature Writers: Patricia Brooks Brisini Gary Ludin Steven Lubetsky Rhoda Neft David Weaver Beth J. Shapiro Staff Members: Bettina Indig, James Murray, Perry Perrino, Bruce Zero JURIS is a student publication of the Duquesne University School of Law. Views and opinions expressed are not necessarily those of JURIS or Duquesne University. All manuscripts and comments may be addressed to JURIS, Duquesne University School of Law, 900 Locust Street, Pittsburgh, Pennsylvania 15282.

Telephone (412) 434-6305.

Copyright Š 1983 Duquesne University

In this issue

3 6 7 10 2

SURROGATE MOTHER, FATHER AND CHILD

PATERNITY LEAVE

STRIP SEARCHES

20 24 28

SEX DISCRIMINATION : INSURANCE LAW

32

ABORTION DlALE TIC

A BRIEF LOOK AT PORNOGRAPHY

WIFE RAPE

PREMENSTRUAL SYNDROME

SURROGATE MOTHER, FATHER AND CHILD: THE TWENTIETH CENTURY STORK DELIVERS LEGAL ISSUES AND POLICY CONSIDERATIONS BY PATRICIA BROOKS BRISINI ompared with the new frontiers C pioneered through test-tube fertilization outside the body, in vitro

fertilization, l genetic engineering, patentable lifeforms, recombinent DNA , and the technical capability of scientists to produce identical life forms,2 the practice of surrogate motherhood may seem to be inconsequential. Yet, the legal, ethical, and moral issues underlying recent controversies about techniques of human reproduction are at the very core of the debate about surrogate motherhood. Surrogate motherhood may have its most significant impact in that it has highlighted the need for a new legal framework for dealing with several recent biological and technological advances in the science of human reproduction. Moreover, it underscores the need for sorting out the legal basis for determining parental responsibility and the legal status of the child.

Contemporary surrogate childbearing consists of an arrangement whereby a man pays a fee to a woman who is not his wife, to bear his child by artificial insemination with his semen. Usually, the agreement is based on the mutual understanding that he will take custody of the child and she will terminate forever her rights to the child within a certain period, for example, five days after its birth, depending on state law. A formal contract for considerations may be signed by the parties, however, the specific provisions of their agreement may vary considerably. 3 Parental responsibility and the legal status of the child may be drawn from several legal constructs: (1) the ancestral line; (2) the legal position of the parties through marriage, adoption or court decree designating paternity; (3) the genetic relationship; and (4) a biological relationship where three parties may be involved during the conception and gestation period.

Although it is not a universally accepted concept, surrogate motherhood is not new . One of the earliest accounts of surrogate motherhood is the biblical story of Rachael, an infertile woman for whom a female servant bore two children. ". In contemporary society, Rachael's children would be considered illegitimate because the female servant was not married at the time. It is not clear it would today. Traditionally, illegitimate children have not been granted the legal benefits of financial support or inheritance rights of a legitimate child. In Roman law, children born out of wedlock were considered filius nullius, S children of nobody or illegitimate. Often they represented a break in the ancestral line on the paternal side because paternity was renounced or it could not be proved . In the Old World, children were considered to be lucky additions to a family. Children whose ancestry was unknown or questioned were said to be delivered by the "Stork." A stork's nest on a roof was considered a sign of good fortune in parts of Europe.

Nevertheless, under the common law, the English heir represented the person of his ancestor and the ancestral line was considered to be critical in determining property rights.6 Paternity alone was not sufficient to legitimize children because paternity was difficult to establish.

As marriages were recorded and as lineage determined inheritance rights, the marital status of parents reached paramount importance under the 'common law. Out-of-wedlock children were not able to inherit through the parental line under common law intestate succession whether or not paternity was established or acknowledged. Pater is est quem nuptiae demonstrant: The father is he whom the marriage points out.' I f the natural parents failed to marry before the children were born, the children

were considered to be illegitimate. 8 The current legal status of the contemporary surrogate child is still uncertain because contemporary law continues to enforce the distinction between legitimate children born within a marital relationship and illegitimate or nonmarital children. Illegitimate children are not entitled to the same inheritance rights as legitimate children. According to intestate law in some jurisdictions, they may not inherit through either the paternal line or maternal line. The state of Virginia was one of the first states "to ameliorate the harshness of the Common Law" by allowing illegitimate children to take "on the part of their mothers as if lawfully begotten. "9 Moreover, illegitimate children are still not eligible for benefits under certain federal programs, although some efforts to establish equal rights for all children have been moderately successful. 10 In contrast, in contemporary society, legal support for a child does not always depend on marital status but rests on proof of paternity. In the United States, for example, a father who fails to support his child, whether or not the child is legitimate, may be guilty of a misdemeanor. 11 In some jurisdictions criminal sanctions apply as well to a husband who consents to artificial insemination of his wife and fails to support the child : The California court said: A reasonable man who , because of his inability to procreate actively participates and consents to his wife's artificial insemination in the hope that a child will be produced whom they will treat as their own, knows that such behavior carries with it the legal responsibilities of fatherhood and criminal nonsupport ... [will apply where he fails to carry out such parental responsibility.] 12 Although the liberty guarantee of

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the Constitution of the United States protects the right to procreate outside marriage, the right does not extend to the buying and selling of children which is banned in nearly every jurisdiction.

Legality of Surrogate Motherhood I}

Ow then is surrogate motherhood legally possible for women in a country which bans the buying and selling of children?

The Supreme Court of the United States recognizes a fundamental right to privacy as being implicit in the liberty guarantee of the Constitution. In the several landmark decisions shown below," the Supreme Court held that the liberty guarantee includes different facets of individual freedoms enforceable through the Fourteenth Amendment: 1) the right to freedom of choice in marital decisions - Loving v.

Virginia, 388 U.S. 1 (1967): Griswold v. Connecticut, 381 U.S. 479 (1965): 2) the right to bear or not bear children - Carey v. Population Service Int'!, 431 U.S. 678 (1977);

H

Cleveland Bd. of Education v. LaFleur, 414 U.S. 632 (1974); Skinner vs. Oklahoma, 316 U.S. 535 (1942); 3) the right to decide basic matters of

childcaring Wisconsin v.

Yoder, 406 U.S. 205 (1972); Prince v. Massachusetts, 321 U.S. 158 (1944); Pierce v. Society of Sisters, 268 U.S. 510 (1925); 4) the fundamental right of biological parents - Moore v. East Cleveland, 431 U.S. 494 (1977).

Therefore, it is not necessary for a man and woman to be married to each other to agree to have a child.

Both parties have the right to decide to bear a child. Both have the right to decide who shall take care of the child and how it will be reared. Since the two parties are the natural parents, the surrogate mother contract may even be viewed as a quasi-legal precustody arrangement of sorts. What makes surrogate motherhood illegal in many jurisdictions is the exchange of a fee which technically constitutes the buying of a child. However, in some localities there are no state prohibitions against the provision of a fee by a man to a woman in exchange for her agreement to voluntarily terminate parental rights."

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An unmarried woman is not compelled to raise her child born out of wedlock. Therefore, the single surrogate mother may legally terminate her rights at birth. The surrogate child would thus become a ward of the state unless the natural father asserts paternity or otherwise secures legal responsibility. If the surrogate mother changes her mind she may be allowed to keep custody of the child, provided she has not jeopardized her fitness to be a parent in the initial arrangement.

If the surrogate mother is married, her husband's paternity rights become a major issue. Although the parental rights of the biological parents are constitutionally protected as fundamental rights,16 there is a legal presumption of paternity which is applied when a child is born to a married couple. Since the presumption of paternity may be rebuttable, depending on state law, 17 married women may be eligible for surrogate motherhood if their husbands either rebut the presumption of paternity or otherwise legally terminate the paternal rights to the surrogate child prior to birth. Where the presumption is irrebuttable the husband must legally terminate his rights to the child according to state law. 18 I f the surrogate mother is married, her husband must be party to the contract because the legal presumption of paternity may supersede the rights of the unwed natural father. (Stanley v.

Illinois, 405 U.S. 645 (1972)19 By renouncing paternity, the husband of the surrogate mother is no longer the legal father. The child then may be considered legally illegitimate until adopted. "Once evidence tending to rebut the presumption is introduced, the presumption loses all its force. ">0 This legal technicality could create difficulties with respect to the inheritance rights of the child as well as the legal name of the child. If the child is unable to prove paternity by either the surrogate father or contract father and is not adopted or legitimized under the law, the child may stand to lose the right to inherit through state inheritance statutes.

There is the possibility that a surrogate mother may change her mind, but her husband may not realize that he might have technically made the child illegitimate, unless the state law designates him the legal father.

Otherwise he may be merely a step-

father. The surrogate mother's husband may be legally responsible and even voluntarily assume responsibility for supporting the child, yet the child may still be illegitimate. It would be tragic if this technicality was left uninvestigated until the child is denied an inheritance that was intended for the child for decades.

The surrogate child's legal position is unclear until proof of paternity is established. An understanding of the process for determining or excluding paternity is only one important aspect in the surrogate relationship. The prevention of fraud as well as the reliability, authenticity, and acceptability of the evidence by the legal community are even more critical matters that must be addressed. 21 Proof of Paternity The use of blood groups for transfusions and to establish parentage is a hallmark of this century, however, it is only in the last 25 to 30 years that major advances have been made in expanding the discovery of red cell enzymes and plasma proteins so that "paternity testing has become a sophisticated procedure demanding a considerable range of expertise. ''22 Just how sophisticated are the blood tests that are used? That depends on the tests. There is no uniform paternity standard or specific federal requirements that the most up to date, accurate, or sophisticated bloodwork be used. 21 There is a consensus among hemotologists that it is more accurate to use more than one system. "The determination that one particular man and he only can be the father of a particular child is not possible, but as already mentioned, the expansion of some polymorphisms, the addition of HLA and the continual gradual inclusion of newly discovered systems is bringing us very close to being able to exclude every non-father." 24 There are basically four types of blood tests. Type I excludes paternity, while Type 2 excludes but does not preclude. A combination of approaches might consist of two specialized tests, red cell and 4 HLA, which is one of the most accurate means for ruling in paternity by paramutation.

There is a major question with respect to the admissibility of HLA evidence for inclusion or exclusion of paternity in court proceedings to determine paternity. HLA evidence has not been admitted in Pennsylvania courts. In

order to admit HLA tests as evidence of paternity, the five elements shown below 2l must be met. [Philips by State Dep't. of Social Services v. Jackson] 615 P2d. 1228 (Utah 1980)].

1. Correctness of genetic principles underlying the t.est for determining parentage; 2. Accuracy and reliability of the methods; 3. Ethnic and other variables that would influence results; 4. Factors that would invalidate the tests; 5. Method employed was properly carried out.

Still other considerations are the chain of custody of the samples and the credentials and identity of those producing the tests and test-results.

The surrogate mother takes a substantial risk by basing her contractual obligations entirely on proof of paternity.

The range of probability of paternity is between 600/0 to 99.7%, depending on blood type. However, even evidence of 99.7% probability of paternity may not be admitted because the lawyers failed to lay a proper foundation for the evidence, or the evidence was thrown out because it was not one-hundred percent conclusive. The court may designate based on different systems, theories of probability, or statistical evidence of a genetic relationship, or the court may refuse to admit it. 26 I f the blood types of the surrogate mother, her husband, and the contract father are similar, even HLA tests may not provide conclusive proof of paternity. "Marrow transplants require a marrow donor who is •HLA identical to the recipient. In practice, this is almost always a brother or sister. But there is only a one in four chance that a sibling will be identical' and can be used as a marrow donor. Rarely, a parent can be used instead. "27 Although great advances have been made in this science, they may not be a sufficient basis for a surrogate-mother contract.

If there is any question with respect to paternity, the surrogate mother appears to forfeit just about everything.

She has undertaken all the risks and may end up with nothing. She may even lose the child if she has terminated her rights so that there is a question about her fitness as a

mother. Without proof of paternity, the surrogate mother has little chance of enforcing the contract unless it is very carefully drawn. If the contract includes an assumption of risk clause with regard to paternity and specifies that the fee is nonrefundable, the surrogate mother may be on firmer legal ground but it may not be the most advantageous basis for enforcing the contract.

"The contract itself may be the single most objectionable feature of the surrogate relationship from both moral and legal viewpoints. "28 Moreover, present policy may render the consideration as well as the contract void or voidable. The unequal position of the parties to the contract may not only render some of the provisions of the contract unenforceable but unconscionable as well.

The surrogate mother's rights under the contract may not be nearly as extensive as her liabilities. If she is required to provide "progress reports," she could be in breach monthly, weekly, or hourly. If she does not get adequate nutrition or she consumes alcohol or cigarettes, is she liable for negligence? Punitive damages? If she changes her mind and threatens to have an abortion, is she liable for intentional infliction of emotional distress? Would the court grant an injunction? What recourse would she have if paternity is not proved for either her husband or the contract father? If paternity is ques-

tioned, is she liable for misrepresenting her pregnancy? Must she pay damages if the contract father has acted in reliance on the contract? If she is unable to prove conclusively the paternity of the child, she may not have any means for enforcing the contract at all. Moreover, in one case, a court-ordered paternity test was considered an unreasonable search and invasion of privacy. 2. Unless protection of privacy is maintained, sophisticated blood work could become a means for clever criminals to bring paternity suits against anyone whose blood would be easy to match. Yet the surrogate mother who does not take care to ensure the admissability of paternity evidence prior to a lawsuit is assuming a risk she may not intend to take.

Paternal and maternal identity and accessibility to medical history are major issues for the surrogate child as well. If the surrogate mother is exposed to environmental hazards, is she liable if there is a genetically inheritable impact? What if there is a medically treatable but genetically inheritable family trait that is not discovered until years after the surrogate mother has disappeared? Will she be able or entitled to contact the child and vice versa?JO Other unresolved issues still within the cloudy penumbra of the 14th Amendment include: Whether Constitutional protections apply to (continued on page 36)

In the Old World, the Stork was said to be the creature responsible Jor the delivery of a newborn child whose ancestry was unknown.

5

A BRIE

PO NOGRAPHY

LOOK A BY

GARY LUD N t has been more than twenty-five years since the Supreme IAmendment Court addressed the relationship between the First and obscenity and pornography issues. In fact, 1982 marked the 25th anniversary of the landmark case of Roth v. The United States. I This year marks the 10th anniversary of another important case, Miller vs.

California. 2 In between, the Court determined the fate of two unforgettable characters, Ralph Ginsburg 3 and Fanny Hill.4 Ginsburg, thought that if he tried to mail his magazine Eros from quaint little Pennsylvania towns like Intercourse or Blue Ball, before finally opting for Middle Sex, New Jersey, that no one would notice. He found out the hard way what the Supreme Court thought about the phrase "What's in a name." Fortunately for Fanny Hill, the Court had a soft spot for a 200 year old lady of the evening whose character was not "utterly without redeeming social value."

Pornography and obscenity issues comprise some of the most controversial and sensitive subject matter the Court has ever faced. In Roth, Justice Brennan, the unofficial spokesman for the Warren Court in such matters, told us that obscenity is clearly not within the area of protected speech and press. In Jacobellis vs. Ohio, S Justice Stewart concurred by telling us that although he cannot define pornography, "he knows it when he sees it," and as a result, he and his brethren would have to scrupulously examine each and every porn film, magazine, or book in question on a case by case basis. In meeting with the aforementioned Fanny Hill, the Court gave us a new standard for judging obscenity, and shortly thereafter told us unanimously in Stanley vs. Georgia 6 that we had the right to possess such filmed or printed matter in the privacy of our own homes.

On that fateful day of June 21, 1973, the Court, decided five major obscenity cases, the most notable of which were

6

Miller and Paris Adult Theater vs. Slaton. 7 Through it all, we have been introduced to such phrases as "prurient interest," "contemporary community standards," "patently offensive," and "lacking serious literary, artistic, political or scientific value." Though the meaning of all this is not quite clear, it is nevertheless fascinating to look back on the Court's twenty-five years of jurisprudence and wonder what lies ahead.

In 1972 an ex-hairdresser from Queens, New York, named Gerard Daminiano made the movie Deep Throat and demonstrated for the first time that it was possible to reach a mass audience with a hard core pornographic film.

Made for approximately $25,000.00, Deep Throat has since grossed an estimated 50 million dollars worldwide, making a household name out of its star Linda Lovelace, along the way .

Though Deep Throat was by no means the first hard core film to create a stir [I am Curious - Yellow (1967), Theresa and Isabell (1968)], it was the first X-rated film to gain the kind of celebrity and notoriety equal to that of a Hollywood production. What followed was an explosion in the adult film-making industry, and during the next ten years over four thousand porn movies were produced.

So too, the magazine industry has grown both in terms of numbers and content during the last decade. From the humble beginnings of Playboy magazine featuring Marilyn Monroe in its first issue in December, 1953, to Penthouse, the first major men's magazine to show exposed pubic hair in April, 1970, a series of magazines have been published with little, if any, literary quality but plenty of "action photos."9 The real heart of the controversy lies, however, not with the "typical" adult movies or magazines. Rather, the (conlinued on page /8)

STRIP SEARCHES: Police Necessity v. Personal Privacy Doe, while driving home one Jin aane night after a party, was involved two-car collision. The police officer investigating the accident suspected that Doe was driving while intoxicated (DWI). After failing field alcoholic tests, Doe was placed under arrest and taken to the police station for a breathalyzer test. Doe appeared before a magistrate, an arrest warrant was issued, a breathalyzer test was administered, and Doe was booked for D WI. Doe was brought before the magistrate for a bond hearing and was released on her own recognizance. The magistrate informed her that she would be held at the station for four hours or until a responsible person could come for her.

Doe was not, however, allowed to place a telephone call for someone to come and get her. She was first required to undergo路 a visual strip search conducted by a police matron.

Doe was then allowed to call her attorney to come for her.

Sounds far-fetched? Illogical? Unlikely? Something very similar happened to Sheila Logan in Arlington, Virginia, and there is increasing evidence that routine, unnecessary visual strip searches are conducted everyday in many cities all over the country.

Until recently, these routine searches went unchallenged except in occasional suppression hearings. But with increasing frequency, individuals are challenging these practices in civil suits alleging invasions of their constitutional rights and requesting injunctions to halt the practice of routinely strip searching anyone brought into custody.

The vast majority of these suits are being brought by women. Why? In many cities police department policy calls for routine strip searches only on women, while men are merely 'subjected to pat-down searches. Police agencies justify the difference by stating that women have more places in which to hide contraband and that women object to the pat-down searches. Another reason why the majority of plaintiffs are women may

BY DONNA RAE be that women are more often traumatized by the experience.

Visual strip searches conducted by the police are not as innocuous as they may sound. A routine police strip search generally requires an individual to remove all of his or her clothing, and then bend over and spread his or her legs to expose the genital and anal areas. For a woman, this procedure may also entail squatting and bending several times and being asked to spread her vagina.

Being required to do this before a total and sometimes hostile stranger can be frightening, humiliating and sometimes downright traumatizing.

The analogy to "visual rape" is an apt one.'

Courts have generally distinguished these searches from body cavity searches, which involve touching and probing by either police or medical personnel. In order for a body cavity search to be considered constitutional, the courts nearly always require probable cause and a search warrant. As will be demonstrated later in this article, the standard for a strip search is much more lenient.

This has been criticized as totally disregarding the individual's subjective expectations of privacy. In addition, this distinction has caused a certain degree of confusion in the courts.

When does a strip search become a body cavity search? Does any touching convert a strip search into a body cavity search? The uncertainty in the courts has resulted in divergent conclusions.

Law enforcement agencies maintain, and no one would dispute, that strip searches are a necessary procedure to help curb the introduction of contraband into jail and prison populations. Few would argue that police have no right to perform a visual strip search on someone arrested for trafficking in narcotics, or where there is probable cause to believe that the detainee is concealing a weapon or

drugs within a body cavity. The courts have generally sided with law enforcement agencies in these kinds of cases.

What has been the object of outrage from women's groups, and the source of most of the recent litigation in this area are those situations where there is the automatic strip search of all women - no matter how minor the charge, how short the length of detention, and how little the possibility that they may be concealing contraband.

The list of abuses is incredible.

Following a television news expose, the Chicago American Civil Liberties Union (ACLU) was flooded with telephone calls from women detailing how their rights had been violated.

One woman reported that she was strip searched three times in one night while being detained on a traffic violation. Others complained that they were strip searched for traffic violations even though friends or relatives were waiting to post bond.

In Houston, women traffic offenders were routinely strip searched. A California woman was strip searched after being arrested for shoplifting in a case of mistaken identity.

While strip searches of women are virtually always conducted by police matrons, women have charged that the searches have been conducted with male officers looking on, with other detainees in the room, or in rooms with windowsfacing onto busy police station corridors.

It is theorized that the routine practice of strip searching detainees first came into vogue in the 1960's.

According to Barton Ingraham, a University of Maryland criminal justice professor, this was probably the result of the need to control large numbers of inmates arrested on drug charges. 2 The primary objective of these searches appears to be to protect those in custody - either from suicide attempts or assaults from other prisoners. All types of weapons and narcotics have been found through these strip searches.

7

This does not, however, explain the need for strip-searching a suburban homemaker whose only crime was running a red light.

If strip searches first came into practice twenty years ago, why is it that it has only recently become frequently litigated? For one, many women find it so humiliating and degrading that most just do not want to talk about it. But once the media turned its attention to the problem, women realized they were not alone, and became more willing to speak up and protest the practice.

Another reason why strip searches were not often litigated is because contraband discovered during these searches was very rarely admitted as evidence at trial. If police did find drugs during a strip search, they would merely seize them. If by chance the narcotics were used for prosecution purposes, the introduction of such evidence was challenged on the basis of the excessive intrusion into the body. 3 The Search lor a Standard

itigation concerning strip searches Lwithhas resulted in disparate holdings the courts failing to reach any definitive conclusions. This is the result, in part, of judicial reluctance to extend review beyond the particular facts of the case and render a broad decision. The development of a constitutional standard for strip searches has also been hampered by the courts' traditional refusal to consider constitutional questions when the decision may be rendered on state constitutional or statutory grounds. • In Tineai v. Wittke, the district court held that the routine strip searching of all misdemeanor traffic offenders, absent a showing of probable cause, violated the Fourth, Fifth and Fourteen Amendments. I The Court recognized that warrantless searches may be made as an incident to a lawful arrest, but stated that there must be some justifiable basis for conducting a search that intrudes upon one's personal dignity. This holding, however, was expressly limited to non-misdemeanor traffic offenders.

The "search incident to arrest" exception to the Fourth Amendment warrant requirement is by far the most common and important exception. Law enforcement agencies have used this exception to justify the routine practice of strip searching all detainees. The exception grew out of 8

the common law rule which sought to prevent the destruction or concealment of evidence, to prevent the escape of the arrestee, and to ensure the safety of the arresting officer. This exception loses its justification when it is applied not only in those situations where the above consi(ierations are real, but is extended to all situations where there is an arrest, regardless of the offense or the probabilities that the arrestee may attempt any of the above.

I

Ani/l¡n r, D,¡ttsbur.ah... ~.

Unlike other cities across the nation, Pittsburgh has not been involved in litigation involving strip searches.

