Atlanta's John Marshall Law Journal Volume IV

JOHN

MARSHALL LAW JOURNAL

2011

Volume IV

ARTICLES & ESSAY

Equitable Division of Property in Georgia: What's Mine Is Mine and What's Ours Is Mine Too Rebecca L. Crumrine & Rachel K. Miller ..................

1

Fleeing Domestic Violence: A Proposal to Change the Inadequacies of the Hague Convention on the Civil Aspects of International Child Abduction in Domestic Violence Cases Karen Brown Williams ...

39

.............................

Grow Up Georgia . . . It's Time to Treat Our Children as

Children Elizabeth Locker

85

....................................

Fathers Matter: Anonymous Sperm Donation and the Age-Old Problem of Father Absence 113

Elizabeth Marquardt & Leah Ward Sears .................

COMMENTS

Death and Disinheritance in Georgia: Reconciling Year's Support and the Elective Share Kristi L. Barbre

....................................

139

Time for Change: Handling Child Prostitution Cases in Georgia K. Michael Baker

177

...................................

Georgia Delivers the Promise of Self-Determination: A Template for Mediating Cases in the Presence of Domestic Violence Boris Y. Milter

.....................................

203

The Marital Crime Exception: Why Georgia's Marital Privilege Law Should Be Changed Kenneth J. Lewis ....

.........................

......

235

LEGISLATIVE SUMMARIES Georgia General Assembly 2009 Legislative Session: House Bill 351: Family-Planning Services; Define Certain .................

Terms; Change Certain Provisions .

267

House Bill 388: The Option of Adoption Act ...............

275

House Bill 428: Department of Human Resources; Adopting a Special Needs Child; Providing Financial Assistance ....

287

Senate Bill 142: Family Violence; Increases to Family Violence Battery Penalties; Creation of the Georgia .................

Family Violence Offender Registry .

291

Senate Bill 169: Ethical Treatment of Human Embryos ..... .297 Senate Bill 292: Courts; Juvenile Proceedings ............

Georgia General Assembly 2010 Legislative Session: House Bill 884: Child Molestation; Aggravated Child .....................

Molestation....

.....

307

315

House Bill 897: Sexual Offenses; Assault Against Persons in Custody ......................................

319

House Bill 1085: Reunification of Family; Additional Case .................

Plan and Permanency Requirements

327

House Bill 1433: Domestic Relations; International Marriage .......................

Brokers; Provide Regulation

335

Senate Bill 304: Offenses; Mandate a Minimum Age for the Prosecution of the Offenses of Prostitution .............

343

Senate Bill 471: Adoption; Require Home Study by Evaluator Prior to Placement of a Child ..............

355

Senate Bill 529: Crimes and Offenses; Specify Certain Acts that Constitute Criminal Abortion ...................

371

Cite as John Marshall L.J.

ARTICLES

EQUITABLE DIVISION OF PROPERTY IN GEORGIA: WHAT'S MINE IS MINE AND WHAT'S OURS IS MINE Too REBECCA L. CRUMRINE*

&RACHEL K. MILLER**

I.

INTRODUCTION

II.

EQUITABLE DIVIsIoN OF PROPERTY THAT IS PART MARITAL AND PART SEPARATE

................................................

...............................................

2

5

A.

The Evolution of the "Source ofFunds" Rule in Georgia: Before ................................ 6 Thomas v. Thomas B. The "Source ofFunds" Rule in Thomas v. Thomas andIts ........... 9 ..........................

Application C. Issue ofJoint Gifts: Lerch v. Lerch and Beyond ....................... 11

III.

IV.

EQUITABLE DIVISION OF EMPLOYEE STOCK OPTIONS ..............

17

.....

A. Employee Stock Options Are Property ............ ......................

B. Determiningthe MaritalShare C. EquitableDivision of Stock Options in Georgia ................... ........... .......

D. Variations of the Time Rule Formula 1. FirstProposedVariation of the Time Rule Formula ..........

2. Second ProposedVariation of the Time Rule Formula.......

18 21 24 26 26 28

EQUITABLE DIVISION OF FEDERAL PENSION PLANS.......................

29

* Shareholder; Davis, Matthews & Quigley, P.C.; Adjunct Professor, Atlanta's John Marshall Law School. ** Associate Attorney; Pachman Richardson, LLC.

John MarshallLaw Journal

2 V.

CONCLUSION

.................................

I.

[Vol. IV ...... 37

INTRODUCTION

In domestic relations cases involving a divorce action, the property held by or between each of the parties must be divided.

The different characteristics of property cause difficulty in determining what property is marital, and therefore divisible, and what property is separate and not subject to division. A party facing divorce is considerably concerned with what assets he or she will have moving forward. The legal determination of what property constitutes marital property, as opposed to separate property, is seminal to subsequent division denoting with what assets (and debt) each party leaves the marriage.

Most often, property of the parties, whether deemed "marital," "separate," or some variation thereof, is divided pursuant to the laws of the state in which the divorce action occurs. Georgia, like a majority of states, is designated a common-law property state. In common-law property states, ownership of property acquired during the marriage, not received by gift, inheritance, or devise, does not vest during the marriage, and title is not controlling.' At divorce, the parties each have a right to an "equitable division" of marital property; marital property is discerned not by title, but by acquisition and source of funds. In common-law property states, the eminent question at the filing of divorce of the parties is what constitutes marital property versus what constitutes separate property. The party claiming that a particular piece of property is separate property must also prove that separate property interest.

Prior to Stokes v. Stokes, property ownership in Georgia was defined by title.2 Georgia law did not provide for division of property outside of designation by title. Therefore, Georgia courts used alimony or other creative means by which to award 1. Property acquired during the marriage regardless of title is "marital" unless the property meets the definition of "separate" property-received by one party to the marriage by gift, inheritance, or devise. See, e.g., Stokes v.

Stokes, 273 S.E.2d 169, 171 (Ga. 1980).

2. Hargrett v. Hargrett, 251 S.E.2d 235, 237-38 (Ga. 1978), overruled by Stokes, 273 S.E.2d at 173-74.

No. 1]

EquitableDivision ofProperty in Georgia

3

a marital division of property to the non-titled spouse, such as the use of resulting trusts or constructive trusts.3 The Stokes Court provided reasoning for marital rights in property acquired during the course of the marriage and the equitable division of marital property in Georgia.

In a divorce action the court has ancillary jurisdiction to determine the equitable interest of either spouse in the real or personal property owned, either in whole or in part, by the other spouse... . [T]his court has approved the award to a spouse, either husband or wife, of property, both real and personal, held in the name of the other spouse, not as alimony but as equitable division of property.'

Since Stokes, Georgia court rulings continue to establish a marital right to property earned during the marriage, providing both the breadwinner (historically, the husband) and the nonearning spouse (historically, the wife) an equitable division of property earned during the marriage, despite how the property With the ever varying was titled during the marriage.' traditional and cultural roles of husband and wife, as well as the more common existence of separate property interests commingled with marital property interests, litigation on the subject of equitable division of property has flourished in Georgia. Unfortunately, the case law fails to develop clear guidelines; rather, the case law provides us with specific holdings that relate to the specific fact patterns being heard before the appellate courts.

The purpose of this Article is to provide direction on how property will be distributed upon divorce based on case law and specific factual interpretations by the Georgia appellate courts.

The term "equitable division of property" encompasses many subtopics. This Article addresses three of the more divisive categories: (1) division of property that involves both marital and separate characteristics; (2) division of stock options; and (3) division of federal pension plans.

With regard to the first category, Thomas v. Thomas has provided family law practitioners a clear and definite 3. Id. 4. Stokes, 273 S.E.2d at 173.

5. See, e.g., Payson v. Payson, 552 S.E.2d 839 (2001) (describing how Georgia courts equitably divide property upon divorce).

4

John MarshallLaw Journal

[ Vol. IV

calculation for division of property encompassing both marital and separate characteristics, equitably dividing the property based on the "source of funds" rule, a term that is detailed in the following sections.' Some practitioners believe that recent Georgia cases involving marital or non-marital property and the subsequent equitable division thereof have been seen as confounding the once unambiguous rule.' Upon further review, however, these seemingly contradictory cases complement one another. In the following Parts, the authors posit that when dividing property characterized as part marital and part separate, one continues to adopt the Thomas calculation unless an exception applies-the existence of a pre-nuptial agreement and subsequent gift deed,' or the involvement of gifts to the marital unit. 9 Next, this Article addresses division of employee stock options. There is no clear, established rule in Georgia for equitably dividing stock options; Newman v. Patton'o proposed using the "time rule formula"" but did not specify how to apply that formula. The authors present what they believe are the two most popular scenarios: (1) parties are married after the grant of stock options and divorce after the options have vested; and (2) parties are married after the grant of stock options but divorce before the options vest. The authors then provide two variations of the "time rule formula" to accompany each scenario. The purpose of this Part, as in the other Parts, is to provide guidelines to follow in future equitable division cases involving stock options.

6. The "source of funds" rule is a formula established by the Georgia Supreme Court in Thomas v. Thomas. 377 S.E.2d 666 (Ga. 1989). The rule "provides that a spouse contributing non-marital property is entitled to an interest in the property in the ratio of the non-marital investment to the total non-marital and marital investment in the property." Maddox v. Maddox, 604 S.E.2d 784, 786 (Ga. 2001).

7. Lerch v. Lerch, 608 S.E.2d 223 (Ga. 2005); Coe v. Coe, 684 S.E.2d 598 (Ga. 2009); Miller v. Miller, 705 S.E.2d 839 (Ga. 2010).

8. Lerch, 608 S.E.2d at 223-24.

9. Coe, 684 S.E.2d at 600; Miller, 705 S.E.2d at 845.

10. 692 S.E.2d 322 (Ga. 2010).

11. See infra Part HI.C.

No. 1]

EquitableDivision ofProperty in Georgia

5

Lastly, this Article discusses whether Georgia should adopt "imputed social security benefits"l 2 when faced with a spouse who contributed to a federal pension plan, and who was exempt from paying into social security. In essence, when calculating equitable division of property, the question remains whether Georgia will allow federal pension plans to be "reduced" by the amount that the applicable party would have contributed to social security. The Circuits are split regarding whether to consider federal pension plans in calculating equitable division, including the Eleventh Circuit.13 The authors discuss the opinions of other jurisdictions, as well as the federal laws on the issue.

II. EQUITABLE DIVISION OF PROPERTY THAT IS PART MARITAL AND PART SEPARATE

Equitable division of property is the allocation of assets acquired during the marriage of the parties based on their Separate respective equitable interests in those assets. 14 property as equitable property of either spouse is not divisible because the separate property is not "generated by the marriage."" Separate property remains the property of the owner-spouse.16 What happens when there is a question as to whether a property interest is wholly separate or wholly marital? This Part discusses two areas of dispute in the discussion of the equitable division of property: (1) separate property owned by one party prior to the marriage but paid for with marital funds during the marriage; and (2) gifts made jointly to the parties.

12. Social Security benefits are imputed when, in a divorce action, a party employed by the federal government and exempt from contributing to social security due to contribution to the federal pension plan is able to "impute" to the total of his or her federal pension plan the amount he or she would have contributed to social security, reducing the total federal pension plan considered marital and, therefore, subject to equitable division. Rabek v.

Kellum, 620 S.E.2d 387, 388 (Ga. 2005).

13. See infra Part IV. 14. Boyd v. Boyd, 382 S.E.2d 730, 731 (Ga. Ct. App. 1989). Special thanks to Kurt A. Kegel, Esq., The Law Firm of Kurt A. Kegel, LLC, for contributions to this section.

15. Mathis v. Mathis, 642 S.E.2d 832, 834 (Ga. 2007).

16. Campbell v. Campbell, 339 S.E.2d 591, 593 (Ga. 1986).

6

John MarshallLaw Journal

[Vol. IV

First, the authors address situations in which real property was titled in one party's name prior to the marriage, but marital funds were utilized to reduce the amount owed on the mortgage or other debt against the property. In such scenarios, the proceeds from the sale of the property are distributed to the parties based on the "source of funds" rule, defined by the Georgia Supreme Court in Thomas v. Thomas." Second, the authors discuss the exception to the general rule that property acquired by either party during the marriage by gift, inheritance, bequest, or devise remains the separate property of the party that acquired it and is not subject to equitable division." This exception involves a gift to the marital unit from one of the spouses, a subject that has been recently addressed by the Georgia Supreme Court in the cases of Lerch v. Lerch, Coe v.

Coe, and others.' 9 A. The Evolution of the "Source ofFunds" Rule in Georgia: Before Thomas v. Thomas As previously explained, Georgia is a common-law property state.20 Equitable division of property exists only in a divorce action.2' Property of the marriage does not "vest" until divorce, at which time it must be determined what property is marital and how to divide the marital property. The court legally determines whether property is separate or marital in nature, and then, as a factual matter, awards an equitable distribution of the marital property to each party.22 In 1989, the Georgia Supreme Court adopted the "source of funds" rule to determine the proportionate separate part of a particular piece of marital property-e.g., a residence purchased with one party's separate funds before the marriage but paid for with marital funds during the marriage.23 17. 377 S.E.2d 666, 669 (Ga. 1989); see infra Part II.B. 18. Bailey v. Bailey, 295 S.E.2d 304, 305 (Ga. 1982).

19. See supra notes 8 & 9.

20. Stokes v. Stokes, 273 S.E.2d 169, 171-72 (Ga. 1980).

21. See Payson v. Payson, 552 S.E.2d 839, 841 (Ga. 2001); Byers v.

Caldwell, 539 S.E.2d 141, 142 (Ga. 2000).

22. UNIF. MARRIAGE AND DIVORCE ACT ยง 307(a) (amended 1973).

23. This Article does not address the direct correlation of the evolution of alimony awards with that of equitable division of property, affected in large part by sociological changes and the affect on the definition of family.

No. 1]

EquitableDivision ofProperty in Georgia

7

At common law, the joint enterprise of marriage merged all of the parties' property, bestowing control of the property on the Georgia deviated from common law husband alone.2 4 principles, providing to the wife, as separate property, all of her property at the time of the marriage, and all property acquired by gift, inheritance, or acquisition by the wife during the marriage.2 Further, Georgia specifically exempted the wife from any responsibility for liabilities incurred by the husband.2 6 Before Stokes v. Stokes, a long line of case law explained that trial courts attempted to provide wives with the value of a factual finding of her separate property.2 7 Of course, the fact finder's task involved assigning a value to property the wife brought into the marriage or otherwise contributed from her separate property. For instance, the trier of fact would estimate the value of contributions to house payments for a residence in which the wife supplied the down payment. 28 The fact finder was also responsible for determining whether the property remained separate in nature by practice and custom of the parties and, more often than not, identifying any portion of property that became a marital property asset over time. 29 For example, practice and custom of the parties' co-mingling their respective salaries provided support for the assertion that money in a savings account held solely in the wife's name was considered marital funds for equitable division purposes.3 0 When equitably dividing property prior to Stokes, the trier of fact could attempt to give credit to whatever separate property a party possessed; however, the fact finder did not have a legal foundation to provide a division of property based on the nonfinancial contribution of a party until Stokes v. Stokes.31 "Stokes simply recognized that a spouse's non-economic contributions to a marriage might be reflected in an 'equitable division' of property, notwithstanding the incidence of legal ownership, and that such an allocation might be appended to another allocation Stokes v. Stokes, 273 S.E.2d 169, 171 (Ga. 1980).

25. Id. 26. Id. 27. Id. at 172-74.

28. Id. at 173.

29. See McLane v. McLane, 164 S.E.2d 821, 822 (Ga. 1968).

30. Holloway v. Holloway, 212 S.E.2d 809, 809-10 (Ga. 1975).

31. 273 S.E.2d 169 (Ga. 1980).

24.

8

John MarshallLaw Journal

[Vol. IV

calculated, in theory, upon need and ability to pay."32 A marital property interest may be titled iointly or in one spouse's name.

For example, the equity in a residence titled solely in one spouse's name, but purchased during the marriage and paid for by marital funds, is deemed marital property and is subject to equitable division.3 Therefore, a trier of fact may award one spouse real property held in the other spouse's name if it determines the real property was acquired during the course of the marriage by contributions of both parties.34 While the Stokes case adopted "ancillary jurisdiction to determine the equitable interest of either spouse in the real or personal property owned, either in whole or in part, by the other spouse[,]" 35 Stokes provided no formula by which the court could determine the value of the separate or marital interest or the active or passive appreciation thereof.36 Resulting case law from the decision in Stokes, to the ruling in Thomas, supports the premise that any property brought into the marriage by one party remains that party's separate property and is not divisible by the courts."

Courts continue to struggle with the division of a marital portion of property that, although separate at the time of the marriage, may have increased in value due to marital contribution. 8 For example, in Bailey v. Bailey, the Court found the marital residence, gifted to the husband at the time of the marriage and titled solely in his name, was not subject to equitable division.39 There was no marital interest because neither the wife nor the husband made contributions toward the acquisition of the residence.4 0 The Bailey Court did not look at interest after acquisition, which may have provided the marital interest to be divided. However, in Rooks v. Rooks, the Court upheld a jury verdict providing the wife with a portion of the 32. Rooks v. Rooks, 311 S.E.2d 169, 174 (Ga. 1984) (Weltner, J., concurring).

33. Stokes, 273 S.E.2d at 173.

34. Id. 35. Id. 36. See id.

37. Mathis v. Mathis, 642 S.E.2d 832, 834 (Ga. 2007).

38. Bailey v. Bailey, 295 S.E.2d 304, 305 (Ga. 1982).

39. See id.; see also Rooks v. Rooks, 311 S.E.2d 169, 170 (Ga. 1984).

40. Bailey, 295 S.E.2d at 305.

No. 1]

EquitableDivision ofProperty in Georgia

9

marital residence because facts indicated that it may not have been a gift, but instead purchased in part by a loan from the husband's mother.4 1 In Miller v. Miller, because the husband deeded the marital residence into both parties' names after the marriage, the Court determined that the marital residence, although alleged by the husband to have been purchased with his separate funds, was marital and not subject to the "source of funds" rule. 42 Additionally, the Miller Court relied on evidence provided at trial that supported the act of deeding the property jointly was specifically intended to provide an interest in the residence to the wife. 43 B. The "Source ofFunds" Rule in Thomas v. Thomas and Its Application In 1989, the Georgia Supreme Court adopted the "source of funds" theory in Thomas v. Thomas." Thomas provided courts with a method for assigning value to the contribution of a separate estate, not the marital estate, upon one party seeking an apportionment of his or her separate property.

In Thomas, the husband appealed from the order of the Superior Court of Fulton County, Georgia dividing the parties' property upon the dissolution of the marriage. 45 At issue was the division of the proceeds from the sale of the marital home, which was in the wife's name and had been purchased by her shortly before the parties' marriage.46 The wife provided $75,000 as the down payment and obtained a mortgage against the property in the amount of $185,000 to meet the sales price of $260,000 for the house.47 The wife was the sole contributor to the mortgage for seven months. 48 Throughout the marriage, the parties utilized marital funds to reduce the mortgage further to a total of $177,000.49 A month after the husband and wife 41. See Rooks, 311 S.E.2d at 170.

42. Miller v. Miller, 705 S.E.2d 839, 845 (Ga. 2010).

43. Id. 44. 377 S.E.2d 666 (Ga. 1989).

45. Id. at 667.

46. Id. 47. Id. at 668.

48. Id. 49. Earnings during the marriage as a result of efforts of the marriage (i.e., salary from employment of either party) are deemed marital and subject to

John MarshallLaw Journal

10

[Vol. IV

separated, in November 1986, the house was sold for $351,000.0 The trial judge awarded the wife almost all of the proceeds from the sale of the house, and the husband appealed, arguing that the appreciation and value of the house that occurred during the marriage should have been classified as marital property subject to equitable division."

The net appreciation amounted to $90,905 .52 The trial court found that in addition to the down payment both parties had reduced the loan balance by $7265, and that the total equity paid by both parties was $82,623.11 Of the $7265 reduction in debt, resulting from the monthly mortgage payments, the trial court determined that $1017 had been paid by the wife and $6393 had been paid from marital assets.5 4 As a result, the ratio of the amount paid by marital assets ($6393) to total equity paid ($82,623) equaled seven percent. 5 Therefore, seven percent of the appreciation of $90,905 was subject to distribution as a marital asset, which amounted to $12,756.56 The Georgia Supreme Court noted that the method of division used by the trial court is referred to as the "source of funds" rule which means a spouse contributing non-marital property is entitled to an interest in the property in the ratio of the non-marital investment to the total non-marital and marital investment in the property. The remaining property is characterized as marital property and its value is subject to equitable distribution. Thus, the spouse who contributed non-marital funds, and the marital unit that contributed marital funds each receive a proportionate and fair return on their investment.5 7

The Thomas Court further noted that fundamental to the adoption of the "source of funds" theory is the recognition that equitable division, regardless of title. See Mathis v. Mathis, 642 S.E.2d 832, 834 (Ga. 2007).

50. Thomas, 377 S.E.2d at 668.

51. Id. at 669-70.

52. Id. at 669.

53. Id. 54. Id. 55. Id.

56. Id. 57. Id. (citing Harper v. Harper, 448 A.2d 916, 929 (Md. 1982)).

No. 1]

EquitableDivision ofProperty in Georgia

11I

property is not necessarily "acquired" on the date that the legal obligation to purchase is created." Rather, the term "acquired" should be defined as the on-going process of making payment for property. 9 The husband in Thomas argued that the entire appreciation in value of the parties' interest in the house resulted from their joint efforts to maintain and pay for it.60 The Court, however, found the evidence did not support that argument, noting that the parties' payments reduced the principal debt and were responsible for the resulting increase in equity caused by that reduction. 6 1 The Court further noted that the only material cause for the remaining appreciation was outside market forces. 62 Through the use of the "source of funds" rule, the Court was able to ensure that the property accumulated during the marriage was fairly distributed between the parties, while at the same time preserving the separate property for the benefit of the spouse to whom it belonged.63 Utilizing the "source of funds" rule secures a party's separate property used such as the down payment of a residence intended for marital habitation. The "source of funds" rule provides a tabulation to determine a separate property portion of a marital asset. Therefore, the separate property does not commingle into the marital property and maintains its separate characteristics.

