- The Washington Times - Tuesday, August 7, 2001

Criminally neglectful fathers are often incorrigible. Their punishments raise recurring dilemmas. An anguished Wisconsin state trial judge recently conditioned the five-year probation of a recidivist scapegrace on foregoing fatherhood while under state supervision.

The Wisconsin Supreme Court upheld the five-year conception restriction in State of Wisconsin vs. Oakley (July 10, 2001), despite a constitutional right to procreation celebrated in a motorcade of United States Supreme Court decrees.

To police intimate sexual behavior in hopes of forestalling future child abandonments seems unconstitutional, feeble, and worse than the disease of irresponsible fatherhood. Preferable is a culture that sufficiently ostracizes and loathes the likes of David W. Oakley because of serial derelictions in child support payments that prevents the misbehavior and thus renders the law superfluous.

Oakley's scorn for his fatherhood obligations was pronounced. A state prosecutor initially charged him with intentional refusal to pay child support for his nine children fathered with four different women. A superceding charge alleged Oakley had also criminally intimidated two witnesses in a child abuse case where one of the victims was his own.

Oakley then struck a plea bargain. In return for not contesting three counts of intentional nonsupport of his children, the state agreed to recommend a ceiling of six years imprisonment, while noting that Oakley's arrears in child support had surged past $25,000.

The sentencing judge, Fred H. Hazelwood, heard Oakley beg for the opportunity to work full-time, to provide for his children, and to make serious inroads on his arrearage. In other words, he portrayed himself as a fallen angel who would earn salvation if given another chance. Judge Hazelwood was unconvinced, but perplexed by his punishment options. He observed that "if Mr. Oakley goes to prison, he's not going to be in a position to pay any meaningful support for these children."

Thus, despite Oakley's chronic defiance of his legal duties, the judge selected a five-year term of probation in lieu of incarceration. But Oakley would be permitted to father additional children during this grace period from imprisonment, said Judge Hazelwood, only by demonstrating both an ability to support a newborn and compliance with outstanding support decrees.

Oakley assailed the probation circumscription on his right to procreate, which he had shamelessly abused. He declined to argue that his would-be children would keenly relish his tender loving care and fatherly tutelage, a refreshing testament to the proposition that lying in the courtroom has limits.

The right to procreate is cherished in every free society. Most in the United States and the Western world have been repelled at government initiatives in India and China featuring forced sterilizations or punishments for large families. Indeed, children are the secret of happiness for a large percentage of Americans. To deny the opportunity for conception, even if temporary, is thus a grave step that justifies exacting constitutional scrutiny.

The sharply divided Wisconsin Supreme Court, however, largely dodged its task. Writing for a razor thin 4-3 majority, Justice Jon P. Wilcox execrated the "deadbeat Dad" phenomenon that blights our legal and cultural landscape to awaken wrath toward Oakley. In language as gripping as an El Greco martyr, the Justice lamented: "n 1997, out of $26,400,000,000 awarded by a court order to custodial mothers, only $15,800,000,000 was paid, amounting to a deficit of $10,600,000,000… . Single mothers disproportionately bear the burden of nonpayment as the custodial parent… . he payment of child support is widely regarded as an indispensable step in assisting single mothers to scale out of poverty, especially when their welfare benefits have been terminated due to new time limits."

"The effects of the nonpayment of child support on our children are particularly troubling. In addition to engendering long-term consequences such as poor health, behavioral problems, delinquency and low educational attainment, inadequate child support is a direct contributor to childhood poverty."

But that fire and brimstone denunciation had nothing to do with the case. Oakley did not question Wisconsin's decision to make any intentional default on a child support obligation a felony punishable by up to five years in prison to deter and to retaliate for persistent and insouciant promiscuity. Thus, he conceded that he would risk prosecution and a stiff prison term if he financially abandoned a new child. And that prospect, the criminal law postulates, presumptively honors the community interest in deterring and preventing anti-social behavior. The probation restriction on conception (which, if violated, would dispatch Oakley to prison for eight years) seemed gratuitous because it presumed that fear of prison, without more, will concentrate Oakley's mind wonderfully on responsible sex.

Moreover, the potential for his degradation in policing the restriction shocks the conscience. Will probation officers monitor Oakley's bedroom, and the use of contraceptives by himself and sex partners? Suppose he conceives under the mistaken belief that his partner was on the pill. Would that trigger an embarrassing evidentiary hearing before the sentencing judge?

In sum, it is not that we despise Oakley less, but that we cherish human dignity and privacy more that the probationary restriction on procreation should fall. The majesty of the law stands tallest when it refuses to bend principles when pariahs stand before it.

Bruce Fein is general counsel for the Center for Law and Accountability, a public-interest law group headquartered in Virginia.

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