Marion Damick from the Oakland A. c.L. U. informed JURIS that there have been no instances, complaints or improper strip searches reported to their office.

The fact that there has been no litigation in the Pittsburgh area may be attributed in part to the policies of the Pittsburgh Police Department.

According to Sargent Earl Buford of the city's narcotics division, strip searches are only conducted when the officers are involved in narcotics arrests. Even in these instances, officers only conduct strip searches when there is a reasonable suspicion to believe that the suspect is concealing weapons or narcotics. There are no written policies concerning the strip searches, and the decision whether to conduct such a search is left with the arresting officer.

Women are not usually subjected to .a strip search upon arrest. If the arresting officer has a reasonable suspicion to believe that the arrestee is concealing narcotics or weapons, the search is conducted by a woman turnkey in the police station lock-up.

While informal guidelines have led to abuse of police discretion in other cities, that apparently is not the case in Pittsburgh and the "reasonable , suspicion" guideline has proven adequate.

'--_ _ _ _ _ _ _ _ _ _ _ _ _---' The courts have attempted to utilize cases dealing with searches incident to arrests in dealing with strip search problems. There has been some difficulty in equating the two, since most searches incident to arrest cases focus on the constitutionally permissible scope of the search and not the intensity of the search. Those who support the legitimacy of strip searches point to United States v.

Robinson,6 which held that there may I

be a complete and thorough search made of a person once there has been an arrest. This decision, however, did not deal with the intensity of such a search.

While the United States Supreme Court has not had occasion to decide the constitutionality of strip searches that are incident to a lawful arrest, it did address the issue of the constitutionality of strip searching pretrial detainees in Bell v. Wolfish. 7 Most courts have followed the broad standard outlined in Bell in deciding the propriety of specific strip search practices.

In Bell, the plaintiffs were pretrial detainees housed in a federally operated short-term custodialfacility. The plaintiffs challenged a variety of practices in the facility, including the practice of requiring all detainees returning from contact visits with persons from outside the institution to undergo visual "body cavity" searches.

- The Court employed a balancing test in concluding that the searches in these circumstances did not violate the detainees' constitutional rights.

Although the Court recognized that these searches entailed a great invasion of personal privacy, the Court found that the detainees' privacy rights were outweighed by the institution's security needs. The Court's decision was grounded, in part, on the conclusion that pretrial detainees experience the same diminishment of rights as do convicted felons. This determination by the Court has been criticized as flying in the face of the due process clause which provides more protection to those not yet convicted of a crime than to those that have been convicted.

Most courts have looked to the Bell standard to determine whether a particular strip search policy passes constitutional muster. Both those who advocate police discretion in conducting strip searches and those who seek to curtail it look to Logan v. Shealy8 for support. The United States Court of Appeals for the Fourth Circuit is the highest court to make a decision in this area, and the Supreme Court let the ruling stand. The court in Logan held that the strip search of a woman arrested for drunk driving was an illegal invasion of her personal rights since she was not locked up with other detainees. Citing Bell, the court stated that the search "bore no discernible relationship to security needs at the detention center, " and

that each case required a "balancing of the need for the particular search against the invasion of personal rights that the search entails. ''9 In Smith v. Montgomery County, 10 the district court followed the Logan holding even though that plaintiff had been locked up with other detainees. Plaintiff Smith was arrested in connection with a child support action and was taken to the county detention center where she remained overnight. The next day she was taken before the circuit court for Montgomery County and the charges were dismissed. Smith challenged only the practice of performing routine non-private strip searches of all female detainees at the detention center. The court's holding was based partly on this narrow challenge.

Smith did not challenge the right of the county to conduct strip searches where there was probable cause to believe the detainee was concealing contraband, nor did sh.e challenge the county's right to conduct less intrusive searches. The court held that the detention center's security interests were outweighed in this instance by the detainees' privacy rights. The court engaged in a balancing of interests and found that the county's narrow interest was not disserved by the limited relief sought here.

Although the defendant argued that Smith's situation could be distinguished from Logan in that Logan. was never confined with the general jail population, the court refused to make a distinction, stating that both cases involved indiscriminate, acrossthe-board practices, and that the likelihood of success in finding contraband was an important factor in each case.

important government obj~ctive. The court also found the practice to be a violation of the Fourth Amendment.

Employing the Logan reasonableness standard, the court held that the across-the-board policy of strip searching all women arrestees regardless of the -offense charged was unreasonable in light of the small number of weapons found and the "illogicality of believing that a search for weapons would be fruitfUl. "12 Governmental Liability

ne obstacle experienced by those bringing actions alleging unconstitutional strip searches has been in the courts' refusal to hold municipalities and other government agencies liable for their officers' actions on mere respondeat superior grounds.

Courts have overwhelmingly rejected respondeat superior as a basis for holding governments liable for individual actions of its officers. The Equal Protection Problems courts have required instead that the , n addition to privacy rights issues, plaintiff show that the strip search the routine strip searching of was a part of a blanket pattern or women raises an equal protection policy. problem. National attention to strip In Joan Doe #1 v. City of search abuses was first drawn to the Chicago l ) the plaintiff filed a civil Chicago area as the result of Jane rights action under 42 U. S. C. 1983 on Does v. City of Chicago. II In Chicago behalf of herself and her two minor at that time, women were routinely daughters. All three had been strip strip searched, regardless of' the searched in their home after police nature of the crime for which they had searched the premises pursuant were arrested, while male arrestees to a search warrant. Plaintiff's huswere merely subjected to pat down band, against whom the search warsearches. The court employed a "sub- rant was issued, and another male stantially related" test in holding that who was in the home, were not strip the practice was a violation of the searched. equal protection clause since the pracThe court granted the defendant's tice of using a different method of motion to dismiss on the basis that searching females did not serve an plaintiff's allegations failed to meet

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the standard for municipal liability.

The court stated that municipalities may only be held liable for constitutional violations resulting from a governmental policy, regulation, or custom. Finding no evidence to support a finding that the search was conducted pursu'a nt to police policy or custom, the court concluded that plaintiff failed to meet her burden of proof Conclusion

lthough recent litigation and the A media publicity surrounding it has resulted in a certain degree of curtailment of strip search abuse, the courts have yet to develop a definitive standard in this area. Most courts have followed the lead established by Bell v. Wolfish and Logan v. Shealy and have employed a broad reasonableness standard. Although this has failed to produce uniform results, this is a step in the right direction. Caseby-case, issue-by-issue development of constitutional standards is always a slow process. By carefully evaluating all the interests involved, both public and private, and by using the Logan reasonableness standard as a guide, the courts should soon be able to develop a workable rule.

FOOTNOTES I Shuldiner, Visual Rape: A Look at the Dubious Legality of Strip Searches, 13 J. Marshall L. Rev. 273 1980). (Hereinafter cited as Visual Rape) 2 Clifford, "Police Strip Searches Anger Women", Greensburg Tribune-Review, Jan. 16, 1983, at B5. (conlinued on page 39) 9

SEX DISCRIMINATION BY THE INSURANCE AND PENSION INDUSTRIES AS REPRESENTED IN THE EMPLOYER路 OPERATEiD INSURANCE/PENSION FIELD Abigail Adams to John Adams Braintree March 31, 1776

SEX BASE'D MORTALITY TABLES AND MANHART

I long to hear that you have declared an independancy and by the way in the Code of Laws which I suppose it will be necessary for you to make I desire that you would remember the Ladies, and be more generous and favouraBY ble to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men JAMES O. GASTON would be tyrants if they could. If perticular [sic] care and attention is not paid to the Ladies we are determined to foment a Rebellion, and will not hold outselves [sic] bound by any Laws in which we have not voice or Representation.

Excerpt from L. H. Butterfield, ed. Adams Family Correspondence, Vol. I: December 1761 - May 1776.

I. INTRODUCTION Copyright (C) 1963 by Massachusetts Historical Society. or the past thirty years there has often limited to or excluded outright surance, the Senate Committee on existed in this country an ex- from obtaining various insurance Commerce, Science and Transportatensive purge of discriminatory prac- coverages available to men. Second, tion found that health insurance tices based on race, color, age, sex, the rates of the similar policies are policies were generally discriminaand national origin. Some of the most substantially increased for women in tory. It was reported that health inoutstanding Congressional legisla- comparison to the rates for men. surance policies for women often extion passed to eliminate such disAccording to the Senate Report clude pregnancy and its related comcriminatory practices are: Title VII of from the Committee on Commerce, plications from coverage, although the Civil Rights Act of 1964, prohibit- Science and Transportation, Dec. 1, male disabilities such as vasectomies ing discrimination in employment; 1982, disability income insurance for and prostatectomies are generally Title VII of the Civil Rights Act of women is often unfairly discriminat- covered. S A 1975 Michigan survey 1968, prohibiting discrimination in ing. I The Committee, after studying reported that when maternity benehousing; The Equal Credit Oppor- the submitted voluminous data con- 'fits are provided for, only 38-44070 tunity Act, prohibiting discrimination cluded that generally, disability in- of medical costs due to pregnancy in consumer credit and finance; The surance policies provide (1) longer are reimbursed. Further, an Iowa Equal Pay Act, prohibiting the waiting periods for women in number study reported that III its state, discrimination of pay wages or of days an insured must be disabled without maternity coverage women salaries; and the Age Discrimination before benefits are payable; (2) pay 5011fo more than men under identiin Employment Act, prohibiting age shorter basic periods - the maximum cal po]icies. Another 1975 study discrimination in emp ]oyment. time for which an insured is deemed found that the top seven insurance Despite the legislation, various areas completely unable to work; usually companies doing business in Illinois of discrimination remain intact. five [5) years for men, two [2]1years charged 6811fo more for women than Perhaps one of the most persistent for women; and (3) shorter benefit men. 6 Typical heaHh insurance proviand controversial areas of discrimina- p'eriods - maximum time for which sions call for benefits to be paid on a tion which has continued to evade the insured is paid benefits.2 mother's policy only if the father will much of the national media is that of In addition, the Committee dis- attest to the fact that he assumes no sex discrimination in the insurance covered that ten out of thirteen in- responsibility for the children; and pension plan fields. This article surance companies surveyed in Penn- women, thereby are systematically will address the major points of the sylvania charged higher premium denied benefits for their dependents sex discrimination controversy in rates for women than for men carry- even though they have paid for the employment benefits with specific ing identical or better disability coverage.' emphasis directed towards employer coverage. In New York it was found The outlook for women acquiring pension/annuity plans. that women were charged rates 15011fo life insurance appears equally dishigher than men in the same job couraging. Life insurance options II. THE OVERALL OUTLOOK classification. 3 Finally, a Colorado routinely available to men are often enerally, it is contended that study determined the rate differential denied to women. For example, some there are two ways in which the in that state to be 45-11511fo between companies refuse to sell to married insurance industry discriminates the sexes. 4 women more coverage than that of against women. First, women are Similar to the disability income in- which their husbands own. Also,

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guaranteed purchase options to buy additional coverage without evidence of insurability are not available equally to men and women . 8 Perhaps the most illustrative example of insurance practices is in the industry's construction of mortality tables. Mortality tables are normally based on statistical past records that express the probability that a person at particular given ages will die in a given future year. If a table is classified by sex and shows that a woman, at a certain age, would live longer than a man at that same age, the life insurance company using that sex based table will require the female insured to pay lower premiums per payment than her male counterparts since the number of payments she makes over the years will be greater than that of the similarly situated male. Contrarily, sex differentiated tables cause a woman to pay greater premiums to purchase an annuity (pension) because she will receive payments for a greater number of years between retirement and death than will a man; or if equal premium payments are made into the annuity, lesser payments are received by the woman.

For life insurance policies, insurance companies usually assign to a woman the life expectancy values found on the men's table for a man three to six years younger. This type of deduction is commonly referred to as a "set-back.'" Women, however, live six to nine years longer than men.

Therefore, they fail to reap the advantage of sex-segregated tables, but instead are tied to male based tables with arbitrary three year setbacks.

In fact, the Special Committee to Recommend New Mortality Tables for Valuation in its Report on New

Mortality Tables for Valuation of Individual Ordinary Insurance, Recommendation to Board of Governors, Society of Actuaries 2 (July 1979)10 reported that no age setback would produce the correct mortality rate.

On the other side of the coin, women have been required to pay the entire nine year survival difference in annuity and pension plans. Annuity premium payments are set up according to the sex segregated tables for women. Obviously, either payments into the plan will be greater for women than men , or payment receipts will be less. A prima facie sense of basic fairness would seem to require that the insurance industry set up a consistent policy of either using

sex segregated tables for both life insurance and annuities, or set back rates for life insurance and annuity plans.

This prima facie case of the insurance and annuity (pension) industries having their cake and eating it too only touches the tip of the sex discrimination issue. To reach the root of the matter, it is necessary to examine closely the interrelating connicts of social, legal, and economic policies.

Each of the above areas - health insurance, life insurance, and disability insurance could be extensively examined and evaluated, however the practical limitations of space preclude such a voluminous and detailed exegesis. Instead, contained in all of the above areas are the apposite issues found in the field of employer insurance annuity and pension plans. A scrutinized examination of policies contained in the annuity/pension areas will encompass the same policies present in the life, health and disability insurance areas.

Furthermore, there are additional advantages in studying the employer insurance programs. Forty-two percent of all women are now in the work-force, sixty percent of these women are widowed, divorced, unmarried, or work to raise their family income to a minimum of $10,000 per year,1\ and both of these percentages have been rapidly increasing. With the growing number of women in the work-force the importance of fair insurance benefits cannot be over emphasized. The business employer has taken the initiative in providing this new and necessary insurance for its work-force, therefore, the interaction between the two areas is essential in any present day evaluation.

III. THE MICROCOSM he fundamental question in the employer/insurance annuitypension area is whether sex segregated mortality tables are lawful in imposing premium payment rates and pension payment receipts between retirement and death. As was described earlier, if a business or insurance company representing a business, uses sex based mortality tables, women must either pay greater premium rates into the plan than men do because of their greater longevity (although greatly simplified in the above description, this type of pension program may be labeled as a Defined Benefit Plan), or, if women pay equal

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contributions into the plan as men, then the women will receive lesser amounts back in pension payment receipts after retirement than men (again for simplification purposes, labeled as Defined Contribution Plan).12 TYPES OF DISCRIMINATION rincip~lly, there exists t.w 0 .fo~ms in which employment dlscnmmation may arise; disparate-treatment and disparate-impact. Disparatetreatment is the theory in which the essence of the wrong is to ignore individual characteristics and treat individuals on the basis of group affiliation, as when an employer refuses to hire an applicant because he is black. I l Disparate-impact occurs when an employer's facially neutral policy burdens one class more than another. l • "Practices that are fair in form, but discriminatory in operation" produce a disparate-impact."

The discernment of whether an alleged discriminatory act falls under the disparate-treatment theory or the disparate-impact theory is critical for two reasons. Various Congressional discrimination legislation distinguishes its applicability between each theory.16 And, the burdens of proof to be carried by the plaintiff (employee) varies between the disparate-treatment and impact theories.

For disparate-treatment the plaintiff needs to show that the defendant (employer) intentionally discriminated against him (or his protected class).1 7 There exists a three part test to determine proof of discrimination when parties assert disparate-impact.

The plaintiff must first demonstrate a facially discriminatory policy or a facially neutral policy which has a substantially disportionate impact.

The defendant then defends on the ground of valid business justifications. Finally, the plaintiff must counter the defense with additional evidence of a prior history of discriminatory intent i.e., demonstrate that the challenged policy in reality is a pretext for further invidious discrimination. McDonnell Douglas Corp. v. Green, 411 US 792 (1973);

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Texas Dept. of Community Affairs vs. Burdine, 450 US 248 (1981).

Proponents of unisex mortality tables contend that employer pension/annuity plans using sex segregated mortality tables (thereby requiring women to either contribute more to the plan per payment, or receive less in payment receipts later) 11

discriminate unfairly according to the disparate-treatment theory. The proponents of sex segregated mortality tables respond that the mortality tables do not unlawfully discriminate against women in terms of disparatetreatment, and counterclaims that the imposition of unisex mortality tables would cause unjust and unlawful disparate-impact discrimination against men.

PENSION VALUES he fundamental dispute centers on determining the value of the plan. The Courts and other proponents of unisex mortality tables argue that the value of a pension/annuity plan is to be determined only after the participant has died and has received a definite amount of benefits. Statistical studies demonstrate that it is possible to match approximately 83% of men and women retiring at a specific age according to their deaths. In other words, over 80% of the men can find a matching woman who died approximately contemporaneously. 18 Consequently, because less than 17070 of the women live longer than the men, all women must either pay more into a pension/annuity plan, or receive less in payment receipts. The end result is that the vast majority of women either receive the equivalent dollar benefits as men, but are required to pay more for them (or women must pay dollar amounts into a pension/annuity program equal to that of men, however, their draw receipt of payments are less).19 Proponents of the unisex mortality tables argue that because of the disproportionate effects on the large majority of women as a group, to intentionally classify all women into a sex segregated mortality table produces a prima facie case of disparate-treatment discrimination. . Proponents oJ the sex segregated mortality tables attack the unisex table theorists on several grounds.

First and foremost, it is averred that it makes no sense to determine the value of participation when the future risk has become a past event. 20 I t is pointed out that premium payments do not buy payments of losses but rather a transfer of risks .2 1 "The natural meaning of equivalent or recompense for specific work done is the aggregate of what the employer pays for that specific work, both as wages and as contributions to a pension or other fringe benefit program.

If any part of either wages or contri-

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butions is to be paid in the future, a proper valuation procedure requires that part to be discounted to present value as of the time the work is performed. If any part is to be paid only on the contingency that the employee is still alive, it must also be discounted by the probability that the employee will survive ... It is not the periodic pension, received years later after employment is terminated, that the employee gets as compensation; instead, it is a contractual right against an insurance company, or an equitable interest in a trust fund, or a contractual right directly against the employer. "22 Therefore, it is contended that overall, there is no discrepancy in payor benefits between men and women because value can only be determined at the time of the initial earning .

The matching (overlap) theory is refuted for its arbitrary selection of the year of death as the basis for pairing males and females. 21 For example, selecting the year of death as the basis for pairing males and females is no more appropriate than pairing by order of death. Thus, the first woman to die is paired against the first man who dies; continuing this progress to age 110 for males and 115 for females leads to pairing over most of this period with the male age at death being 5 years lower than the age at death of the corresponding female. 2' An analogous view of matchi-ng shows that if "1000 men are grouped

into those retiring at age 60 and those retiring at age 65, a longevity profile for each will be similar to the 80% overlap for 65 year old men and 65 year old women. The two cohorts of 60 and 65 year old men produce an overlap of 81 %. 1000 females aged 65 and 1000 women aged 60 produce an overlap of 78%. Thus the overlap of 1000 men aged 65 and 1000 women aged 65 would be 80% . Consequently, the overlap of cohorts of different age but the same sex would equally justify equating the pensions for those retiring at age 60, or 65, and 70. Thus, all 65 year old men and women should share in the burden of the 60 year olds who will live somewhat longer. But that is merely silly." 2S Finally, the proponents of the sexsegregated mortality tables emphasize that imposing unisex mortality tables will result in men unjustly having to subsidize women for the additional monies they draw from a plan over that which they put in. The result is disparate-impact discrimination to women . The Court in Spirit v. Teach-

ers Insurance and Annuities Assoc., 691 F.2d 1054 (2d Cir.1982) correctly remarked on this point by stating "This argument is unconvincing because it is only by virtue of defining an individual in terms of the prohibited classification that the actuarially equal result is ' reached. It is the very act of classification that results in unfairness to individual members

of the members of the class." pg.

1061-1062.

A few passing comments must be made as to the sex-based mortality table proponents' value and overlap theory arguments. The sex-based table theorists espouse that the total "value" must be computed by discounting the contingent benefits. Unfortunately, this value determination only incorporates the problem within its computation, for the issue is how should the contingency discount value be determined, not that it should or should not be valued. Regarding the overlap theory, it should be noted that the matching overlap concept is not to promote the policy of one class or party subsidizing another, but rather to demonstrate the similarity in group makeup. Further, there is no dispute that age is a proper element in determining rate classifications . Age has been and continues to be one of the fairest and consistently proven determinants in predicting the probability of life expectancy.26 Sex, on the other hand, has been shown to be an inconsistent factor. Age, unlike sex, is a prime element that cannot be reduced further into subcategories. Instead, it is one of these subcategories which needs to be compiled with other subcategories to complete a fair and adequate classification. Therefore, to make assumptions in regard to the overlap theory using various ages is off base.

RISK FACTORS OTHER THAN SEX

he unisex mortality proponents T also stand on the grounds that the industry has ignored other, more accurate classifications. It is claimed that such factors as smoking habits, family health history, physical conditions, recreational and occupation activities should all be confined to set up a fair and applicable rate. 27 Numerous objectives have been lodged against such an expansive overhaul of the procedure. Complaints allege that "it is doubtful that any better approximation was possible ... The demands for efficient administration further compound this uncertainty ... for example, setting contribution rates on the basis of obesity, medical history and occupational hazards require individual investigation and voluminous record keeping that probably are impractical on a scale large enough for actuarial validity."" It is pointed out that such

variable factors would require external and continuous lifetime surveillance to separate the healthy from the less healthy.29 The proponents of sex-based mortality tables submit that whether available complementary information should be used to further refine the classification system should depend on a cost-benefit analysis. 30 It should be recalled that unfair discrimination against a particular class has never been permitted solely because of economic convenience.

See the Civil Rights Act of 1964 and 1968; Congress acted with 42 USC 2000 e (k) (supp. II 1978) (requiring that pregnancy be covered on the same terms as any other disability) despite evidence that disability insurance costs more for women than men, and such additional coverage would require employers to spend an additional $191.5 million per year on female employees. (1978) U.S. Code Congo & Admin. News at 4757; Brown v. Bd. oj Education, 349 US 294 (1955); Spirit v. TIAA, 691 F.2d 1054 (2d Cir. 1982).

In addition, it should be noted that various life insurance policies already require the weight, physical build, physical condition, personal and family history, occupation, habits, aviation or military service, residence and hobbies of insured persons.]I These insurers have obviously found such factors practical and economical to implement.

Another assertion that is presented by proponents of the sex-segregated mortality tables is that sex segregated tables are necessary due to the biological differences of men and women . The conventional wisdom has been that women have lower death rates than men at all ages. J2 Most empirical research on sex mortality differences have been done in other disciplines, and all major investigators now believe that social, cultural, environmental and behavioral factors are more important than genetic or biological factors in explaining sex mortality differences. Jl SEX V. RACE CLASSIFICATION

continued question that arises in A the discussion of discrimination by the use of sex segregated mortality tables in pension and annuity plans is why sex may be used as a factor in rate determinations when race is not.