C. Issue ofJoint Gifts: Lerch v. Lerch and Beyond In a matter of first impression, the Georgia Supreme Court considered the classification ofjoint gifts in the case of Lerch v.

Lerch.64 During the marriage, the parties lived in a house that the husband had purchased before the marriage. 5 In 1999, the husband executed and recorded a gift deed transferring ownership in the property to himself and his wife as tenants in common with rights of survivorship.66 The trial court found 58. Id. at 670.

59. Id. 60. Id. 6 1. Id. 62. Id. 63. Id.

64. See 608 S.E.2d 223 (Ga. 2005).

65. Id. at 223.

66. Id.

John MarshallLaw Journal

12

[Vol. IV

that, as a result of the gift, half of the home qualified as marital property and the other half remained the husband's separate property.6 7 The Georgia Supreme Court reversed the trial court's decision, holding the entire home should have been treated as marital property.68 The Court noted that, in most cases, a gift to one of the spouses is the separate property of that spouse.69 However, when an item that was once the separate property is given to the couple as a gift, the item becomes marital property, unless the spouse contesting the marital status has shown contrary intent by the donor.70 In this case, the husband intended to deed the property to himself and his wife so as to transform his own separate property into marital property.

Therefore, the property in question was marital property, not subject to the "source of funds" rule.72 The Lerch opinion raises some questions in light of longstanding Georgia law holding a transfer into joint title raises only a rebuttable presumption of a gift.

Where a husband pays the purchase money of land from his own funds and has the land conveyed to his wife, the presumption which the law makes is that the husband intended to make a gift to his wife; but the presumption is a rebuttable one, and a resulting trust in favor of the husband may be shown.73 However, the Lerch decision follows the general rule in other states, which holds that property given to both spouses is considered marital property.74 It has been suggested that the 67. Id. 68. Id.

69. Id. 70. Id. at 223-24.

71. Id. at 224.

72. Id. Lerch is unique in that there was a prenuptial agreement in which the wife promised not to make any claims against the husband's property in the event of a divorce. However, the property ceased to qualify as the husband's own separate property as soon as he transferred it through a gift deed to the marital couple. Therefore, the Georgia Supreme Court held that the prenuptial agreement did not preclude the wife from making a claim for the marital home.

73. Jackson v. Jackson, 104 S.E. 236, 236 (Ga. 1920).

74. See, e.g., Forsythe v. Forsythe, 558 S.W.2d 675, 678 (Mo. Ct. App.

No. 1]

EquitableDivision ofProperty in Georgia

13

Georgia Supreme Court in Lerch had no intention of overruling over eighty years of case law holding that a conveyance into joint title creates only a rebuttablepresumption of a gift.75 In a footnote following the categorical statement that a gift was present on the facts, the Lerch Court cited a Florida decision for the following proposition: a gift from a husband to the husband and wife raises the presumption that property qualifies as marital.7 6 It is noteworthy that the Lerch Court did not cite any Georgia cases which state the same proposition. Thus, it seems that the Court's direct reference to an out-of-state presumption case strongly indicates that the Court did not intend to overrule prior Georgia case law, including the "source of funds" rule established in Thomas.

The Lerch Court's rationale seemingly lies in the fact that the conveyance into joint title was in a deed of gift. This rationale was recently cited and upheld in Miller v. Miller.77 In Miller, the husband asserted the marital residence was purchased with proceeds from the sale of his prior residence, making the purchase payment separate property.7 8 However, additional evidence before the Court established that the husband deeded to his wife a joint interest in the prior residence, shortly after their marriage, by placing the prior residence in both parties' names.7 9 The Court supported the finding that the proceeds from the sale of the prior residence were marital with evidence that the husband placed the prior residence in joint names to recognize and provide credence to the wife's "contributions to

1977), superseded by statute, Mo. ANN. STAT. ยง 452.330 (West 2011), as recognized in Brady v. Brady, 39 S.W.3d 557 (Mo. Ct. App. 2001) (noting that Missouri law requires that a court consider a gift to the marital couple to be marital property); Burnett v. Burnett, 471 S.E.2d 649, 651 n.1 (N.C. Ct. App. 1996) (holding that gifts to both spouses are not within the definition of separate property).

75. Brent R. Turner, JointInterspousal Gifts and the ParolEvidence Rule, 22 No. 2 EQUITABLE DISTRIBUTION J. 13 (2005).

76. Lerch v. Lerch, 608 S.E.2d 223, 224 n.3 (Ga. 2005) (citing Goldstein v. Goldstein, 310 So. 2d 361, 366 (Fla. Dist. Ct. App. 1975) (holding gift from husband to husband and wife raised presumption that property qualified as marital)).

77. Miller v. Miller, 705 S.E.2d 839, 845 (Ga. 2010).

78. Id. 79. Id.

14

John MarshallLaw Journal

[Vol. IV

the household." 0 At first glance, this may seem to deviate from the "source of funds" rule. The Georgia Supreme Court, however, relied on the trial court's findings of fact as to the testifying parties' credibility in determining the circumstances of the transfer of the residence into both parties' names. 8 ' Unlike the facts of Thomas, in Miller, there were questions of fact as to why the residence was deeded in both names and whether that act transmuted any separate property. The Court found it did.82 In addition to the question of fact, the Court in Miller also relied on Lerch in support of the principle that the investment in the residence was marital because of the husband's "gift.""

"Thus, the trial court was authorized to find that the prior residence was thereby transformed into marital property." 84 While the law in Georgia holds that "parol evidence of the nature of the transaction, or the circumstances, or conduct of the parties" is admissible to rebut the presumption of a gift, the proof must be clear and convincing. 5 It seems the court may equally rely on parol evidence as well as the credibility and determination of veracity of the witness.

Similarly, in Brock v. Brock, the Georgia Supreme Court held that a party's actions may convert separate property into marital property. 6 As in Lerch, the parties' marital home in Brock was the separate property of the husband at the time of the marriage.8 7 In April 2000, the husband executed and recorded a warranty deed, transferring ownership in the home to the wife in consideration for her "love and affection."88 At the final hearing, the husband claimed, and the trial court agreed, that his wife held the property in an implied resulting trust for the husband because he conveyed the property to his wife for the 80. Id. 81. Id. 82. Id. 83. Id. 84. Id. (citing Lerch v. Lerch, 608 S.E.2d 223, 223 (Ga. 2005) (emphasis added).

85. Jackson v. Jackson, 104 S.E. 236, 237-38 (Ga. 1920); see Smithsonian Institution v. Meech, 169 U.S. 398, 407 (1898).

86. 610 S.E.2d 29, 30 (Ga. 2005).

87. Id. 88. Id.

No. 1]

EquitableDivision ofProperty in Georgia

15

purpose of protecting it from potential future creditors.8 9 The wife filed an application for discretionary appeal challenging the trial court's property division award. 90 The Georgia Supreme Court reversed the trial court, finding the husband had not overcome the presumption that the conveyance was a gift.91 To rebut the presumption, the "[h]usband was required to prove by clear and convincing evidence . . . that a resulting trust was contemplated by both parties by way of an understanding or agreement."9 2 The husband was unable to do so, and the Court, therefore, concluded that the "trial court erred in finding that Wife held the property in trust for Husband and awarding the marital home to Husband[.]"9 3 Unfortunately, the Georgia Supreme Court did not address whether the husband's gift of his separate property to his wife converted the property to the wife's separate property, or whether the gift converted the property into marital property. 94 In Coe v. Coe, the Georgia Supreme Court seemed to clarify that the Lerch case was not intended to override previous Georgia cases, holding that transfer into joint title raises only a rebuttable presumption of a gift. 95 The parties in Coe purchased a house after they were married and placed the title in both of The husband argued that the house was their names." purchased with money he received from a personal injury claim, and, therefore, the home was his separate property.97 The trial court gave the following jury instruction: [g]ifts of property between a husband and a wife during the marriage do not vest title in the other spouse so as to exclude that property from being divided in an equitable division of property. And, in that regard, I will tell you that if the payer 89. Id. 90. Id. 9 1. Id. 92. Id.; see also Scales v. Scales, 220 S.E.2d 267, 268 (Ga. 1975) (holding that evidence husband conveyed property to wife to protect it from potential creditors was insufficient to rebut presumption of gift).

93. Brock, 610 S.E.2d at 30.

94. Id. 95. See Coe v. Coe, 684 S.E.2d 598, 600 (Ga. 2009).

96. Id. 97. Id.

16

John MarshallLaw Journal

[Vol. IV

of consideration and transferee of the property are a husband and a wife, a gift shall be presumed, but this presumption may be rebutted.98 The Georgia Supreme Court found that the trial court's jury instruction was acceptable. 99 Using the Brock case as support, 00 the Court found that although the husband correctly concluded that his wife held the house in trust because he provided her with legal title, the trial court was also correct to instruct the jury regarding the gift presumption. As in Brock, the Court in Coe had to tackle questions of whether the transfer was made as a gift or a trust and, therefore, whether the charge was Accordingly, the Coe case did not alter the allowable.10 application of the "source of funds" rule. But, one could argue that Coe reinforced the already existing rule that changing the title of property raises the rebuttable presumption of a gift to the marital unit, thereby limiting the Lerch holding. However, the recent decision in Miller seems to provide that in addition to following the "source of funds" rule, the trier of fact should also examine evidence of the parties' intent.102 In Miller, the Court's finding reached beyond the intent of the husband to title the property with the wife jointly, and the wife's admission thereof, and relied upon the source of funds.

Although Husband argues that the down payment was made with business funds which were subsequently replaced by the proceeds from the sale of the prior residence, the evidence showed that both parties were the sellers of the prior residence, that instead of being deposited into a business account the proceeds were deposited into the parties' joint operating account and thereby commingled with the funds therein, and that Husband conveyed the new marital residence to both parties on the day it was purchased.'03 The "source of funds" rule, as first promulgated in Thomas, is still good law and should continue to be applied. Practitioners in Georgia, however, need to recognize that the application of 98. Id. 99. Id. 100. See supra notes 86-94 and accompanying text.

101. Coe, 684 S.E.2d at 600.

102. Miller v. Miller, 705 S.E.2d 839 (Ga. 2010).

103. Id. at 845.

No. 1]

EquitableDivision of Property in Georgia

17

the "source of funds" rule is not automatic when separate and marital property have been commingled, as is evidenced in Lerch, Coe, and Miller. When applying the "source of funds" rule, the practitioner needs to ascertain whether the separate property of one party was commingled to the point of transmutation or otherwise devised so as to lose its separate characteristics (e.g., real property gifted by gift deed to the nonowning spouse). As the authors have just demonstrated, and as will be shown in the following Parts, equitable division of property is not as simple as determining whether the property is one party's separate property. Many cases, if not a majority, involve separate property which has been commingled to some extent with marital property-either by applying marital funds to the separate property, by gifting the property to the marital unit, or by virtue of the fact that the property that was awarded before marriage may not be completely "owned" until after the marnage.

III.

EQUITABLE DIVISION OF EMPLOYEE STOCK OPTIONS

Equitable division of employee stock options has become increasingly relevant. In the 1990s and early 2000s, Aswath Damodaran, a widely cited expert in the field of finance, noted the popular trend of awarding stock options as an additional form of compensation to both executives and mid-level In the early to mid 2000s, Damodaran employees. 104 summarized a study performed by the Investor Responsibility Research Center which reviewed a representative market sample of 1500 companies and found that the portion of total outstanding shares in the market attributable to stock options was seventeen percent. 0 While the economic downturn in late 2008 has slowed the growing trend of awarding stock options,10 104. Aswath Damodaran, Employee Stock Options (ESOPs) and Restricted Stock: Valuation Effects and Consequences 4 (Sept. 30, 2005) (unpublished manuscript) (on file with the John Marshall Law Journal), available at http://ssrn.com/abstract-841504.

105. Id. at 6.

106. See Phred Dvorak, Theory & Practice: Market Leaves Firms Running Out of Stock Options: More Companies Cancel or Reduce Employee Awards as Sinking Prices Complicate Share-BasedCompensation, THE WALL STREET J., Feb. 2, 2009, at B6, available at http://online.wsj.com/article/SB123335288854234773.html (explaining that

18

John MarshallLaw Journal

[Vol. IV

many parties still hold their options that were awarded in better times. For many couples, those options represent a significant portion of their marital, or sometimes separate, estate. Those couples look to family law practitioners to resolve the issue of how to divide those assets, and family law attorneys must have a uniform method of doing so. Unfortunately, Georgia law does not provide that method, leaving practitioners without direction with which to provide their clients.

The purpose of this section is to provide family law attorneys with guidelines on how to divide stock options. However, before we can delve into those formulae, we must examine the concept of employee stock options and answer two important questions plaguing Georgia family law practitioners today.

First, are stock options considered property, and, therefore, subject to equitable division upon divorce? Second, if the options are subject to equitable division, how do we determine which portion of the options is marital, and which portion is separate? Once those initial questions are answered, the authors propose other formulae that can be employed by family law practitioners in future cases.

A. Employee Stock Options Are Property Employee stock options are a form of compensation provided to employees either to reward past performance or to motivate employees to be high performers. 10 7 After a certain period of time passes and/or certain criteria have been met, the employee has the ability to exercise those options and sell his or her shares at a specific price.10 The authors suggest that stock options, many companies are no longer able to provide their employees with stock options, as the companies' stocks are either worthless or they have to award too many shares to meet the promised dollar value).

107. See, e.g., RAYMOND A. NOE, ET AL., FUNDAMENTALS OF HUMAN RESOURCE MANAGEMENT 405-06 (2d ed. 2007) (defining employee stock options).

108. Davidson v. Davidson, 578 N.W.2d 848, 853 (Neb. 1998) ("An employee stock option is an employee's contractual right to purchase an employer's stock during a specified period at a predetermined price. . .. If the employee has an absolute right to exercise the option immediately, the option is vested and matured. If the employee cannot exercise the option until some future date, but the employee has an absolute right to exercise the option on that date, the option is vested and unmatured. If the option cannot be exercised until some future date and the option is subject to divestment,

No. 1]

EquitableDivision of Property in Georgia

19

therefore, are a hybrid of tangible and intangible property. The options are tangible once they mature, or vest, and the employee has "the right to possess, use, and enjoy" the stocks.109 In other words, once the options vest, the employee has control over whether to sell the shares and receive cash or whether to hold onto the shares. Alternatively, options that have not yet matured-i.e., the employee does not yet have the ability to choose how to use the options-could be considered intangible.

Tangible property is easier to accept as marital property. While a court might decide that only a portion of the vested stock options are marital, most courts would probably agree that the vested options are a form of property."0 The employed spouse has ownership over those stocks, and that ownership makes the options seem more like property. Intangible property, on the other hand, is difficult to accept as property. Options that have not vested come with too many uncertainties."' Of utmost concern is the employee's job status; if the employed spouse loses his or her job prior to the options vesting, he or she loses the options as well.112 It is understandable that courts may have a difficult time accepting expectancies as property. If the item in question is not in one of the spouse's control, how can the court divide it upon divorce?

Most jurisdictions recognize options as property, even if First, courts have those options have not yet vested."' the option is unvested."); see also NOE, supra note 107 and accompanying text.

109. BLACK'S LAW DICTIONARY 1335 (9th ed. 2009).

110. See, e.g., In re Marriage of Short, 890 P.2d 12, 15 (Wash. 1995) (explaining that an employee owns stock options that are vested immediately, as opposed to unvested stock options that do not give the employee any "legal title or rights of absolute ownership").

111. Charles P. Kindregan, Jr. & Patricia A. Kindregan, Unexercised Stock Options and Marital Dissolution, 34 SUFFOLK U. L. REv. 227, 230 (2001) (". . . unvested stock options have a contingent character and are

therefore merely expectancies rather than assets.").

112. Tracy A. Thomas, The New Marital Property of Employee Stock Options, 35 FAM. L.Q. 497, 502 (2001); see infra note 119 and accompanying text.

113. See Kindregan & Kindregan, supra note 111, at 232 ("The logic of treating even unvested property interests, such as stock options, as . . . marital property is based on the proposition that at least in part they are awarded for past services, i.e., for services rendered during the marriage.").

20

John MarshallLaw Journal

[Vol. IV

characterized employee stock options as a contractual right, as opposed to an expectancy." 4 That distinction is important because a contractual right is one that can be enforced, whereas an expectancy cannot be enforced."' An employee will receive his or her shares as long as he or she fulfills the obligations presented under the employer's specific stock option agreement." 6 The employee is not waiting for some event to occur in order for the options to vest; rather, he or she has the ability to control (to some extent) the outcome and to ensure that he or she receives the options pursuant to the agreement.

Furthermore, the fact that an employee must remain employed to receive his or her shares does not mean that the options are not property. The contingency of remaining employed affects the value of the options, but it does not necessarily affect the status of the options as property."'

114. See Thomas, supra note 112, at 504-05 (explaining that most jurisdictions accept both vested and unvested employee stock options as property, which is subject to equitable division upon divorce). While few Georgia cases address the issue of unvested stock options, Georgia does recognize that unvested retirement benefits are property, subject to equitable division. Thus, the unvested nature of an item does not necessarily prevent it from being considered property. See, e.g., Courtney v. Courtney, 344 S.E.2d 421, 422 (Ga. 1986) (holding that retirement benefits are considered marital property, even if they are unvested, as they are still contractual rights and "far less speculative in nature than the possibility of an inheritance"); Rabek v. Kellum, 620 S.E.2d 387, 388 (Ga. 2005) (finding that retirement benefits are subject to equitable division, whether they are vested or unvested).

115. See Thomas, supra note 112, at 503-04.

116. This explanation is similar to paying the mortgage on real property, as one owns his or her property completely, once the debt is paid. In Thomas, the Georgia Supreme Court noted that one acquires property over time through making payments towards that property. Thomas v. Thomas, 377 S.E.2d 666, 669 (Ga. 1989) (citing Harper v. Harper, 448 A.2d 916, 929 (1982)). See supra Part II.B. 117. See Thomas, supra note 112, at 505. It is important to note that this line of reasoning deserves more discussion. It is counter-intuitive to say that an item with no value is still property. If the employed spouse loses his or her job, thereby losing the stock options, the parties have nothing to divide.

So, in order to accept this explanation, one has to almost assume that the employed spouse will not lose his or her job prior to the options vesting.

That is a difficult assumption to make, especially in the recent tough economic times.

No. 1]

EquitableDivision ofProperty in Georgia

21

Second, even if one does not agree with the explanation that options are more contractual than contingent, one can still consider options property. It is important "to recognize all forms of property, including intangible and contingent interests.

Such interests are based on the economic partnership theory of marriage, under which each spouse contributes directly and indirectly to the marital economy by a variety of in-kind, financial, and intangible means.""' In other words, the options are still a contribution to the marriage by the employed spouse, and they should be included in the broad definition of property.

Lastly, by not including all employee stock options in the definition of property, are we assigning more value to certain forms of compensation? When we classify vested stock options as property and do not give unvested stock options the same treatment, we are implying that cash is worth more than alternative compensation. This could have an unintended effect on how companies compensate their employees. 119 B. Determiningthe MaritalShare Once it is determined that employee stock options are property, one must determine the marital portion of the particular bundle of stock options. The first question that many people ask is whether the options were awarded during the marriage. The idea is that if the options were awarded during the marriage, then the options should be marital. However, upon further reflection, that is not the only question to ask. In Georgia, property is not automatically deemed marital simply by virtue of the fact that it was obtained during the parties' As the Georgia Supreme Court explained in marriage. 12 Payson v. Payson, "[o]nly property acquired as a direct result of 118. Id. at 504-05.

119. See id. at 505. Again, this argument poses another interesting side discussion. We essentially make value judgments about property all the time. For example, we calculate the present value of lump sum alimony awards because money today is worth more than money a few years from now. So, in order to accept this explanation, one has to accept that in valuing types of compensation, we could negatively affect companies' operations, and that is not the intention.

120. Dasher v. Dasher, 658 S.E.2d 571, 572 (Ga. 2008) (holding that the husband needed to prove that the property in question was a marital asset and that he could not just rely on the fact that the wife acquired the property during the parties' marriage).

22

John MarshallLaw Journal

[Vol. IV

the labor and investments of the parties during the marriage is subject to equitable division."l 2 1 Thus, while it is important to know when the options were granted in relation to when the parties' married, it is also important to know why the employed spouse received the options.

Since employee stock options are akin to contracts,'122 it is necessary to review the agreement between the employed spouse and the company to determine why the options were awarded. Options can be granted for a variety of reasons, and it is sometimes difficult to know which ones are relevant and which ones are not. In her 2001 article, Tracy Thomas provides a list of factors that she believes most courts consider when determining the purpose for the employee stock option award. 123 First, one should look at whether the option was granted instead of, or in addition to, the employee's annual salary.124 The question is whether those options are granted sporadically as a bonus or other reward, or whether those options are granted regularly and in place of the employee's gross income. Second, it is important to note whether the option was granted to provide the employee with tax benefits.125 Third, one should understand whether the option was awarded to attract a certain type of employee-maybe even one particular person.126 And lastly, one should consider whether the option was granted as a "carrot" for future performances or as a reward for past

services.12 7 After determining when and why the stock options were granted, the practitioner must then decide how to determine which portion of the stock options are marital property and 121. Payson v. Payson, 552 S.E.2d 839, 841 (2001). See also White v.