"There is a near consensus that race should not be used as a predictor in insurance." J4 Certainly, it appears

that the similar prevailing public policy is applicable to sex classifications as to race classifications. If sex is a legitimate predictor of losses so is race, religion or ethnic background - none of which are currently used by insurers to predict losses. Today, at many age levels there exists a greater life expectancy difference between black and white mortality rates than between male and female mortality rates. See U.S. Life Tables, 1969-71 published by the National Center for Health Statistics, May 1975. Further, insurers do not use separable tables for Mormons and Seventh Day Adventists who have life expectancies longer than white persons, or for Jews under 65 who have shorter life expectancy than the average population as a whole. J5 One cannot help but notice that the arguments for sex discrimination parallel those previously used by state insurance departments in the past to justify discrimination based on race. J6 Prudential Insur. Co., Mar.lO, 1881, "[this] action not only is justified, but necessary for its own safety and equity to the white policyholders, who as a class are subject to a mortality less than two-thirds as high as the rate prevailing among colored people. "17 And the viewpoint of the insurance industry, February 5, 1891, Spectator, "a color line is not drawn simply because the applicants are negroes - the world is too progressive for that, but a distinction is made on account of the fact that companies cannot afford to grant policies at the same rates to colored as to white applicants, and any legislation which intended to force them to so do is practically tyrannous." 38 The cautious response by proponents of sex based mortality tables is that differences between the sexes is in fact substantially greater than that between the races, 'at the ages beyond normal retirement age. 39 (Although not explaining the reason for past race discriminatory insurance practices); numerous classes would be required to accommodate the varying "mixed bloods" and the information needed to use the more refined classifications would be hard to require and generally, pure guesswork 40 (however, the past practices proved quite practical and workable). One professor has distinguished sex discrimination in insurance and pension practices on the theory that differentiation of sex is inseparably tied to 13

the existence of sexual roles in society as we know it today. Therefore, an anticlassification conception of equality better fits the law of racial discrimination. 41 However, even if the premise may be true and sexual roles are necessary, the infirmity in the argument is that there appears no reasoning why an anti-classification policy cannot be imposed in the insurance/pension area if such an act would more fairly provide individuals with benefits.

LEGISLATION

ongress has instituted legislation in the general field of employer C discrimination practices, Title VII of the Civil Rights Act of 1964 (42 USC § 2000 (e)- 2000(e)-15 (1976), the main purpose is "to eliminate ... discrimination in employment."

H.R. Rep. No. 914, 88th Congo 2d Sess. 9, reprinted in (1964) U.S. Code Congo & Ad. News 2391, 2401. Title VII states "it shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or discharge an individual, or otherwise to discriminate against any individual with respect to his compensation terms, conditions or privileges of employment because of such individuals race, color, religion, sex or national origin ... " 42 U .S.c. § 2000e-2(a) (2).

The Bennett Amendment to Title VII allows differentiation if it is authorized by the Equal Pay Act (EPA) 29 U.S.C. § 206. The EPA forbids discrimination in pay on the basis of sex except where the pay differential is based on (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production, or "where such payment is made pursuant to ... ; (iv) a differential based on any other factor other than sex ... " 29 U.S.C. § 206(d) (1) (1976).

(Therefore, forms of disparate-impact in pay do not violate the EPA and hence equal periodic annuity benefits are not illegal discrimination against men).42 As a result of the general language that comprises Title VII, together with the Bennett Amendment's undefined loophole "any other factor other than sex", litigation has been extensive in this particular area.

CASE LAW

he progenitor case in this area of T evaluation is Geduldig v. Aiel/o, 14

417 U.S. 484 (1974). In this case the Court, per Justice Stewart's majority opinion, held that the exclusion of disability that accompanies normal pregnancy and childbirth from California's disability insurance "does not exclude (anyone) because of gender ... The program divides potential recipients into two groups - pregnant women and non-pregnant persons . While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes." Consequently, there could be no sex discriminatory disparate treatment. Two years later the Court in General Electric Co. v. Gilbert, 429 U.S.· 125(1976) confirmed its position by holding that an industrial disability plan did not cover the costs of normal pregnancy, and for purposes of Title VII and the EPA held that "pregnancy disability" was within the loophole "factor other than sex. "43

The landmark case to come down in this field was Los Angeles Dep't.

o! Water & Power v. Manhart, 435 U.S. 702 (1978). In this case the employer operated a group benefit plan which required female employees to make greater contributions into the plan than male counterparts in order to receive the equal amount of benefit receipts. The Court flatly rejected the theory that statistical association between sex and mortality justified disparate treatment. The Manhart court distinguished both Gilbert and Geduldig since neither of these cases divided employees into exclusively male and female groups. The Court concluded that men and women made unequal contributions to an employeroperated pension fund, therefore, it violated Title VII of the Civil Rights Act. The Court rested its conclusion primarily on the fact that it could find no evidence in the record that the Department used any factor other than sex in calculating the employee contribution rates. Because of the Court's sudden change in direction and failure to address the entire subject of sex segregated mortality tables, important questions remain open to interpretation. For example, one question is how expansive the Manhart Court intended for its holding to be. The Court expresses that, "Although we conclude that the

Department's practice violated Title VII, we do not suggest that the statute was intended to revolutionize the insurance and pension industries.

All that is at issue today is a requirement that men and women make unequal contributions to an employeroperated pension fund." 435 U. S. 702,717-18 (1978). Several readings of this myopia are possible. First, it might be supposed that the Court did not intend to extend Manhart to the activities of independent insurers.

Second, it may have meant that when employees deal directly with an insurer no Title VII problem occurs. A third possibility is that the Manhart Court intended to fully adopt the Equal Employment Opportunity Commission (EEOC - see note 43) position that use of sex based mortality tables present a prima facie case of sex discrimination and hence, violation of Title VII.44 Unfortunately, it has been left to the lower courts to speculate as to the correct interpretation the Supreme Court intended at the time.

The consensus of the lower courts seems to be that the title "employer" in Title VII is significantly broad to encompass any party who substantially affects access of any individual to employment opportunities;4' the courts regularly refer to Manhart dictum, "We do not suggest of course that an employer can avoid his responsibilities by delegating discriminatory programs to corporate shells.

Title VII applies to 'any agent' of a covered employer .. " 435 U.S. at 718 n.33.

Most lower courts have reached liberally into the Manhart opinion, citing often the much discussed language of Title VII that emphasizes the "individual" over the group. It is unlawful under Title VII "to discriminate against any individual . . . because of such individual's sex. 42 U.S.C. § 2000e-2 (a) (1) (1976) .

Therefore, in cases such as EEOC v.

Colby College, 589 F.2d 1139 (1st Cir. 1978) the court considered itself compelled to vacate a district court's dismissal of a sex discrimination complaint that charged the use of sex segregate mortality tables was a prima facie violation of Title VII. Spirit v. T1AA, 691 F.2d 1054 (2d Cir. 1982) candidly stated that the use of sex distinct mortality tables constituted unequal treatment based solely on an individual's sex, and such use violated Title VII.46

The only case not to follow the lead of the Manhart decision is Peters v.

Wayne State Univ., 691 F.2d 235 (6th Cir. 1982) which narrowly construed Manhart so as to apply only to cases where men and women contribute different amounts into the pension plan, and thereafter receive equal benefits after retirement; and not to plans where equal payments are contributed by both men and women, but women receive less pension payments after retirement (this was the fact situation in the case). The Peters Court however, failed to adequately substantiate the distinguishing differences between the two types of pension plans and the reason it considers equal contributions but lesser receipts equal in value between men and women, however unequal contributions but equal receipts not equal in value between men and women.

FOURTEENTH AMENDMENT EQUAL PROTECTION nother route which may be taken to correct sex discrimination is the Fourteenth Amendment - Equal Protection. This approach has been taken less often in the fields of sex segregated mortality tables mainly because of the existence and domination of Title VII. As a result, the law has not had an opportunity to fully develop in this area.

The generally understood Constitutional test is that of the intermediate level of scrutiny.47 In Geduldig v.

Aiel/o, 417 U.S. 484 (1974) the Court stated there was no unlawful denial of equal protection. However, in Robert-

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son v. Indiana State Teachers Retirement Fund Board, 266 Ind.29, 360 NE2d 171 (1976), the first court to rule on the use of separate mortality tables for males and females, the Court held a five year setback for females, and the establishment of procedures for providing greater monthly annuity payments to males than females 'bases solely on sex' constituted unlawful discrimination violating the Federal Constitution's Equal Protection Clause of the Fourteenth Amendment (the fair and substantial relation standard was applied).

In Stern v. Mass. Indem. & Life Ins. Co., 365 F.Supp. 433 (E.D. Pa. 1973) suit was brought for the alleged refusal of the insurer to make a disability income policy available to a woman on the same terms and conditions as available to similarly situated men. The District Court found such a deprivation as volitive of the Equal Protection Clause of the Fourteenth

Amendment citing Justice Brennan's plurality opinion in Frontiero v.

Richardson, 411 U.S. 677 (1973) as suggesting the strict scrutiny standard be applied to gender discrimination. 48 Finally, a last note about the Equal Protection claim; the court in Spirit v. TlAA, 691 F.2d 1054 (2d Cir. 1982) held in dictum that for the case of sex discrimination because of sex segregated mortality tables, it would not support the allegation that the plaintiff was deprived of her equal protection rights. This may have the effect of slamming the back door shut to open the front door wider.

THE McCARREN·FERGUSONACT he final piece of Federal legislation that must be confronted is the McCarren-Ferguson Act, 15 U.S.C. § 1011 et seq. "No act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance ... 15 U.S.c. § 1012 (b).

(Insurers seem to continually entrench themselves in this "Little Bighorn" Act, only to be completely surrounded and wiped out by overwhelming case law and legislative history; no court has upheld the insurers protectivism argument in the field of sex segregated mortality tables).

The McCarren Act was enacted in 1945 in direct reaction to the Supreme Court's decision in U.S. v. Southeastern Underwriters Assoc., 332 U.S. 533 (1944). They held that interstate business transactions constituted interstate commerce and was thus subject to federal regulation under the Commerce Clause. Price fixing activities of such insurance companies were subject to attack under the Sherman Antitrust Act. Thus, there was fear that traditional forms of state regulations and taxation of insurance companies doing business within the state could be invalidated.

Congress' purpose was to ensure that states would be permitted to fulfill their traditional roles in relation to insurance regulations. 49 Besides the limited purpose the McCarren Act was to have, it is clear that Congress designed the 1964 Civil Rights Act as a step toward eradicating significant areas of discrimination on a nation wide basis. so Outside the area of sex mortality tables, courts have also held the McCarren Act sub-

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ordinate to other Civil Rights Act fields. " PUBLIC POLICY complete evaluation of the insurance/pension employer-operated plan requires an examination of why the free market competition does not correct the discrimination, and what level of correcting action is necessary.

The free market is not capable of correcting the sex table discrimination for several reasons. First, it hardly suffices to say that those persons who lose job opportunities will seek redress under Title VII, mainly because the unemployment rates continue to remain high and women are paid lower wages and salaries. In addition, it is enormously burdensome and difficult for consumers to compare terms, prices, and/or values of annuity and life insurance contracts. Often the quoted rate is a conservative guarantee, with the actual rate depending on extra dividend declarations from time to time. Belth, Life Insur. Price Measurements, 57 Ky L. J. 687, 705-710 (1969). Further, if the majority of employees are male, the employer will often cater to them, thereby selecting segregated annuity tables and integrated life insurance tables. " If there is to be regulation in this area, it must be at a national level.

"For anyone insurance company to adopt a unisex table, or for anyone state to require such a table, would drive insureds to insurance companies not covered by such action. Since it would be cheaper for a woman to go to an insurance company with dual tables for life insurance and cheaper for a man to go to an insurance company with unisex tables for life insurance, the end result would be the same if there were dual tables. SJ Presently, there is a bill before the U. S. Senate concerning unisex tables, Senate Bill, S. 2204, 97th Congress 2d Sess., (Fair Insurance Practice Act), March 15, 1982, proposed by Senators Hatfield and Packwood from Oregon. The bill would eliminate sex segregated mortality tables.

There consistently appear two arguments against implementing the unisex tables. First, because a unisex table will not be universal, but must be based on the objective factors a particular group (or employee class) possess, the unisex tables will vary as the composition of the group changes. It is argued that employers

A

15

will be more reluctant to hire women for their added longevity will drain the coffers of the annuity plan.

Therefore, unisex tables will create incentives for employers not to comply with sex-neutral hiring practices required by law. The presumption is fallacious however, for the premise (proven earlier) is that sex is actually an arbitrary factor by which to classify and other more relevant factors such as smoking, occupation, and hobbies should be used to classify instead.

The second argument is that the economic costs of implementing the unisex policy will be exorbitant. This similar argument was made when race discrimination was promoted by segregated insurance and annuity tables. 54 Also, it must be reaccounted that insurers have been on notice of the unacceptable sex segregated mortality table policy since 1972 when the EEOC published its new guidelines prohibiting such practices. Therefore, at this date adequate reserves should be in store. Finally, no definite numbers have been totaled, but the latest cost figures from the American Council of Life Insurance estimates that the change to unisex tables will cost two billion dollars. The Labor Department estimates the unfunded liability for private pension plans are expected to be under $500 million dollars. This unfunded liability compares to industry assets and reserves of over $400 billion dollars, or, 0.125070. Therefore, it is obvious alleviation of the burdensome unfairness of sex discrimination in the insurance and pension industries will not cause the annihilation and subsequent destruction of the industries as so often averred. 55 CONCLUSION n conclusion, it may be summarized that insurance and pension plans unfairly discriminate against women.

Life insurance policies use a three year set back even though when women are placed in the industry's own classifications they are found to live nine years longer. On the other hand, when women purchase annuities, they are required to take full account of the nine year longevity addition. The use of sex segregated mortality tables poorly classify women, subjecting over 83070 to pay additional amounts more than men merely because of a small minority's longer life expectancy. Sex based mortality

I

16

tables can be practically replaced by unisex tables and more relevant factors such as smoking and occupation substituted to distinguish persons of greater risk. The Courts are presently acting on the discrimination problem, however they are unable to confront the issue in all areas of the insurance and pension fields, but only in one major section that involves employeroperated plans. The swiftest and most efficient measure to correct the problem is to pass the present Congressional legislative bill now before the United States Senate.

FOOTNOTES I Congo 2d Sess., Senate Report No. 97-671, Fair Insurance Practices Act, Calendar No. 964, Dec. I, 1982 2 See also Ann O'Shea, Insuring Women: Separate and Unequal Policies, 4 WW Reports 21,22 (Oct. 1979), citing report by Naomi Naierman and Ruth Brannon health analysts for ABT Associates, Cambridge, Mass. Published in Women's Equity Action League.

Men-least hazardous occupation ..... ... ten year benefit period Women-least hazardous occupation .... two year benefit period Men-most hazardous occupation ....... . two year benefit period Women-most hazardous occupation . ..... . 0 year benefit period Average monthly disability Men .. .. ... ... . . .. .. $1000.00 Women . ... ...... ... $ 400.00 In addition, there has existed a presumption that women defraud insurance companies; as expressed by the pre-I975 underwriter's manuals of North American Reassurance Company "if a woman has disability coverage, the temptation exists to replace her earnings with an insurance income once work loses its attractiveness."

3 Judy H. Schub, Director of Legislation and Program Development of the National Federation of Business and Professional Women's Clubs, Inc., Testimony Delivered Before the Senate Committee on Commerce, Science and Transporta~ion, July 15, 1982.

4 Barbara J. Lautzenheiser, American Council of Life Insurance; Testimony Before the Committee on Commerce, Science and Transportation, July 15, 1982.

5 See note 1.

6 See note 3.

See note 1.

See notes 1 & 3.

9 See notes 1 & 3; note, Challenges to Sex-Based Mortality Tables in Insurance and Pensions, 6 Women's Rights L. Rep. 59, 63-64 (1980); R. Mehr & R. Osler, Modern Life Insur. 502-505 (3rd ed. 1961).

10 Note, Challenges to Sex-Based Mortality Tables in Insurance and Pensions, 6 Women's Rights L. Rep. 59, 63 n. 42 (1980).

II Dr. Mary Grey, President of the Women's Equity Action League, Testimony before the Senate Committee on Commerce, Science and Transportation, July 15, 1982.

12 Note, The Extension of Title VII to Pension Plan, 28 DePaul L.R. 449 (1979).

13 For examples see Connecticut V. Teal, 102 S. Ct. 2525, 73 L. Ed.2d 130 (1982) Furnco. Construction Corp. V. Waters, 438 US 567 (1978); Bowe V. Colgate-Palmolive Co., 416 F. 2d 711 (7th Cir. 1969) (employer refused to hire women for certain manufacturing jobs because employees in these jobs had to lift weights).

14 Peters V. Wayne State University, 691 F.2d 235 (6th Cir. 1982).

15 Griggs V. Duke Power co., 401 US 424,431 (1971).

16 Prior to the Bennett Amendment to Title VII it was strongly averred that disparate-impact in pay does not violate the Equal Pay Act, and hence does not violate the ban on sex discrimination in Title VII. Hekeler, Laycock, Sullivan, Sex Discrimination in Employer-Sponsored Insur. Plans: A Legal and Demographic Analysis, 47 Univ. of Chi. L.R. 505, 520 (1980).

17 Kober v. Westinghouse Electric Corp., 480 F.2d 240, 246 (3d Cir. 1973); Bryant v. Intern. Schools Service Inc., 502 F. Supp. 1 (D. N.J. 1980).

18 Los Angeles Dept. of Water & Power V. Manhart, 435 US 702 (1978); note, Challenges to SexBased Mortality Tables in Insurance and Pensions, 6 Women's Rights L. Rep . 59 (1980); O'Shea, Insuring Women: Separate and Unequal Policies, 4 WW Reports 21,23 (Oct. 1979).

19 Notice, Life insurance policies would apply similarly.

20 Ruthlergler, Sexual Equality in Fringe Benefit Plans, 65 Va. L.R. 199 (1979).

7

8

21

22

23

24 21

26

27

28

29

30

31

Kimball, Reverse Sex Discrimination: Manhart, ABF Res. Journ.

83, 119-120 (1979).

Kimball, Reverse Sex Discrimination: Manhart, ABF Res. Journ.

83,98-99 (1979).

Lutzenheiser, American Council of Life Insurance, Testimony Before the Committee on Commerce, Science and Transportation U.S. Senate, July 15, 1982; Kimball, Reverse Sex Discrimination: Manhart, ABF Res. Journ. 83, 122-123 (1979).

Ibid.

Kimball, Reverse Sex Discrimination: Manhart, ABF Res. Journ.

83, 119, 122-123 (1979).

Hekeler, Laycock, Sullivan, Sex Discrimination in Employer-Sponsored Insurance Plans: A Legal and Demographic Analysis, 47 Univ. of Chi. L.R. 505 (1980).

Ibid.

Ruthergler, Sexual Equality in Fringe Benefit Plans, 65 Va. L.R. 119, 120 (1979).

Kimball, Reverse Sex Discrimination: Manhart, ABF Res. J ourn.

83, 107, 119-120 (1979).

Out of fairness it should be brought to light that a recent work

by Deborah L. Wingard, The Sex Differential in Mortality Rates: Demographic and Behavioral Factors, Epidemiologic Research, June 1980, addressed the question of how much influence to give risk factors such as physical health status, smoking habits, physical activity, etc. By means of a mathematical analysis of sixteen known risk factors the work concluded if women and men were subject to various factors to the same degrees, the observed mortality differential between women and men would be even larger than it is.

Lautzenheiser, American Council of Life Insurance; Testimony Delivered Before the Senate Committee on Commerce, Science and Transportation, July 15, 1982.

See note 26 & citing S. Huebner & K. Black, Life Insur. 364-68 (9th ed. 1976); Yenkel, Exercising to Ensure Health Can Save on Life Insur., Chi. Sun Times, Sept. 4, 1979, at 41, col. 1; Gove, Sex, Marital Status and Mortality, 79 Am. J. Soc. 45 (1973); Geographic Locations Greville, Some Trends and Comparisons of United States, Life-Table Data: 1900-1971 in 1 National Center for

32

33

Health Statistics, Dept. of Health, Education & Welfare, U.S. Decennial Life Tables for 1969-71, No.4 Table 4 at 4-10 (1975).

W. Peterson, Population 67,223 (3rd ed. 1975), cited in Hekeler, Laycock, Sullivan, Sex Discrimination in Employer-Sponsored Insurance Plans: A Legal and Demographic Analysis. 47 Univ. of Chi. L.R. 505, 546 n. 202 (1980).

Hekeler, Laycock, Sullivan, Sex Discrimination in Employer-Sponsored Insurance Plans: A Legal and Demographic Analysis, 47 U. Chi. L.R. 505, 541 n. 177 (1980) citing S. Preston, Male Mortality and Cigarette Smoking, 100 (Univ. of Cal. Population Monograph No.7, 1970); R. Rutherford, The Changing Sex Differential in Mortality, 91, 101 (1975); Enterline, Causes of Death Responsible for Recent Increases in Sex Mortality Differentials in the United States, 39 Milbank Memorial Fund Q. 312,325 (1961); Waldron, WhyDo Women Live Longer than Men?, 10 Soc. Sci. & Med. 345, 349 (1976).

Numerous studies have revealed that females do not always live longer than males; Preston, Keyfitz & Schoen, Causes of Death: Life Tables For National Populations, 404 (1972); (men outlive women between the ages of 25-54 Netherlands, 1931; ages 10-19 Portugal, 1930; ages 10-14 Scotland, 1951; ages 10-14 Spain, 1930; ages 15-19 Sweden, 1930; ages 15-19 Switzerland, 1930).

Rutherford, in examining agespecific death rates in the U.S. from 1910-1965, found that malefemale differences declined sharply below the age of 5, was static between the ages of 5-49, and increased sharply above age 50.

Rutherford, Analysis of Trends in Sex Mortality Differentials in Developed Countries, 13 (1970).

(Ph.D. Dissertation, Sociology, University of Calif. at Berkeley) Further, the hypothesis that advanced economic development is a sufficient condition for female biological superiority to manifest itself appears to be disproved by the data comprised from the United Nations Statistical Yearbook 1977, Table 19 at 80-85, U.N. Dec. STI ESA/STA/SER. S/5 (1978); U.S. Bureau of the Census, Statistical Abstract of the United States,

34

35

1979 at 70-73 (100th ed. 1980); Dept. of International Economic and Social Affairs, United Nations, Demographic Yearbook 1977 Table 22 at 442-63, U.N. Doc. ST/ESA/STA/SER. R/6 (1978) cited in U. Chi. L.R. 505, 546 n. 202 (1980); Northern Ireland, Denmark, Soviet Union, Finland, France have higher Sex Marital Differentials than the United States; however, Switzerland and Norway have smaller Differentials than the U.S. The range varies from 5.34 years in 1971 in the German Democratic Republic to 10 years in the U.S.S.R. in 1971-1972.

Variations within the U.S. 19691971 male expectancy of life at birth ranged from 60.92 years in District of Columbia to 71.02 years in Hawaii. Females ranged from 70.5 years in District of Columbia to 77 .01 in North Dakota. Overall, the sex mortality differential ranges from 5.77 years in Hawaii to 9.0 in Wyoming. Greville, Some Trends and Comparisons of United States Life- Table Data: 1900-1971, in 47 U. Ch. L.R. 505, 546 n. 202 (1980).

Hekeler, Laycock, Sullivan, Sex Discrimination in Employer-Sponsored Insurance Plans: A Legal and Demographic Analysis, Ul Chi. L.R. 505, 536-537 (1980) citing Kimball, Reverse Sex Discrimination; Manhart, (1979) Am. B. Foundation Res. J. 83 at 11113; Randall, Risk Classification and Actuarial Tables as they Affect Insur. Pricing for Women and Minorities, in U.S. Comm'n on Civil Rights, Discrimination Against Minorities and Women in Pensions and Health, Life and Disability Insur., (1978) at 527, 535-36, 607-08; Van Alstryne, Equality for Individuals or Equality for Groups: Implications of the Supreme Court Decision in the Manhart Case, 62 AAUP Bull. 150 (1978).

Enstrom, Cancer Mortality Among Mormons, 36 Cancer 825 (Journal of American Cancer Society, 1975); Frauman and Mayer, Jewish Mortality in the United States, Ethnic Groups of America: Their Morbidity, Mortality and Behavior Disorders, Vol. 1 - The Jews, Chapter 3, p.33, reprinted in (continued on page 40)

17

A BRIEF LOOK AT PORNOGRAPHY (continued from page 6)

pornography that has come under so much attack is that which is violent in nature; with its violence being specifically aimed at women.

To some, the last 10 years following the release of Deep Throat and the subsequent porn explosion have been a decade of decadence unmatched in American history. Even in 1970, with the release of the Report of the Commission on Obscenity and Pornography, there were those who forewarned of the dangers that were to come. 10 The report essentially concluded that there existed no harm in pornography and that censorship of it should be strictly limited.

But to the dissenting commissioners Morton Hill and Wilfred C. Link, this represents a "magna carta for the pornographer." To others, what has occurred during the last decade and what pornography has become is something far worse than anyone imagined. As leading feminists have so vehemently argued, pornography is in reality a medium in which the most prevalent theme is utter contempt for women . Gloria Steinem views pornography as distorted sexuality, the same way that rape is about violence, and not really about sexuality at all."

Helen Longino maintains that the key element contained in pornography is that the depicted sexual behavior is presented in such a way as to endorse the degradation. This is represented by the female characters providing pleasure to the participating males; and what is worse, there is no suggestion that this sort of treatment is inappropriate to their status as human beings.12 Author , Susan Brownmiller frequently points out, "images of violence against women must be as unacceptable as violence against Jews and blacks. If the illustrations show the lynching of blacks or the gassing of Jews, people would understand that as a political issue. But tie a woman up and that's sexy. "13 Kathleen Barry has stated that "in movie after movie women are raped, beaten, ejaculated on, urinated on, anally penetrated, and with the advent of snuff films, murdered in an orgy of sexual pleasure. Women are the objects of pornography, men its largest consumers, and sexual degradation its theme." 14 Andrea Dworkin speaks with rage of the failure of society to acknowledge the atrocity of widespread violence against women. "A woman nearly naked , in a cell, chained, flesh ripped from the whip, breasts mutilated by a knife; she is entertainment, the boy next door's favorite fantasy, every man's precious right, every woman's potential fate."11 Feminists, and feminist groups have been leading the fight against violent pornography and have brought to public attention some of its more shocking examples. The movie the Story of 0 , with its portrayal of a woman who is bound, gagged and sexually abused, is frequently protested by womens' groups nationwide. In 1976, a group of feminists in New York City picketed the film Snuff, which featured a man having intercourse with a woman, whom he subsequently stabs, kills and dismembers. Later that same year, a Los Angeles group that later became Women Against Violence Against Women (W A VA W) pressured Warner Communications to tear down a billboard which advertised the Rolling Stones Album Black and Blue depicting a woman in chains with bruises on her legs and face and a caption reading "I am black and blue from the Rolling Stones and 1 love it." However, the group that 18

must be credited with catapulting pornography as a feminist issue onto the national stage is New York City's . Women Against Pornography (WAP) founded by Susan Brownmiller in 1979. During the week of August 20 to the 27th, 1979, the group undertook the task of exposing women to the "capital" of all porn districts, Times Square in New York. They watched a slide show of photographs from hard to soft porn, as well as from the nation's billboard album covers and fashion magazines. Before them flashed the June 1978 cover of Hustler magazine with the body of a naked woman going head first into a meat grinder and coming out hamburger on the other side; the cover of an album called Choice Cuts by the rock band Pure Food and Drug Act, which bears a corner-to-corner photograph of a woman's naked buttocks stamped with the government seal of approval; and the cover of Slam, an adolescent humor magazine showing a man in work clothes and a hard hat driving a jackhammer into the vagina of a naked woman on the floor beneath him.

The feminists' view that pornography is expressed violence against women, coupled with the view that because of its harmful effects should be censored, have been met with equal vigor on the part of the opponents of censorship who base their arguments on the view that pornography is protected as "free expression under the First Amendment." Noted Harvard law professor Allen Dershowitz went so far as to refer to feminist advocating the censorship of pornography as "new McCarthyites."

Also, those who maintain that pornography is protected speech point to the lack of any hard evidence which shows that there is any causal connection between pornography and delinquent behavior or a degrading attitude towards women.

Recently, however, there have been some substantial findings regarding research into the harmful effects of pornography, especially violent pornography . The leading researchers in the field, Neil Mamuth and Seymour Feshback, have done numerous studies testing the effects of violent pornography on male subjects. They found that more than half the men interviewed after watching violent pornography say that there is a strong possibility that they would commit a rape if assured that they would not be caught. 16 Another leading researcher, Professor Ed Donnerstein of the University of Wisconsin, reported in "Porn Commission Revisited": Aggressive Erotica and Violence against Women: "[T]here is good evidence to suggest that the observation of such aggressive acts could reduce restraints against subsequent aggressive behavior. Furthermore, as noted in the work of BUrkovitz, one important determinent of whether an aggressive response is made is the presence of aggressive abuse. Not only objects, but individuals can take on aggressive value if they have been associated with observed violence. This increase in aggression should be especially true for previously angered individuals who are already predisposed to aggression. The present results show that exposure to aggressive-erotic film was able to increase aggression to a higher level than that of erotic film."

Donnerstein also reports that angered males who have watched the aggressive-erotica displayed aggression selectively to females but not to males. This study further demonstrates the point that interpretation and attitude as well as imitation caused aggression to be selectively exhibited. Once a particular person is seen as a scapegoat, he or she will be the target for aggression. Donnerstein asks, "Why would the aggression against females be increased after exposure to the aggressive-erotic film? One potential explanation is that the females' association with the victim in the film made her an aggressive stimulus which could elicit aggressive responses." 17 Though there have been countless other studies done on the effects of pornography on behavior some of which have been very extensive, the fact remains that it is difficult to demonstrate the real effect of pornography through research for a number of reasons: first, we do not know the relationship among what people believe and what they tell researchers they believe; second, it is unknown what kinds of things they think they will do and what they will actually do and under what circumstances they will do it.

And third, material that is not pornographic in one context may be in another.

Despite the evidence uncovered in such studies as those

by Donnerstein, Malamuth, and Feshbach, and the outcries of feminist groups, pornography continues to flourish. Present estimates place the amount of revenue generated from the sale of pornographic materials somewhere in the neighborhood of four billion dollars. However, while the growth of the pornographic industry continues, the means for reaching its audiences are rapidly changing . Just as the paper back "dirty novels" gave way to the glossy men's magazines as the chief vehicle for printed porn, and the cheap stag films have given to more lavishly produced feature adult films, so too is the entire porn district of old, with rows of adult book shops and movie houses, giving way to a new viewing area - the home television.

It seems quite clear, and many people agree, that the future of pornography is in television. At present there are eighty million homes with television in the United States.

Three million have video cassette players, twenty-one million are wired for cable, and a period of explosive growth lies ahead. The number of cable subscribers will triple by 1990 and the video cassette player sales will increase five-fold during the next four years. The reasons that these figures are so significant is, of all pre-recorded cassette tapes sold, 25 to 50070 are X-rated, according to industry sources. Also, results have shown that when a separate network offers sexually-oriented films, their cable percentage of subscribers willing to pay the extra monthly charge regularly exceeds 50070 and has reached as high as 95070. 18 Video stores are opening all over the country offering both sales and rentals of adult films. Rough estimates put the number at 4,000 for the total of X-rated, 35mm movies produced, and nearly all are available on tape. As well, various distributors of X-rated films are reaping huge profits. In 1977, Robert Sumner, the operator of the movie theater Third World where Deep Throat premiered, formed Quality X. He now has at least twelve competitors.

Examples of the growth of sex on cable TV can be seen throughout the nation. In Columbus, Ohio, Qube Cable, a division of Warner Amex, offers a premium channel featuring soft-core movies, which accounts for nearly 50070 of the revenues. ON TV, a Phoenix based cable company, reports that two-thirds of its subscribers are paying an additional five dollars per month to view sexually oriented movies. And Nightowl, a Michigan based operation, reports that 90 percent of its subscribers in Milwaukee and 95 percent in Ann Arbor are paying the additional charge to watch similar movies. In addition, Escapade, which is basically Playboy Magazine converted into television form, had 120,000 subscribers in its first year. At present there is only one city where hard-core X-rated movies can be subscribed to and seen on home television and that is Allentown, Pa. Twin County Towns Video has been offering a service there since 1978 with no reprisals from law or local citizens, and it seems inevitable that in the near future more cable companies will be offering the same kind of hard core entertainment.

In most homes, the effect of erotic entertainment cannot be clearly measured. It is simply too soon to assess whether it might truly undermine morality, corrupt children, and dehumanize sex; or whether it will, like so many fads, lose its appeal and begin to fade away.

It is difficult to foresee what lies ahead for pornography.

Whether the Supreme Court will decide any more Roths, Memoirs, or Millers is impossible to say. Nor is it clear whether the recent themes so prevelant in porn, those of violence and degradation of women, will continue to resist attacks waged against it. Research into the effects of pornography on the individual and society will no doubt go on, but their findings are inherently limited and by no means conclusive. The one event that does seem certain is that with cable TV and video recording booms already underway, pornography is going to be exposed to a much larger audience.

Whether it will measure up to viewer expectations or lose its prurient appeal remains to be seen. (continued on page 38)

19

WIFE RAPE: "I DO" ID OES NOT 'M EAN "I ALWAYS WILL" "But, if you can't rape your wife, who can you rape?"

- CALIFORNIA SENATOR BOB WILSON (1979)1

BY LISA RICH ore than 300 years after Lord Matthew Hale, a 17th century M Chief Justice in England, set down dictum that came to be regarded as the basis of the marital rape exemption in the common law of the United States, men continue to echo his proposition and his sentiments.

Justice Hale declared: "But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto the husband which she cannot retract."2 Thus, under Hale's contractual approach, once a wife consents to the marital rights of the husband to have intercourse with her, she has irrevocably consented to intercourse at any time her husband desires it. There is no necessity for the wife to consent, or even to be informed before each instance of intercourse, for by virtue of the marriage contract she has declared her accession ad infinitum. In other words, once she says" I do" it means she always will. This notion has come to be known as the "implied consent doctrine" and continues to stubbornly pervade throughout modern thought and statutes. J This "implied consent doctrine" is concluded to have its origins in the theory of woman as the property of her spouse, and harbors that her identity merges as one with his upon their marriage. 4 Thus, not only is she possessed of no legal rights as the wife of her husband, but she also is denied her personal rights and desires as well, going so far as to legally impose upon her, sexual activity which is unwelcome even from her spouse.

She is not acknowledged to have these desires, or lack of them, in and of her own volition, but rather her desires and needs are only seen to be an extension of those of her spouse. Once married, the woman becomes a non20

person in her own right, and is under complete control of her male counterpart in sexual relations.

In spite of the progression in the recognition of the legal rights of a married woman in external matters as expressed in the Married Women's Property Acts of the 19th and 20th centuries, l a complementary recognition of a married woman's personal rights in regard to control over her own body as opposed to her husband's control, was not reflected through a change in the rape statutes of the states. At present, the laws concerning rape, its definitions, applications, and limitations, in an overwhelming majority of the states, include the marital rape exemption, allowing a husband to legally rape his wife. 6 A typical example of the wording of such a statute defines rape "as forced sexual intercourse with a woman who is not his spouse.'" Thus, under a statute such as this, a man could not be charged with rape if he is married to the woman whom he forced intercourse upon. In this prevailing situation, a married woman seems to have little legal recourse short of divorce.

A limited number of states have begun to concede to modern day realities of women as independent individuals, who should be legally recognized to have full control over and responsibility for their sexual路 activities even within the bounds of matrimony.8 In these jurisdictions a license to marry is not also viewed as a license to rape. The state of Oregon was one of the first to remove the spousal rape exemption from their statute in 1977. 9 At present in Oregon, any male "who has sexual intercourse with a female commits a crime of rape in the first degree if: (a) the female is subject to forcible compulsion by the male," this applies regardless of the marital status of the

parties, even if they be married to one another. 10 This statute is probably the most nationally familiar as the result of the notoriously publicized case of John and Greta Rideout, the first case in which a husband was charged with raping his wife while the couple was living together at the time of the incident. II Although John Rideout was eventually acquitted of the crime, this case opened the doors of the courts to litigation involving controversial and innovatively amended statutes permitting wives to prosecute their husbands for rape while the couple was still cohabitating. It also led the way for abused wives who were fearful to come forth and avail themselves of the legal .system in order to protect themselves, and seek the punishment of their well-known assailants.

In spite of the progress made in a small minority of states such as Oregon, that seek to provide their married female citizens with rights in regard to rape which coincide with those rights possessed of their single female citizens, a larger minority of states extended the exemption privilege husbands enjoy to males who live with women not legally their wives. 12 This extension is a step backward, representing an even further abuse of women's rights, for under it, the men that rape women with whom they live are exempt from a charge for the crime in selected states, without ever having married the women. In other words, these men are now exempt under a marital privilege without taking on additional legal responsibilities that marriage entails. In these instances, the weak and archaic justifications for the exemption of a husband from the crime of wife rape of "implied consent" and "woman-asproperty" are not even applicable since no legal marriage between the couple ever existed. Here, these states

have extended a privilege to those cohabitating males without also having supplied them with additional res ponsi bili ties.

An example of one such jurisdiction which has extended this exemption to males cohabitating with women to whom they are not legally wed is the Commonwealth of Pennsylvania. At present in Pellnsylvania under 18 Pa. C.S.A. ยง 3103 prescribing spousal relationships in terms of the criminal offense of rape, the language of the statute provides " ... the definition of an offense excludes conduct with a spouse, the exclusion shall be deemed to extend to persons living as man and wife, regardless of the legal status of their relationship: ... " Therefore, by the terms of this statute a woman who is cohabitating with a man in the Commonwealth under such a relationship, even though not legally married to him, may not charge him with raping her, despite an occurrence of forced intercourse between the couple.

However, under the same statute, Pennsylvania does allow a woman to charge her husband with the offense under certain limited circumstances, those being: if the couple is living in separate residences, or if the couple is living in the same residence but under a written separation agreement or by an order of the court. 13 Although these provisions provide some protection for the married woman in seeking to prosecute a spouse who forced intercourse upon her, the circumstances of the offense must be such as fit neatly within one of the limited exceptions recognized by the statute. Unfortunately, as is more common, the sexual conduct does not, and this is where the legislation such as is operative in Pennsylvania, fails in providing protection and redress to the victims of wife rape. Since the attack does not fall within this exceptions clause, then the controlling rape statute becomes 18 C.P.S.A. ยง 3121 which defines the offense of rape in Pennsylvania as one in which the actor engages in forced sexual intercourse " ... with another person not his spouse ... " fully incorporating the marital rape exemption and leaving the victim without a legal remedy for the injury.

An attempt was made by legislators in the Commonwealth to amend the rape statutes to remove the marital rape exemption in order to hold that

husbands currently cohabitating with their wives without restriction, could be charged in an incident of wife rape. This bill, however, was defeated in 1982," so that currently husbands in Pennsylvania in most instances are still free to force their wives to have intercourse with them and be free of all criminal liability.

At its broadest extreme, the marital rape exemption is further granted in several states to men who rape women with whom the women have had prior sexual relations. IS These social companions of the raped victims are also shielded from liability for an incident of rape only by virtue of their status as social companions of these women, and because the couple has had voluntary sexual relations at a previous time. The statutes are thus giving a lover or even a date

license to rape a woman because she is familiar and because she has at one time consented to sexual conduct. Her consent at a prior instance is then interpreted as giving a blanket consent to every occasion upon which her companion desires to have intercourse with her. This interpretation is grounded in the "implied consent" theory, but here the woman is entirely stripped of all rights and benefits of a marital or pseudo-marital relationship, for at this extreme the couple are not even living in the same residence. In fact, after the rape incident, they may never see one another again.

It becomes clear that this situation excusing a social companion is more closely connected to rape by a stranger than to rape by a spouse. It is also apparent that these types of stat(continued on page 23)

21

CLOSER TO HOME: A Look Inside Pittsburgh Action Against Rape

ince its inception in Pittsburgh Action Against Swomen, Rape (P.A.A.R.) has helped thousands of men, and children throughout Allegheny County 1972,

regardless of race, religion, age or economic status who have been victims of sexual abuse, assault, or harassment.

This nonprofit organization was established to help those so victimized to emotionally and psychologically confront their experiences, and proceed positively with their lives.

P.A.A.R. provides counseling services to both the victims and their families, in addition to assisting them in obtaining medical care, accompanying them to police stations, and when necessary, into court, all without compensation from the victim. A 24-hour hotline is also available so that these victims may receive immediate care, support, and information, at anytime of the day or night as well as on weekends. The organization, however, does not provide services for the offender.

Funding for this nonprofit membership organization comes from a variety of sources. The major portion of their resources is provided by the Pennsylvania Commission on Crime and Delinquency, the Pennsylvania Department of Public Welfare, and from Allegheny County.

P.A.A.R. also receives grants from numerous local foundations, corporations, and community service groups, as well as from its members and generous individuals.

A staff of 12 full-time professionals are employed by P.A.A.R., along with a considerable number of volunteers from varying professional backgrounds such as nursing, medicine, and law, who provide services in the areas in which they are qualified. Other volunteers complete a 40-hour training session which includes attending lectures, demonstrations, and discussion groups in order to participate in the volunteer counseling program. The P.A.A.R. interacts with various other organizations and branches of the government including the District A ttorney's office, the Allegheny County Sex and Child Abuse Squad, the City of Pittsburgh's Sex Assault Squad, and with the Pittsburgh Police Department.

In addition to its services to those who have previously experienced sexual abuse or assault, P.A.A.R. provides preventative educational programs for the community.

Speakers travel throughout the county to schools and colleges teaching students from kindergarten through graduate level, personal safety techniques and preventative measures concerning sexual assault, abuse and harassment. Educational workshops and seminars are also given for the medical, legal, and law enforcement professions so that they may better service the needs of these victims as well. Business organizations and social groups in the outlying communities may request lectures from P.A.A.R. to inform and instruct their members interested in preventing further sexual abuse within their respective areas or fields.

A full-time professional counselor for P.A.A.R., Ms. Ann Sadler, was interviewed by JURIS, and was asked to comment specifically on the subject of the prevalence of wife rape particularly in this geographical area. Ms. Sadler approximated that nationwide, 600,000 rapes of married women by their husbands occur each year, with some 30,000 of these happening in Pennsylvania. She finds that most spousal rape incidents occur in low socioeconomic families, with little education, and a history of childhood sexual abuse and violence. However, she cautions that perhaps women from these low income groups

22

tend to report such rape incidents to a service such as P.A.A.R. morefrequently because they are without financial resources and have nowhere else to turn. On the other hand, if such sexual abuse occurs in a more affluent situation, the wife may have the money or a career of her own and be capable of living independently or seek shelter with other relatives. Ms. Sadler notes that spousal rape does occur in all economic, social, religious, and professional areas, the difference being the frequency in which it dominates in the lower socio-economic groups.

Drugs and alcohol are present in almost one-half of the Wife rape cases, and additional physical abuse to the wife is present in the greater majority of the incidents. A more common occurrence even than wife rape, is the raping of an ex-wife by her former husband. This situation presents itself most often when the couple have separated and the wife has, or is about to, institute divorce proceedings.

These sexual attacks are viewed by Ms. Sadler, as either a final attempt by the husband at showing the Wife that he is still able to control her, or as a punishment for abandoning him and his needs.

What P.A.A.R. is able to do for these victims of wife rape is limited in the legal realm. Since Pennsylvania adheres to a marital rape exemption statute 18 Pa. C.S.A. ยง 3 121, in that it includes in the definition of rape". . . sexual intercourse with another person not his spouse, " the hands of the victim and the counselors are tied. If the couple are living together and the wife is raped by her husband, she is in a worse position for prosecuting him than if she was unaware of the identify of her assailant. The counselors provide her with the medical, emotional, and psychological care that she requires, and make known to her the limited rights and options the law provides. The victim is given shelter if necessary and continuous support and counseling.

Only if the spouses were living in separate residences or living together under a written separation agreement or by an order of court, under 18 Pa. C.S.A. ยง 3103 can the wife prosecute her husbandfor his actions. If this situation presents itself, only then may the P.A.A .R. counselor advise the victim of the possibility for prosecution specifically for the rape.

The remedy for a wife victimized by this situation can only come through a change in legislation, but as is pOinted out by Ms. Sadler, this can only be seen as a final step in a lengthy process. It must begin by a change in society's attitudes from viewing women as the property of their husbands to women as an equal partner in the marital relationship. And by an erosion of the myth of women as subservient partners, with sex being an obligation to be provided to the husband at will by virtue of the marriage contract. Women must be encouraged not to blame themselves for the rape, and be educated on how to prevent its occurrence or re-occurrence in the marital relationship. She also believes that society should be reminded that the raping of any woman and particularly a wife is not a sexual act, but rather a violent one relating moreso to the husband's probblems with power and dominance rather than to his struggle with love and desire. Ms. Sadler recognizes that the present laws in Pennsylvania fail to establish a woman's right to refuse sexual relations with her husband once she marries him, but she feels that before such a legislative change can come about, a change in societal attitudes toward the subject must prelude this legislative revolution, and the time to begin this metamorphosis is at hand.

WIFE RAPE (conlinued from page 2/)

utes which abuse and viciate the personal rights of women to fu ~ly control their bodies and their lives have perverted the purposes of enacting rape statutes at all. These overly extensive laws should be reconsidered by the legislators in an effort to reevaluate their impact on the rights of the female victims, and to realign these laws to reflect the realities and needs of modern women in keeping with their equal and vital role in society.

An excellent study performed on wife rape, its effects, and an analysis of both the husbands and wives involved has recently been documented

by Diana E.H. Russell, Ph.D., in her book, Rape In Marriage. 16 In her work, Dr. Russell conducted a California field study of 930 women, 87 of which reported one or more incidents of wife rape occurring in their marriages. l7 In this study, Dr. Russell and a team of counsellors explored in candid detail the experiences of the rapes of these victims, the events leading up to the incidents, the after effects on their marriages, and the feelings of the women themselves.