White, 319 S.E.2d 447, 449 (Ga. 1984) (describing marital property as property acquired by the efforts of the parties during the marriage).

122. See supra notes 110, 116 and accompanying text.

123. See Thomas, supra note 112, at 511-12 (summarizing the factors that most courts consider when classifying stock options as marital or separate property). See also In re Marriage of Hug, 201 Cal. Rptr. 676, 679-80 (Cal. App. 1984) (noting that stock options are given to help employees receive beneficial tax treatment, and, therefore, could "fall into the same category as, for example, fringe benefits, health and welfare benefits . .

124. Thomas, supra note 112, at 511-12.

125. Id. 126. Id. 127. Id.

No. 1]

EquitableDivision ofProperty in Georgia

23

subject to equitable division. Most jurisdictions have used some variation of the time rule or coverture formula to make that determination.12 8 The time rule formula allocates the employed spouse's stock options in relation to the term of the marriage.129 When equitably dividing stock options that were awarded for past services, the formula is one "in which the numerator is the difference between the marriage start date and the grant date, and the denominator is the difference between the employment start date and the grant date." 3 0 In cases where the court is equitably dividing stock options that were awarded for future services, one of two formulae is most often used: (1) "the numerator is the difference between the grant date and the marriage end, and the denominator is the time from the grant date to the date of exercisability"; or (2) the numerator is the difference between the grant date and the separation date, and the denominator is the time from the grant date to the date of vesting.'"' Those formulae, both for past services and future services, are merely offered as an outline. Since each case is different, the formulae can, and arguably should, be altered to meet the needs of each set of facts and circumstances.13 2 Furthermore, it is the authors' contention that the formulae for stock options awarded for future services should be altered 128. See Kindregan, supra note 111, at 235 (". . . the purpose of a timeline rule is to separate out the services rendered by the employed spouse during the marital period from those which were rendered before marriage and those which will be rendered after the divorce in order to vest the stock options.").

129. See generally In re Marriage of Short, 890 P.2d 12, 15-16 (Wash.

1995) (describing the time rule or coverture formula); Wendt v. Wendt, 757 A.2d 1225, 1234-35 (Conn. App. Ct. 2000) (providing the history of the coverture formula and explaining how to properly use it).

130. Thomas, supra note 112, at 515-16.

131. Id. at 516. Many courts still grapple with the issue that vesting and exercisability are two very different points in time in the option's life cycle, but realistically, the option is not truly "an absolute right until it is actually exercised[.]" Id. at 516 n.103.

132. See, e.g., DeJesus v. DeJesus, 687 N.E.2d 1319, 1324 (N.Y. 1997); Kindregan, supra note 111, at 236 (noting that New York "has developed a dual time line approach for dealing with the problem of options that started to run prior to the marriage[," with one time-line dealing with pre-marital contributions and one time-line dealing with the golden-handcuff aspects of the stock options, accumulating from the grant of the option until the parties' separation).

24

John MarshallLaw Journal

[Vol. IV

slightly. Accordingly, in the following sections, the authors offer variations of the time rule formula that could serve as guidelines for Georgia practitioners.

C. EquitableDivision of Stock Options in Georgia Unlike other jurisdictions, Georgia has very little case law on the subject of equitable division of stock options. Payson v.

Payson is often cited as one of the first stock option cases.'

The wife in Payson was employed at The Home Depot, Inc. ("Home Depot"), and she was awarded stock options as part of her compensation package; the award was made prior to the parties' marriage.134 When she left Home Depot, she exercised her stock options using pre-marital assets.'

The Georgia Supreme Court found that her interest in the stock, as well as the "stock she received after exercising her pre-marital stock options" was her separate property. 3 6 The question before the Court was "[w]hether the appreciation in value of [the wife's] Home Depot stock during the marriage [was] marital property subject to division or [was] her separate, non-marital property ... . "1 According to the Court, some of that appreciation had to result from market forces, but some of it also most likely stemmed from the parties' joint efforts. The case was remanded to determine what portion, if any, was due to the parties' joint efforts.' 8 Thus, the case did not need to address whether the options themselves were marital assets, as it was clear in this case that the options themselves were the wife's separate property.

The recent case of Newman v. Patton, however, does address the question of whether stock options are marital.'3 9 The wife was awarded stock options prior to wedding her husband. Some of those options that were awarded vested prior to the marriage, and some vested during the marriage.14 0 All of the options were

133. 552 S.E.2d 839 (Ga. 2001).

134. Id. at 841.

135. Id. 136. Id. 137. Id. 138. Id. 139. 692 S.E.2d 322 (Ga. 2010).

140. Id. at 323.

No. 1]

EquitableDivision ofProperty in Georgia

25

exercised before the parties separated.'4 1 The trial court found that the options vesting prior to the parties' marriage were the wife's separate property, whereas the options vesting during the marriage were marital property, and, therefore, subject to equitable division.142 Neither party contested that the stock options vesting prior to the marriage were the wife's separate property.' 43 The question before the Court was whether the stock options that were granted to the wife prior to marrying the husband, for the purpose of retaining and motivating the employee-wife, but vested during the marriage, constituted marital or separate property.144 Based on the holding in Payson, the Georgia Supreme Court found that the determining factor was whether the stock options vested based on the joint efforts of the parties.145 The Court urged the trial court to review a variety of factors: whether the marital or premarital funds were used to exercise the options; the employer's purpose for granting the option (i.e., for past, present or future service); the best formula for apportioning the marital share of the options based on the purpose and timing of the options in relation to the time of the marriage; a method of distribution to [the employee's spouse]; and the parties' tax obligations resulting from distribution.' 46 A court cannot simply award stock options to the marital unit because the options were granted or vested during the marriage.

Once the court has evaluated those factors, the court must then use the time rule formula to determine the exact ratio of marital to non-marital shares.147 Furthermore, a court's inquiry into whether stock options are marital or non-marital not only includes an assessment of when the options vested in relation to the date of marriage, but also includes an evaluation of the above-stated factors and a discussion of whether the appreciation of the non-marital stock options was generated by

141.

142.

143.

144.

145.

146.

147.

Id. Id. Id. at 323 n.3.

Id. at 323.

Id. Id. at 324.

Id. at 324 n.5.

26

John MarshallLaw Journal

[Vol. IV

the efforts of the parties. 48 Overall, the Newman Court did not provide Georgia practitioners with much guidance. The Court provided factors for other courts to consider and proposed using the time rule formula; however, the lack of direction has made it difficult for family law practitioners to apply the reasoning to future cases.

D. Variationsof the Time Rule Formula The lack of direction provided by Newman is not the only issue facing family law practitioners. The time rule formulae used by the majority of other courts 4 9 do not address all possible scenarios. The future services formulae presented are only applicable when the parties are married prior to the granting of the stock options. In many cases, as in Newman and Payson, the options are granted to the employee before the parties are married.' 0 In those cases, the standard formula does not provide the best outcome for the parties.

The authors propose two variations of the time rule formula that should be used in cases where the stock options are granted for future work to be performed by the employed spouse. The first variation should be used in situations similar to Newman, where the options are granted, the parties marry, the options vest, and then the parties separate. The second variation of the time rule formula should be used when the parties separate prior to the stock options vesting.

1. FirstProposed Variation of the Time Rule Formula When presented with facts and circumstances similar to that of Newman, the authors suggest using the following formula: Figure 1 Marriage Date -+ Date of Vesting Grant Date

-*

Date of Vesting

148. See id. at 324.

149. See supra note 130-31 and accompanying text (providing the formulae most often used by courts).

150. See supra Part III.C.

No. 1]

EquitableDivision ofProperty in Georgia

27

To show the application of this formula, the authors use one of the bundle stock options awarded to the employed spouse in Newman. The employed spouse was awarded a group of stock options in May 1999. The parties married in September 2002, and in May 2004, 10,000 shares of the stock awarded in 1999 vested. The parties separated in August 2007.1'1 As Figure 2 indicates, two-fifths of those 10,000 shares are marital property, and three-fifths are the wife's separate property.

Figure 2 2002

2004

2

1999 - 2004

5

-

If the Court in Newman were to use the formula followed by the majority of jurisdictions, the ratio would be eight-fifths (see Figure 3), which would be inaccurate given that the employed spouse in Newman worked for a number of years before she married, and she should receive credit for those years of separate labor and investment.152 Figure 3 Grant Date -+ Separation Date Grant Date

-*

Vesting Date

1999

2007

8

1999 -. 2004

5

--

A ratio of eight-fifths would mean that one hundred percent of the stock options are marital property. However, as already

151. Newman, 692 S.E.2d at 323.

152. The authors recognize that the stock options in Newman were exercised prior to the parties' separation. However, even if one were to use the exercise date, in place of the vesting date, the formula presented herein would provide a more accurate outcome than the one used by many jurisdictions. Furthermore, as will be stated later, the authors are not advocating that future courts use these formulae without an analysis of the factors as provided in the Newman case. The formulae presented herein are to be used after an analysis of those factors, and a determination that the stock options were awarded for future services-i.e., as a golden handcuff.

28

John MarshallLaw Journal

[Vol. IV

stated, the employee spouse in Newman worked for at least three years prior to her marriage to the non-employee spouse.'

Thus, a portion of those stock options were granted based on her personal labor and investment, as opposed to the joint efforts of both spouses. 154 2. Second Proposed Variation of the Time Rule Formula When the parties to a particular case separate prior to the stock options vesting, the authors propose using the following formula: Figure 4 Marriage Date Grant Date

-

Date of Separation

-+

Date of Vesting

To show the applicability of this formula, the authors use the following hypothetical: the stock options are awarded to the employed spouse in 2000; the parties marry in 2005; the parties separate in 2008; and the stock options vest in 2010. As Figure 5 depicts, thirty percent of those shares are marital property, and seventy percent are the employed spouse's separate property.

Figure 5 2005 2000

-

2008

3

2010

10

If one were to use the more common formula (see Figure 6), the result would again be inaccurate. Using that formula, the marital share of the stock options is eighty percent. However, given that the parties in this hypothetical were only married for three years, it is inequitable to provide the marital share with more than half of the stock options. The employed spouse in

153. Newman, 692 S.E.2d at 323.

154. Id. at 324.

No. 1]

EquitableDivision ofProperty in Georgia

29

this case made more separate investments than the marital unit made.

Figure 6 Grant Date -+ Separation Date Grant Date

--

Vesting Date

2000

2008

8

2000

2010

10

The authors are in no way purporting that Georgia courts should disregard the factors described in Tracy Thomas' article or,' 55 more importantly, the Newman factors.1 1' It is imperative to note the reasons for granting the options-whether they are granted as a bonus versus a replacement for salary or whether they are granted as incentive for employees to perform at optimal levels. Additionally, it is important to note whether the options are exercised prior to the parties separating. If the parties use marital funds to exercise the options, the court may decide that the marital share should be awarded a greater portion of the stock, at least to repay the marital estate for the funds used to exercise the options. There are many factors to consider, and with each case that list of factors may lengthen.

Any one of those factors may change the formula slightly; however, the authors hope that these variations of the most commonly used time rule formulae 1s7 will assist family law practitioners in advising their clients on how courts will most likely equitably divide the stock options.

IV. EQUITABLE DIVISION OF FEDERAL PENSION PLANS The issue of equitable division of retirement plans in Georgia is unambiguous, as the law is well established that retirement plans are marital property, subject to equitable division.'

However, one aspect of that topic has become more significant in recent years. In 2005, the Georgia Supreme Court heard the 155. See supra notes 123-27 and accompanying text.

156. See supra note 146 and accompanying text.

157. See supra Figures 1 & 4.

158. Rabek v. Kellum, 620 S.E.2d 387, 388 (Ga. 2005); Courtney v.

Courtney, 344 S.E.2d 421, 422 (Ga. 1986).

John MarshallLaw Journal

30

[Vol. IV

case of Rabek v. Kellum and failed to rule on one very important issue-whether a federal pension plan contributed to by a party in lieu of social security benefits should be reduced for purposes of equitable division by the amount the party would have contributed to social security benefits ("imputed social security benefits").159 In Rabek, the husband, a federal air traffic controller participated in and contributed to the Federal Civil Service Retirement System ("CSRS") pension plan, as opposed to social security.1 6 0 The wife, employed in the private sector, contributed to a pension plan; however, because she was not a federal employee exempt from participation in social security, she also paid into social security as mandated by federal law.161 Although this was an issue of first impression, the Georgia Supreme Court did not provide much guidance, finding that since the husband provided no evidence of what his imputed social security benefits would have been, the trial court could not have reduced the value before determining equitable division thereof.16 2 As the Court stated, rwlhile we recognize that whether to allow a portion of a civil service pension benefit plan to be exempted from marital property as imputed social security benefits is an issue of first impression, we pretermit whether this Court is inclined to adopt the Cornbleth analysis because the record in this case is devoid of any evidence of the value or amount of the portion of the CSRS pension rthat the husband] claims constitutes the imputed social security benefits. Absent evidence of a specified value of the marital portion of these benefits [that the husband claims, the trial court was not in a position to make a determination whether the value of rthe husband's] pension should be reduced before making the equitable award of the retirement assets.' 63 The Georgia Supreme Court did not engage in a discussion regarding whether federal employees, who are exempt from S.E.2d 387 (Ga. 2005).

160. Id. at 387-88. Members of the Federal Civil Service Retirement 159. 620

System pension plan are exempt from participation in social security. Id at 388.

161. Id. 162. Id. 163. Id.

No. 1]

EquitableDivision ofProperty in Georgia

31

participation in social security, should be "credited" imputed social security benefits for determination of equitable division.

However, the Georgia Supreme Court did note that jurisdictions are split on this issue'" and that the federal bar on division of social security benefits does not prevent the divorced spouse from obtaining old age benefits "piggy backed" to the former spouse's social security benefits.165 Some jurisdictions permit a court to impute social security benefits, thereby reducing the marital portion of a federal retirement plan.1 66 One commonly cited example of such a holding is from the Pennsylvania Superior Court in Cornbleth v.

Cornbleth.16 7 Cornbleth was similar to Rabek in that the husband did not participate in social security.168 The husband contended that since social security benefits could not be classified as marital property, his federal pension, which he received in lieu of social security benefits, should not be either.169 The Pennsylvania Superior Court ultimately held, rtlo facilitate a process of equating rpublic pension participants] and Social Security participants we believe it will be necessary to compute the present value of a Social Security benefit had the [public plan] participant been 164. Id. at 388 n.2 ("Jurisdictions are divided on the issue of whether any portion of a pension that is considered a replacement for social security benefits should be exempted from the marital estate."). See Jefferies v.

Jefferies, 895 P.2d 835, 837 (Utah Ct. App. 1995); Loudermilk v.

Loudermilk, 397 S.E.2d 905, 909 (W.Va. 1990) (providing examples of Jurisdictions that hold that retirement plans that are "in lieu" of social security benefits are included in marital estate). Jurisdictions that allow social security replacement plans to be exempted from marital property include Walker v. Walker, 677 N.E.2d 1252 (Ohio Ct. App. 1996) and Cornbleth v. Cornbleth, 580 A.2d 369 (Pa. Super. Ct. 1990). Rabek, 620 S.E.2d at 388 n.2.

165. The Rabek Court also stated, "[tlhe anti-assignment clause of the Federal Social Security Act, 42 U.S.C. ยง 407(a), bars payments received as social security benefits from distribution in marital property division.

However, ยง 402 of the Act specifically contemplates old-age and disability social security benefits for a divorced spouse. See Bell v. Bell, 356 S.E.2d 869 (Ga. 1987)." Id. at 388 n.l.

166. Combleth, 580 A.2d. at 372.

167. Id. 168. Id. at 371.

169. Id.

John MarshallLaw Journal

32

[Vol. IV

participating in the Social Security system. This present value should then be deducted from the present value of the [public pension] at which time a figure for the marital portion of the pension could be derived and included in the marital estate for distribution purposes. This process should result in equating, as near as possible, the two classes of individuals for equitable distribution purposes.'70 The Court reasoned that a stream of income at "old age" is not provided to the civil servant by virtue of his or her not being a contributor to social security, and that any income received in lieu of social security benefits would be substantially reduced (i.e., by fifty percent) as a result of equitable division.17 ' Another example of a court following the position that social security benefits should be considered when equitably dividing marital property can be found in Johnson v. Johnson.'7 2 As in Rabek and Cornbleth, the husband in Johnson argued that, pursuant to federal law, his social security benefits are not considered marital property, and, therefore, the Court should not allow his federal pension to be used as a factor in equitably dividing the marital estate."' The Court disagreed with the husband and held, [wlhile the anti-reassignment clause of the Social Security Act precludes a trial court from directly dividing social security income in a divorce action, a trial court may still properly consider a spouse's social security income within the more elastic parameters of the court's power to formulate a iust and equitable division of the parties' marital property.... [There is] a crucial distinction between: (1) adiusting property division so as to indirectly allow invasion of benefits; and (2) making a general adiustment in dividing marital property on the basis that one party, far more than the other, can reasonably expect to enjoy a secure retirement.... Therefore... while a trial court may not distribute marital property to offset the computed value of Social Security benefits, it may premise an unequal distribution of property-using, for example, a 60-40

170.

171.

172.

173.

Id. at 372.

Id. at 371-72.

734 N.W.2d 801 (S.D. 2007).

Id. at 805.

No. 1]

EquitableDivision ofProperty in Georgia

33

formula instead of 50-50-on the fact that one party is more likely to enjoy a secure retirement.174 Other jurisdictions have adopted similar precedent to consider the economic impact of social security or federal pension benefits in calculating the distribution of marital assets. 75 In some jurisdictions, like Ohio, courts have not ruled specifically on whether an imputed reduction of a retirement plan should occur. The Ohio Supreme Court has held that "any given pension or retirement fund is not necessarily subject to direct division but is subject to evaluation and consideration in making an equitable distribution of both parties' marital assets."l 76 That holding ultimately led to a split in the appellate divisions on how to consider the federal pension. Some divisions attempted to determine the present value of the pension and the amount that such value exceeded the spouse's earned social security, some divisions adopted the Cornbleth computation, and some first determined the potential monthly social security benefit of both parties and then provided an offset. 1

174. Id. at 808-09 (citations and quotations omitted).

175. See Olsen v. Olsen, 169 P.3d 765, 770 (Utah Ct. App. 2007) (explaining other states consider the effect of social security benefits on a party's financial position when equitably dividing parties' marital property; however, it would violate federal law to consider social security benefits marital property). The states cited in the Olsen case are as follows: Colorado, Kansas, Iowa, Maine, Massachusetts, Missouri, Washington, and Utah. Id. In the case of In re MarriageofMorehouse, the Colorado Court of Appeals found that the trial court improperly considered social security benefits as marital property. 121 P.3d 264, 266 (Colo. App. 2005). The Court further held that "while a trial court may not distribute marital property to offset the computed value of Social Security benefits, it may premise an unequal distribution of property using .

.

. the fact that one party is more

likely to enjoy a secure retirement." Id. at 267. Similarly, the Maine Supreme Court held that a spouse's anticipated social security benefits could be considered when deciding how to divide equitably the parties' marital property; however, the anticipated social security benefits are not marital property in and of itself. Depot v. Depot, 893 A.2d 995, 998 n.2, 999 (Me. 2006).

176. Neel v. Neel, 680 N.E.2d 207, 211 (Ohio Ct. App. 1996) (quoting Hoyt v. Hoyt, 599 N.E.2d 1292, 1296 (Ohio 1990)).

177. See, e.g., Harshbarger v. Harshbarger, 814 N.E.2d 105, 126 (Ohio Ct. App. 2004); Neel, 680 N.E.2d at 211.

John MarshallLaw Journal

34

[Vol. IV

In contrast to the positions taken by the aforementioned courts, a number of jurisdictions provide that pursuant to the United States Supreme Court's decision in Hisquierdo v.

7 1 courts are not to offset equitable division due to Hisquierdo,1 The social security benefits, whether imputed or not.

Hisquierdo Court reviewed the characteristics of railroad benefits and compared them to social security benefits. 7 9 Ultimately, the Court found that the social security benefits and railroad benefits are similar, but they are both distinguishable from pension plans.s 0 The Court explained, r11ike Social Security, and unlike most private pension plans, railroad retirement benefits are not contractual. Congress may alter, and even eliminate, them at any time. This vulnerability ... contrasts strongly with the protection Congress has afforded recipients from creditors, taxgatherers, and all those who would "anticipate" the receipt of benefits[.]"'

Other jurisdictions follow the Hisquierdo ruling. For example, in Olsen v. Olsen, the Utah Court of Appeals explained that trial courts are not to consider social security benefits as marital property. 182 However, the lower courts are free to consider the benefits in the totality of property belonging to each party. The Olsen Court was clear to distinguish between a party's potential social security benefits in determining the financial circumstances upon divorce and social security benefits as marital property that would influence the equitable The Court stated that social security division thereof. 83 "benefits should be addressed similarly to separate assets, such as premarital property or inheritances, only in order to achieve overall equity."l 84 Additionally, the Court should consider other factors such as the age of the parties and the likelihood of actually receiving the benefits.8 5

178.

179.

180.

181.

182.

183.

184.

185.

439 U.S. 572 (1979).

Id. at 573-74.

Id. at 573.

Id. at 575-76.

169 P.3d 765, 768 (Utah Ct. App. 2007).

Id. Id. at 772.

Id. at 772-73.