The investigation poses a multitude of intricate and delicate questions such as why some men do rape their wives, the relationship between wife rape and wife beating, why women remain with the men who rape them, and how this outrageous conduct can best be deterred. It is admitted that Dr. Russell's study was restricted to a geographic area which some skeptics may hold not to be representative of the entire country, or present an equal and realistic picture of the frequency of wife rape in all marriages. 18 However, the research discloses that in fact a wide range of socio-economic, religious, racial, and ethnic groups were represented by the cases reported, and in the final analysis, Dr. Russell discovered no conclusive disparity in the occurrences of wife rape in the various categories. There appeared to be an equal distribution of wife rape incidents in all of the marriages without regard for the racial, educational, religious, or socio-economic histories of the parties. 19 Although the data here is limited in scope and detail, Dr. Russell's work must be highly commended for its informative, innovative, and pioneering efforts on the subject of wife rape. It is the first to

explore extensively this heretofore forbidden and intimately tragic flaw in society, and attempt to expose its existence so that it may be treated, prevented, and punished as the violent and abusive behavior that it is. Rape In Marriage is highly recommended in this area as it explicitly recognizes an intensely sensitive subject that most of society takes for granted as the norm, and reveals its truly tragic character to an amazed and disbelieving public.

What then can be done preventatively and curatively to end this rampant abuse of women in cases of wife rape? Changes in legislation are crucial and immediately necessary.

Wife rape must be legally recognized as a crime in all jurisdictions, and be aggressively prosecuted by the victims and their legal counsel in order to protect the rights of married women and to make it known that this abuse will no longer be tolerated. These changes will be hard won, however, and will not be the definitive answer to ending wife rape.

As was stated, the longstanding history of the acceptance of wife rape is rooted in the "imp~ied consent" and "woman-as-property" theories, and this then is where the erosion of wife rape as acceptable behavior must initiate. Women themselves must be made aware that they are not required by virtue of marriage to acquiesce to unwanted intercourse every time their spouse desires it. It is important that women make their feelings known concerning this type of conduct before their marriage, and reinforce their beliefs during its formative stages. All too often wives see themselves as duty-bound to perform sexually for their husbands on demand, and if they refuse and are forced to have sexual relations, they see themselves as failing in their duty, rather than viewing the incident as one of rape. Fear may also be a motivating factor in many wife rape incidents.

Husbands are usually physically much stronger and larger than their wives, and can easily force them into intercourse either by threats or actual physical force. Many wives too, may be afraid that if they refuse their husbands that more severe abuse will occur, or that they will be punished by their spouse in refusal of financial resources or by his infidelity.

Other women may see no alternative but to acquiesce and remain mar-

ried to the husbands who rape them.

Many have no other source of economic support and are limited in an attempt to care for themselves as a result of their age or lack of marketable skills. Some may view an men as possessing the same insensitivity to the feelings and desires of women, and see no better alternative to their present position. The presence of children in the family may also be a consideration, and a number of wives may feel that their children must be supported and nurtured路 in a dual parent home despite the abuse their mother must suffer.

Regardless of the reasons wives allow this conduct to continue, it becomes obvious that there is a great need for all women and society to be educated and informed of the severity of the problem, and of the corresponding rights women deserve in relation to it. Primarily, women must learn to view themselves as independent and self-controlling individuals, particularly in the area of their sexual activity, irrespective of their marital status. They must realize that they control their own bodies, and that they are not the "property of" anyone but themselves. Frequency of sexual intercourse between a couple is a private concern, but it should also be a mutually respected one, and when the wife is forced beyond her will to perform sexually, it is then that the laws should protect her if she chooses to avail herself of them, just as single women are legally so protected.

Women should also learn to seek solace in others, to reveal their problem once recognized, and to act to correct or punish it if possible. It is only by reporting such incidents that the public will become informed that wife rape is a real and persistent activity which necessitates a legal remedy. However distraught or afraid the woman is, she must realize that alternatives do exist, and that she is not condemned to remain a victim of such abuse for life.

Once women become aware of the problem and their need for legal rights to combat it, then they must shoulder the burden of educating the remaining public and convince them of the need for legislative reform. Unfortunately this job will be a difficult one, for the overwhelming majority of legislators are males who probably were themselves indoctrinated by the (conlinued on page 39)

23

Paternity Leave SOCIAL ATTITUDES AND LEGAL OBSTACLES

By Steven Lubetsky REVERSE DISCRIMINATION I. Difficulties men face in taking paternity leave A. Employment discrimination against men who take paternity leave In their treatise, "The Equal Rights Amendment: A Constitutional Basis For Equal Rights For Women," Brown, Emerson, Falk and Freedman point out how sex classifications, once having been accepted, have frequently been "employed merely because members of one sex actually or apparently predominated in the smaller group to whom the law was really directed, whether or not a narrower more equitable classification was practicable. This common practice reinforced the pre-existing majority of one sex in the regulated or protected activity, •for example, if only women can get extensive leave for child-rearing, it becomes economically impossible for men to stay home to care for their children while their wiv'es work.' " I At. present, few companies in the United States provide for paternity leave. 2 Furthermore, it is impossible to predict that if paternity leave became available as an option for men as it presently is for women, that suddenly massive numbers of male employees would apply ror it. To the extent that the law is a reflection of social attitudes, it is arguable that even if paternity leave were granted on a regular basis, the accompanying social stigma would probably serve as a deterrence to exercising that option. In fact, whenever the policy has been instituted, only a small group of men have taken advantage of it. 3 Nevertheless, there are undoubtedly many men who by choice or by circumstance have assumed the primary responsibility of child care while their wives have been pursuing careers, and have been discovering serious obstacles confronting them . A recent article in the Wall Street Journal, reprinted in Working Woman, describes the plight of one, Bill Demers, who left his position of industrial engineer, to care for his children, while his wife was completing her medical school education. During the course of her studies, Demers' wife found that she "always had to be a wife, mother, and medical student amongst a group of people who had only one thing to do, and

24

that was to be a medical student . .. it was a tremendous strain on her."

Ultimately, "it reached the point" that " either his wife was going to quit med school, or Demers was going to have to quit what he was doing, or the marriage was going to have to break up."

Not having the heart to ask his wife to leave medical school, Demers decided to make the sacrifice himself and left his industrial engineering job. In January, 1981, after more than two years of homemaking, he attempted to reenter the labor force.

Demers found employers unexpectedly hostile. Charles Arons, president and chief executive officer of Casco Industries in Los Angeles, was quoted as saying that "the hurdles men face returning to the job market are about three times greater than those faced by women ... there isn't a male I know of who would accept raising kids as a legitimate excuse for not working for three years." As Demers related, "I felt I was more of a curiosity than a serious contender for any job."· In a survey of male employers administered by political scientist William Farrell, one of the questions asked was their reaction to a resume presented by a male applicant who stated that for two years he took care of his children. The typical response was, "Oh, he must be a fag."l When asked if they would ever consider taking time off to care for children, the usual answer would be "Personally, I would like to do it, but I could endanger myself here at work - imagine telling my boss I' m going to be a mother for a year."6

B. Maternity leave and Programs to assist women in reentering the /abor force, contrasted While paternity leave has been a rarity where men are concerned, companies have been exceptionally generous in granting maternity leave to female employees.

In fact, maternity leave not only is systematically granted, but not infrequently, it has been imposed as a matter of company policy.

Among the leading examples of forced maternity leave have been those recurring in various school board cases.

One of those decisions was Cohen v.

Chesterfield County School Board, 474 F.

2d 395 (4th Cir. 1973). In that case, the plaintiff, a social studies teacher at Midlothian HighSchool in Chesterfield County, was coerced into maternity leave at the end of her fifth month of pregnancy. She advised the School Board on November 2, 1970 that she was pregnant and her estimated date of delivery was April 28, 1971. She produced a written opinion from her physician that she could work as long as she wished and sought an extension until April I , 1971. The Board refused her request and granted her leave effective December 18, 1970. The plaintiff then submitted an alternative request for an extension until January 21,1971, when the semester was scheduled to end. The latter request was also denied, as the School Board had already found a suitable replacement, and insisted on conformity to its regulations. The plaintiff argued that the maternity leave policy operated to deprive her of due process and the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution.

The court rejected her argument, holding that "pregnancy and maternity are sui generis, and a governmental employer's notice of them is not an invidious classification by sex." Rejecting a purported analogy between pregnancy and physical illness, "the maternity leave policy of this school covers an indefinite period of time, after delivery when the young mother may wish to breast feed her baby, or otherwise devote herself primarily to its care. A few weeks after a normal delivery, a healthy young mother is suffering no physical disability . If she wishes to remain on maternity leave for some months thereafter, she does so because of a temporary preference for childcare over a return to teaching, and not because of anything remotely resembling illness or physical incapacity."

Dissenting, Circuit Judge Winter concluded "that the regulation is a discrimination based on sex . Citing the dissenting opinion in SchaUman v. Texas Employment Commission, 459 F. 2d 32, 42 (5 Cir. 1972), where the court upheld a Texas regulation requiring a pregnant state employee to begin maternity leave not later than two months prior to the expected delivery date, Winter stated that •female employees are the only employees ... who become pregnant; it follows that

they are primarily dismissed from work on account of their sex.' " The Cohen decision was in fact subsequently overturned along with a Cleveland rule requiring "a pregnant school teacher to take unpaid maternity leave for five months before the expected childbirth, with leave application to be made at least two weeks before her departure,"

(Cleveland Board of Education, et al. v.

La Fleur, et al., 414 U.S. 632, 1973). In the La Fleur case, eligibility of a teacher to return to work was not granted before "the next regular semester after the child is three months old." In his opinion, Justice Stewart determined "that the mandatory termination provision of the Cleveland and Chesterfield County maternity regulations violate the Due Process Clause of the Fourteenth Amendment, because of their use of unwarranted conclusive presumptions that seriously burden the exercise of protected constitutional liberty ."

At this juncture, then, pregnant women and mothers who have recently given birth have, as a result of court decisions and legislation, such as the Pregnancy Discrimination Act of 1978, which made it unlawful for any employer to discharge female employees for pregnancy or childbirth related reasons, now have the option of continuing their employment, if childcare arrangements can be made, or remaining home with their newborns, without being subject to social ridicule in either case. Expectant fathers, or men whose wives have recently borne children, rarely have the luxury of that choice, without jeopardizing their reintegration into the labor force .

For those women who have chosen careers as full time homemakers, recent years have seen the implementation and expansion of numerous educational and employment services and workshops especially geared towards aiding such persons in reentering the labor market. 1 Indeed, there is no shortage of textbooks, manuals, and pamphlets offering career guidance to such women. Wider Opportunities For Women (WOW) , a Washingtonbased career planning and employment organization,8 and Project Re-Entry, an educational-counseling-internship program in Boston for women over age thirtyfive' are but two of multitudes of programs that have surfaced in the last decade or two.

Attitudes among employers towards women returning to the work force have become more favorable. Officials of employment agencies report increasing requests from companies for mature women. IO "If returning women are still young at heart and adaptable to learning, their maturity is in their favor," according to William V. Taylor, vice-president of Dacon, a California-based government marketing firm. Such employees, he re-

lated, are often better adept at meeting people, forming a positive image for the company, and they tend to make more responsible decisions.

"They bring a work ethic with them that you just can't touch with the younger kids," responded one personnel director.

"You'll get ten times the work you get with an ordinary employee," observed Helen 0' Rourke, vice-president of the Council on Better Business Bureaus. She contends that returnees "tend to be bright, compassionate, and dedicated with a natural bent for working with people and for research. II A statement issued by Charles Byres of AT&T seems to summarize the growing outlook employers have been assuming towards women returnees. "We don't really care how long women have been out of the job market. We're looking for qualified people to fill available positions.

And no one needs to feel defensive or apologetic about having raised children and run a home. We do count volunteer experience - particularly if she had a responsible leadership position." 12 As Eleanor Berman summarizes, "The climate has never been better for women getting a late start in seeking a career.''' J In contrast, many employers apparently "believe that if a man left the working world once for personal reasons, he may very well do so again. " There is also a fear that a male job applicant "dropped out for reasons he isn't willing to share," according to Thomas Schumann , director of selection and placement for Day tonbased Mead Corporation . 14 Advising on how to compose an effective resume, Linda Gruder, a resident of Lancaster, Pennsylvania, who has taught courses to women seeking to return to work, remarked "that women generally find it easier than men to omit activities or account for inactivity . •A man has to account for every minute of his life from the standpoint of work and time, but nobody questions what we women have spent the last twenty years doing .' ,," In contrast , the number of programs for men who have been absent from the labor market and wish to reenter have been limited, if not non-existent. As of the early 1970's, men were excluded from daytime continuing education courses at Temple University. I. The lack of such programs and materials directed to men justifies an inference that it is socially unacceptable for a man to have been away from the work force for any length of time.

II. Discrimination towards men in the /ow: Obligations for family support, AFDC programs, Social Security, Survivors' Benefits, Veteran's Benefits.

A. Reverse discrimination and stereotyping of family roles in the /ow.

Throughout the United States, a husband's obligation to support his wife has been predetermined by law, while a wife is

legally exempt from any obligation to support her husband. All but three states impose criminal sanctions against a husband for failure to provide support for his wife. 17 This principle is so immutable. that courts have refused to waive it even when deviant agreements have been made between husbands and wives. Courts have reaffirmed the husband's obligation to support his wife even in situations where the wife has independent wealth, and the parties agreed prior to marriage that the husband would be free of any obligation for support. Even a legal obligation for a wife to support an incapacitated husband has been imposed in only a minority of states. 18 Recent surveys suggest that public opinion is in accord with American law and public policy. The results of a 1977 poll commissioned by the National Commission on the Observance of International Women's Year indicated that over half of American women believe that "it is much better for everyone involved if the man is the achiever outside the home, and the woman takes care of the home and family." A New York Times/ CBS News poll in November, 1977 related that 43 percent of Americans believe that marriage is more satisfying if "the husband provides for the family and the wife takes care of the house and children."

An illustration of how public policy has stereotyped family roles is evidenced by Congress' attempted enforcement of the husband's legal obligation for support when it enacted Title IV-D of the Social Security Act, known as the Parent Locator and Support Program , August, 1975 . As a condition of participating in the Aid To Families With Dependent Children Program (AFDC), states were required to locate deserting fathers of welfare families and compel them to furnish child support. Although an objective was to minimize welfare expenditures, it is notable that no effort was made by the legislation to locate deserting mothers and obligate them to provide such support. In fact, a proposal advanced by the Carter Administration in August, 1977, permitted a single mother with children under the age of seven to remain at home and receive public assistance . The plan provided but one public job per recipient couple, operating on the assumption that in a normal family, only one parent, the father, works outside the home . Accordingly, the proposal would have favored men.I' In Graham v. Shaffer, 17 Ariz. App .

407,498 P . 2d 571 (1972), such policy was challenged by a father with custody of his nine year old son who declined employment due to his desire to personally care for his child, and, as a consequence, his AFDC benefits were terminated. The Apellate Court upheld the decision of the State Welfare Board which terminated the father's benefits in accordance with a re-

25

quirement that a father must be medically eligible for public assistance before a child could be considered dependent for purposes of public assistance grants under AFDC. As the father voluntarily rejected what the Welfare Board deemed as suitable employment, he did not qualify as an "unemployed supporting parent" ... as described by Federal statutes relating to welfare. The court cited King v. Smith, 392 U.S. 309,88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968), which defined dependent children as those in families without a "breadwinner," "wage earner," or "father." In other words, [he Graham court is intimating that by "supporting parent" or "breadwinner," Congress specifically had the father in mind, implicating that a mother has the privilege of refusing employment in order to care for young children without jeopardizing her AFDC benefits, whereas a father, even though he cannot make adequate childcare arrangements, has no such prerogative.

Another renection of the inherent bias with which the law has viewed family roles has been the tendency of American courts to automatically award custody of children to the mother in divorce cases. The reasoning has been that the mother is believed to be the natural caretaker of home and family . 20

B. Paternity Leave What would be most welcome in the United States is a system comparable to Sweden's Parental Leave Policy, introduced in 1974. Under this program, a parent caring for a newborn is entitled to a nine-month allowance to meet expenses incurred by the new addition to the family. The allowance starting at $160 a month is allotted to whichever parent, if any, was unemployed before the birth of the child.

If both parents were working before the baby's birth, the maximal allowance increases to compensate one of the parents for staying home to care for the baby.

Whichever parent chooses to stay home is granted a total of nine months' leave of absence from work at 90 percent pay. The mother and father may divide the nine months between themselves as they see fit.

The father may elect to stay home all those nine months while the mother works .

The enactment also allows a family 12 to 18 sick days a year in order to care for sick children at home. The father may use these sick days to remain at home caring for older children after the youngest child has been born . 21 There is evidence of strides being made in this direction in the United States as well. In a landmark case, Danielson v.

Board oj Higher Education, 4 FEP Cases 885 (1972), the plaintiff, a male schoolteacher who was denied paternity leave by the School Board, successfully challenged the School Board's regulations granting parental leave only to female employees . 22

26

Since Danielson, Congress, in 1978, approved the Pregnancy Discrimination Act as an amendment to Title VII of the Civil Rights Act of 1964. The 1978 legislation, prohibiting sex discrimination in employment practices on the basis of pregnancy,23 makes it possible now for men as well as women to take parental leave. 24 The Danielson decision and statutes such as the Pregnancy Discrimination Act, of course, are only beginnings. Any nationwide system of paternity leave, such as the kind implemented in Sweden, must be developed more comprehensively than what is currently in existence, both from a legislative perspective, and from a standpoint of social acceptability, if it is to be truly effective . But it is hopeful that the groundwork has been laid which will allow such development to occur.

C. Changes in Family Roles

The Parental Leave Act is but one of a series of reforms that have been occurring in Sweden in its attempt to symmetralize family roles . In 1968, the Swedish Government adopted feminist Eva Moberg's proposals that parenthood should be shared equally and that men's roles would prohibit both statutory and common law presumptions about the mother being the proper guardian solely because of her sex , theoretically making custody available to fathers as well as to mothers. 21 A revamping of familial roles, in addition to allowing women greater opportunity in the work place, and alleviating husbands of the exclusive responsibility of family support, would, in addition, allow men greater leeway to take risks and pursue meaningful interests, perhaps permitting them to accept lower-paying, but more satisfying positions, without being shouldered with guilt that they are neglecting their responsibilities . 26

D. Homemaker Payment Conceivably more men would be willing sacrifice their employment while women would have greater leverage in pursuing careers if housework became a payable profession. So long as housework remains unpaid, there is a tendency to devalue it. Were it a paid occupation , a man as well as a woman would have a greater sense of psychological freedom to stay home to care for children, since he would be receiving a legitimate income. 27 Such a program has been in effect in Sweden, for example , since 1948.

Sweden's program is aimed at maintaining single-parent families above the public assistance level. In addition to public assistance, the Swedish Government provides a family allowance grant to families headed by one parent who is unemployed.

Such a grant, in addition to public assistance, brings the income level of a singleparent household to two-thirds of that in a two-parent family. 28 One explanation for the Swedish system to

is the value it places on housework. There is a willingness on the part of the Swedish Government to employ professional workers to perform household services. A family that cannot provide such services on its own due to both parents working must rely on social service agencies. Thus the view of Swedish officials is that a single parent who performs such services for his/ her own family is engaged in socially productive labor, as such service would otherwise be performed by a social service agency.29 The United States, in contrast, is , excluding Japan, the only industrialized nation that does not offer a family allowance . Although public assistance has been available, at best, it brings the income of a single-parent family to only one-third of that of a two-parent household with a male wage-earner. 28

E. A New Work Schedule I. The Shortened Work Week Parents would be granted more time with their children were work schedules changed to ten hours a day over a fourday period instead of the more common forty-hour, five-day week. Citing a study by the American Management Association, Farrell states that among companies employing a four-day week, " efficiency increased 22 times more often than it decreased, and actual profits increased 13 times." The results also indicated that 98 percent of employers operating on a fourday schedule believed their employees were spending less time and money commuting to and from work, whereas twothirds of working mothers reported an easier time overall.

A four-day week in which one parent works Monday through Thursday, while the other works Tuesday through Friday, would allow the child to be with at least one or both parents four days every week .

Such a system allows a balance between the father's and mother' s attention, and a third person's or child-care center's attention. 29

2. Staggered Hours Under such a plan, one parent could work, for example, from 7 A.M. to 3 P.M., while the other would work from II A.M . to 7 P.M. The consequence is that a child would be with a parental surrogate only four to five hours a day, while each parent would have the opportunity to spend either the morning or afternoon with the child .

Financially, such a system can have enormous benefits for industry. As rental costs can be exorbitant, it is tremendously wasteful for companies to be using their facilities only a third of the time. Metropolitan areas would also benefit from reduced traffic congestion, and public transportation carriers would face a less burdensome passenger load than exists at present during peak hours .30

3. Job-Sharing The advantage of job-sharing is that such a system enables a couple to have one full-time income while never leaving a child without at least one parent. The employer has a back-up person, should one be sick or cannot attend work on a given day for some reason, and generally has leeway to ask an employee to work overtime if necessary . Ji

4. Work at Home Probably the best alternative which allows either or both parents to pursue careers and remain at home with the children at the same time is employment inside the house. A recent article in the Pittsburgh Press concerned a woman, Meg Lopes , a computer programmer with Mellon Bank, who has installed a computer hookup in her home to the main office, enabling her to complete her assignments while supervising her three children. 32 With the advent of home computer systems, conceivably, both mothers and fathers in the not-too-distant future will enjoy the best of both worlds.

F. Child-care Alternatives Since much of the debate surrounding paternity leave concerns itself with childcare, such an option becoming mandated because of a lack of suitable child-care services, a word about day care seems appropriate.

Upon expiration of those nine months allotted by Sweden's Parental Leave provision, there is, of course, the necessity of adequate child-care facilities in the event both parents work. In Sweden, there is no controversy on the principle of expanding day-care services. In fact, there is agreement on the need for additional facilities.

The Swedish Government actively and heavily subsidizes development of daycare centers. Parental costs are based on a sliding scale, according to ability to pay.

Services in Sweden are universal, not confined to those families who can afford full fees or those with low incomes. The sliding fee arrangement accommodates children from all economic classes, removing any social stigma where public day care is concerned. JJ In the United States, on the other hand, Federal involvement in day care had been limited to two types: one variety of day care has been offered as a response to national emergencies , such as the program established during World War II , when numerous women were needed as employees in defense plants. At the close of the war, Federal support of such facilities was phased out.

The other type of day-care service has been established as a poverty policy to aid welfare recipients. 3 ' With the exception of tax deductions and/or tax credits available to families for child-care expenses, the United States has no national day-care policy other than

programs poor. 3'

for small segments of the

I. Do-It- Yourself Child-Care Arrangements This is perhaps the simplest and most inexpensive form of child-care that could be organized. Farrell suggests as an initial step advertising in local newspapers, companies, supermarkets, and NOW newsletters. He urges participation of men as well as women, so as to eliminate cultural stereotypes of women being the primary caretakers of children . A system such as this could require that each participant take one day off from work each month to contribute his/ her services . This would be a method by which employers could contribute to the Child-rearing process without incurring the costs of industrial child-care centers . The advantages to employers would be felt in the long run as the prospects of losing good employees would be reduced, and absenteeism and retraining costs would diminish ."

2. Industrial Child-Care As of the early seventies, the Office for Economic Opportunity estimated that an industrialized child-care program with sixty children would cost about $2050 per child annually, which, of course would be significantly higher today when inflation rates are calculated . The initial reaction might be that such a plan would be economically prohibited. But'when measured against the costs of training new employees, the benefits to industry could far outweigh the disadvantages.

The father or mother would have the advantage of spending the extra commuting time to work with the child.

Industrial child-care is not a novel proposal. During World War II, the Kaiser Ship Building Industry sponsored such a project when women employees were in huge demand. The program serviced thirty-eight thousand children over a twenty month period. Each center employed exceptional teachers, provided nourishing meals, and maintained an abundant supply of toys. There were fullscale efforts to keep abreast of the latest research on child-rearing .

Although such centers were dismantled at the close of the war, there has been a limited revival of such service among companies such as Chesapeake and Potomac Telephone Company, Control Data Corporation , and A YCO of Roxbury, Massachusetts . Unions, such as the Amalgamated Clothing Workers have also coniributed. And numerous social welfare organizations, such as the National Council of Jewish Women, have launched industrial child-care facilities . J7 Where a company is too small to allocate expenditures for child-care, or if it is too impractical, an alternative solution would be the approach such as that taken by the Ford Foundation, which reimburses its lower-paid employees for

every child under six in a child-care center. 38 3. Communal Living Arrangements One alternative that Betty Friedan advocates is communical housing facilities.

The suburban dream house, which became a pursuit of so many Americans after World War II, as well as today being almost impossible to afford, has only served to isolate women, she argues, and has frustrated them from realizing their full potential, forcing them into spending " more time doing housework than our mothers and grandmothers - and drove our husbands to ulcers or premature heart attacks, in the rat race to pay for them."39 Communal arrangements of the type Friedan encourages would more effectively serve the various family structures found in today's society. Such institutions could be designed with adequate space to allow for individual privacy, yet provide sharing of basic services such as laundry, libraries, recreational facilities - "services or amenities too burdensome or expensive - and lonely - for working couples or housewives, single or divorced parents, singles, young or old, to carry alone. ,,'0 G. Alternative Life Styles Although social acceptance may not as yet be very widespread, there has nevertheless been growing tolerance of alternative lifestyles, as increasing numbers of workers have been voluntarily opting, at least temporarily, to abandon the labor force and explore other interests. Breaktime: Living Without Work in a Nine- ToFive World is a study conducted by journalist Bernard Lefkowitz about the current rebellion taking place against the work ethic and people's growing rejection of the emphasis this culture has placed on productivity and consumption.

A study conducted in 1977 by Louis Henri Boki and Susan Gray of Fordham University suggested that as many as 25 to 37 percent of the unemployed have chosen not to work, if working meant accepting employment that does not suit their skills and interests. Rather than accepting whatever opportunities are presently available, the respondents believed "that each individual has a right and perhaps an obligation to himself to avoid spending most of his working hours in disagreeable activities, provided there are alternative means of support. " ..

Discussing what Daniel Yankelovich refers to as "the New Breed ," Lefkowitz, quoting the social psychologist, points out how "self-fulfillment became severed from success . They have come to feel that success is not enough to satisfy their yearnings for self-fulfillment. They are reaching out for something more and for something different . .. Somehow the conventional systems ,no longer satisfy their deepest psychological cravings for the full, rich, life. ,,42 (continued on page 37)

27

Premenstrual Syndrome: Legal Friend or Foe?

By Beth J. Shapiro

remenstrual syndrome. As a woman it frightens me. As PMS concept to explain the criminal behavior of women who were charged and tried for murder. R. v. Craddock (1981) Current L. 49 concerned a woman with a repremore, so that I will resist the temptation to demonstrate hensible history of 45 prior convictions including attempts on her own life. Ms. Craddock was charged with murder in unfounded disapproval.

Premenstrual syndrome (PMS) has increasingly become 1979 when she stabbed a fellow co-worker in a local pub. 6 It was Ms. Craddock's father who noticed that his the subject of heated debates among lawyers, medical and psychiatric researchers. Perhaps it is the vexatious problem daughter's erratic behavior occurred in a regular pattern of defining PMS that has professionals and scholars di- each month. Dr. Dalton was called in to diagnose and treat vided. Indeed, we will see that PMS is an elusive concept: Ms. Craddock while she was incarcerated. In accordance one that deserves further examination before labeling a with her own theory, Dr. Dalton diagnosed PMS due to a person as a PMS sufferer. hormonal imbalance and treated her patient with daily inAlthough it has been over fifty years since Dr. Robert jections of progesterone. Ms. Craddock was convicted of Frank was credited with uncovering the first symptoms manslaughter due to diminished responsibility caused by of PMS', he is still considered one of today's leading PMS. After a successful course of treatment, the Recorder researchers; Dr. Katharina Dalton also has been vocal in of London sentenced Ms. Craddock to three years the development of PMS as a medical phenomenon. Ac- probation. 7 cording to Dr. Dalton, PMS encompasses a wide array of Five months later, Ms. Craddock hurled a brick through physical and psychological symptoms caused generally by a window and turned herself into the police. Apparently hormonal imbalances which consistently recur at the same Ms. Craddock explained that she was not able to take her stage of each menstrual cycle. 2 Such symptoms common to prescribed dosage of progesterone for four days. The treatPMS include headaches, body pains, dizziness, vomiting, ment was continued, her behavior normalized, and she was irritability, insomnia, and confusion. 3 Of course, PMS released by the magistrate. 8 does not affect ail women in the same manner nor in the Unfortunately, physical complications are known to same degree of intensity. In other words, each potential occur with frequent injections of progesterone. Ms. CradPMS case must not be compared with previous cases as the dock's dosage was necessarily decreased when certain conbiological and mental histories are unique to each woman. traindications surfaced. Within a few weeks, Ms. CradDr. Dalton divides the average twenty-eight day dock found herself charged and convicted on two counts menstrual cycle into seven four-day intervals. She observes of threats to kill and one count of possessing an offensive that the PMS symptoms generally surface in the final weapon. She mailed a threatening letter to a police officer seventh (premenstruum) and the first seventh (menstrua- and appeared at the police station bearing a knife. Prior to tion) of the cycle. However, Dr. Dalton also points out sentencing, the progesterone dosage was increased and Ms. that it is not uncommon for the symptoms to linger even Craddock's condition stabilized. She was again sentenced beyond the onset of the menstrual flow. 4 Fortunately, for to three years probation, along with proper medical most women, the beginning of the menstrual flow brings treatment. • welcomed relief from monthly discomfort.

The defendant in R. v. English 'O killed her male comThe detection of PMS should not be confused with panion by driving her car at him, wedging her victim menstrual distress, which is what the majority of women between the hood of the car and a light post. Ms. English experience. Dr. Dalton defines menstrual distress as merely plead guilty to manslaughter due to diminished responsi"distress with menstruation and covers a far wider spec- bility caused by PMS. Ms. English was not known to have trum including: had any history of erratic, violent behavior but defense (a) Spasmodic dysmenorrhoea, endometriosis, pelvic counsel called in Dr. Dalton to make a proper diagnosis.

Dr. Dalton noted the symptoms: sterilization which tends inflammatory disease, galactorrhoea; (b) Symptoms which are present continuously or inter- to aggravate PMS, hypoglycemia, and an accumulation of mittently throughout the cycle, e.g., depression, adrenaline. Although the prosecution's expert witness did not concur, Dr. Dalton claimed that "PMS is a disease of anxiety, migraine, alcoholism, asthma; and, (c) Exacerbation of symptoms of systemic disorders the body and therefore a disease of the mind in that the during menstruation, e.g., bronchitis, rheumatoid bodily metabolism is upset and that upsets the mental processes." 1 1 arthritis, glaucoma. l" Meanwhile Ms. Craddock had changed her name to Distinguishing PMS from menstrual distress is of par- Smith to avoid media harassment. She then proceeded to ticular importance in discovering the cause of PMS file an unsuccessful appeal to overturn the second of her (etiology) and in the consideration of the proper treatment two sentencing orders. 12 Appellant first contended that the judge erred in instructing the jury that there was no quesof the disorder.

PMS has received tremendous coverage of late when tion of automatism to be considered. The appellate court English criminal court became the first arena to tackle the in defining automatism quoted from Bratty (1962) 46 Cr.

an advocate I am curiously attracted. I have a natural P inclination to reject such a notion, and yet, I want to learn

28

App. Rep. 1: Automatism was defined by the court of criminal appeals in this case as connoting the state of a person who, though capable of action, is not conscious of what he is doing ... it means unconscious involuntary action and it is a defense because the mind does not go with what is being done. IJ Lord Justice Griffiths concluded that the trial counsel had not laid the proper evidentiary foundation to support the automatism defense. In so ruling, he commented on the findings of the trial court, "It is quite clear from Dr. Dalton's evidence that (Ms. Smith) knew exactly what she was doing, intended to do it but was led into doing it because the dark side of her nature appeared as a result of being unable to control the impulse, which she would not have allowed to dominate her normally, due to the lack of the hormone progesterone." 14 The substance of the second issue, which appellant raised on appeal, concerned leaving the complete defense of irresistible impulse due to the temporary medical condition of a defendant in the hands of the jury. Lord Justice Griffiths did not follow R. v. Quick (1973) 57 Cr. App. Rep. 722 cited by appellant in support of her cause. The defendant in Quick was hypoglycemic and diabetic; this caused him to be either automatistic or legally insane, a determination eventually made by the jury. English law does not recognize the defense of irresistible impulse and therefore Ms. Smith's case "fell into the gray medical area ... between insanity and automatism."I' Lord Justice Griffiths ultimately found the appellant's arguments to be meritless. He spoke of the balancing of interests - fairness to the PMS sufferer and protection of society from the recurrent criminal behavior of Ms . Smith - and in affirming the very generous sentencing decision, he offered his final remarks on the subject of PMS: ... it is far better done, after wide public debate, through the law commission and other agencies and then

by Parliament (to consider) whether some very special limited defense is required. 16 Both Ms. Smith and Ms. English relied upon the Homicide Act 1957 s.2 which lowers a murder charge to one of manslaughter based upon "diminished responsibility."

The statute places the burden of proof on the accused while case law has held that the required standard of proof is the balance of probabilities, not the customary "beyond a reasonable doubt" standard. S.2 provides: (I) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing ... (3) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter. 17 The first American case which entertained the PMS phenomenon did not concern murder charges but rather a case of child abuse. The State of New York was introduced to PMS as a possible defense to criminal behavior in the pre-trial motions hearing of People v. Santos, lK046229, April 29, 1982. The defendant was charged with felonious

assault and endangering the welfare of a child. Ms. Santos, who was later diagnosed as suffering from PMS, battered one of her young children but alleges that she did not have any recollection of the incident. Criminal charges against the defendant were held in abeyance because Ms. Santos plead guilty to a significantly lower charge of harassment, a non-criminal violation. 18 The District Attorney's office did not elaborate on its reason for accepting Ms. Santos' plea and thereby skirted around a confrontation with the PMS issue. However, Ms. Stephanie Benson, the Santos defense attorney, believes that the prosecution was not able to prove Ms. Santos' guilt beyond a reasonable doubt. She does not feel that the prosecution would have been able to establish the necessary element of mens rea, the criminal intent, had the case gone to trial. 19 In the December 23, 1982 broadcast of the MacNeil-Lehrer Report, Ms. Newman, a representative from the District Attorney's office, denied that the pretrial motions judge ruled PMS as an admissible defense. Ms. Benson who also appeared on the show, referred to a New York Daily News interview in which Judge Becker was asked to interpret his ruling in the Santos case.

Judge Becker responded that he "ruled (PMS) was an admissible defense.")O At the close of the Santos bearing, Judge Becker expressed his thoughts as follows: "It is to be noted in penal law statutes throughout this country, a temporary emotional condition oftentimes leads to a defendant's conviction for a lesser crime than the one charged, such as one being charged with murder and subsequently being convicted with manslaughter.

Inasmuch as eruptions of the mind are admissible evidence at criminal trials why then should proof of psychiological eruptions of the body likewise not be admitted. 21 Why indeed! In attempting to answer Judge Becker's rhetorical question, let us examine the possibility of bringing to trial a hypothetical defendant, Jane Doe, who fatally wounded her husband as he slept. The astute defense attorney must be able to sift through her client's statement for indications that the client suffered from PMS, not merely an experience of discomfort due to a normal cyclical change. Counsel must inquire as to the onset dates of the most recent menstrual flow and the expected date of the next flow. The client must recount her behavior just prior to the onset of her periods and immediately prior to the commission of the criminal act. Jane Doe must also agree to be examined by medical and psychiatric doctors shortly after her arrest in order to make the proper diagnosis.

Assuming arguendo that Jane Doe is diagnosed as suffering from PMS, defense counsel must recognize that in adopting PMS even as a mitigating factor, the legal battle will be incredibly arduous. The probability that the client did not have the requisite mens rea or intent due to PMS is a highly speculative conclusion. PMS researchers have admitted that the very extreme cases of PMS will occur in no more than 5OJo of the female population. 27 The potential expert testimony of the medical practitioner who diagnosed Jane Doe can be tactically refuted by the opposition. The expert witness must demonstrate why this case is distinguishable from the typical menstrual distress situation, what diagnostic methods were employed and perhaps why mental illness is not a viable diagnosis.

Since PMS is highly individualized in nature, testimony 29

should also be elicited which informs fact finder as to what are the various causes of PMS. The expert witness must be able to state with a reasonable degree of medical certainty what specifically causes Jane Doe to suffer from PMS. The prepared opposition will argue that the published work concerning PMS and the methodology used by such studies are not universally accepted as being credible, unbiased and accurate. Much of the literature describes the results of studies which have focused upon women who participate in special premenstrual clinics, infertility clinics, and who have experienced gynecological operations. 2) Ideally, a reliable study would be one in which the selection of a group of women is not premised upon mental illness or PMS histories and members of the group should not be aware of the purpose of the study.

A word of caution to the defense attorney - it cannot be assumed that all women have the proverbial twentyeight day cycle that is simply plugged into Dr. Dalton's formula. No doubt this natural inconsistency will create problems in defining the premenstrual stage of the cycle.

PMS studies differ not only in the selection of samplings but also in the methodology used in reporting the causal links between PMS and behavior. There does not seem to be a mechanism for separating the psychological from the physical factors. It is quite possible that the results, showing the strongest indicati0ns that PMS is a biologicallylinked disorder, may have been precipitated by studies which placed more emphasis on the physical factors in order to achieve the desired return.

Another difficulty in methodology arises due to the retrospective reporting (survey of past events) of PMS symptoms, according to Dr. Randi Koeske, Ph.D., Professor of Behavioral Medicine at Western Psychiatric Institute and Professor of Psychology at the University of Pittsburgh. 24 Dr. Koeske does not agree with the retrospective approach relied upon by Dr. Dalton. She explains that there is great discrepancy in the outcome between women who keep daily accounts of their PMS symptoms and those who are asked to remember what symptoms they experienced in previous months. Dr. Koeske further suggests as do other scholars, that in retrospective analyses, women believe that they have experienced PMS although in actuality they did not. These responses are attributable to social influences which cause women to succumb to stereotype beliefs of how a woman should behave at "that time of the month. "21 Dr. Koeske, who also is a member of the board of directors of the Society for Menstrual Cycle Research, recommends that women keep a daily log of their symptoms rather than go back in time to recall vague scenarios. Prospective reporting negates the possibility of exaggeration of symptoms and avoids the dependency on unreliable memory recall. Dr. Koeske also feels that keeping a daily log will have the effect of "curing" certain women through this self-monituring exercise. She further suggests that some women will benefit by participating in some form of attitudinal change or cognitive therapy such as a women's support group.26 This may be the best forum available to women who are troubled by their symptoms and who need to express their anxieties to others who share the same problems. A woman often feels that no one will understand her, that her symptoms are unique only to her body. The function of the support groups is to offer a sympathetic ear and guidance for women who feel alone and confused by the strange symptoms possibly at-

30

tributable to PMS or simply, to the aggravation of menstrual distress symptoms.

The most problematic area in PMS research is the quest to find the causation of PMS. The cause with the greatest notoriety is that of a hormonal imbalance (i.e., high estrogen/progesterone ratio). Others believe that the hormonal imbalance accompanied by a hypoglycemic condition, water retention and severe dysmenorrhoea is the central cause of PMS. 27 An opposing camp of researchers believe that non-biological factors are involved. One such factor is that aggression in the premenstrual and menstrual phases is a learned response which is traditionally condoned by society (i.e., "Don't worry, I know you must be getting your period or you must have your period. "). Also, a woman's own expectation and beliefs may have an effect on her behavior in the premenstrual phase. Dr. Koeske has pointed out that psychological stress experienced by a woman in unrelated areas may also contribute to symptomatic behavior resembling PMS. 28 The various treatments of PMS have also been the subject of professional scrutiny and debate. Dr. Dalton's therapy of progesterone administered by injection or suppository is not recommended for all women. Depending on the patient's symptoms, treatment may consist of one or a combination of vitamin replacement therapy, diuretics, analgesics, regulation of hypoglycemia, counselling and psychotherapy.29 Of course this list is not exhaustive because researchers are constantly discovering alternative forms of treatment.

This author is confident that PMS used as a mitigating factor or as a defense in future criminal cases brought in the United States will not withstand adverse testimony which tends to undermine and impeach PMS as an effective defense tool. The argument will appear to be specious at best, until there is more consistency with regard to PMS studies and the ensuing results.

If the Pennsylvania courts were given the opportunity to confront the PMS issue, they would summarily dismiss its use as a defense to a criminal act because of a strict adherence to the M'Naghten Rule. The Rule only shelters the criminal offender under the test of legal insanity.

(A)t the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Queen v.

M'Naghten, 8 Eng. Rep. 718 (1843).

Pennsylvania rejects the use of the irresistible impulse test under which, evidence tending to show that the defendant's compulsion to act superseded the will to resist carrying out the crime, is admitted .)O Nor has Pennsylvania ever accepted the Durham rule which included any aberrant condition of the mind which substantially impaired the defendant's behavioral and mental processes. Durham was remarkably lenient in permitting the entire testimony of expert witnesses to be admissible which is probably the reason for causing nearly every jurisdiction to abandon

Durham.)1 In Commonwealth v. Weinstein, Pa, 451 A.2d 1344, 1348 (1982) Justice Hutchison announced that at sentencing, the defendant is free to introduce any evidence in mitigation, which might persuade the court to be lenient in determining his penalty.

Justice Hutchison also noted that,

... psychiatric testimony is competent in Pennsylvania on the issue of specific intent to kill if it speaks to mental disorders affecting the cognitive functions necessary to formulate a specific intent. 451 A.2d 1344, 13 (1982).

However, in a separate memorandum opinion attached to Weinstein, Justice McDermott was distressed by the majority opinion and believes that . . . we should say that evidence of alleged insanity is irrelevant unless that evidence offers that by reason of a disease of the mind, a disease objective and psychiatrically measurable, the defendant did not know and could not know the difference between right and wrong at the time the crime was committed. Weinsterin, 451 A.2d 1344, 13 (1982).

As we return to the hypothetical Jane Doe, it appears that if PMS escapes annihilation by the prosecution certain evidence may be admitted in Pennsylvania cou;ts to negate specific intent and may be considered in the determination of the type and length of sentence imposed. But PMS has no solid medical or psychiatric foundation and cannot be said to be a true "disease of the mind." Most women experience normal menstrual distress which is not labeled as an illness at all. Although available research suggests that a woman's biochemical imbalance is linked to periodic violent behavior, contrasting research is being conducted which presents results in direct opposition to such argument.

Jurists and lawyers are concerned about questions relating to criminal responsibility and moral blameworthiness, while feminists fear that even unreliable PMS studies may spur subtle discrimination against women in the areas of employment and child custody. But the philosophic words of Lord Devlin provide a sense of stability in a potentially explosive circumstance. Jl As it is a matter of theory, I think there is something logical - it may be astringently logical, but it is logical - in selecting as the test of responsibility to the law, reason and reason alone. It is reason which makes a man responsible to the law. It is reason which gives him sovereignty over animate and inanimate things. It is what distinguishes him from animals, which emotional disorder does not; it is what makes him man; it is what makes him subject to the law. So it is fitting that nothing other than a defect of reason should give complete absolution.

FOOTNOTES I R. Frank, "The Hormonal Causes of Premenstrual Tension," 26 Arch. Neurol. & Psychiat. 1053 (1931).

2 The Lancet, "Premenstrual Syndrome," December 19/26, 1981, p. 1393.

3 Katharina Dalton, The Premenstrual Syndrome and Progesterone Therapy, Heinemann: London (1977).

4 Katharina Dalton, The Premenstrual Syndrome, Heinemann: London (1964). , Katharina Dalton, "Abstract - The Diagnosis of Premenstrual Syndrome," 1981, p. 2.

6 R. v. English (1981), 1 Current L. 49.

7 D. Brahams, "PMS: A Disease of the Mind," The Lancet, November 28, 1981, pp. 1238-1239.

S Ibid.

9 Ibid.

10 R. v. English, unpublished decisions from Norwich Criminal Court - reported in The Lancet, November 28, 1981, pp. 1239-1240.

Ibid.

R. v. Smith, No. 11 A/82 (Crim. App., 27 April 1982).

13 Ibid.

14 Ibid.

II Ibid.

16 Ibid.

17 The Lancet, November 28, 1981, p. 1239 . .IS People v. Santos, IK046229, Brooklyn Criminal Court Transcript of Pre-Trial Motion heard April 29 1982.'

19 The MacNeil-Lehrer Report, "PMS," WNETIThirteen, Transcript #1889 (December 23, 1982) p. 6.

20 Ibid., p. 6.

21 People v. Santos, N.T. 30.

22 Dalton, The Premenstrual Syndrome (1964). lJ The Lancet, December 19/26,1981, p. 1393.

24 Telephone interview with Dr. Randi Koeske, Professor of Behavioral Medicine and Psychology, February 22 1983. ' II Ibid.

26 Ibid.

21 A. Wallach and L. Rubin, "PMS and Criminal Responsibility," 19 UCLA L. R. 217-222.

2S Koeske interview.

29 J. Nicholson and K. Barltrop, "Do Women Go Mad Every Month?" II New Society 227.

30 Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911 (1963).

JI United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972).

J2 D. Brahams, "Rejection of PMS as a Defence in English Law," The Lancet, May 15, 1982, p. 1135.

BIBLIOGRAPHY Angier, Natalie, "Dr. Jekyll and Ms. Hyde." Discover 3 (November 1982): 28-34.

Berreby, David. "PMS Case Ends With Guilty Plea." The National Law Journal (November 15, 1982): 36.

Brahams, Diana. "Rejection of Premenstrual Syndrome as a Defence in English Law." The Lancet (May 15, 1982): 1134-1135.

Brahams, Diana. "Premenstrual Syndrome: A Disease of the Mind?" The Lancet (November 28, 1981): 1238-1240.

Dalton, J. and d'Orban, P. T. "Violent Crime and the Menstrual Cycle." Psychological Medicine 10 (1980): 353-359.

Dalton, Katharina. The Premenstrual Syndrome. Heinemann: London (1964).

Dalton, Katharina. "Abstract - The Diagnosis of Premenstrual Syndrome." 1981.

Endicott, J., Halbreich, U., Schacht, S., and Nee, J. "Premenstrual Changes and Affective Disorders." Psychosomatic Medicine 43 (December 1981): 519-529.

Frieze, I.H., Parsons, J.E., Johnson, P.B., Ruble, D.N., and Zellman, G.L. Women and Sex Roles. New York: W.W. Norton and Company, 1978.