No. 1]

EquitableDivision ofProperty in Georgia

35

Similarly, in Revmann v. Revmann, the Tennessee Court of Appeals found that while private pension plans are classified as marital property, social security benefits are not.'16 The court reasoned if social security benefits are not vested at the time the parties divorce, the court is not able to consider them as marital property.'"' It stands to reason that if social security benefits are not marital property, then the other marital assets should not be reduced based on contributions to social security, whether those contributions are imputed or not.'88 Thus, the Tennessee Court of Appeals followed the Hisquierdo Court in holding that a court should not reduce a party's retirement fund based on what he or she would have contributed to social security.189 The line of cases akin to Hiscquierdo, Olsen, and Revmann that refuse to consider imputed social security benefits are ones that strictly construe federal statutory law.190 By incorporating express language in the Social Security Act that any past, present, or future benefits cannot be transferred or assigned, Congress effectively precludes those benefits from ever being considered marital property.1 91 Because the statute specifically prohibits the transferability of Social Security benefits, the United States Supreme Court has imposed "a broad bar against the use of any legal process to reach all social security benefits."1 92 Courts rationalize that the pension contribution in lieu of social security (and which by contributing actually prohibits participation in social security) "was not designed to replace noncontractual social security benefits; rather, [pension 186. 919 S.W.2d 615, 617 (Tenn. Ct. App. 1996).

187. Id. 188. Id. 189. Id.

190. See, e.g., Skelton v. Skelton, 5 S.W.3d 2, 4 (Ark. 1999) ("We held that the attempt to make future assignment of one spouse's social security benefits was preempted by the provisions of 42 U.S.C. ยง 407(a) in Gentry v.

Gentry, 327 Ark. 266, 938 S.W.2d 231 (1997).").

191. Id. The Social Security Act provides: "The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law." 42 U.S.C. ยง 407(a) (1994).

192. Philpott v. Essex Cnty. Welfare Bd., 409 U.S. 413, 417 (1973).

36

John MarshallLaw Journal

[Vol. IV

contributioni provided a pension benefit which exceeded that of the social security system .. . rblecause the purposes of social security and the retirement plan are fundamentally different, If the two retirement they are not interchangeable."' 9 vehicles-i.e., social security and private pensions-are, in fact, so drastically different, then a court should not reduce a party's private pension plan based upon what the party would have contributed to the social security system.

Not imputing social security benefits seems to be in strict accordance with federal law. Further, it may be noted in reviewing the statutory history of federal law with respect to CSRS participation, i.e., the benefits under CSRS at issue in Rabek, were excluded from equitable division until the amendment to the federal law in 1978.19' A statutory review of the federal law regarding Social Security and CSRS seems to resolve the specific issue in Rabek not to impute social security benefits.'19 However, the Georgia courts have not answered the question.

The determination of whether a federal pension plan contributed to by a party in lieu of social security benefits should be reduced for purposes of equitable division by the amount the party would have contributed to social security benefits will almost certainly present itself again to the Georgia Supreme Court. Because Georgia is a common-law property state, it is likely that if faced with the question directly, Georgia Courts would not support a specific adjustment to reduce a marital asset (e.g., a federal pension plan) to account for nonHowever, the facts and contribution to social security. circumstances surrounding a federal employee who did not contribute and, therefore, will not receive social security may be

193. Id. at 5.

194. 5 U.S.C. ยง 8345(j)(1)(A) (2011) (amended 1994).

195. While the issue has not been completely resolved in Georgia, the Georgia Supreme Court has found that military retirement benefits are marital property and subject to equitable division. Michel v. Michel, 692 S.E.2d 381, 382-83 (Ga. 2010). This may imply that Georgia has decided not to adhere to a strict interpretation of federal law. However, since that case involved military benefits, one could argue that it is dissimilar to the question at issue in Rabek. Thus, the issue of whether to impute social security in Georgia still remains unanswered.

No. 1]

EquitableDivision of Property in Georgia

37

considered by the trier of fact in determining equitable division, if properly presented and argued to the fact finder.

V. CONCLUSION Equitable division of all assets is foremost, after custody if applicable, to divorcing spouses. Of grave concern is how each will afford the future. Part of a family law practitioner's job is to determine what assets are marital so that her client may obtain the most of the marital assets while also protecting any existing separate property. By arguing and convincing a trier of fact that a portion of property is separate (or not, depending on which party is represented), the lawyer gains for her client a portion of funds not applicable to equitable division. Further, by determining the marital portions, the lawyer provides for her client a clear picture of what is to be divided moving forward.

In recent years, the change in compensation packages offered by employers, together with case law decided by the Georgia Supreme Court, have muddied the waters of what was once a seemingly clear rule on equitable division of property. So that they may better advise their clients, family law practitioners in Georgia need a better understanding of the broad topic of equitable division of property. The more guidance and direction that practitioners have, the more support they have in encouraging their clients to settle their cases, as opposed to spending a great deal of money and energy litigating the issues.

The purpose of this Article is to provide Georgia family law practitioners needed guidance in the areas of equitable division of property that is part marital and part separate, equitable division of employee stock options, and equitable division of federal pension plans. This Article also provides practitioners with argument and authority to apply in representing a particular party to assist in getting the best financial result for the client.

FLEEING DOMESTIC VIOLENCE: A PROPOSAL TO CHANGE THE INADEQUACIES OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION IN DOMESTIC VIOLENCE CASES KAREN BROWN WILLIAMS*

..............................................

I.

INTRODUCTION

II.

DOMESTIC VIOLENCE AND THE HAGUE CONVENTION ....................

40 42

........... 42 A. The Face of the Abductor..................

B. Domestic Violence, Abduction, and the Convention................ 43 C. Foreign Countries' Domestic Violence Assistance.................. 44 III.

THE PROMISE OF THE HAGUE CONVENTION..

.......................

45

45 A. Scope of the Convention Partnership...................

46 B. Structure of the Convention ..........................

48 .......... ...................

1. Wrongful Removal .............................. 50 2. Right of Custody ......... 54 ...................

3. HabitualResidence.

58 .......................................

C. Defenses 1. Consent or Acquiescence....................60 ......... 61 .........................

2. Grave Risk .............. 68 3. IntolerableHarm ..................

IV.

RECOMMENDATIONS

..........................................

71

72 .........................

A. HabitualResidence 73 Act...........................

Remedies ChildAbduction B. International ......... 78 ......

C. The CentralAuthority'sRole...........

V.

CONCLUSION

................................................

* Attorney at Law; The Williams Firm, P.C.

82

John MarshallLaw Journal

40

I.

[Vol. IV

INTRODUCTION

Thirty years have passed since members of the Hague Conference on Private International Law created the Hague Convention on the Civil Aspects of International Child Abduction ("Convention").' This multilateral treaty, designed to provide a procedure for the prompt return of children abducted and retained across international boundaries, attempts to protect children from the harmful effects of an international kidnapping.2 Since its inception, the number of countries participating in the Convention, by way of ratification, acceptance, approval, or accession, continues to increase.'

The fact remains, however, that the number of children abducted internationally by parents has nearly doubled since 2006.4 In fact, in 2009, there were 1135 new requests for assistance for the return of children from other countries (known as "outgoing cases") involving 1621 children.' Of that total, the United States Central Authority ("USCA") received outgoing requests for 828 children abducted and retained in 1. Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11, at http://www.unhcr.org/refworld/docid/3ae6b3951c.html available [hereinafter Hague Convention]. The entire text of the Convention can also be found in Duquette v. Tahan, 600 A.2d 472, 563 (1980).

2. Id. 3. As of April 2010, the United States and sixty-eight other countries are signatories to the Convention. OFFICE OF CHILDREN'S ISSUES OF THE U.S. DEPT. OF STATE, REPORT ON COMPLIANCE WITH THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 6 (2010),

available http://travel.state.gov/abduction/resources/congressreport/congressreport

at 43

08.html [hereinafter HAGUE REPORT]. The majority of those countries are

located in Europe, North America, and South America. Id. 4. Id.

Cases in which one parent takes children out of the United States in violation of a court order or over the objections of the other parent are on the rise. In 2009, there were 1135 such reported cases involving 1621 children, up from 749 cases in 2007 and 642 cases in 2006, according to a United States State Department report issued this year.

Gail Filisko, When Global Families Fail, A.B.A. J., July, 1 2010, http://www.abajoumal.com/magazine/article/whenglobal-families-fail/.

5. HAGUE REPORT, supra note 3, at 6.

No. 1]

FleeingDomestic Violence

41

Convention countries. 6 Four hundred and thirty-six abducted children were returned to the United States during the same period.' In contrast, there were only 324 applications for assistance for 454 children abducted to the United States (known as "incoming cases") of which 154 were returned to their country of habitual residence.8 As the United States population becomes more global in its orientation and focus, its citizens travel to foreign countries to live, work, and play. Citizens of other countries also come to the United States for educational, economic, and cultural opportunities. These mobile individuals meet, marry, and conceive children with partners from countries and cultures different than their own. In fact, the number of American children with at least one foreign born parent has increased from fifteen percent in 1994 to twenty-two percent in 2008.9 Unfortunately, the growing number of culturally diverse families has increased the potential for global child abduction.

This problem is compounded by performance issues plaguing the Convention. Since the Convention's inception in 1980 such deficiencies have included "noncompliance issues and lack of enforceability; procedural slowness; excessive recourse to exceptions; lack of legal aid for victim families; and lack of applicability in a large number of countries that are not yet parties to the Convention."10 These problems are pervasive and affect all cases governed by the Convention, which includes abduction cases involving domestic violence. In the early years of the Convention, the discussion of domestic violence in the context of child abduction was in its infant stage and only

6. Id. 7. Id. 8. Id. at 15.

9. JEFFREY L. EDLESON, ET AL., MULTIPLE PERSPECTIVES ON BATTERED MOTHERS AND THEIR CHILDREN FLEEING TO THE UNITED STATES FOR SAFETY: A STUDY OF HAGUE CONVENTION CASES 6 (2010) (citing the 2009 Federal Interagency Forum on Child and Family Statistics), available at http://www.haguedv.org/reports/fmalreport.pdf.

10. Allison M. Scott, Note, From a State-Centered Approach to

Transnational Openness: Adapting the Hague Convention with Contemporary Human Rights Standards as Codified in the Convention on the Rights of the Child, 11 IND. J. GLOBAL LEGAL STUD. 233, 235 (2004).

42

John MarshallLaw Journal

[Vol. IV

beginning to exacerbate the ongoing problems created by the Convention's language, structure, and application.

II. DOMESTIC VIOLENCE AND THE HAGUE CONVENTION A. The Face of the Abductor Since the inception of the Convention, the abductor profile It was initially thought that the typical has changed.

Convention abductor was a non-custodial father." The abductor profile featured a foreign-national father who engaged in abduction to keep children away from their mothers by taking them to countries with laws, cultures, and values quite different from those of the United States. By retaining children in such countries, it was difficult for the mothers of the children to regain their custody.12 In initial studies submitted for consideration to the Convention, 80 out of 110 cases examined involved abductions by the father or his relatives." At that time, some commentators alleged that child abduction was a form of domestic violence, with as many as twenty-five percent of batterers participating in Policy makers considered abduction a child abduction.14 continuation of domestic violence on the part of the noncustodial father." Seen as a form of punishment and control of mothers by ex-husbands and boyfriends,16 it was believed that children removed by their non-custodial fathers experienced harm because the children were removed from their primary caretakers, predominantly the mother, and their familiar environment." Today, however, many mothers have become

11. Nigel V. Lowe & Katarina Horosova, The Operation of the 1980 Hague Convention-A Global View, 41 FAM. L.Q. 59, 70 (2007).

12. Anna I. Sapone, Note, Children as Pawns in Their Parents' Fightfor Control: The Failures of the United States to Protect Against International ChildAbduction, 21 WOMEN'S RTs. L. REP. 129, 131 (2000).

13. Merle H. Weiner, InternationalChild Abduction and the Escapefrom

Domestic Violence, 69 FORDHAM L. REv. 593, 610 (2000).

14. Sapone, supra note 12, at 131.

15. Weiner, supra note 13, at 605.

16. Sapone, supra note 12, at 131.

17. Weiner, supra note 13, at 616-17.

No. 1]

FleeingDomestic Violence

43

the abductor in an effort to return home after living abroad during their marriage.'"

As early as 1993, studies revealed that mothers constituted the majority of abductors. 9 In 1999, sixty-eight percent of abductors in Convention countries were mothers, and in 2003, the number of mothers abducting children rose ever so slightly to sixty-nine percent.20 In some countries, all abductions were committed by mothers,2 ' while Scotland, Poland, Israel, New Zealand, and Australia all had maternal abduction rates above eighty percent in 2003. In her 2004 article, Carol Bruch reported that "her data base of Hague child abduction cases revealed that 70% of the abductors were now women, many of whom were returning to their families, and that this observation was echoed by personnel from Central Authorities."2 2 In the United States, nearly all of the cases cited as "Notable Cases" in 2009 were cases involving maternal abductions.2 3 In maternal abductions, gone is the issue of removal of the child from the primary parent; however, the issues of environmental change and underground living may remain. In the cases in which domestic violence is present, the harm to the child presented by the new environment and potential underground living must be balanced with the harm experienced by the child from domestic violence in his or her home.

B. Domestic Violence, Abduction, and the Convention Domestic violence has been defined primarily as a crime by men against women.24 It has also been defined as "coercive control," 25 an ongoing pattern of intimidating behavior in which 18. Lowe & Horosova, supra note 11, at 67.

19. Weiner, supra note 13, at 595 (revealing in these studies the presence of domestic violence between abduction parents as well).

20. Lowe & Horosova, supra note 11, at 67.

2 1. Id.

22. Carol S. Bruch, The Unmet Needs of Domestic Violence Victims and Their Children in Hague Child Abduction Convention Cases, 38 FAM. L.Q. 529, 544 n.45 (2004).

23. HAGUE REPORT, supra note 3, at 26-31. "Notable cases" are those considered to be illustrative of international parental child abduction cases in the United States for 2009. Id. 24. EDLESON, supra note 9, at 16.

25. Id.

John MarshallLaw Journal

44

[Vol. IV

the threat of serious physical violence is present and may be carried out with the overall goal of controlling the partner.26 It has become apparent that a connection between domestic violence and abduction exists, with "the majority of the marriages (54%) in which abductions occurred involved parent to parent domestic violence."27 A study of children abducted to other countries found that the vast majority of the left behind parents reported pre-abduction threats to their lives or those of other family members.2 8 When domestic violence was alleged or present, interviewed abductors cited violence as the "primary motivator" for the abduction of their children. 29 A 2001 study found mothers abducting their children were fleeing for their safety from abusive partners, while fathers were "likely using the abduction as part of their coercive control of the left behind parent.3 0 The Convention does not recognize domestic violence against a spouse as a reason to deny the return of an abducted child.3 1 In fact, domestic violence is not even mentioned in the language of the Convention.3 2 C. Foreign Countries'DomesticViolence Assistance One of the many reasons asserted for the abduction of children to the United States is that the abductor found insufficient assistance to address the incidents of domestic violence occurring in the foreign country.33 "Most mothers reported multiple attempts to seek informal and formal help in the other country . .. with little success and sometimes resulting

in further reinforcement of their violent husbands' positions by the authorities [in that country]."3 "Across 11 different countries, the experiences of the women who chose to leave were remarkably similar-the police system 26. Id. at 22.

27. HAGUE REPORT, supranote

3, at 22.

28. Id. 29. See HAGUE REPORT, supra note 3, at 5 (citing a 2007 International

Social Service investigation in Australia).

30. Id. at 24.

31. Id. at 3.

32. Id.

33. EDLESON, supra note 9, at ix.

34. Id.

FleeingDomestic Violence

No. 1]

45

was not able to protect them and their children from [the father's] abuse while they were in that country."" Even when the mothers sought the assistance of the United States embassy in their country of residence, the assistance was inconsistent.36 Some embassies aided the abused women's removal of the children from the habitual residence, while others failed to provide any assistance whatsoever to them." In some cases, the advice provided to the mother was entirely inaccurate.

III. THE PROMISE OF THE HAGUE CONVENTION

A. Scope of the Convention Partnership The United States is a "Contracting State," meaning the United States ratified the Convention on July 1, 1988.11 The provisions of the Convention have been implemented in the United States through the International Child Abduction Remedies Act ("ICARA").4 0 Today, sixty-eight countries have reciprocal or partner relationships with the United States pursuant to the Convention.4 1 The remaining countries have yet to join the Convention or have acceded to the Convention, but the United States has not accepted their accession.4 2 With the exception of the European community, however, most of the countries of the Eastern Hemisphere have not ratified or acceded to the Convention. For parents, this means that a child abducted to the Middle East, the Far East, Japan, India, Africa, Pakistan, or Russia will not benefit from the

Id. at 131.

36. Id. at 152.

37. Id. 38. Id. at 131.

35.

39. HAGUE REPORT, supra note 3, at 13.

40. International Child Abduction Remedies

Act, 42 U.S.C.A ยง 11601 (West 2011).

41. See HAGUE REPORT, supranote 3, at 6.

42. Id. at 13-14. Pursuant to Article 38 of the Convention, the United States Central Authority undertakes a review of a new acceding member of the Convention to determine whether that country has the domestic legal and administrative systems to ensure implementation of the administration of the Convention as well as deliver effective legal relief for Convention participants in that country. Id.

46

John MarshallLaw Journal

[Vol. IV

Convention process. 43 The ability to attract additional Eastern hemisphere participants to the Convention, who the United States will accept for partnership, is critical to the effectiveness of the Convention for American children in the years to come.44 B. Structure of the Convention The objective of the Convention is the return of the abducted child.45 As written, the Convention does not dispose of the merits of any pending custody case; rather, additional proceedings on the merits of the custody dispute are addressed in the state of the child's habitual residence upon the child's return.4 6 When a child has been wrongfully removed to, or retained in, another Contracting State, the Convention requires restoration of the status quo "as expeditiously as possible by returning the child to its habitual residence."4 7 It is a common belief that the courts in the habitual residence "would be in the best position to deal with the merits of any custody dispute."4 8 For automatic return of the child, proceedings must be instituted within one year of the abduction or retention of the child unless the Court in the receiving or retention state (the state to which the abductor has fled) accepts one of the defenses to the Convention. 4 9 There are two major categories of Convention cases.o "Incoming" cases are generally those cases 43. See id. at 69 (listing non-Convention countries).

44. William Duncan, Hague Convention Helps Protect Children'sRights, POINT OF VIEW (June 22, 2010), There appears to http://www.asahi.com/english/TKY201006210290.html. be good news on the horizon as Morocco, primarily a Muslim country, joined the Convention in March 2010. Id. Current Asian and Middle Eastern signatories to the Convention are Thailand, Sri Lanka, Turkey, Israel, Armenia, Turkmenistan, Uzbekistan, Hong Kong, Macao, and Special Administrative regions of China. Id It is anticipated that Japan, South Korea, Singapore, India, and Russia are now considering the possibility of joining the Convention. Id. 45. Hague Convention, supra note 1, at art. 1(a).

46. Linda Silberman, Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence, 38 U.C. DAVIs L. REv. 1049, 1054 (2005).

47. Bruch, supra note 22, at 529.

48. Id. 49. Hague Convention, supra note 1, at art. 12.

50. HAGUE REPORT, supranote 3, at 10.

No. 1]

FleeingDomestic Violence

47

where the abductor has fled to the United States for refuge." In these cases, the left behind parent must file a Convention Petition in the United States.52 "Outgoing" cases are generally cases in which a parent has fled the United States with the child or children." In these cases, the left behind parent must file a Convention Petition in the foreign country now housing the abductor and the child.5 4 "The Convention remedy can best be thought of as a 'provisional' remedy because it does nothing to dispose of the This "provisional remedy" merits of the custody case." allegedly reduces the incentive for the abductor to take the child to another state for custodial determination. This is central to the Convention formula, as the Convention "merely decides which country has jurisdiction to make the custody

determination." 57 Despite the Convention drafter's intentions, more than jurisdiction is often addressed by Convention courts.58 It is the language of the Convention that has created an ever increasing scope of issues to be addressed by Convention courts. In addition to determining which state to return the minor child," Convention courts must also determine whether the abduction 5 1. Id.

52. See id.

53. Id. 54. See id.

55. Linda Silberman, Patching Up the Abduction Convention: A Callfor a New InternationalProtocoland a Suggestionfor Amendments to ICARA, 38 TEX INT'L L.J. 41, 42 (2003).

56. Id. 57. Jeremy D. Morley, The Future of the Grave Risk of Harm Defense in the Hague International Child Abduction Cases, INTERNATIONAL FAMILY http://www.international2007), (Feb. LAW, divorce.com/grave risk harm_defense.htm.

58. The term "Convention courts" refers to courts undertaking to resolve Convention disputes. These courts are not specialized courts in most cases but courts of general jurisdiction in each of the Contracting States. Some states have courts designated to hear Convention cases. Brazil recently introduced a system for diversion of Convention cases to special courts. In the United States both state and federal courts can hear Convention cases.

59. This state may also be referred to as the state of "habitual residence" under the Convention, or the state in which the child was "habitually resident" immediately before the removal or retention.

48

John MarshallLaw Journal

[Vol. IV

was wrongful, whether the left behind parent had a right of custody of the child at the time of the abduction, and whether the left behind parent was exercising that right of custody at the time of the abduction.60 Under Article 3 of the Convention, removal of the child is considered wrongful where "it is in breach of rights of custody attributed to a person ... under the law of the state in which the child was [theretofore] habitually resident."" Unfortunately, the text of the Convention fails to define right of custody or habitual residence. As a result, these terms are defined via case law in various countries or via civil law in states using a civil law system.

1. Wrongful Removal Courts face two issues in evaluating whether a child's removal from his or her habitual residence is "wrongful." The court must first determine if it has the right to decide whether the removal is wrongful. Then, if the court finds that it has the authority to make the decision, it must assess what rights of custody the abductor and the left behind parent had prior to the removal or retention of the child.

Determining which Contracting State will decide whether the removal of the child is wrongful is a primary issue facing parents. England, for example, supports the proposition that the forum state (state of retention) makes the determination of whether the removal or retention is wrongful 62 unless an Article 15 order has been obtained,63 in which case the "rights held by 60. New York Divorce and Family Law, Summary of the Basic Rules for the Grantingof a Petitionfor Return of a Wrongfully Removed Child Under the Hague Convention on the Civil Aspects ofInternationalChild Abduction, Brandeslaw.com, http://www.brandeslaw.com/International child abduction laws/summary_o f%20_basichague rules.htm (last visited Apr. 23, 2011).

61. Abbott v. Abbott, 130 S.Ct. 1983, 1984 (2010).

62. Peter McEleavy, Case Law Analysis, HAGUE CONFERENCE ON PRIVATE

INTERNATIONAL

LAW,

(last http://www.incadat.com/index.cfn?act-analysis.show&sl=3&lng=1 visited Apr. 18, 2011) (citing Re F. (A Minor), [1995] EWHC (Fam) 224 (Eng.); Re P. (A Child), [2004] EWCA (Civ) 971 (Eng.); Hunter v. Murrow, [2005] EWCA (Civ) 976 (Eng.).

63. Hague Convention, supra note 1, at art. 15. Article 15 of the Hague Convention of the Civil Aspects of International Child Abduction States, [t]he judicial or administrative authorities of a Contracting State

No. 1]

Fleeing Domestic Violence

49

the applicant must be treated as conclusive, save in exceptional cases where, for example, the ruling has been obtained by fraud or in breach of the rules of natural justice."" Other countries, however, appear to support the principle that determination of wrongful removal should be decided in the state of the child's habitual residence. 65 It could be argued that the state in which the child was a habitual resident prior to the removal or retention would be the Contracting State best able to determine those rights attributable to each parent.

A contrary argument is raised, however, when domestic violence is an abduction factor. If allegations of domestic violence against the child and the abducting parent in the habitual resident state exist, and insufficient action was taken by authorities in the state of habitual residence, it would be inappropriate for the state of habitual residence to make the determination of whether the abduction was wrongful because such state authorities failed to address the domestic violence alleged by the abductor. Reports by the United States State Department suggest that enforcement of domestic violence statutes by Contracting States may be inadequate.6 6 For many parents, litigation begins immediately, either to obtain an order from their home state that the removal is wrongful or to defend a decision by the foreign jurisdiction court that it, rather than the habitual residence state, will make the determination of the wrongfulness of the removal. Left behind parents often seek a habitual state order that the removal is wrongful. Abductors exposed to domestic violence who have little faith in the habitual resident state to protect their interests often seek, and perhaps desire, to have a foreign court make the decision. may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State.

Id. 64. See McEleavy, supra note 62 (citing Re D. (A Child), [2006] UKHL 51 (Eng.).

65. Id. 66. Weiner, supra note 13, at 624.

John MarshallLaw Journal

50

[Vol. IV

2. Right of Custody Whether a child has been wrongfully removed from a Contracting State turns on whether the left behind parent had a "right of custody" under the law of the State in which the child was a habitual resident at the time of removal. 7 If the left behind parent has a right of custody, the removal or retention is considered wrongful. If an abducting parent had the right of custody to the child, there is no hardship as that parent had a right to remove the child from the state of habitual residence, and the Convention provides no obligation to return the child to its former habitual residence if the abductor is the child's custodian and the person left behind holds only access rights.68 Defining a right of custody has proved elusive for parents.

Rights of custody include "the right to determine the child's place of residence."6 9 Other definitions "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence[,]"o the right to veto or object to the removal of the child,7 1 or a ne exeat right.7 2 Custodial rights can be established by court decree, by operation of law, by reason of a judicial or administrative decision, or by reason of agreement of the parties having legal effect under the law of the state.73 Custodial rights can also arise when a parent removes a child in contemplation of divorce.74 The award of such rights can make most removals from the United States wrongful as joint legal custody is an increasingly common award to both parents in the United States and abroad." A violation can also occur if the court issuing the order retains custody and the abductor leaves the country 67. See New York Divorce and Family Law, supranote 60.

68. Bruch, supra note 22, at 436.

69. Abbott v. Abbott, 130 S. Ct. 1983 (2010).

70. Linda Silberman & Karin Wolfe, The Importance of Private InternationalLaw for Family Issues in an Era of Globalization: Two Case Studies-InternationalChild Abduction and Same Sex Unions, 32 HOFSTRA L. REV. 233, 239 (2003) (citation omitted).

71. McEleavy, supra note 62.

72. Abbott, 130 S. Ct. at 1990.

73. See Kathleen A. McKee, A Primer on International Parental Abduction, 6 REGENT J. INT'L L. 37, 50-51 (2008).

74. Weiner, supranote 13, at 638.

75. Id.

No. 1]

FleeingDomestic Violence

51

without the issuing court's permission.16 In Georgia, pursuant to the United States Court of Appeals for the Eleventh Circuit, it is crucial to note that the violation of a single custody right suffices to make removal of a child wrongful. That is, a parent need not have "custody" of the child to be entitled to return of his child under the Convention; rather, he need only have one right of custody. Further, he need not have a sole or even primary right of custody. 7

"Some jurisdictions consider a broader scope [regarding right of custody] than others creating conflicts and difficulties when two Contracting States have different interpretations of the right of custody."" The United Kingdom and New Zealand support an inchoate right of custody; however, Ireland does not.7 9 New Zealand supports intermittent care as a right of custody;" Mexico England, however, does not accept the concept."

82 jurisdictions Some potestas. patria of doctrine supports the have their own system of law that systemically gives rise to patria potestas custodial rights.83 The Explanatory Report: Hague Conference of Private International Law of the Hague Convention, by Elisa Perz-Vera, instructs courts to follow the law that would establish custodial rights when the laws of states with divergent definitions of custodial rights are in conflict.84 Despite these differences, Convention courts must determine the type of right acquired by each parent prior to the time of removal. Thereafter, the court determines whether the rights obtained by any parent are sufficiently recognized as a right of 76. Id. 77. Hanley v. Roy, 485 F.3d 641, 647 (1lth Cir. 2007) (quoting Fumes v.

Reeves, 362 F.3d 702, 714-15 (11th Cir. 2004) (emphasis in original)).

78. McEleavy, supranote 62.

79. Id. 80. Id. (citing Gross v. Boda [1995] NZFLR 49 (H.C.); Dellabarca v.

Christie [1999] NZFLR 97 (H.C.); Anderson v. Paterson [2002] NZFLR 641 (H.C.)).

81. Id. (citing Hunter v. Murrow, [2005] EWCA (Civ) 976 (Eng.)).

82. Silberman & Wolfe, supra note 70, at 240.

83. McEleavy, supra note 62 (citing M. v. K., 20/06/2000, Iceland Supreme Court; Bordera v. Bordera 1995 S.L.T. 117 (Scot.); Gil v.

Rodriguez, 184 F. Supp. 2d 1221 (M.D. Fla. 2002); Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002); Vale v. Avila, 538 F.3d 581 (7th Cir. 2008)).

84. Weiner, supra note 13, at 638.

52

John MarshallLaw Journal

[Vol. IV

custody under the law of the state of habitual residence. If so, the analysis then turns to whether such right has been breached.

For the left behind parent, male or female, the broad definition of right of custody is of great assistance in the return of abducted children because the scope of scenarios in which the abduction can be declared wrongful is broad. The nondomestic violence abductor is faced with a greater likelihood that removal of the child will be considered wrongful and the child will be returned to the habitual residence for the custodial determination.

For the female domestic violence abductor, however, the broader definition of custodial rights increases the likelihood of danger to herself and possibly her children. Like all other groups, the broad definition of rights of custody increases the likelihood of a wrongful removal determination and a habitual For the domestic violence abductor, a residence return. wrongful removal determination and a return order to the habitual residence subjects her, and perhaps her children, to the potential for additional and greater violence.

The remedy of return uniquely disadvantages domestic violence victims who have abducted their children-it reverses the accomplishment of the victim's flight by returning the child to the place from which the domestic violence victim has just fled. The remedy puts the victim's most precious possession, her child, in close proximity to her batterer either without her protection (assuming she does not return with the child), or with her protection, thereby exposing her to further violence."

The current Convention mechanism makes no provisions to segregate the circumstances of this parent from that of nondomestic violence parents.

Particularly disputed in recent years is the right of restriction, or ne exeat right. The Supreme Court of the United States, in its recent opinion in Abbott v. Abbott,86 discussed the international uncertainty as to whether a ne exeat order is a right of custody.

In Abbott, the minor child was removed from Chile to the United States by his mother." Pursuant to Chilean law, the 85. Id. at 634.

86. 130 S. Ct. 1983 (2010).

87. Id. at 1988.

No. 1]

FleeingDomestic Violence

53

father retained visitation rights, including the right to authorize the child's travel outside of the country."8 This right was determined to be a ne exeat right pursuant to Chilean law, which was "best classified as a 'joint right of custody.""' In Abbott, the Court stated, "[a] review of international case law confirms broad acceptance of the rule that ne exeat rights are rights of custody."9 o Analysis of the current law of the member nations of the Convention now demonstrates that a consensus may in fact be developing on ne exeat rights as rights of custody.9 ' 88. Id. 89. Id. at 1990.

90. Id. at 1993-94 (explaining that courts and other legal authorities in England, Israel, Austria, South Africa, Germany, Australia, and Scotland have accepted the rule that ne exeat rights are rights of custody within the Convention's meaning).

91. Courts in an overwhelming majority of Contracting States have accepted that a right of veto over the removal of the child from the jurisdiction amounts to a right of custody for Convention purposes. See, e.g., In the Marriage of Resina [1991] Fam CA 33 (Austl.); State Central Authority v. Ayob [1997] 21 Fam LR 567 (Austl.); Director-General Department of Families, Youth and Community Care and Hobbs [1999] Fam CA 2059 (Austl.); Oberster Gerichtshof [OGH] [Supreme Court] Feb. 5, 1992, docket No. 2 Ob 596 (Austria); Thomson v. Thomson, [1994] 3 S.C.R. 551 (Can). The Supreme Court did draw a distinction between a nonremoval clause in an interim custody order and in a final order. It suggested that if a non-removal clause in a final custody order were regarded as a custody right for Convention purposes that could have serious implications for the mobility rights of the primary caretaker. See, e.g., Thorne v. DrydenHall, [1997] 28 R.F.L. 4th 297 (Can.); Decision of 15 December 1998, [1999] R.J.Q. 248 (Can.); Re D. (A Child), [2006] UKHL 51 (Eng.); Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Jul 18, 1997, 2 BvR 1126/97 (Ger.); Bordera v. Bordera 1995 S.L.T. 117 (Scot.); A.J. v. F.J. [2005] CSIH 36 (Scot.); Sonderup v. Tondelli 2001 (1) SA (CC) 1171 (S. Afr.); C. v. C., [1989] 1 W.L.R. 654 (Wales). In the United States between 2000 and 2010, the Federal Courts of Appeals were divided on the appropriate interpretation. A majority followed the Second Circuit in adopting a narrow interpretation. See Croll v. Croll, 229 F.3d 133 (2d Cir. 2000), cert. denied, 534 U.S. 949 (2001); Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002); Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003), cert. denied, 540 U.S. 1068 (2003); Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008). The United States Court of Appeals for the Eleventh Circuit, however, endorsed the standard international interpretation. Fumes v.

Reeves, 362 F.3d 702 (11th Cir. 2004). The matter was settled, at least where an applicant parent has a right to decide the child's country of residence or the court in the state of habitual residence is seeking to protect

54

John MarshallLaw Journal

[Vol. IV

For victims of domestic violence, however, it is argued that the ne exeat right is not a right of custody as it only allows a parent to determine where a child will not live, rather than the power to determine the child's residence, which is considered a custodial right recognized under Article 5 of the Convention.92 Commentators argue that ne exeat rights are rights of access rather than custodial rights and, as such, are not enforceable under the Convention. They were never intended to be "sufficiently important to require the disruption" that accompanies a return to the habitual residence state to determine the outcome of a Convention case.93 Further, the argument continues, when ne exeat rights are recognized as a right of custody, the abuser can force the return of the abductor because the removal or retention is considered wrongful for it is in breach of a right of custody.9 4 If ne exeat rights are considered rights of custody, a primary custodial mother abducting to escape abuse must return because she did not get the abuser's permission to leave the country in which the abuse occurred.95 3. HabitualResidence Under the Convention, the child's "habitual residence" is the forum for any eventual custodial decision. The substantive law of the state of habitual residence determines the right of custody. 96 It is thought that the "habitual residence of the child is the appropriate place to make any decision about custody and its own jurisdiction pending further decrees, when the United States Supreme Court endorsed the standard international interpretation. Abbott v. Abbott, 130 S. Ct. 1983 (2010). The European Court of Human Rights has likewise accepted the standard international interpretation. See, e.g., Neulinger & Shuruk v. Switzerland, No. 41615/07, 8 Eur. Ct H. R. (2010).

92. Bruch, supra note 22, at 539-40.

93. Id. at 540.

94. Id. 95. Transcript of Oral Argument at 9, Abbott v. Abbott, 130 S. Ct. 1983 at available 08-645), (No. (2010) http://www.supremecourt.gov/oral-arguments/argument-transcripts/08645.pdf (discussing the issues raised in the context of a ne exeat right).

96. Stephen Schwartz, Comment, The Myth of Habitual Residence: Why American Courts ShouldAdopt the Delvoye Standardfor HabitualResidence Under the Hague Convention on the Civil Aspects of International Child Abduction, 10 CARDOZO WOMEN'S L.J. 691, 692 (2004).

No. 1]

FleeingDomestic Violence

55

visitation" as it is the place "where the child and family have lived and where much of the evidence about what will be in the best interest of the child will be located."97 It is, therefore, the threshold inquiry in a Convention case.98 Courts in the United States are split between those jurisdictions following the Friedrich standard, 99 the settled purpose standard,10 and the Delvoye standard.10 ' In the United States, settled purpose factors include the child's enrollment in school, the child's primary language, the duration of the child's stay in a particular country, and the child's relationship with friends and family.102 In Georgia, the United States Court of Appeals for the Eleventh Circuit has recently stated that the establishment of habitual residency is a two-step process based upon the settled intention of the parents."

97. Silberman, supra note 46, at 1054.

98. Schwartz, supranote 96, at 692.

99. The Friedrich standard required courts to consider three elements: "the states in which the child was physically present prior to the removal or retention, the length of time spent in those states, the child's intent to remain in those states and the past actions of the child relating to that intent."

Schwartz, supra note 96, at 701.

100. The settled purpose standard expanded the Friedrich standard and included the mutual intent of the parents when determination of the intent of the child is inadequate. Id. at 718. The intent of the parent must be manifest prior to the removal of the child. Id. Elements considered are the parents intent for the state to be the child's habitual residence, the child's intent for the state to be his or her habitual residence, the physical location of the child prior to the removal, and the length of time the child was in the state. Id. 101. The Delvoye standard is an age-dependent standard using a variety of elements to determine the habitual residence of the child, focusing on the age and maturity of the child, with different requirements of the neonate, infant, and older child. Id. at 711-12.

102. See, e.g., Barzilay v. Barzilay, 600 F.3d 912, 918 (8th Cir. 2010); Barzilay v. Barzilay, 536 F.3d 844, 851-52 (8th Cir. 2008); Silverman v.

Silverman, 338 F.3d 886, 897-98 (8th Cir. 2003).

103. Seaman v. Peterson, No. 5:10-CV-462, 2011 WL 124223, at *9-10 (M.D. Ga. Jan. 14, 2011) (quoting the Florida case Ruiz v. Tenorio, 392 F.3d 1247, 1252-53 (11th Cir. 2004)). The court must determine "[w]hether there [was] a settled intention to abandon a prior habitual residence. . . ." Id at 10.

Both parents are entitled to determine the children's residence, and the Court must consider the intention of both of the parents. Id.

56

John MarshallLaw Journal

[Vol. IV

Great Britain follows the "degree of settled purpose" from the child's perspective.104 Still other courts look to the parents for a determination of habitual residency, considering the circumstances of the child's removal from a country, whether the parents are in agreement regarding the child's removal, whether there was an intent to return to a country after removal of the child by both parents, or whether there was an intent to remain in the new country. 1 s Again, the lack of consensus on the meaning of the term habitual residence as well as a lack of consensus as to which family member serves as the basis for habitual residence places parents in a sea of uncertainty regarding the law used to determine the outcome of the abduction analysis.

In cases in which the parent serves as the focus of the habitual residence determination, the uncertainty is further Issues of complicated in domestic violence abductions. acquiescence and consent to the habitual state of residence become more complex as courts attempt to determine whether the living arrangements of the parties are the actual choice of both parties, or only the choice of the abuser.

A 2010 study found that the majority of the mothers in the study voluntarily resided in the country outside of the United States, but forty percent of mothers reported their choice of residence was the product of coercion, either the result of force or deception by their husbands, leading to questions about the intentions of the parents when establishing a child's habitual residence.10 6 Some courts have considered such facts in making the habitual residence determination. 0 The relocation of a domestic violence family may include relocation to avoid the abuser's prosecution or avoidance of probation in repeated instances of family violence. One must also question whether the abductor's presence in the habitual residence state was voluntary, as neither she nor the children 104. Smita Aiyar, Comment, International Child Abductions Involving Non-Hague Convention States: The Need for a Uniform Approach, 21 EMORY INT'L L. REv. 277, 286 (2007).

105. McKee, supranote 73, at 50.

106. EDLESON, supra note 9, at viii.

107. See, e.g., Tsarbopoulos v. Tsarbopoulos, 176 F. Supp. 2d 1045 (E.D. Wash. 2001); Ostevoll v. Ostevoll, No. C-1-99-961, 2000 WL 1611123 (S.D. Ohio Aug. 16, 2000); Ponath v. Ponath, 829 F. Supp. 363 (D. Utah 1993).

No. 1]

FleeingDomestic Violence

57

may have been able to voice an objection to location within the state or even leave the state without the risk of additional physical harm. Absent the court's awareness and acceptance of the presence of domestic violence, the abuser may be in complete control of the determination of the habitual residence of the family, thereby forum shopping before the abduction even occurs.

Other complications occur when the domestic violence abductor seeks to litigate in the state of abduction rather than the state of habitual residence. In the retaining state, the abductor faces the issue of being unable to obtain the evidence necessary to prove domestic violence. Thus, courts in the retaining state, as well as the abductor, are faced with lack of access to evidence of domestic violence when determining whether the removal by the abductor was wrongful.

While the Convention does permit courts to obtain information from the habitual residence, the information obtained is often without the mother's input,"o" potentially making the report factually inaccurate. Absent evidence of violence, the abductor is unlikely to prevail.'09 The domestic violence abductor, unfortunately, must balance an inability to obtain evidence needed to prove her case against a return to the habitual residence with the potential of additional violence on the part of the abuser.

It could be argued that modification of the Convention's provisions so that wrongful removal and rights of custody are litigated in the state of habitual residence may be beneficial because it would leave habitual residence as the only issue (other than defenses) for determination by the court charged with making the return decision. The left behind parent would then argue the issues of wrongful removal and right of custody in their own state, reducing expense and uncertainty. The return of the child is expedited, reducing the potential harm of the abduction to the child.

For domestic violence abductors, however, this is an untenable solution, as the reason for leaving the state of habitual residence is because that state has failed to take measures

108. Weiner, supra note 13, at 658.

109. See, e.g., Robles Antonio v. Barrios Bello, No. 04-12794-GG, 2004 WL 1895123, at *2 (11th Cir. June 10, 2004).

John MarshallLaw Journal

58

[Vol. IV

necessary to stop the violence that forced the abduction. Hence, a potential solution in the normal abduction case is highly unsuitable in abduction cases driven by domestic violence.

C. Defenses The change in the demographics of the abductor has increased the number of assertions of defenses pursuant to the Convention. Many abductor-mothers allege abuse of the child, or themselves, as their reason for unilaterally engineering the child's removal.Io Many others have raised the removal of the mother as primary caretaker as a defense pursuant to the Article 13(b) "grave risk" defense. While this argument has often been rejected as a defense, it has been cited as grounds for non-return of a child."'

Some commentators suggest that the change in the abductor profile creates additional tension within the Convention. This profile change presents courts with the Hobson's choice of separating the child from what is often its primary caretaker by returning the child to its original home or maintaining the maternal relationship at the expense of the child's other familial relationships and familiarity remaining in his or her original

home."12 Yet other commentators insist that children are not being returned from their primary parent but to their habitual residence, and they can be returned to their habitual residence in the company of their primary parent. Their primary parent can be awarded custody in a custodial action in the state of habitual residence if the habitual residence court believes it is in the child's best interest to do so.113 However, in the domestic violence context, the female primary parent faces the choice of returning to the habitual residence state with her child and the potential resumption of abuse or allowing the child to return alone to a parent with historically violent propensities. Therefore, in addition to any tension stemming from abduction by a female primary parent, 110. Ostevoll v. Ostevoll, No. C-1-99-961, 2000 WL 1611123, at *16 (S.D. Ohio Aug. 16, 2000).

111. Id.

112. Lowe & Horosova, supra note 11, at 70.

113. Id.

No. 1]

FleeingDomestic Violence

59

abduction by an abused female primary parent creates unfathomable choices for the parent and the Convention court."14 The defenses to wrongful removal are contained in Articles 12, 13, and 20 of the Convention text. Article 12 addresses the "settled in their environment defense.""'5 Article 13 defines three defenses for the abductor: (1) the left behind parent had not exercised his or her custodial rights at the time of the removal or had consented or acquiesced to the child's removal or retention; (2) there is a grave risk that if the child is returned to the place of removal the child will suffer physical or psychological harm or otherwise place the child in an intolerable situation; and (3) the child objects to the return and is of sufficient age and maturity that it is appropriate to take account of his or her views."' Finally, a defense is contained in Article 20 that states the return of the child would not be permitted by the "fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms[;]""' however, this defense is rarely used and has yet to be successful in most countries. There is currently no domestic violence defense under the Convention, and the "best

114. See Transcript of Oral Argument at 23, Abbott v. Abbott, 130 S. Ct. at available 08-645), (No. (2010) 1983 http://www.supremecourt.gov/oral_arguments/argument-transcripts/08645.pdf.