Golub, S. and Harrington, D.M. "Premenstrual and Menstrual Mood Changes in Adolescent Women."

Journal of Personality and Social Psychology 41 (1981): 961-965.

Koeske, Randi. Professor of Behavioral Medicine and Psychology, Pittsburgh, P A. Telephone interview, February 22, 1983.

The MacNeil-Lehrer Report. "PMS." WNETIThirteen, Transcript # 1889 (Decem ber 23, 1982): 1-8.

II

12

(continued on page 38)

31

Abortion Dialectic The history of this country traces a path of judicial review which culminates in the Supreme Court. It is in this court where a "final" stamp is placed upon the laws that our national and state governments impose upon us.

Ten years ago the Supreme Court decided that the right to "abortion on demand" was a choice so private and fundamental to a woman that it could not be infringed upon by the States. The finality of this judgment, however, is not certain. There are of course, many Americans who believe that the decision was a fair, sound, legal judgment which must be upheld and followed. On the other hand, there are many who oppose it both morally and legally and adamantly seek its reversal.

The following dialectic between Rhoda Neft and David Weaver * explores some of the issues which divide both sides. *The opinions represent those solely of the authors and are not those of the University, Editorial Staff or Juris .

BY RHODA NEFT decade ago the Supreme Court of the United States A established in the landmark decision of Roe v.

Wade, a woman's right of privacy in deciding whether or I

not to abort an unwanted pregnancy. The holding in Roe reiterated the court's position that the principal of personal privacy is so deeply rooted as to be ranked fundamental in the American scheme of life. At the core of this principal is the right of an individual to make for herself unless the state can show a compelling superseding interest - the decisions that shape family life: when to marry, whether or when to have children and with what values to rear these children.

The Roe decision, despite its being premised on fundamental rights, spawned a national preoccupation with abortion. State and local legislatures have placed an array of obstacles in the path of access to legal abortion . The sub-committee on Separation of Powers of the Senate Judiciary Committee has listened to testimony concerning The Human Life Bill, 2 which, if passed, could thwart the holding in Roe. .

The abortion debate has returned to the Supreme Court.

Currently, there are five cases, concerning the issue of abortion, before the court. The decisions in these cases will, no doubt, set the tone for the next round of legislative maneuvers .

Continued societal interest in both sides of the abortion issue - pro life and pro choice - has led us to examine the ramifications of the Roe decision and its aftermath.

Where Are We Going From Roe 11'. Wade? the vi.ndication of the right to an abortion did not mean unaOlmous approval. The Roe decision stirred deep emotions throughout our pluralistic society which represents a variety of moral, philosophical, and religious traditions. The fervor culminated in the proposed Helms-Hyde Human Life Bill which was introduced in Congress in 1981.' The bill's objective is to curb liberal policy making by unelected judges.

T

32

BY DAVID WEAVER Where Are We Going from Roell'. Wade?

his question might more properly be asked: Where T should we go from Roe v. Wade?' However, history ultimately answers this question, one thing is certain now, the status quo cannot be maintained. We are going somewhere. Legal abortion on demand was forced upon the American people by an unelected, life-tenured judiciary.

Because the abortion result is not responsive to American desires, and because it is not a product of the deliberative workings of the political process, state challenges to the Roe decision have continued. In one bold stroke seven judges of the Supreme Court made an infamous play, giving power to the "least dangerous branch" which ought to reside with the people. Faced with the repugnancy of this judicial activism, Americans have reacted swiftly and forcefully. Adding impetus to this reaction against the judiciary is the plain fact that Roe v. Wade was wrongly decided. The tumultuous controversy caused by Roe will not abate until a proper balance is struck between the judiciary and the Congress and until enlightened thinking steps in to insure that the unborn are not so cavalierly written out of the Constitution.

The first line of attack has been for the states to test the limits of the holding in Roe by continuing to write abortion control laws that bring other values into conflict with the pregn.ant woman's so-called constitutional right to have an abortIOn . Several recent decisions indicate the Supreme Court is backpedalling from its Roe position. In a 1981 case, H. L. V. Matheson, 2 the Supreme Court held that a state statut~ which required physicians to notify the parents of Immature and unemancipated minors before ~erforming an abortion, did not violate the pregnant girl's nght to have an abortion. In a 1980 case, Harris v.

McRae, J the Supreme Court held that restrictions in Medicaid funding of abortions did not unconstitutionally burden the right to abort. Some lower federal courts have not fol1owed the letter of Roe. The fifth circuit held in

The bill seeks to overturn Roe by pronouncing that "actual human life exists from conception"; therefore a fetus is a "person" within the meaning of the Fourteenth Amendment and is entitled to protection by due process of law.

Section II of the bill states that no inferior federal court (district or appellate) "shall have jurisdiction to issue any restraining order, injunction or declaratory judgement" in any cases involving state or local laws limiting the right to an abortion. Roe specifically held that a fetus is not a person within the meaning of the Fourteenth Amendment; the state interest involved is the protection of potential human life. Thus, the court invoked an image of a being not yet in existence.

Should The Human Life Bill be passed it would create a schism between the legislative and judiciary branches of government. It substitutes legislative definitions, based on personal values and morals, for the meaning of words in the Constitution as defined by the Supreme Court. At the same time it attempts to strip the courts of their power to determine what may be judged and what may not. A bare majority of the Congress could change the Constitution by simple legislative definitions and dictum. One result would be fifty inconsistent state interpretations of a woman's right to an abortion all of which would represent local selfishness and prejudice. The second result would be to deny due process of the law to pregnant women, whose rights are protected through the Roe decision, by denying them access to the federal courts. Could there be a state interest which warrants subjecting these women to such deprivation? A third result might be the offer of false hope to the opponents of abortion. Federal courts would still have jurisdiction to decide the constitutionality of the bill based on 28 U.S.c. Sec. 1331. In adjudicating on the validity of the withdrawal of the court's jurisdiction to hear matters concernirig abortion, the court would also decide the constitutionality of the legislative definition of "person" within the Fourteenth Amendment. Our checks and blance system could defeat a bill designed to defeat it.

Congressional history reveals that during the years that the Supreme Court took an activist role, bills were introduced in Congress to eliminate the jurisdiction of the federal courts over a variety of particular subjects. "What is surprising in view of the heat generated is that not one of these bills was enacted into law.'''

If we believe that the framers of the constitution intended Supreme Court judges to protect individuals from the value judgements of the majority, by applying a higher law of fundamental rights embodied in the Constitution, then the decision in Roe v. Wade must stand. Court decisions should not be changed by fickle congressional majorities.

Is Abortion A Woman's Issue? here has been a reluctance on the part of state and local T law making bodies to comply with the Roe decision.

The Supreme Court is considering challenges to several recently enacted laws which test the parameters of the court's original decision. The major thrust of these laws is the intrusion of a third party i.e.: parents, guardians and courts, into the decision of an unemancipated minor to have an abortion by requiring either consent by and/or notification of parents.

It is established that teenage abortions account for at least one-third of those performed in the United States.'

Therefore, the class of women seeking an abortion has expanded to include women nineteen years old and under,

1981, Scheinberg v. Smith,4 that a spousal notification requirement was a Constitutionally permissible burden placed on the the rights to have an abortion. Still, most abortion control legislation has been shot down. The first circuit held in 1981 in Planned Parenthood League oj Mass. v. Belotti,' that a 24-hour waiting period between signing informed consent to have an abortion and the performance of the operation unconstitutionally burdened the right to an abortion.

Part of the reason for incomplete success against the Roe decision is that Roe was bottomed on a state's authority to protect the health and welfare of the mother, not the fetus . The controversy raging today, ten years after Roe, focuses less on the question of maternal health and welfare, and more on the matter of fetal health and welfare. Interestingly, the Supreme Court faced this issue before Roe in Abele v. Markel,6 ducked it and then went on to decide Roe on other grounds. Now, ten years after Roe the Supreme Court is still running from this issue.

They can run but they cannot hide.

Another reason for not achieving complete success against the Roe decision is that abortionists' have succeeded in creating a judicial animus toward the controversy. They decry "testing" tactics as unfair, probably feeling that if enough judges examine enough cases with enough insight the right decision will be reached. There is a paranoia that ripples through the abortion community and. reaches from the least informed, innocent aborting mother to the highly informed culprits, the judges. The depth of this paranoia is adequately illustrated by the following unbelievable decision.

"A Dr. Floyd in South Carolina performed a late term abortion on a young pregnant woman. The abortion produced a live male child who lived for twenty days after which he died from numerous complications that arose from the child's premature birth. The state prosecutor sought and received grand jury indictments against Dr. Floyd for murder and for performing an illegal abortion.

Dr. Floyd immediately turned to the federal courts to stop his prosecution in state court. Three federal judges, Haynesworth, Russell and Chapman ignored the limits placed on them by the "abstention doctrine" and enjoined state prosecution. The reason for .the interference was that, in Judge Haynesworth's words, "The Supreme CO\lrt declared the fetus in the womb is neither alive nor a person within the meaning of the Fourteenth Amendment." Incredibly, the Supreme Court had declared that this child who lived and breathed, moved and cried, ate and slept for twenty days was not alive when he was aborted. " I Judicial hostility rises when a case louches on abortion, blinding judges and causing bungled cases like Dr. Floyd's. Perversions like this insure that Roe v. Wade will continue to be tested in the courts. 9 The Human Life Bill is 'o the vehicle that Congress will use to educate the Supreme Court on the question of when life begins. Stripped down, the Bill says: 1) Human life begins at conception; 2) that the Fourteenth Amendment protects all human beings. Put another way this means that a fetus is a "person" within the meaning of the Fourteenth Amendment. This Bill is necessary because the case by case assaults against the holding in Roe have not been successful to a degree commensurate with the damage done by Roe. And the Supreme Court has refused to answer the pivotal question: When does human life begin? Therefore it is appropriate for Congress to make that determination.

Fearful that their own misgivings about abortion will be 33

discovered, abortionists are already saying that Congress most of whom are dependent minors. It is also established does not have the power to pass a Human Rights Bill. But that teenagers who give birth choose to keep their children section 5 of the Fourteenth Amendment reads: "The Conrather than place them for adoption.

Planned Parenthood v. Danforth 6 dealt with a Missouri gress shall have the power to enforce, by appropriate legislation, the provisions of this article. " Historically, it is statute which granted a husband or parent the right to prevent, unilaterally and for whatever reason, a wife or child's Congress which has been given the power to protect rights decision to terminate her pregnancy. The Court held that a and immunities guaranteed, not the courts. Chief Justice Burger understands this concept. He said just two years state does not have the authority to give a third party an absolute and possibly arbitrary veto over the decision of a ago in Fullilove v. Khitznick, II that" ... correctly viewed, section 5 is a positive grant of legislative power authorizing woman to abort. It appears that in this case the court extended the right of privacy to protect a minor's abortion Congress to exercise its discretion whether and what legisdecision from interference. In Danforth, the Court said, lation is needed to secure the guarantees of the Fourteenth Amendment.' , "constitutional rights do not mature and come into being There is a provision in the Human Rights Bill which magically only when one attains the state-defined age of eliminates lower federal court jurisdiction over state abormaturity. Minors as well as adults are protected by the contion laws. Abortionists say this provision is unconstitustitution and possess constitutional rights."7 However, it tional. Although this issue will surface again in the 1980's, was also recognized in Danforth that the state had broad it was settled long ago. Cary v. Curtis, 12 makes the point, authority to regulate the activities of children.

Bellotti v. Baird 8 held that a Massachusetts statute re"The judicial power of the United States ... is dequiring a pregnant minor, seeking an abortion, to obtain pendent for its distribution and organization, and for the consent of her parents or to obtain judicial approval the modes of its exercise, entirely upon the action of following notification to her parents unconstitutionally Congress, who possess the sole power of creating the burdened the minor's right to an abortion. In Bellotti the tribunals ... and of investing them with jurisdiction majority justices gave careful consideration to the fact that either limited, concurrent, or exclusive, and of withhold"states validly may limit the freedom of children to chose ing jurisdiction from them in exact degrees and for themselves in the making of important affirmative . character which to Congress may seem proper for the choices with potentially serious consequences ... during public good." formative years children and adolescents lack experience, In Roe the Supreme Court said it cannot decide the quesperspective and judgement."路 I tion of fetal life. Congress fills that void with the Human H. L. v. Matheson 'o interpreted a Utah statute that manRights Bill, and this is proper. Courts routinely defer to dated a physician was to notify, if possible, the parents or legislative judgements where the legislature is better able to guardians of a woman upon whom an abortion is to be assemble, analyze, and evaluate the facts . It is good to performed if she is a minor or the husband of a woman if speculate on this question of life because it will surely be a she is married . The court held that the statute was valid pre-eminent issue in the 1980's. only as to unemancipated immature minors dependent In 1886, the Supreme Court held in Santa Clara County upon their parents. v. Southern Pacific Railroad that a corporation was a In Danforth, Bellotti, and Matheson the state asserted "person" for purposes of the Fourteenth Amendment. 1l that it was constitutionally empowered to protect the How can the rights of a corporation, a mere legal fiction, fundamental right of a parent to control, educate, nurture, be protected by the Constitution, but potential human life and guide their children. not be protected . Professor John Noonan offers this legal However, the abortion decision is unique for as soon as analysis, a minor gives birth she becomes an adult in the eyes of the "It would be strange if a fetus had rights to support law and her child and bears all the responsibility that her from his parents, rights enforceable by a guardian and parents through consent and notification assert. Further, sanctioned by the criminal law of neglect, and yet have parental consent or notification denies the minor a role in a no right to be protected from an abortion. It would be decision making process that affects the outcome of her incongruous that a fetus should be protected by the state life in the future. In some instances a minor may seek an from willful harm by a parent when the injury was inabortion through elicit means. Notification may mean the flicted indirectly but not when it was inflicted directly. It risk of destructive family strife or physical abuse. If a would be off if the fetus had property rights which must minor is forced to bear an unwanted child, the psychobe respected but could himself be extinguished." ,. logical consequences are great. Because of her own inIn a society where rights are important, it is fitting that ability to cope, she may deny her child the security, tenderthe Human Life Bill is a topic of debate. The Bill is an augness, and love that are lacking in her own life. An unmentation of fundamental, specifically enumerated Conwanted child places monetary obligations on society for stitutional rights. The Human Rights Bill debate asks: the funds necessary to sustain a basic existence. It is diffiWhat can be more fundamental than the right to life? cult for an adolescent to care for a child and maintain gainThree times in our history the Constitution has been ful employment and it is difficult to obtain employment amended in response to wrong judicial decisions. Because without the education an adolescent has had to forego. of procedural obstacles, this amendment process probably If personal liberty grants one freedom of expression conwill not be undertaken unless it becomes necessary. 15 cerning matters vital to their own body and mind and Americans are hopeful that a Human Life Bill will be minors who bear children become adults by virtue of beenacted into law. coming a parent, it is difficult to rationalize the intrusion II. Is Abortion a Women's Issue'i' of a third party into the decision of a minor to have an bortion is most definitely a women's issue. Roughly abortion. half of the 2 million unborn children aborted last year

A

34

Is Liberalized Abortion Consistent With The Role of Women In a Modern Society?

ith the advent of World War II the American woman W was thrust from the home into industry. Her entrance into the job market Jed gradually to access into the political, corporate, and professional arenas. The status of women in society has changed dramatically; today women are considered the equal of men. The changed role of women and changed attitudes toward them reflect a societal judgement that women can competently order their own lives and that they are the appropriate decisionmakers about matters affecting them as individuals. Such matters would include the decision whether to carry and bear a child.

The decision to have a family brings profound change in the structure of one's life. The working woman may have to curtail or end her employment, the family could find that a child overtaxes its financial and emotional resources and raising a family demands psychological and social adjustments.

Abortion laws that would prohibit a woman's freedom of choice or make it difficult for her to procure an abortion would be inconsistent with the status society has granted her. Such laws would create tension. On the one hand a woman would be free to develop her mind and spirit through education and experience, and on the other constrained by the lack of freedom to control her body.

After surveying the public on the issue of abortion, a Harris Poll found that fifty-four percent of the American people favored the Supreme Court decision in Roe v.

Wade. Accordingly, there is a nexus between the Court's decision that a woman has a fundamental right to freedom of choice in matters of vital concern to her as an individual and the independence modern society has granted her.

FOOTNOTES (NEFT) Roe v. Wade, 410 U.S. 113,93 S.Ct. 705 (1973).

2 The Human Life Bill S158, 97th Congo 1st Sess.; HR 900, 97th Cong., 1st Sess. (1981).

J Currently, the bill is before the Judiciary Committee of both houses of Congress.

Limiting Federal Court Jurisdiction: The Constitutionality of Current Legislation Proposals, 65 Judicature 199, p. 204 (1981). l Source Center for Disease Control, DHEW Abortion Surveillance Annual Summary 1975, Atlanta 1977.

6 Planned Parenthood v. Danforth, 428 U.S. 52,96 S.Ct. 2831 (1976).

7 Id at p. 283496 S.Ct. at 2831.

8 Bellotti v. Baird, 428 U.S. 132,96 S.Ct. 2857 (1976).

9 Id at p. 3044, 443 U.S. at 635.

10 H. L. v. Matheson, 450 U.S. 390,101 S.Ct. 1164 (1981). " New York Times/CBS News Poll, February 2-8, 1976.

1

4

FOOTNOTES (WEAVER) 1 2

Roe v. Wade, 410 U.S. 113,93 S.Ct. 705 (1973).

H. L. v. Matheson., 450 U.S. 398, 101 S. Ct. 1164 (1981). The court used a "significant sUite interest" test rather than the traditional "compelling interest" test.

would have been women.

If the question is intended to mean, does a person's sex disqualify him from making judgements on the issue of abortion, then the answer is no. There is no evidence to suggest that the commonality of human understanding disintegrates simply because there are male and female humans. Nor are the intellectual and emotional issues of abortion alien to men. Abortion is a human issue.

III. Is Liberalized Abortion Consistent With the Role of Women In a Modern Society?

bortion is inimical to the role of women in any society.

Women of all times have alone been blessed with the A opportunity to experience fulfillment through motherhood in degrees that their men counterparts can never know.

Yet, abortionists pervert this sublime gift and call it a burden.

Has liberalized abortion changed the role of modern women? Of course not. The fact that women are no longer "chattel", or are no longer expected to lay back and be mounted, impregnated or flogged has nothing to do with abortion. Roles of women changed, like those of men, as society changed. So the question should be, what role have : modern women played in liberalizing abortion. Seven men instituted abortion on demand. They heard the cries of the abortionists. And abortionists do not cry for women, they cry for abortionists. So it is wrong to identify women per se with liberalized abortion. The happenstance of being born woman does not give abortionists any claim to that person's support. Indeed, it is women, more than men, who are leading the charge against the atrocious Roe decision. Women are incisive enough to understand that if they endorse the exercise of raw judicial power today, they might themselves be victims of it tomorrow.

Harris v. McRae, 444 U.S. 1069, 100 S. Ct. 1010 (1980).

Shein berg v. Smith, 760 F.2d 476 (5th Cir. 1981). l Planned Parenthood League of Mass. v. Belotti, 641 F.2d 1006 (1st Cir. 1981).

6 Abele v. Markle, 342 F. Supp 800 (1972).

7 The term "abortionist" is used in this article instead of the euphenism "pro choice". What choice does a fetus have?

8 The Human i..,ife Bill: Protecting the Unborn Through Congressional Enforcement of the Fourteenth Amendment, Basile J. Vddo, 27 Loy L. Rev., 1079-1097 Fall '81.

9 Five abortion cases are currently set for review by the Supreme Court.

10 S. 158, 97th Cong., 1st Sess. (1981); H.R. 900, 97th Cong., 1st Sess. (1981). " Fullilove v. Klutznik, 448 U.S. 448, 65 L. Ed.2d 902, 100 S.Ct. 2758 (1980).

12 Cary v. Curtis, 44 U.S. (3 How.) 236 (1845).

IJ Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886).

14 The Abortion Controversy, Sarvis and Rodman, Columbia University Press, NY, NY 1973, p. 62. " U.S. Const. art. V provides that two-thirds of both houses shall deem it necessary to amend the Constitution, and then three-fourths of the states must ratify the proposed amendment.

J

4

35

SURROGATE MOTHERS ...

standard of review is required. An intermediate standard of review has women egg donors and to women been used where there was a classibearing children which are genetically fication system that affected a parnot their own but produced from the ticular class of individuals and the egg of another female donor or classification had the potential to be from a synthetic egg; and whether suspect. The intermediate standard genetic donors' identities can be dis- has been used primarily in assessing closed; what records are kept, where the constitutionality of gender-based classifications. In these cases, the they are kept and by whom. 31 In the United States to this date, court determines whether the regulathe surrogate mother has supplied not tion serves an important government only uterus, but egg as well. Scientists interest or objectives and whether the are rapidly approaching a point where regulation is substantially related to it is possible to implant the fertilized achieving the government purpose or egg of woman in another woman's objectives. JJ A third standard, entitled strict uterus, however, scientists have or compelling interest, is the scrutiny voluntarily, or involuntarily, as in most stringent test. Here the governAustralia, limited the practice of embryo implants to the married couple ment must show an overriding need or compelling interest in regulating a participating in vitro fertilization. 32 Many women who are not able to particular activity especially where carry a child, may be able to donate the regulations would have a legally eggs just as men have been able to significant impact. Since regulations donate semen. Is it a denial of due concerning procreation have a legally process or equal protection to restrict significant impact on those being genetic donations to men if the pur- regulated, this is the test that should pose is procreation by another be employed. The compelling interest test has three applications: (1) where woman? legislation affects a fundamental Surrogate motherhood issues are even more complicated if the surro- right; (2) where legislation affects a gate mother is not the egg donor. suspect class of individuals; or (3) Who is the mother of the surrogate where the legislation creates a significhild? When the fetus is created from cant legal impact on the individual's a donated egg, but is nurtured by the assertion of a right.

There are several policy implicasurrogate mother during the gestation tions evolving from the legal issues period, two different relationships are created: a genetic relationship and presented by surrogate motherhood. a biological relationship. Is the surro- How will the legal rights of a child be gate mother accountable to the egg determined? If equal protection apdonor for the welfare of the fetus or plies to children the legal framework is the egg donor legally in the same for defining children's rights must position as a semen donor for artifi- extend beyond the child's ancestry. cial insemination? What happens if Traditionally legal institutions have neither woman wants to give up the looked to the parents and their child? Until the legal presumption of marital status to determine the legal paternity was adopted, the situation status of the child.

When artificial insemination bewas analogous to the legal position of the husband of an artificially insemi- came technologically feasible in humans. The law created a presumpnated woman and the semen donor.

If genetic donations are considered tion of paternity for married men that to be a fundamental right, the state superseded the genetic relationship still may regulate the activity pro- between the unmarried semen donor vided there is a rational basis for and the child. Even so, there were a doing so and there is no legally sig- few cases in the 1920's and 1950's in nificant impact on the right. If there which artificial insemination was is no legally significant impact, the found by the court to be adulterous 34 state's regulation must be merely behavior by a wife.

Since in vitro fertilization does not justifiable, connected to a public purpose, and supported by a rational depend on the egg of the woman basis. The rational basis test is the whose uterus is implanted with a fertilized egg, a surrogate mother may least stringent standard.