115. Article 12 states: Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Hague Convention, supra note 1, at art. 12.

116. Hague Convention, supra note 1, at art. 13.

117. Id. at art. 20.

John MarshallLaw Journal

60

[Vol. IV

interest of the child" standard is irrelevant in defense of an abduction. 18 Article 12 requires the return of a child if less than one year has passed between the date of removal and retention of the child and the date of Convention proceedings regarding the abduction.119 Thereafter, return is optional and only available if the child has not settled into his or her environment. This results in many abductors, both male and female, living covertly in the country of abduction, forcing the child to move, often repeatedly, forgoing the child's education and establishment of community contacts, until a sufficient period of time has passed.

However, United States courts have found, if an abductor has hidden a child from the left behind parent, preventing him or her from contesting the child's removal, the one year period is effectively "tolled" until the left behind parent becomes aware of the location of the abducted child.12 0 The "settled into its environment defense" is a frequent abductor defense and may be successful at the judicial level. 12 1 1. Consent or Acquiescence Pursuant to the defense under Article 13(1)(a), an abductor can allege that the left behind parent acquiesced or consented to the removal of the child. Left behind parents confronted with this defense face wide variations in the requirements to rebut it.

In March 2007, the Israeli Family Court in Tel-Aviv addressed the span of variation that the left behind parent must waive his rights to the immediate return of the child, and this position must be adopted by the abductor-parent. 12 2 Some courts in England require that the consent be in writing, while Germany, Ireland, and the Netherlands require that the evidence establishing consent be convincing.123 In South Africa, the consent given needs to be for a permanent stay, but that consent 118. Weiner, supranote 13, at 651.

119. Hague Convention, supra note 1, at art. 12.

120. EDLESON, supra note 9, at 14.

121. See HAGUE REPORT, supra note 3, at 43.

122. File No. 042721/06 Family Court (Tel-Aviv), G.K. v. Y.K., (Mar. 18, 2007) Nevo Legal Database (by subscription) (Isr.) available at http://www.incadat.com/index.cfm?act-search.detail&cid=939&lng=l&sl=1 123. Id.

No. 1]

FleeingDomestic Violence

61

must be proved convincingly, while Switzerland requires that consent could be express or tacit, but the left behind parent must clearly agree, explicitly or tacitly, to the durable change in the residence of the child.124 The burden is on the abducting parents to show that the left behind parent agreed to the change.125 The United States requires a subjective assessment of the intent of the left behind parent, as well as the nature and scope of the

consent.12 6 Parental consent by the left behind parent for the permanent removal of the child is highly unlikely in female abductor domestic violence cases.127 Some female domestic violence abductors are able to gain the consent to travel on a temporary basis to visit family members.

Consent to a permanent relocation, however, is rarely, if ever, given and may not be requested if the abduction is a rapid response to violence by the abuser. In addition, many victims of domestic violence may fear additional abuse if they request to leave.128 More often, the abductor states that she never intended to stay in the state of habitual residence, always intending to return, with the knowledge of the left behind parent. This scenario is more common with the non-domestic violence abductor.

Therefore, consent as a defense is not a focus of the discussions of defenses in this Article.

2. Grave Risk Article 13(b) contains the "grave risk defense." Under this defense a court may refuse to issue a return order if there is a grave risk that the return of the child to its habitual residence would subject the child to a "physical harm or another intolerable situation." 29 The grave risk defense "should not serve as a pretext for inquiring into the merits of the custody issue and is not to be equated with a 'best interest of the child'

Id. Id. Id. Weiner, supra note 13, at 649.

Id. 129. Aiyra, supra note 104, at 289 (citing Hague Convention on the Civil Aspects of International Child Abduction art. 13(b), Oct. 25, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11).

124.

125.

126.

127.

128.

62

John MarshallLaw Journal

[Vol. IV

standard."'

The grave risk defense may be used as the basis for denial of a return order."' Again, neither "grave risk" nor "intolerable harm" is defined by the Convention, leaving the terms to be defined by the Contracting States' courts. As a result, there are myriad definitions of the terms.13 2 The circumstances accepted by Convention courts under the grave risk defense are numerous. Switzerland has identified grave harm as unsubstantiated domestic violence, unemployment, and drug use.' 33 Also, possible incarceration in the state of one's habitual residence due to participation in child abduction is deemed grave harm and reason to refuse issuing a return order. 3 4 An Australian court considered the mother's suicide threat if forced to return the child to Mexico."' It found that the threat did, in fact, satisfy the Article 13(b) grave risk defense and refused to return the child to Mexico.13 6 In the United States, in Friedrichv. Friedrich,"'the Court of Appeals for the Sixth Circuit defined grave risk of harm by identifying two situations that qualify under the grave risk defense. The first scenario exists if, prior to the resolution of the custody in the country's courts of habitual residence, return of the child puts the child in imminent danger. Examples of these circumstances would be returning the child to locations of war, famine, or disease. The second situation occurs if there is evidence of serious abuse, neglect of the child, or extraordinary emotional dependence. In addition, the courts in the country of habitual residence cannot, or will not, give the child adequate protection.3 8 130. Silberman, supra note 46, at 1055.

131. See HAGUE REPORT, supra note 3, at 42.

132. EDITH PALMER, HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION: AUSTRIA 39 (2010).

133. EDITH PALMER, HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION: SWITZERLAND 331 (2004).

134. EDITH PALMER, supranote 132, at 39.

135. DP v. Commonwealth Cent. Auth.; Director-General NSW Dep't of

Cmty. Serv.,

[2001] HCA 39, (2001)

180 ALR 402, available at

http://www.incadat.com/index.cfm?act-search.detail&cid=346&lng-1&sl=4 136. Silberman, supra note 46, at 42, 51.

137. Friedrich v. Friedrich, 78 F.3d 1060, 1069 (8th Cir. 1995).

138. Morley, supra note 57 (citing Friedrich,78 F.3d at 1068).

No. 1]

FleeingDomestic Violence

63

Historically, the grave risk defense has been narrowly construed. The Explanatory Report: Hague Conference of Private International Law of the Hague Convention, by Elisa Pez-Vera, commented that the reason for the restrictive interpretation lies in the fear that the Convention would be swallowed by its defenses.' 3 9 This viewpoint was confirmed by the United States State Department's Legal Analysis of the Convention, which opined that the drafters of the Convention "were aware that any exceptions had to be drawn very narrowly lest their application undermine the express purposes of the Convention[.]"l 40 Therefore, "[o]nly evidence directly establishing the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation is material to the court's determination."l41 Yet, thirty years after implementation of the Convention, some commentators suggest that the Article 13 defenses are too narrowly construed, arguing that removal of the child from its primary caretaker or returning the child to someone with abusive tendencies can cause direct harm to the very children the Convention is trying to protect.

In domestic violence cases, Convention courts must balance the need to conform with the Convention's mandate of swift return and the safety of the children after return to the habitual residence. The court is faced, if it chooses to follow the narrower interpretation of the defense, with the prospect that the child could be harmed upon its return to its habitual residence.

Should the court find grave risk, they can refuse to return the child. However, some courts have added an additional safeguard, inquiring as to whether suitable arrangements to protect the child can be made in the country of habitual residence, despite a finding of grave risk.'42 However, United States Circuit courts appear to be split on the issue.143 In recent years, some United States decisions have exhibited a broader interpretation of the defense when domestic violence

139.

140.

141.

142.

143.

1995).

Id. Id. Id. Blondin v. Dubois, 189 F.3d 240, 249 (2d Cir. 1999).

See, e.g., Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 378 (8th Cir.

64

John MarshallLaw Journal

[Vol. IV

is a factor in abduction. 144 Therefore, domestic violence abductors often plead the grave risk defense. Once introduced, the issue of domestic violence opens a plethora of issues for court determination, including whether the violence was directed at the parent, the child, or both the parent and child; whether the child was present at the time of the incidence of violence; the psychological effects of any violence witnessed by the child; the extent of the violence; and whether the violence was physical, verbal, psychological, or some combination thereof.

To prove the grave risk defense, one must provide clear and convincing evidence.145 However, this standard is not universally required by the grave risk defense. 14 6 The respondent has the burden of proof to establish an affirmative defense. 147 As a result, the domestic violence abductor, in the United States, has a "more difficult path to retaining custody of [her] children than do women arguing a different exception."l4 8 Several factors are important in determining the success of the grave risk exception in the domestic violence case: "(1) whether children were maltreated by the petitioning parent, (2) whether the children witnessed domestic violence, (3) whether the children suffer from post-traumatic stress disorder, (4) whether the abuser made threats to kill the children or others, and (5) whether there was expert testimony available." 4 9 Some studies allege that despite what is often severe abuse to the spouse, courts fail to find grave risk absent the aforementioned factors.150 It is important to note that ... absent these factors, this violence is not in and of itself, considered harm to children.

144. See Danaipouar v. McLarey, 286 F.3d 1 (1st Cir. 2002); Blondin v.

Dubois, 238 F.3d 153 (2d Cir. 2001); Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000).

145. EDLESON, supra note 9, at 261.

146. See id.

147. Mendez-Lynch v. Pizzutello, No. 2:08-CV-0008-RWS, 2008 WL 416934, at *2 (N.D. Ga. Feb. 13, 2008).

148. EDLESON, supranote 9, at 300.

149. Id. at 281.

150. Id. at 298.

No. 1]

FleeingDomestic Violence

65

[I]n Dallemagne v. Dallemagne the father had previously

punched the children's mother to the point that she was unconscious and had tried to run her over with a car.

Nevertheless, the court did not find grave risk because "there was no credible evidence that the petitioner has ever physically harmed the children.""s' The above-mentioned factors acknowledge harm to the child, however, some commentators allege that the United States judiciary fails to recognize domestic violence against mothers of the children as a grave risk to the children themselves. 152 Commentators have noted that "[i]n only a few Hague Convention cases have judges accepted that children's exposure to their mother's victimization at the hands of an abusive partner represents a grave risk of harm to the children and denied the father's petition for the child's return."l 53 A 2010 study found that women who reported physical violence directed at their children, or that their children were the unintentional victims of physical violence, were more likely to be allowed to remain in the United States after abduction.154 However, if the women reported that the physical violence was directed only at the mother, the children were more likely to be returned to their habitual residence.' 5 Allegations of emotional abuse without physical violence also failed to retain children in the United States.'16 Upon return, many of the women lose custody, effectively removing the primary caretaker from the lives of the children' 7 and placing them in their fathers' custody.'5 8 Further tension is created between the evidentiary requirements of the grave risk defense in the domestic violence context and the policy requirement of immediate return pursuant to the Convention. Frequently, it is difficult for the Convention courts to obtain satisfactory answers for all issues presented under the grave risk defense. The court's desire for additional 151.

152.

153.

154.

155.

156.

Id. (internal citations omitted).

Id. at xi.

Id. at 25 (internal cross reference omitted).

Id. at 171.

EDLESON, supra note 9, at 171.

Id. at 171.

157. See id. at 178.

158. Id. at 171.

66

John MarshallLaw Journal

[Vol. IV

information often leads to continuances to obtain the information, orders for psychological examinations, introduction of child welfare personnel, witness requests, and other evidence necessary to determine the existence and extent of the domestic violence allegation. As a result, the return process is oftentimes delayed. Hearings on the requested information are often similar to full-blown custody hearings, contrary to the purpose of the Convention's return order hearings.' 5 9 At the heart of the debate between a broad or narrow interpretation of the grave risk defense is whether the children involved will be safe from harm if returned to the habitual state of residence. Courts choosing the narrow interpretation of the defense must somehow address allegations and evidence of abuse in the habitual residence that fall short of the grave risk defense's threshold. "Undertakings" and "mirror orders" are tools used by Convention courts to address allegations of domestic violence falling below the grave risk standard.

"An undertaking is a voluntary commitment made by the petitioner to perform acts that the parties agree will facilitate the child's return or to protect the child or mother upon her return to "Judges may enter these agreements as the other country."' orders in the court but they are only viable within the jurisdiction of the issuing court."'"' In some cases they are made "preconditions to the return of a child imposed by the Examples of court granting return [of the child]." 62 undertakings are prepayment of attorney's fees for the abductor's attorney, guaranteed visas for the abductor, payment of spousal support to the abductor, and dismissal of criminal charges against the abductor.163 While on the surface the use of undertakings appears to address a court's concerns regarding child safety, there is much 159. See, e.g., Mendez-Lynch v. Pizzutello, No. 2:08-CV-0008-RWS, 2008 WL 416934, *2 (N.D. Ga. Feb. 13, 2008) ("The goal of the Hague Convention is to restore the status quo ante and to deter parents from forumshopping internationally to resolve custody disputes in a more sympathetic court.") (emphasis in original & citations omitted).

160. EDLESON, supra note 9, at 254 (emphasis in original).

161. Id. 162. HAGUE REPORT, supra note 3, at 36.

163. Id.

No. 1]

FleeingDomestic Violence

67

reservation about their use. It is argued that undertakings add extensive delay to finalizing return cases. Further, undertakings can also create unreasonable conditions for the left behind parent. For example, an Israeli court ordered a mother to return to the United States on the condition that the father let her live in his residence, but the father continued to live with his girlfriend.'

The mother then applied to the Israeli Court requesting permission to return to Israel because the father did not let her live with him.'6 Though the Israeli Court denied her request, the additional undertaking and subsequent litigation added additional time to the child's return to its habitual residence.

Such cases highlight the mother's fear of returning to the habitual residence state, as many are often without the resources to remain independent of their abuser. Issues of immigration are also raised because the mother may no longer maintain a marital relationship with the children's father and that relationship may have been the basis for her continued presence in the habitual residence state. Moreover, this immigration status may affect the mother's ability to retain and maintain employment, making it extremely difficult to care for the children in that state without the abuser's support.

Additionally, there is evidence to suggest that undertakings are often ineffective because they are unenforceable in the habitual residence state and are rarely implemented upon the child's return. A 2003 study, by Reunite International, revealed that undertakings were issued in just over half of the cases studied. 16 6 The study further found that two-thirds (67%) of the undertakings issued, including those focused on a child's safety upon return, were not implemented in the other country.'67 Finally, some studies suggest their use is ineffective because batters often violate court orders designed to impact the behavior of the batter.'6 8

164. Mozes v. Mozes, 19 F. Supp. 2d 1108, 1116 (C.D. Ca. 1998).

165. Id. 166. EDLESON, supra note 9, at 24 (describing study of twenty-two families and twelve cases involving undertakings).

167. Id. 168. Id. at 132.

John MarshallLaw Journal

68

[Vol. IV

"Mirrororders" provide enforcement of United States courts' orders in other countries.' 9 In arranging a mirror order, "the [United States] judge seeks the cooperation of a judge in [another] country, sometimes with the help of Central Authorities, to develop a court order that is acceptable in both countries' courts.""o If this can successfully be accomplished, the order is entered in both countries' courts."' Such orders face the skepticism of practitioners in domestic violence cases due to the difficulty of their enforcement in the country of

habitual residence.17 2 3. IntolerableHarm Given the limited success of the grave risk defense for domestic violence abductors in Convention courts, some commentators have suggested an alternative defense strategy for domestic violence abductors, focusing on the "intolerable The intolerable situation" provision of Article 13(b). 73 domestic to consider courts allow would provision situation violence against the abductor mother as an intolerable situation for the child. The Swiss government, concerned about the wellbeing of children in Convention cases, has advocated for changes to the Convention's protocols, has revised its implementing legislation to take "the best interests of the child" into account when determining if an intolerable situation exists, and has also provided for independent counsel for the child.174 Though little discussed, the original debate of Article 13(b) at the 1980 Convention included a discussion about domestic violence; however, such dialogue was in the context of the intolerable harm aspect of the defense rather than that of grave

169. EDLESON, supra note 9, at 254.

170. Id. 17 1. Id.

172. Id. at 255.

173. Hague Convention, supra note 1, at art. 13(b). Article 13(b) reads "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Id. 174. Merle H. Weiner, Intolerable Situations and Counselfor Children: Following Switzerland's Example in Hague Abduction Cases, 58 AM. U. L. REv. 335, 343-44 (2008).

No. 1]

Fleeing Domestic Violence

69

risk."'

The notes of the drafting session of the 1980 Convention suggest that the term intolerable harm was added in contemplation of domestic violence situationsl176 and other potential fact patterns that compromised the "hard cases.""'

"The phrase 'intolerable situation' was added to the 1980 Convention to deal with exceptional cases where a court could not find a grave risk of harm to the child, but returning the child would have been absurd as a procedural matter."' 7 8 The proposed legislation was created to address scenarios resulting in harsh outcomes for children when Article 13(b) is narrowly interpreted. These scenarios include "abductions by primary caretakers . . . in order for the abductor to escape family

violence, and courts ... return the child even though the primary custodian cannot safely return with the child." 9 The Swiss legislation states, an "intolerable situation" exists for purposes of Article 13(b), when, but not only when, the following criteria are met: a. placement with the parent who filed the application is manifestly not in the child's best interests; b. the abducting parent is not, given all of the circumstances,

in a position to take care of the child in the State where the child was habitually resident immediately before the abduction or if this cannot reasonably be required from this parent; and

175. Id. at 338.

176. Id. at 342.

177. Id.

178. Id. at 342. This was confirmed by a United Kingdom delegate's notes of the drafting session stating: It was necessary to add the words "or otherwise place the child in an intolerable situation" since there were many situations not covered by the concept of physical and psychological harm. For example, where one spouse was subject to threats and violence at the hands of the other and forced to flee the matrimonial home, it could be argued that the child suffered no physical or psychological harm, although it was clearly exposed to an intolerable situation.

Id. 179. Id. at 340-41.

John MarshallLaw Journal

70

[Vol. IV

c. placement in foster care is manifestly not in the child's best interest.'s 0 The act also contains provisions emphasizing the child's autonomy and provides for representation for the child by a person experienced in welfare and legal matters that may file applications and appeals on the child's behalf The legislation requires the court to hear from the child or appoint an expert to obtain information from the child.'8 ' The Swiss legislation was originally proposed at the Fifth Meeting of the Special Commission to Review Operation of the Convention, but the proposal was not adopted at the meeting.'82 In fact, the United States opposed the proposal.'8 3 Regardless, the Swiss Parliament, in light of several high profile cases, passed the legislation on December 21, 2007, and it is now operational in Switzerland.'84 In the United States, the intolerable situation defense is rarely used and courts routinely analyze facts under the grave risk rather than the intolerable situation defense.' 5 Given the lack of case law on the intolerable situation defense, there is little precedent for courts to follow. However, it appears that the Swiss legislation would appropriately address the domestic violence scenario. This includes analyzing three factors: (1) whether a physical abuser is in the child's best interest; (2) whether the primary parent is able to care for the child in the state of habitual residence; and (3) whether placement in foster care is not in the child's best interest.

There is substantial social science research with regard to child abuse that "has found that in approximately half of families where a partner is physically violent to their spouse (typically the father to the mother), the children in the household are also physically or sexually abused. Many children physically intervene to protect an abused parent, further endangering the child."' 86 Given the wealth of research

180.

181.

182.

183.

184.

185.

186.

Id. at 343.

Id. at 344.

Id. at 339.

Id. at 340.

Id. at 343.

Id. at 345.

EDLESON, supra note 9, at 22 (internal citations omitted).

No. 1]

Fleeing Domestic Violence

71

on the detrimental effects of domestic violence on children, placement of a child with a parent engaging in physical domestic abuse is not in the child's best interest. In both California and Wisconsin, the acceptance of this principal has resulted in legislation making it a "rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child."'"

Regarding the ability of the abductor to care for the child in the habitual state of residence, courts must consider the domestic violence alleged, the immigration dependence of the abductor upon return to the habitual residence state, the economic dependence of the abductor on the abuser, and the ability of the abductor to protect the child from the abuser.

Finally, there are few circumstances in which foster care is an improvement over the care of the primary parent. The separation of a child from the primary parent can result in psychological harm to the child in the form of psychological dis-attachment, which is, specifically "the harm caused from taking the child away from an 'attached and bonded' relationship.""' If the court were to find the evidence to support the first provision and find that the abductor is unable to care for the child in the habitual residence state, the court is faced with refusing to return the child to the habitual residence state, or, placing the child in foster care in the habitual residence state.

IV. RECOMMENDATIONS Currently, the Convention is the only widely recognized mechanism for the return of children abducted by family members from one country to another. This Article does not advocate for abolishment of the Convention; rather, its premise is that domestic violence abductions can be accommodated by the Convention. This can be accomplished by changing certain provisions, particularly the implementation language and best practices. While this Article generally looks at remedies from 187. CAL. FAM. CODE ยง 3044 (West 2011).

188. Sharon C. Nelson, Turning Our Backs on the Children. Implications ofRecent Decisions Regardingthe Hague Convention on InternationalChild Abduction, 2001 U. ILL. L. REv. 669, 680 (2001).

72

John MarshallLaw Journal

[Vol. IV

the perspective of the United States implementation of the Convention, many of the proposals can be considered by other Contracting States.

A. HabitualResidence Presently, United States courts analyze the question of habitual residence using either the Friedrich standard, the "settled purpose" standard, or the Delvoye standard. Unlike the issue of ne exeat rights, the United States Supreme Court has not yet ruled on the issue,'8 9 resulting in conflicting standards among the circuit courts for determining the state of habitual residence. This conflict results in variations in the evidence necessary to either prove or disprove habitual residence, depending on the state in which the Convention Petition is filed.

While the Fredrich and settled purpose standards are parentbased, the Delvoye is a child-based standard. The United States Court of Appeals for the Eleventh Circuit also uses a parentbased standard, incorporating elements of the settled purpose standard.

In the domestic violence context, the parent-based standard is subject to manipulation, as the abductor mother may reside in the habitual residence as a result of trickery, coercion, or force.

In many, if not most cases, courts neglect to uncover incidents of coercion or force because there is a failure to engage in a thorough inquiry regarding the circumstances of the couple's relocation to a particular country. Few courts have addressed the additional inquiry necessary in the domestic violence context. Delving into this inquiry is beneficial because it would provide courts with information to consider in determining whether it is safe to return the child to the particular state of residence requested by the petitioner. This line of reasoning is evident in cases such as Tsarbopoulos v. Tsarbopoulous,190 which states, [t]he verbal and physical abuse of one spouse by the other is one of several factors in the Court's determination of the 189. Three Standards for U.S. Habitual Residence Under the Hague Abduction Convention, CROSS BORDERS: AN INTERNATIONAL FAMILY BLOG (Feb. 19, 2010, 7:36 AM), http://blog.intemationalfamilysolutions.com/international familylaw/page/4 190. 176 F. Supp. 2d 1045 (2001).

No. 1]

FleeingDomestic Violence

73

existence of "shared intent" to make a place the family's "habitual residence." If this conduct is present in the marriage, then it must be considered by the trial court in taking "into account 'all of the circumstances of any particular case."'

Where the Court finds verbal and physical abuse of a spouse of the kind and degree present in this case, the conduct of the victimized spouse asserted to manifest "consent" must be carefully scrutinized. 9' The additional consideration by courts of the intent of the parties regarding the habitual residence could result in nullification of the habitual residence as it did in 92 Therefore, a court may conclude there is no Tsarbopoulos.1 wrongful removal and deny the petition for return. A careful evaluation of domestic violence factors on the issue of intent of the parties regarding habitual residence can change the outcome of a petition. Given the importance of Convention Petitions in the lives of the children affected by child abduction, the additional inquiry regarding the existence and effect of domestic violence on the selection of habitual residence should be a required inquiry for all Convention courts. Once domestic violence is raised, Convention courts should adopt the position found in Tsarbopoulos and carefully scrutinize all of the factors impacting the intention of the parties regarding their habitual residence, including factors of domestic violence.

B. InternationalChild Abduction Remedies Act The International Child Abduction Remedies Act ("ICARA") is the implementation legislation for the Convention in the United States. To address the rise of domestic violence in the context of the Convention, legislation should be developed, promulgated, and implemented to provide an additional exception under Section 4(B)(2), creating a new subsection (c) for a domestic violence exception. This exception should have a preponderance of the evidence standard, rather than the clear and convincing evidence standard of Article 13(b), because a heightened standard was never required under the Convention.

Such a high burden has made it difficult for domestic violence 191. Id. at 1056 (internal citations omitted).

192. Id.

74

John MarshallLaw Journal

[Vol. IV

abductors to meet the burden of proof to prevent the return of their children to the abductor's abuser.

Though there is no domestic violence provision in the Convention, the United States could, via legislation, amend ICARA to include a domestic violence defense for those cases incoming to the United States pursuant to the Convention. With the addition of a domestic violence defense, the implementation statute should be modified to include rebuttable presumptions such as those contained in California Family Code ยง 3044.193 In the case of ICARA, the proposed language should include a rebuttable presumption that "return of the child to the habitual state of residence would be detrimental to the child when, by a preponderance of evidence, domestic violence against the domestic violence abductor or the child has been demonstrated."

Once a domestic violence defense has been raised and established by a preponderance of the evidence, the left behind parent or petitioner would have the ability to rebut the presumption of domestic violence by clear and convincing evidence. A higher standard is necessary as the child's safety is at risk in the domestic violence case. Failure of the respondent in a domestic violence abduction case to meet her burden of proof, or alternatively, a successful rebuttal of the allegation of domestic violence would result in a return of the child to the habitual residence of the alleged abuser. Given the high stakes for the defenseless child in a domestic violence abduction case, the petitioner's rebuttal of the domestic violence defense should carry a higher standard of proof The Convention court should consider various factors in making a determination that the petitioner has rebutted the presumption of domestic violence, including: (1) Whether the perpetrator of domestic violence has demonstrated that the minor child at issue will be without any acts of domestic violence while in the care of the abuser.

(2) Whether the perpetrator has successfully completed a batterer's treatment program either in the United States or in the habitual residence state.

193. CAL. FAM. CODE

ยง 3044 (West 2011).

No. 1]

FleeingDomestic Violence

75

(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.

(4) Whether the perpetrator has successfully completed a parenting class in either the United States or the habitual residence state if the court determines the class to be appropriate.

(5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole in either the United States or the habitual residence state.

(6) Whether the petitioner has successfully complied with court orders related to the custody of the child in his state of habitual residence prior to the removal of the child from the habitual state of residence.

(7) Whether the perpetrator is or was ever restrained by a protective order or restraining order against the domestic violence abductor or any of her children, and whether he has complied with its terms and conditions.

(8) Whether the perpetrator of domestic violence has committed any further acts of domestic violence.

(9) For purposes of this section, a person has "perpetrated domestic violence" when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order to protect the other party seeking custody of the child or to protect the child and the child's siblings.

(10) For purposes of this section, the requirement of a finding by the court shall be satisfied by, among other things, and not

76

John MarshallLaw Journal

[Vol. IV

limited to, evidence that a party seeking return has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party.

(11) The requirement of a finding by the court shall also be satisfied if any court has made a finding of domestic violence or physical or sexual assault against the domestic violence abductor or any of her children by the petitioner based on conduct occurring within the previous five years.

(12) The court shall consider any relevant, admissible evidence submitted by the parties.194 Additional factors the court should also consider are: (1) The type of custody held by the domestic violence abductor.

(2) Whether the abductor has been the primary caretaker of the child and the length of time that the domestic violence abductor has been the child's primary caretaker.

(3) Whether the child was present at the time of any violence.

(4) Whether the child was the subject of any violence or emotional abuse.

(5) Whether the child was a witness to any violence or emotional abuse of the abductor or any sibling.

(6) Whether the child is aware of any violence against herself or himself, any sibling, or the domestic violence abductor.

(7) Immigration status of the abductor within the country of habitual residence upon return of the children to the habitual residence state.

194. These factors are based closely on those enacted by the California legislature in CAL. FAM. CODE ยง 3044.

No. 1]

FleeingDomestic Violence

77

(8) Whether the domestic violence abductor faces criminal charges upon return to the habitual residence state.

(9) Economic independence of the domestic violence abductor (e.g., eligibility, language barriers, visa requirements, etc.).

(10) Orders of support and the petitioner's performance against such orders.

(11) Additional support to the child outside of any court order.

(12) The recommendation of any Guardian Ad Litem or legal representative of the child's interests.

Using these proposed factors, the ICARA amendments should provide for a domestic violence defense in which the courts could effectively evaluate the abductor's assertions of domestic violence and the petitioner's response. Additional amendments to ICARA should also include provisions for the appointment of a legal representative for the minor children that are the subject of the action. The Guardian Ad Litem could file for hearings, appeals, motions, and make requests to the court for expert opinions regarding the children.

If there is a failure to amend the ICARA legislation, the above-mentioned factors should be considered under the grave risk or intolerable situation defense. This is particularly true in the case of intolerable situation as there are few opinions directly addressing this defense outside of the context of grave risk. Court adaptation of such factors would allow development of domestic violence defense by way of the intolerable situation defense, thereby eliminating the need to amend ICARA. However, without amendment to ICARA, domestic violence abductors would become dependent upon case law precedent to establish the burden shifting outlined above. This would take a substantial time period if it were to occur at all. Additionally, domestic violence abductors would be faced with inconsistent application of the burden shifting, similar to the current habitual residence landscape.

When a domestic violence abductor fails to meet the grave risk or intolerable situation standard, the safety of the children upon return is the largest factor facing the court. In designing

78

John MarshallLaw Journal

[Vol. IV

undertakings and mirror orders, courts should consider the factors listed above and require factors such as domestic violence evaluation and economic support to be included in any undertaking or mirror order.

In domestic violence cases, courts should also allow a time period for demonstration of, and the parties agreement to, an undertaking, or compliance with, a mirror order by the left behind parent before returning the child to the habitual state of residence. While the standard of grave risk or intolerable situation may not have been met, some evidence of domestic violence may have been presented to the court. As a result, courts must err on the side of protecting the safety of the child to the extent of the court's power, as the court's intervention may be the only method to stop the violence experienced by the child.

Absent an amendment to the Convention, domestic violence could only enter the current Convention process via legislation or legal precedent. The question is, how many families will be affected by domestic violence abduction until a successful alternative is created?

C. The CentralAuthority's Role ICARA provides for the formulation of the Central Authority and describes some of its duties. Filing an application with the Central Authority is not the exclusive remedy for the left behind parent seeking assistance through the Convention. A left behind parent has the ability to independently file suit in either state or federal court pursuant to the Convention and ICARA without filing an application with the Central Authority.

The Central Authority has specific duties and responsibilities Among such duties are the pursuant to the Convention.91 power to receive and transmit applications. ICARA should be amended to include a provision that would allow for a domestic violence abductor to assert a domestic violence defense or apply for domestic violence status upon arrival to the Central Authority in the incoming state. Absent the creation of a domestic violence defense or waiver, the abductor could use the

195. See HAGUE CONFERENCE ON PRIVATE INT'L LAW, GUIDE TO GOOD PRACTICE UNDER THE HAGUE CONVENTION OF 25 OCTOBER 1980 ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 6 (2005).

No. 1]

FleeingDomestic Violence

79

same process but assert a grave risk or intolerable situation defense.

An abductor should also apply to the Central Authority of the habitual residence state prior to abducting the children for domestic violence status. Inevitably, there are concerns with each proposal.

Application with the Central Authority for domestic violence status prior to abduction allows intervention prior to an abduction. However, the abductor may find that the Central Authority personnel are no more inclined to support the domestic violence abductor than other court officials within the habitual residence state. Additionally, detractors note that there may already be a process for addressing domestic violence in the courts of habitual residence and the remedy for the abductor is to bring such action in the custodial or family courts of the habitual residence.

Yet, intervention at this stage could allow for Convention courts to intervene in advance of potential abduction. After evaluation of a domestic violence, grave risk, or intolerable situation application with the Central Authority in the state of habitual residence, such cases could be transferred to the Convention courts within the habitual residence state, who would then be required to apply the Convention framework.

Alternatively, non-Convention courts could be used, but would be required to apply the Convention framework in their analysis.

Issues of ne exeat rights should be considered in the Convention courts in the state of habitual residence. However, this would be unsuccessful if there are no provisions for overruling ne exeat rights due to domestic violence in the statutes of the habitual residence. If, for example, grave risk was found due to domestic violence or an intolerable situation, the child's custodian could be given permission to leave rather than abducting the child.

In addition to the difficulties associated with realigning the use of the Central Authority in the Convention process, as well as designing a preemptive mechanism within the Convention framework, this proposal should also place the domestic violence abductor in the position of trying to implement proceedings while in proximity of the abductor, subjecting both her and the children to additional violence. She may have to live in hiding or on the run to prevent her abuser from locating

80

John MarshallLaw Journal

[Vol. IV

her and escalating the abuse, thereby increasing the danger to the children of the parties.

Applying for domestic violence status after abduction of the children presents additional issues and concerns. As an initial matter, the abduction itself is not prevented.

However, immediate application for domestic violence consideration or a domestic violence waiver with the Central Authorities in the incoming state could allow the Central Authority to immediately intervene in an abduction matter, and attempt resolution prior to the institution of a Convention action. It would also allow the Central Authority time to verify the allegations of the domestic violence abductor or potential respondent prior to the institution of a Convention Petition so that upon filing of the action, the time to uncover the documentation necessary to support the defense of grave risk of harm, for example, has already been either collected or requested, potentially reducing the time necessary to prepare for trial and expediting the return determination process.

Additionally, the Central Authority should, after collecting information on the abductor, include, along with the petition served on the abductor, a questionnaire to be filled out by the abductor and submitted with its Answer to the abduction petition. If filed with the Answer, the Central Authority could be notified that the questionnaire has been filed. Upon notification of the filing of the questionnaire, the petitioner is then forwarded the Answer and the completed questionnaire and is asked to provide a response within a reasonable time period to the Central Authority. A Guardian Ad Litem could be appointed by the court upon notification that a domestic violence, grave risk, or intolerable situation Answer has been filed.

The Central Authority should then obtain any documents, such as court records, medical records, school records, temporary protective orders, or criminal records, and any other such records requested by either party from the Central Authority in the habitual residence state. That state would be responsible for providing the documentation requested, certifying document validity, including translations, in a reasonable time period. Failure to respond within a reasonable

No. 1]

FleeingDomestic Violence

81

time by the Central Authority would result in a presumption of domestic violence, rebuttable by the petitioning parent.

Upon completion of the preliminary investigation by the Central Authority, the Central Authority should transfer its findings, including all documentation to the Court hearing the petition, as well as to all parties. Included in the report would be the findings of the Guardian Ad Litem. Such hearings would be held on an expedited basis after transmission of the Central Authority report.

While many would object that the above proposal is beyond the scope of the Central Authority, it should be noted that many of the provisions are consistent with the role the Central Authority often plays when administering the return of a child.

Central Authority personnel are often involved in locating a missing child, referring experts to counsel and coordinating information between the Central Authority of the habitual residence state and the incoming application state.

A second objection is that the proposal increases the time between application and return hearing. It should be noted that that time is already extensive in many Convention cases.' 96 A formalized process centralizing the collection of records and documentation could decrease rather than increase the time for collection of information for the court. The ability of Central Authorities of the habitual residence and incoming state to work in tandem could expedite the document collection process, as compared to the current system which relies on attorneys outside of the country of habitual residence to obtain documentation from another country or locate counsel within the habitual residence state to assist local counsel in obtaining the documentation and witnesses necessary for the abduction case.

Finally, domestic violence abductors are at a distinct disadvantage in the Convention process as the petitioner often receives financial support from the Central Authority by way of pro bono or reduced fee services, while the domestic violence abductor receives no support. Additionally, the domestic violence abductor faces the potential of paying the petitioner's attorney's fees if unsuccessful in her response to an abduction

196. See HAGUE REPORT, supra note 3, at 22-25.

John MarshallLaw Journal

82 petition.

[Vol. IV

It is estimated that the cost of such cases is at a

minimum $30,000.197 The involvement of the Central Authority in the collection of documentation could greatly reduce the fees incurred by the domestic violence abductor as well as ensure that the documentation is acquired, without interference from the alleged abuser or without placing the domestic violence abductor, children, family or friends in danger by participating in the abductor's defense.

V. CONCLUSION

International parental child abduction has changed much in the thirty years since the Convention's inception. The original contemplated scenarios have created unanticipated twists and turns resulting in an abductor profile far from the original scenario the Convention hoped to preempt. Yet, like the rest of society, the solution is not necessarily to throw away the entire system because particular elements no longer work or are no longer effective. Nor is a system to be eliminated because an unanticipated organism points out flaws in the system. As systems have done since the beginning of time, adaptation is key to system survival. The Convention is no exception. Many parts of the Convention work and do so as originally contemplated.

The domestic violence abductor, however, is essentially an unanticipated organism. Like many unanticipated organisms before it, the domestic violence abductor has pointed out flaws in the Convention system: rights of custody which swallow the primary custodian's ability to determine the residence of her own child; habitual residence determinations that do not consider the coercion and force that may have accompanied the residence selection; defense systems that recognize direct harm to the child, but not harm to its emotional well-being either directly or through abuse to its primary caretaker. There are system flaws in the Convention that do not recognize that undertakings and mirror orders are ineffective due to lack of enforcement in the habitual state of residence, or expand on rights of access such that they rival rights of custody.

197. EDLESON, supra note 9, at 165.

No. 1]

FleeingDomestic Violence

83

Many organizational systems have adapted to a new environment or a new organism in order to survive, remain relevant, and remain effective. The Convention must do the same. In adapting to the domestic violence abductor, the Convention must consider that not all habitual residence selections are those of both parents. It must recognize the social science that supports the notion that any domestic violence in the home of a child can be harmful to the development of that child. It must discover and enforce methods of ensuring that when a court returns a child to its habitual residence in a domestic violence case, that child will be safe and not a victim of further violence to its person or its emotional well-being.

Ideally, modifications to the Convention itself would be the better way to adapt to the new environment and the new organisms developing in the abduction process.

But, modification of the Convention itself has proven difficult.

Therefore, Contracting States have begun the adaptation process by introducing legislation each believes will address the new organisms encountered when the Convention is implemented.

Evidence of such legislation can be found with the European Union's European Court of Human Rights and Switzerland's Intolerable Situation legislation.

The United States is the destination of many domestic violence abductors. Given its familiarity with the new domestic violence abductor, and the issues created by this unanticipated element of the Convention, the United States should consider modifications to its implementation statutes to adapt to the new abductor that wishes to call the United States its new habitual residence.

GROW UP GEORGIA... IT'S TIME TO TREAT OUR CHILDREN AS CHILDREN ELIZABETH LOCKER*

I.

INTRODUCTION

II.

A LITTLE JUVENILE COURT HISTORY: CONTEXT HELPS. . . ............... 88

...............................................

86

A. Juvenile Courts Are Civil Courts ................. ..... 88 90 B. History ......................................... .............. 94 C. A New Century, A New Approach?...........

III.

REASONS TO TREAT JUVENILES DIFFERENTLY....

.............. 94

A. Juveniles Are Both Qualitatively and QuantitativelyDiferent .................................... 94 from Adults B. TreatingJuveniles as Adults Does Not Accomplish the Goals of ..... 98 .......................... the Justice System ...............

98 1. Focusingon the Individual: Culpability..

100 2. Focusingon Society: Community Safety ..................

3. The TraditionalJuvenile JusticeApproach: ..... 103 ..........................

Rehabilitation 4. Focusingon the Justice System as a Whole: Fairness....... 104 IV.

..................

A. The Project'sBackground B. The Child Protectionand Public Safety Act....

V.

106

THE GEORGIA JUVENILE CODE REWRITE PROCESS ................

CONCLUSION

........ 107 .......... 109

.................................................

111

* Assistant Professor of Law and Director of Externships, Salmon P. Chase College of Law, Northern Kentucky University; former Policy Director, Voices for Georgia's Children. Professor Locker is grateful for the inspiration and support for this Article that came from the JUSTGeorgia coalition and its project manager Julia Neighbors.

86

John MarshallLaw Journal

[Vol. IV

The problem of the delinquent child.. . is, in its social significance, of the greatest importance,for upon its wise solution depends the future of many of the risinggeneration.

Julian W. Mack The Juvenile Court Harvard Law Review, 1909

I.

INTRODUCTION

From the very inception of the juvenile court in 1899, American jurisprudence has recognized the importance of children in society and the need to deal with them in a manner distinct from the treatment of adults.' Shortly after Illinois established the first juvenile court in Chicago, every other state Over the years, the balance between followed suit.2 has ebbed and flowed, often and punishment rehabilitation influenced by the "latest" research, the most "sensational" news story, or the political desire to be "tough on crime." A swinging pendulum is normal in the development of a body of jurisprudence, but it is time to draw a line in the sand on at least one issue-children under the age of eighteen are not adults.

The American justice system should recognize that bright line rule and ensure that original jurisdiction for juveniles accused of a crime should be in the exclusive purview of a juvenile court.

Childhood is about growth and development. The human brain grows just as the body does. In fact, research shows that human brains continue to develop into our early twenties.3 1. U.S. DEP'T OF JUSTICE, OFFICE OF JUVENILE JUSTICE & DELINQUENCY PREVENTION, JUVENILE OFFENDERS AND VICTIMS: 2006 NATIONAL REPORT 94, availableat http://www.ojjdp.gov/ojstatbb/nr2006/downloads/nr2006.pdf [Hereinafter OJJDP 2006 REPORT]. See also Julian Mack, The Juvenile Court,23 HARv. L. REV. 104, 107 (1909).

2. OJJDP 2006 REPORT, supra note 1, at 94; Mack, supra note 1, at 107.

3. Understanding the Effects of Maltreatment on Brain Development, ISSUE BRIEF (Child Welfare Information Gateway, Admin. for Children & Families, U.S. Dep't. of Health & Human Serv., D.C.), Nov. 2009, at 5, at available http://www.childwelfare.gov/pubs/issuebriefs/braindevelopment/brainde velopment.pdf; Sharon Begley, Getting Inside a Teen Brain, NEWSWEEK, Feb. 28, 2000, available at http://www.newsweek.com/2000/02/27/gettinginside-a-teen-brain.html#.

No. 1]

Grow Up Georgia

87

Additionally, our key executive functions of judgment, forethought, and delayed gratification are last to develop fully. 4 The recognition that those under the age of eighteen are qualitatively different from adults is not a blank check for teenagers to run amok, nor is it a path that leaves communities unprotected or without recourse for wrongs. Rather, it is the recognition that with correct guidance many children can be steered into a productive, law-abiding adulthood.