If the regulation has a legally sig- bear an embryo created from another nificant impact, a more stringent woman's egg. What happens if the (continued from page 5)

36

egg donor claims the child and the surrogate mother refuses to surrender the child? "The existing legal rules, based as they are on the concept of legitimacy would favour the donor's claims;"路 (in Great Britain)3l. If the surrogate mother was married and her husband consented to her being artificially inseminated, the child is presumed his. But the child may not be hers. To avoid such legal complications before they occur, there might be established a legal presumption of maternity for the birthing mother.

In addition, there must be a clearcut legal distinction among genetic donors, biological mothers (third party surrogate mothers), and legal fathers.

The problem of donor identity and accessibility could be resolved in numerous ways. The immediately apparent policy implication of regulating genetic donors' identity must be carefully examined. Otherwise fewer donors would want to donate. With fewer donors the genetic pool may become narrower. A way to avoid this policy implication is to establish a system for expanding legally required pre-marital blood tests in order to identify potential cases of geneticallyrelated individuals. Perhaps key genetic characteristics might be recorded at the birth of each child along with the baby's fingerprint or footprint. The implications of overcontrolling genetic factors in the process of surrogate procreation are obvious. So too, are the implications of no regulation, especially for the surrogate child. It is unlikely that surrogate motherhood issues and their implications for surrogate father, mother and child as well as the rest of society can be solved without acknowledging the interaction among the moral, ethical, and legal considerations. Without redefining the family we are back to the notion of the stork. If the ancestry of the surrogate child is not clear, if the legal positions of the parents are not clear, if the genetic and biological relationships are uncertain, then the future of the surrogate child is equally and unfairly not clear.

If the role of the surrogate mother is simply to deliver a child to an anonymous father, she has indeed become the stork of the Twentieth Century. Like the stork she replaced, she may become an obsolete notion

by the next century, or perhaps, like the stork, the surrogate childbearer may simply reappear in yet another form: computerized human reproduction?

FOOTNOTES Lorio, Kathryn Venturatos, In Vitro Fertilization and Embryo Transfer: Fertile Areas for Litigation, 35 SW .L.J. 5 at 976 (1982).

2 Bloom, Allen , Designer Genes and Patent Law: A Good Fit, 26 N. Y.L.Scm.L.Rev. 3 Brophy, Katie Marie, A Surrogate Mother Contract to Bear a Child, 20 J. FAM. L. 263 (1982).

4 Comment, Artificial Insemination and Surrogate Motherhood - A Nursery Full of Unresolved Questions, 17 Willamette L. Rev. 913 at 944 (1981) . , Rosettstein, David S. Defining a Parent: The New Biology and the Rebirth of the Filius Nullius, 131 New Law J. 1095 (1981).

6 Holmes, Oliver Wendell, Jr., The Common Law, Little, Brown and Company, Boston at 346 (1938).

7 Black, Henry Campbell, Black's Law Dictionary, Fifth Edition, West Publishing Co., St. Paul, Minn. at 1014 (1979).

8 Abrahams, Samuel, Law in Family Conflict, Law-Arts Publishers, Inc., New York at 218 (1979).

9 Johnson, J. Rodney, Inheritance Rights of Children, 12 U. Rich L. Rev. 2 at 281 (1978).

I

Stenger, Robert L., Expanding Constitutional Rights of Illegitimate Children 1968-1980, 19 J. FAM. LAW 3 at 413, 423 (1980-81).

II Comment, Artificial Insemination and Surrogate Motherhood - A Nursery Full of Unresolved Questions, 17 Willamette L. Rev. 913 at 922 (1981).

12 Id. at 922, 17 Willamette L. Rev. 913 (1981).

13 Brophy, Katie Marie, Supra at 263 .

14 Weinhaus, Lisa, Substantive Rights of the Unwed Father; The Boundaries are Defined. 19 J .

Fam. L. 445 at 448 (1980-81). " Brophy, Katie Marie, Supra at 263 .

16 Palmer, Larry I., Adoption: A Plea for Realistic Constitutional Decisionmaking, II Col. Hum. Rts . L. R. I at I (1979).

17 Keane, Noel P., Legal Problems of

Surrogate Motherhood, 1980 S. ILL. U. L. J. I at 148 (1980).

18 Id. at 148 .

19 Weinhaus, Lisa, Supra at 448.

20 Black, Henry Campbell, Supra at 1067.

21 Dodd, Barbara E., When Blood is Their Argument, 20 MED. SCI. L. 4 (Great Britain) at 231 (1980).

22 Dodd, Barbara E ., See Id. at 232.

23 Sussman, Leon, Up-To-Date Blood Testing for Paternity and Non-Paternity, 24 Trauma I at 20 (1982).

24 Dodd, Barbara E., See Id. at 235. " Houts, Marshall, Paternity Testing Presenting the Medical Evidence - Blood Testing in Paternity Cases Using Red Blood Cell, HLA and Enzyme Tests.

26 Houts, Marshall, See Id. at 7 and 12.

27 Glucksberg, Harold, and Singer, Jack W., Cancer Care: A Personal Guide, Charles Scribner's Sons, New York at 400 (1982).

2 8 Comment, Artificial Insemination and Surrogate Motherhood - A Nursery Full of Unresolved Questions, 17 Willamette L. Rev. 913 at 944 (1981).

29 Rose v. District Court of Eighth • Judicial District, 628 P2d 662 (1981), 20 J. Fam. Law. 3 at 402-403 (1981-82).

30 Malignancy and Genetics Biochemical Markers and Inherited Chromosomal Defects, 9 Law. (conlinued on page 19)

10

PATERNITY LEAVE (conlinued from page 27)

acceptable, intermittent work stoppages could become more frequent. Numerous men who choose the latter option may find departure from the work force for child-rearing purposes a self-fulfilling alternative to the strive for success in the market place.

H. Conclusion Ultimately, the issue transcends that of paternity leave, better employment opportunities for women, social security, or child-care facilities. More fundamental is the necessity of breaking through the rigidity of the present social fabric and creating a truly humane society, one which is free of the damaging effects of I sexual classifications and stereotypes, where every human being can reach his or her fullest potential.

FOOTNOTES

I

I

Sex Discrimination and the Law: Causes and Remedies, by Babcock,

Freedman, Norton, and Ross; Little, Brown and Company; Boston, Toronto; 1975; p. 149; excerpt from "The Equal Rights Amendment: A Constitutional Basis For Equal Rights For Women," by Brown, Emerson, Falk, and Freedman, 80 Yale L.J. 871, 888920 (1971) 2 Glamour Magazine Viewpoint, by Carole Getzoff; May, 1980 3 Glamour Magazine Viewpoint, May, 1980 • "No Househusbands Need Apply," by Dean Rotbart, reprinted in Working Woman, August 1981; pgs. 69-71 , The Liberated Male, by Warren Farrell, p. 97; New York: Random House, 1974 6 The Liberated Male, p. 51 7 Reentering, by Eleanor Berman, p. 5; New York: Crown Publishers, 1980 8 Back To Business: A Woman's Guide To Reentering The Job Market, by Lucia Mouat; New York: Sovereign Books, 1979; p. 5 9 Back To Business, p. 23 10 Back To Business, p. 4

Commenting further, Lefkowitz observes: "We have, in our inventive American way, substituted the myth of freedom for the work myth. Once it was popular to II Back To Business, p. 5 believe freedom and independence were 12 Back To Business, p. 48 won by holding down a high-paying 13 Reentering, p. 5 secure job. Now more and more people 14 "No Househusbands Need Apply" believe the key to personal liberation lies " Back To Business, pgs. 28, 68 in their distance from work. This myth 16 The Liberated Male, p. 191 bears about as much relationship to reality 17 Sex Discrimination and the Law, p. 732; excerpt from "The Equal as the work myth did. Not working afRights Amendment," by Brown, fords an opportunity to achieve personal Emerson, Falk, and Freedman, 80 goals. It doesn't assure the emancipation Yale L.J . 871, 936-954 (1971) of our spirits. That depends on our motivation, on our purpose in not working II Mothers At Work, by Kathryn Teich Adams and Carolyn Teich Adams, and on our psychological perspective."" p. 229; New York: Longman, 1980 Indeed it is arguable that a positive motivation for a man to cease working is 19 Mothers At Work, pgs. 230-231 his desire to spend more time with his chil- 20 Social Security: Promise and Reality,

by Rita Ricardo Campbell, dren and share in the chores of raising Press: Stanford University, 1977 them. At least until paternity leave be(conlinued on page 39) comes more readily available and socially

37

PMS: LEGAL FRIEND OR FOE

(continued from page 31)

Nicholson, J. and Barltrop, K. "Do Women Go Mad Every Month?" New Society 11 (February 1982): 266-228.

D'Orban, P.T. "Letter to the Editor ~ Premenstrual Syndrome: A Disease of the Mind?" The Lancet (December 19/26, 1981): 1238-1240.

Osborn, Madeline. "Physical and Psychological Determinants of Premenstrual Tension: Reseach Issues and a Proposed Methodology." Journal of Psychosomatic Research 25 (April 1980): 363-367.

"Premenstrual Syndrome." The Lancet (December 19/26, 1981): 1393-1394.

People of the State of New York v. Shirley Santos, 1K046229 (Notes of Testimony, April 29, 1982).

Tybor, Joseph R. "Women on Trial: A New Defense."

"The National Law Journal (February 15, 1982): 1, 12-14.

Vanezis, Peter. Editorial Comment. Medicine, Science and Law 21 (1981): 151-152.

Wallach, A. and Rubin, L. "The Premenstrual Syndrome and Criminal Responsibility." 19 UCLA L.R. 210-312 (1972).

Commonwealth of Pennsylvania v. Weinstein, __ Pa. _ , 451 A.2d 1344 (1982). " 'Women's Disease' May Cause Jekyll-Hyde Personality." Las Vegas Sun. January 21, 1983, p. 27 .

FOR FURTHER INFORMA TION CONCERNING PMS Contact: PMS Research Foundation, P.O. Box 14574, Las Vegas, Nev. 89144 PMS Action Inc., P.O. Box 9326, Madison, Wis. 53715608/274-6688 Women's Health Services, Inc., 625 Stanwix Street, Pittsburgh, PA - 412/562-1900

"

A BRIEF LOOK AT PORNOGRAPHY (continued from page 19)

FOOTNOTES I 354 U.S. 476 (1957) 2 413 U.S. 15 (1973) J 383 U.S. 463 (1966) (Ginsberg) 4 383 U.S. 413 (1966) I 378 U.S. 184 (1964) 6 394 U.S. 557 (1969) Stanley v. Georgia 7 413 U.S. 49 (1973) 9 The History of the Pin-up, Mark Gabor (1973) 10 The Report of the Commission on Obscenity and Pornography (1970) II Steinmen, G. Erotica and ·Pornography, A Clear and Present Difference, Ms. Magazine, November 1978 .

12 Longino, H ., Pornography: Do Feminists Stand a Chance? USA Today, May 1981 tJ Against Our Will: Men, Women, and Rape, Susan Brownmiller (1975) t4 Female Sexual Slavery, Kathleen Barry (1978) 1\ Dworkin, A. Pornography's "Exquisite Volunteers".

Ms. Magazine, March 1981.

16 Malamuth, N. Erotica, Aggression and Perceived Appropriateness. Paper presented at the 86th Annual Convention of the American Psychological Association, Toronto, September 1978.

17 Donnerstein, E. Pornography Commission Revisited: Aggressive Erotica and Violence Against Women.

Journal of Personality and Social Psychology, 1981, 12, 163-181. ,,3 Schwartz, T. The TV Pornography Boom. New York Times Magazine, September 13, 1981.

• • • No, woman is not our brother; through indolence and depravity we have made of her a being apart, unknown, having no weapon other than her sex, which not only means constant strife but is moreover an unfair weapon of the eternal little slave's mistrust - adoring or hating, but never our frank companion, a being set apart as if in esprit de corps and freemasonry .

Many men would still subscribe to these words of Laforgue; many think that there will always be "strife and dispute," as Montaigne put it, and that fraternity will never be possible. The fact is that today neither men norowomen are satisfied with each other. But the question is to know whether there is an original curse that condemns them to rend each other or whether the conflicts in which they are opposed merely mark a transitional moment in human history ...

"The direct, natural, necessary relation of human creatures is the relation of man to woman," Marx has said. "The nature of this relation determines to what point man himself is to be considered as a generic being, as mankind; the relation of man to woman is the most natural relation of human being to human being. By it is shown, therefore, to what point the natural behavior of man has become human or to what point the human being has become his natural being, to what point his human nature has become his nature. " The case could not be better stated. It is for man to establish the reign of liberty in the midst of the world of the given. To gain the supreme victory, it is necessary, for one thing, that by and through their natural differ• ••• entiation men and women unequivocally affirm their brotherhood.

TAKEN FROM: THE SECOND SEX

BY SIMONE DE BEAUVOIR 38

"

WIFE RAPE ... (continued from page 23)

"woman-as-property" ideas at some point III their lives. To unify the public on such a vital and controversial issue is also crucial for its legislative success. In light of the recent defeat for ratification of the Equal Rights Amendment, the obstacles to such a campaign become apparent, especially when considering the limited amount of available resources that women have access to in order to support a movement to promote such legislation.

The struggle will not be an easy one. Defeated legislation has already been numerously documented. However, it is hoped that those more restrictive jurisdictions that permit the marital rape exemption to be operative within their statutes will closely monitor those few states which have abolished it and follow their more progressive attempts at protecting all of their female citizens from the devastation of rape irrespective of their marital status. All women and legislators alike must realize that a license to marry is not also a license to rape. That women do not surrender their desires to their husbands via the marital rite, and most importantly, that when a woman says "I do" it does not mean she always will.

FOOTNOTES Flyer published by the National Clearinghouse on Marital Rape, 2325 Oak Street, Berkeley, CA 94708 2 Hale, Pleas of the Crown 628, 629 (1847).

3 Comment, The Marital Rape Exemption in Pennsylvania: "With this Ring ... ," 86 Dickinson Law Review 79 (1981).

4 Id. at 80.

I For further discussions see H. Clark, Jr., LAW OF DOMESTIC RELATIONS (1968).

6 DIANA E.H. RUSSELL, RAPE IN MARRIAGE (1982) at 375.

7Id. at 17.

8 California, Iowa, Minnesota, Nebraska, New Jersey, and Oregon pose the most minimal limitations on prosecution of a husband for rape of his wife, and have abolished the marital rape exemption almost completely.

9 Ore. Rev. Stat. ยง 163.375 (1979).

I

10

[d.

State v. Rideout, (1979),5 Fam. L. Rep. (BNA) 2164.

12 Alabama, Connecticut, Delaware, Hawaii, Iowa, Kentucky, Maine, Minnesota, Montana,' North Dakota, Pennsylvania, Texas, West Virginia.

13 18 Pa. C.S.A. ยง 3103 (amendtd 1976).

14 H.R. 1122, 165 Leg., 2d Sess.

(1981) " Delaware, Hawaii, Maine, North Dakota, and West Virginia.

16 DIANA E.H. RUSSELL, RAPE IN MARRIAGE, (1982).

17 Id. at 2.

18 The study was conducted through Field Research Corporation in San Francisco, California, and a random sample of women was taken throughout that city. [d. at 30.

19 [d. at 128.

SURROGATE MOTHERS ...

II

PATERNITY LEAVE (continued from pall.e 37)

Mothers At Work, pgs. 29-30 ~2 Glamour Magazine Viewpoint, May, 1980 2J P.L. 95-555, 88th Congress-2nd Sess.; Oct. 31, 1978 H Glamour Magazine Viewpoint, May, 1980 21 Sex Discrimination and the Law, pg.

736, excerpt from "The Equal Rights Amendment," by Brown, Emerson, Falk, and Freedman, 80 Yale L.J. 871, 936-954 (1971) 26 The Liberated Male, pgs. 179-182 27 The Liberated Male, pgs. 150-151 28 Mothers At Work, pgs. 89-91 29 Mothers At Work, pgs. 99-100 28 Mothers At Work, pgs. 91-92 29 The Liberated Male, pgs. 145-146 30 The Liberated Male, pgs. 147-148 31 The Liberated Male, pgs. 148-149 32 "Her Work Is In Home ... And A Computer," by Noreen Beckman; Pittsburgh Press, March 7, 1982, Section J, p. 1 33 Mothers At Work, pgs. 52-55 34 Mothers At Work, p. 64 B Mothers At Work, p. 68 36 The Liberated Male, pgs. 139-140 37 The Liberated Male, pgs. 142-143 38 The Liberated Male, p. 144 39 The Second Stage, pgs. 281, 282, 284 40 The Second Stage, p. 285 41 Breaktime: Living Without Work In A Nine-To-Five World, by Bernard Lefkowitz; pgs. 47-48; New York, Hawthorn Books; 1979 42 Breaktime, p. 14 43 Breaktime, pgs. 152-153 21

(continued from page 37)

Med. J. (1981).

31 Smith, Lucinda Ann, Artificial Insemination: Disclosure Issues, 11 Colum. Hum. Rts. L. R. 1 at 89 (1979).

32 -"Infertility: New Cures, New Hopes", Newsweek, at 104 (Dec. 6, 1982).

33 Stenger, Robert L., Expanding Constitutional Rights of Illegitimate Children 1968-1980, 19 J. Fam. Law.5 at 430-442 (1980-81).

34 Doornbos v.

Doornbos 12 ILL. App. 2d 473, 139 N. E. 2d. 844 (1956), 17 Willamette L. Rev. 913 at 921 (1981).

B Rosettenstein, David S., Supra at 1096.

Other Sources: Paternity and Illegitimacy: Symposium (four articles), 19 J. Fam. L. 407 (1981).

Powell, Lewis, Balanced Justice, 11 U. Rich. L. Rev. 2 (1977).

Nobody can make you feel inferior without your consent.

Eleanor Roosevelt Women have served all these centuries as looking-glasses possessing the mdgic and delicious power of reflecting the figure of man at twice its natural size.

Virginia Woolf

STRIP SEARCHES ... (continued from page 9) 1

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12 13

Mcintyre, "The Intensive Search of a Suspect's Body and Clothing", 58 J. Crim. L. & Criminology 18 (1967).

Visual Rape, at 273.

Tinetti v. Wittke, 479 F. Supp. 486 (1979) U.S. v. Robinson, 414 U.S. 218 (1973) Bell v. Wolfish, 441 U.S. 520 (1979) Logan v. Shealy, 660 F.2d 1007 (1981 ) 660 F.2d at 1013.

Smith v. Montgomery County, 547 F. Supp. 592 (1982) Jane Does v. City of Chicago, No. 79 C 789 (N.D. Ill. 1979) Id. Joan Doe #1 v. City of Chicago, No. 81 C 2981 (1981) 39

INSURANCE LAW . ..

tractors), and the Dept. of Health, Education and Welfare under Title IX of Education, Amend. Act (task of ensuring that educational institutions receiving federal funds do not discriminate against employees) followed the Wage and Hour Administration guidelines.

In General Electric Co. v.

Gilbert, the court found the EEOC guidelines inconsistent and not relying on any new source of legislative history. In Los Angeles

(continued from page 17)

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37

38

39

40

41

42 43

41 Human Biology 416 (1979); in - see note 1 at pg. 10.

See note 1; state insurance departments of at least two states have indicated that race classification in insurance would be permitted if based on "valid actuarial tables" or "statistical ... reliable data."

See note 1.

See note 1.

Kimball, Reprise on Manhart, ABFound Res. J. 915 (1980).

Kimball, Reverse Sex Discrimination: Manhart, ABFound. Res. J. 83, 112, 113 (1979).

Rutherglen, Sexual Equality in Fringe Benefit Plans, 65 Va. L.R. 199 (1979).

See note 26 at p. 520.

It is interesting to note that originally the Wage and Hour Division of the Dept. of Labor was the principal enforcement agency of the Equal Pay Act and examined the EPA provision. The Wage and Hour Administration developed a flexible guideline for enforcing the EPA, known as the "either/or" guideline. An employer who either made equal contributions for similarly situated male and female employees to a retirement program or who provided similarly situated male and female employees with equal periodic benefits during retirement would be in compliance.

29 C.F.R. 800.116(d). Initially, the Equal Employment Opportunity Commission (EEOC) followed the same "either/or" guidelines as set out in its first set of guidelines issued in 1965 EEOC Opinion Letter (Oct. 12, 1965) (1966) Empl. Prac.

Guide (CCH) 17252.09. In April, 1972, the EEOC issued new sex discrimination guidelines 29 C.F.R. 1604.9(b) "it shall be an unlawful employment practice for an employer to discriminate between men and women with regard to fringe benefits." Fringe benefits include: "medical, hospital, accident, life insurance and retirement benefits; profit sharing and bonus plans; leave; and other terms and conditions of employment." 29 C.F.R. 1604.9(A). Until Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702 (1978) the Office of Federal Contract Compliance Programs (police sex discrimination acts by Fed. con-

\2

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Typography and Lithography by Joseph D. Laurent & Associates Pittsburgh. PA

Dept. of Water and Power v. Manhart, the Court reversed itself and adopted the EEOC guidelines. See Note, The End of Sex Discrimina-

See note 26 at p. 531; Bernstein, Williams, Sex Discrimination in Pensions, 78 Colum. L.R. 1241, 1244 (1978).

Comment, Gender Classification in the Insur. Industry, 75 Colum.

L.R. 1381, 1391-92 (1975).

See note 1.

Ibid.

t-----------------1

tion in Employer-Operated Pension Plans: The Challenge of the Manhart Case, Duke L.J. 682 (1979); Sher, Sex Discrimination in Retirement Programs, 16 Forum .4

41

46

47

48

1174 (1981).

Sher, Sex Discrimination in Retirement Programs, 16 Forum 1174 (1981).

Norris v. Ariz. Governing Committee for Tax Deferred Annuity, 671 F.2d 330 (9th Cir. 1982); EEOC v. Colby College, 589 F.2d 1139 (1st Cir. 1978); EEOC v.

Wooster Brush Co., 523 F.Supp.

1256 (N.D. Ohio 1981); Spirit v.

TIAA, 691 F .2d 1054 (2d Cir. 1982).

See also Norris v. Ariiz., 671 F.2d 330 (9th Cir. 1982).

Craig v. Boren, 429 U.S. 190 (1976) (overturned a state law under which 18 through 20 year old men were prohibited from purchasing beer, while females were not.

Bailey, Hutchison, Narber, The

Regulatory Challenge to Life Insur. Classification, 25 Drake L. Rev. Insur. L.J. 4 (1976).

49

Spirit v. TIAA, 691 F.2d 1054 (2d

Cir. 1982).

H.R. Rep. No. 914, 88th Cong., 2d Sess. 18, reprinted in (1964) U.S. Code Congo & Admin. News 2391,2393. " McCarren Act does 110t shield racially discriminatory insurance policy practices (charged Navajo Indians higher auto insurance rates than whites) Ben V. GMAC, 374 F.Supp. 1199 (D.Colo. 1974); Fair Housing Act encompasses insurance redlining, Dunn V. Midwestern Indem. Mid-Am. Fire & Cas. Co., 472 F.Supp. 1106, 1108-1109 (S.D. Ohio 1979).

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