Thirty-seven states grant exclusive jurisdiction to juvenile courts for children until they turn eighteen, leaving Georgia in a Georgia law generally limits delinquency small minority.' jurisdiction to children under seventeen and further identifies seven felonies that, if a child as young as thirteen is alleged to have committed, are excluded from original juvenile court jurisdiction.6 The Georgia General Assembly is currently considering a major rewrite of the state's juvenile code.7 The 4. MACARTHUR FOUND. RESEARCH NETWORK ON ADOLESCENT DEv. & JUVENILE JUSTICE, ISSUE BRIEF 3: LESS GUILTY BY REASON OF at available 3, ADOLESCENCE http://www.adjj.org/downloads/6093issuebrief_3.pdf

[hereinafter

MACARTHUR BRIEF]; MACARTHUR FOUND. RESEARCH NETWORK ON ADOLESCENT DEV. & JUVENILE JUSTICE, DEVELOPMENT AND CRIMINAL at available 42, BLAMEWORTHINESS

http://www.adjj.org/downloads/303OPPT%20Adolescent%20Development%20and%20Criminal%20Blameworthiness .pdf; Tomas Paus, Mapping Brain Maturation and Cognitive Development During Adolescence, 9 TRENDS IN COGNITIVE SCI. 60 (2005); Elizabeth R. Sowell et al., In Vivo Evidence for Post-Adolescent Brain Maturation in Frontaland StriatalRegions, 2 No. 10 NATURE NEUROSCIENCE 859 (1999), available at http://www.loni.ucla.edu/-esowell/nn1099 859.pdf.

5. See JUVENILE JUSTICE INITIATIVE, U.S. STATES BY AGE OF JUVENILE COURT JURISDICTION (depicting each states' juvenile court jurisdiction by at available age), http://www.jjustice.org/pdf/Statewith Under 18 Map Red andPink%5B 1%5D.pdf (last visited May 2, 2011). All the states except Connecticut, Georgia,

Illinois, Louisiana, Massachusetts, Michigan, Missouri,

New

Hampshire, New York, North Carolina, South Carolina, Texas, and Wisconsin include eighteen-year-old children in juvenile court jurisdiction.

Id. 6. O.C.G.A. ยง 15-11-2 (West 2011); O.C.G.A. ยง 15-11-28(b)(2)(A)(i)(vii) (West 2011).

7. Gayle White, Long Road to New Juvenile Code, JUVENILE JUSTICE INFO. EXCH. (June 22, 2010), http://jjie.org/long-road-to-new-juvenilecode/2042.

88

John MarshallLaw Journal

[Vol. IV

original Proposed Model Juvenile Code includes provisions to bring Georgia in-line with the nation by: (1) raising the age of juvenile court jurisdiction to eighteen, and (2) allowing transfer to adult criminal court for those accused of committing certain serious felony acts, but only after a sufficient evaluation is undertaken in the juvenile court.8 Unfortunately, as introduced, the Child Protection and Public Safety Act omitted those provisions,9 and in doing so missed an important opportunity to modernize Georgia law. In its current form, the bill ignores the prevailing legal direction, including Supreme Court jurisprudence recognizing the inherent differences between children and adults. Further, it ignores social science research, undermines historical goals of juvenile courts, and ultimately, leaves in question the future of the rising generation.

II. A LITTLE JUVENILE COURT HISTORY: CONTEXT HELPS ...

Resistance to change is common. Georgia legislators return to their districts every two years seeking reelection from their constituents;10 going out on a limb and advocating something different is dangerous for politicians looking to return to office.

Fortunately, creating juvenile courts that are rehabilitative in nature, recognizing that children are inherently different from adults, and defining children as those under eighteen, are not novel ideas.

A. Juvenile Courts Are Civil Courts Juvenile courts are primarily civil courts. Adjudication of offenses by the juvenile court are not equivalent to convictions 8. MODEL JUVENILE CODE §§ 15-11-06(a)-(b), -109(1)(F) (Young Lawyers Division, State Bar of Ga., Proposed Official Draft 2009), available at http://www.justga.org/initiatives/proposed-model-code/Article 1/view.

9. S.B. 292, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009), available at The bill was http://www.legis.ga.gov/Legislation/20092010/96859.pdf reintroducted during the first legislative session of the 151st General Assembly. S.B. 127, 151st Gen. Assem., 1st Reg. Sess. (Ga. 2011), available at http://www.1egis.ga.gov/Legislation/20112012/110825.pdf (last visited Mar. 15, 2011).

10. GA. GEN. ASSEM., http://www.legis.ga.gov/en-US/default.aspx (last visited Mar. 8, 2011).

No. 1]

Grow Up Georgia

89

of crimes." Although there are variations from state to state, juvenile courts generally are created for the express purpose of hearing cases that involve children.12 Georgia is typical in that its juvenile courts are designed to handle "dependency, delinquency, and status offense cases."3 In the United States, juvenile courts are guided mostly by state-level statutory law. 14 The result of such local discretion is a diverse set of mechanisms for handling young offenders." That said, there are common trends discernable across the states.

11. O.C.G.A § 15-11-28(b)(1) (West 2011).

12. O.C.G.A § 15-11-1 (West 2011).

13. Georgia's Juvenile Code: What is the Juvenile Code?, JUSTGEORGIA, http://www.justga.org/initiatives/juvenile-code (last visited Mar. 8, 2011). See O.C.G.A. § 15-11-28(a) (West 2011) (codifying Georgia juvenile court jurisdiction). Deprivation cases, commonly referred to as dependency cases in other states, are cases where the parent(s) of a child are alleged to have neglected or abused the child. O.C.G.A. § 15-11-2(8) (West 2011). Status offense cases are cases where a child is accused of committing an act that is a crime only because of the age of the child; for instance, being truant from school or violating a curfew ordinance. O.C.G.A. § 15-11-2(11) (West 2011). Delinquency cases involve children who are accused of committing an act that would be a crime if committed by an adult. O.C.G.A. § 15-11-2(6) (West 2011).

14. In re Gault, 387 U.S. 1, 59 (1967) (Black, J. concurring) ("The juvenile court laws of Arizona and other States, as the Court points out, are the result of plans promoted by humane and forward-looking people to provide a system of courts, procedures, and sanctions deemed to be less harmful and more lenient to children than to adults. For this reason state laws provide less formal and less public methods for the trials of children."); see generally, FED. JUDICIARY, ADMIN. OFFICE OF THE U.S. COURTS, UNDERSTANDING

FEDERAL

COURTS,

http://www.uscourts.gov/EducationalResources/FederalCourtBasics/CourtStr ucture/UnderstandingFederalAndStateCourts.aspx (last visited Mar. 15, 2011) (providing educational resources for understanding the judicial system in the United States and explaining Juvenile courts are state trial courts of limited jurisdiction).

15. Gault, 387 U.S. at 65-7 (Harlan, J. concurring in part & dissenting in part) ("Each of the 50 States has created a system of juvenile or family courts, in which distinctive rules are employed and special consequences imposed. The jurisdiction of these courts commonly extends both to cases which the States have withdrawn from the ordinary processes of criminal justice, and to cases which involve acts that, if performed by an adult, would not be penalized as criminal.").

John MarshallLaw Journal

90

[Vol. IV

B. History Juvenile courts have existed in the United States for over one From the very start, juvenile law has hundred years.16 recognized the familial and societal influences that affect children's behavior." Therefore, juvenile courts showed an intent to discipline and rehabilitate rather than merely punish the children appearing before them.' 8 For over fifty years, the juvenile courts adhered to a parens patriae doctrine, viewing the state as parent when the child's natural parents were deemed to be unsuccessful in steering the child along the proper course.19 The courts' approach during this time was intended to be non-adversarial, employing an approach of clinical social work and providing children resources to compensate for whatever had been lacking in their home.20 Unfortunately, courts did not consistently follow this restorative approach. 2 ' As children were subjected to a variety of serious consequences for their behavior without the normal protections afforded to adult defendants in criminal courts, cases of children facing adult-like punishments without a full measure of due process began to mount.22

16. Mack, supra note 1, at 107.

17. Id. 18. The original juvenile court was established in Chicago in 1899, and its enabling statute gave jurisdiction over any child who for any reason is destitute or homeless or abandoned; or dependent on the public for support; or has not proper parental care or guardianship; or who habitually begs or receives alms; or who is living in any house of ill fame or with any vicious or disreputable person; or whose home, by reason of neglect, cruelty or depravity on the part of its parents, guardian or other person in whose care it may be, is an unfit place for such a child; and any child under the age of 8 who is found peddling or selling any article or singing or playing a musical instrument upon the street or giving any public entertainment.

Illinois Juvenile Court Act of 1899, 1899 ILL. LAWS 131, ยง 1 (repealed 1965) (current version at 705 ILL. COMP. STAT. ANN. 405 (West 2009)). See OJJDP 2006 REPORT, supra note 1, at 94; Mack, supranote 1, at 107.

19. OJJDP 2006 REPORT, supra note 1, at 94.

20. Id. at 96.

2 1. Id. 22. Id.

No. 1]

Grow Up Georgia

91

One of the first cases of its kind to reach the United States Supreme Court was Kent v. United States, which, in 1966, led the Court to hold "basic requirements of due process and fairness" must be satisfied in juvenile delinquency proceedings.23 The following year, In re Gault came to the Supreme Court on a habeas petition.2 4 In that case, a fifteenyear-old child was sentenced to more than five years of detention. 25 Had an adult committed the same crime as Gerald Gault, he or she would have been punished with no more than two months of incarceration.2 6 Justice Fortas, writing for the Court, acknowledged the good intentions of the juvenile court's rehabilitative function but soundly rejected the parens patriae doctrine as an insufficient rationale for eliminating due process protections.2 7 Justice Fortas wrote, "[t]he Latin phrase [parens patriae] proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme, but its meaning is murky and its historic credentials are of dubious relevance." 28 The ruling in Gault underscored the importance of due process rights for all.

Failure to observe the fundamental requirements of due process has resulted in instances, which might have been avoided, of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of Due process of law is the primary and remedy. indispensable foundation of individual freedom. It is the

23. 383 U.S. 541, 553 (1966).

24. 387 U.S. 1, 4 (1967).

25. Id. at 29.

26. Id. at 8-9. Gault had arrived at the United States Supreme Court on a habeas petition out of Arizona after that state's highest court had affirmed the confinement of fifteen-year-old Gerald Gault in a state industrial school.

Id. at 3. Gerald's "crime" was making phone calls to a neighbor "of the irritatingly offensive, adolescent, sex variety." Id. at 4. After proceedings that included virtually no due process protections, Gerald was sentenced to the State Industrial School "for the period of his minority (that is, until 21), unless sooner discharged by due process of law." Id. at 7-8. In other words, he was sentenced to potentially more than five years incarceration for making an obscene phone call; a crime that, if committed by an adult, would be subject to no more than a $50 fine or not more than two months incarceration. Id. at 8-9.

27. Id. at 16.

28. Id.

92

John MarshallLaw Journal

[Vol. IV

basic and essential term in the social compact[,] which defines the rights of the individual and delimits the powers which the state may exercise.29 Kent, Gault, and their progeny3 0 ushered in an era of legislative action to revise state juvenile laws to comport with due process.3 1 Consequently, the handling of juvenile offenders became more structured and adversarial, and it generally incorporated more features of adult criminal courts.32 The next major set of changes to how courts approached juvenile crime came in the late 1990s when many state legislatures reacted to public fear of an on-coming wave of "superpredators." 3 Juvenile crime rates had, in fact, increased during the early nineties, and Princeton Professor John Dilulio jumped on that fact and ran with it, authoring the article The 34 Coming of the Super-Predators.

He theorized about a generation of American boys growing up in "moral poverty," never learning right from wrong, and feeling no remorse.35 He wrote of "elementary school youngsters who pack guns instead of lunches" and of juveniles who "fear neither the stigma of arrest nor the pain of imprisonment."3 6 According to Dilulio, this new generation "live[d] by the meanest code of the meanest streets, a code that reinforces rather than restrains their violent, hair-trigger mentality. ... [S]o for as long as their youthful energies hold out, they will do what comes 'naturally': murder, rape, rob, assault, burglarize, deal deadly drugs, and get high." 37 Fear of the superpredator led to a belief that rehabilitation was an inappropriate response to juveniles who committed 29. Id. at 19-20.

30. Graham v. Florida, 130 S. Ct. 2011 (2010); Roper v. Simmons, 543 U.S. 551 (2005); In re Winship, 397 U.S. 358 (1970).

31. Tamar R. Birckhead, The Age of the Child: InterrogatingJuveniles After Roper v. Simmons, 65 WASH. & LEE L. REv. 387-88 (2008).

32. Marvin Ventrell, The Practice ofLaw for Children, 66 MONT. L. REv. 1, 13-15 (2005).

33. John J. Dilulio, The Coming of the Super-Predators, I No. 11 THE WEEKLY STANDARD 23 (Nov. 27, 1995), available at http://cooley.libarts.wsu.edu/schwartj/criminology/dilulio.pdf.

34. Id. 35. Id. at 26.

36. Id. at 23, 27.

37. Id. at 27.

No. 1]

Grow Up Georgia

93

crimes." By extension, juvenile courts were perceived as illequipped to handle the type of juvenile appearing before them.3 9 As a result many states passed what are generally referred to as automatic transfer laws.40 These laws set out that juveniles arrested for certain crimes are "automatically transferred" to the jurisdiction of the adult criminal court.4' By 1998, forty-seven states had passed statutes to make it easier to prosecute juveniles as adults.4 2 The problem is that Professor Dilulio was wrong. Juvenile crime rates have not only failed to rise as predicted by Dilulio, they have actually reversed course.43 Starting their decline in 1994, juvenile crime rates are now at some of the lowest levels in recorded history." Even Dilulio himself has backed away from proposals to incarcerate juvenile offenders, instead embracing plans for rehabilitation and reform.45

38. See Nicholas W. Bakken, You Do the Crime, You Do the Time: A Socio-Legal History of the Juvenile Court and Transfer Waivers, INT'L FOUND. FOR PROTECTION OF OFFICERS, Aug. 2007, at 9, available at http://www.ifpo.org/articlebank/BakkenJuvenileJustice.pdf.

39. See Soma R. Kedia, Creatingan Adolescent Criminal Class: Juvenile Court Jurisdiction over Status Offenders, 5 CARDOzO PUB. L. POL'Y & ETHICS J. 543, 546, 561 (2007) (discussing "ungovernabilty" of juvenile delinquents and the juvenile courts' inability to manage them).

40. See Richard E. Redding, Juvenile Transfer Laws: An Effective Deterrent to Delinquency?, JUVENILE JUSTICE BULLETIN, June 2010, at 1, availableat http://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf.

41. See id. at 2.

42. See Sara Sun Beale, Still Tough on Crime? Prospectsfor Restorative Justice in the United States, 2003 UTAH. L REV. 413, 415.

43. See Ctrs. for Disease Control and Prevention, Dep't of Health and Human Serv., Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services, MORBIDITY AND MORTALITY WEEKLY REPORT, Nov. 30, 2007, at 2, available at http://www.cdc.gov/mmwr/pdf/rr/rr5609.pdf [hereinafter TRANSFER OF YOUTH].

44. BARRY KRISBERG, JUVENILE JUSTICE: REDEEMING OUR CHILDREN 2 (Jerry Westby et al. eds. 2005).

45. Elizabeth Becker, As Ex-Theorist on Young 'Superpredators,' Bush Aide Has Regrets, N.Y. TIMEs, Feb. 9, 2001, available at http://www.nytimes.com/2001/02/09/us/as-ex-theorist-on-youngsuperpredators-bush-aide-has-regrets.html.

94

John MarshallLaw Journal

[Vol. IV

Despite the now disproven theory of the superpredator, as the twentieth century came to a close, the juvenile justice system moved decidedly away from its roots in rehabilitation and towards an increasingly punitive approach.

C. A New Century, A New Approach?

One of the great complaints about the existing Georgia Juvenile Code is that much of it was passed piece-meal, often in reaction to the latest story to appear on the cover of the local newspaper and with little regard to research.46 The specter of the superpredator, though unfounded, left its imprint on the juvenile laws of Georgia, which currently tend to stress punishment of juvenile offenders rather than rehabilitation.4 7 Since that time, studies have shown that transfer laws failed, yet the erroneous public policy direction lingers.48 Additionally, what does the research tell us now about how we actually protect children and make communities safer?

III. REASONS TO TREAT JUVENILES DIFFERENTLY

Research relevant to why juveniles should be treated differently can be divided into two main areas. First, juveniles are both qualitatively and quantitatively different from adults.

Second, treating juveniles as adults does not accomplish the societal goals driving our justice system.

A. Juveniles Are Both Qualitativelyand Quantitatively Differentfrom Adults It is self-evident that infants, toddlers, and young children are vastly different from adults, and any attempt to treat them the same in our legal system would be seen as ludicrous. We would 46. GA. APPLESEED CTR. FOR LAW & JUSTICE, COMMON WISDOM: MAKING THE CASE FOR A NEW GEORGIA JUVENILE CODE 10 (2008), availableat http://gaappleseed.org/children/reports/summary.pdf [hereinafter COMMON WISDOM].

47. See, e.g., O.C.G.A. 15-11-28(b)(2)(A) (giving exclusive jurisdiction to superior court over cases where children ages thirteen to seventeen are charged with murder, voluntary manslaughter, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, and armed robbery with firearm).

48. See TRANSFER OF YOUTH, supra note 43, at 6-8.

No. 1]

Grow Up Georgia

95

never imprison a four year old, not even one who shot and killed another child. Where the lines have blurred is with older children, especially older adolescents. Still, most parents or high school teachers can tell you that teenagers, too, are vastly different from adults. Society in general recognizes teens as impulsive, susceptible to peer pressure, and poor at delaying gratification. 49 Finally, both physical and social science research is catching up and confirming these differences.

One of the areas striking most people as intuitive is that From reckless driving to adolescents are risk takers. unprotected sex, illegal drug use, and other criminal behavior such as shop-lifting, trespassing, and truancy, adolescents are known for poor decision making and risk taking.s0 They are notorious for thinking "that won't happen to me" and viewing themselves as invincible." Research supports this common knowledge. Adolescents, particularly those in late adolescence, are overrepresented in nearly every measure of reckless behavior.5 2 As the American Psychological Association has pointed out, "it is statistically normative for adolescents to engage in some form of illegal activity."" Even acts generally perceived as serious crimes are not uncommon among adolescents.5 4 In fact, greater than thirty percent of American males commit a violent offense before the age of seventeen."

49. In re Stanford, 537 U.S. 968, 971 (2002) (Stevens, J., dissenting from denial of petition for writ of habeas corpus).

50. Brief for the Am. Psychological Ass'n & the Mo. Psychological Ass'n as Amici Curiae Supporting Respondent at *3-5, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1636447 [hereinafter Amici Brief|.

51. KATHLEEN M. THIES & JOHN F. TRAVERS, HANDBOOK OF HUMAN DEVELOPMENT FOR HEALTH CARE PROFESSIONALS 195 (2006).

52. Jeffrey Jensen Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 DEV. REV. 339, 339 (1992), available at http://jeffreyamett.com/articles/amettl992recklessbehaviorinadolescence.pdf See Amici Brief, supra note 50, at *4.

53. Id. at *7.

54. U.S. DEP'T OF HEALTH AND HUMAN SERVS., YOUTH VIOLENCE: A REPORT OF THE SURGEON GENERAL (2001), available at http://www.surgeongeneral.gov/library/youthviolence/chapter2/sec l2.html#p revelance.

55. Id.

96

John MarshallLaw Journal

[Vol. IV

As disturbing as this behavior is, the good news is that antisocial behavior peaks in the late teens.56 The fact that juvenile criminal behavior "peaks" is crucial.

Adolescence is something of a trial run or internship on the path to adulthood. Almost by definition, it involves trial and error and the making of mistakes. Adolescence is a natural time of experimentation. Society has a stake in minimizing harm from those mistakes and helping those who have trouble learning.

However, we must also recognize that youthful mistakes are seldom indicators of enduring behavior or evidence of a flawed character. The vast majority of delinquent youth will not engage in violent illegal conduct as adults."

In addition to risk-taking and delinquent behavior, adolescents are notorious for failing to adequately think things through and consider the consequences of their actions. 8 Adolescents are generally "less responsible, more myopic, and less temperate than the average adult."5 9 They fail to see other viewpoints and take into account broader contexts.o Adolescents are influenced by their friends. Unlike adults, they tend to commit crimes in groups.' Once again, these behaviors, thinking patterns, or "flaws" are temporary.62 They are, in fact, adolescent.

So why are adolescents so different from adults? Science is finally shedding some light. Advances in medical technology, in particular the development of magnetic resonance imaging ("MRI") and functional magnetic resonance imaging ("fMRI")

56. Jeffry Jensen Arnett, Emerging Adulthood: A Theory of Development

from the Late Teens Through the Twenties, 55 No. 5 AM.

PSYCHOLOGIST

at available (2000), 474-75 469, http://www.jeffreyarnett.com/articles/ARNETTEmergingAdulthoodtheor y.pdf.

57. Amici Brief, supranote 50, at *7.

58. Johnson v. Texas, 509 U.S. 350, 367 (1993).

59. Elizabeth Cauffman & Laurence Steinberg, (Im)maturity and Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults, 18 BEHAV. SCI. & L. 741, 757 (2000).

60. Id. at 745.

61. Peter Ash, Adolescents in Adult Court: Does the Punishment Fit the Criminal?,34 J. AM. ACAD. PSYCHIATRY L. 145, 147 (2006).

62. Roper v. Simmons, 543 U.S. 551, 570 (2005) (citing ERIK ERIKSON, IDENTITY: YOUTH AND CRISIS (1968)).

No. 1]

Grow Up Georgia

97

reveal key differences between adolescent and adult brains.63 Most relevant to the issue of juvenile delinquency is that the brain's frontal lobes, specifically the pre-frontal cortex, are among the last parts of the brain to develop fully."r The final stages of development may not occur until adolescence or even the early twenties. 65 The pre-frontal cortex plays a primary role in higher-level thinking and decision making.6 6 It is directly linked to "making decisions that are in the long-term best interests of the individual." 67 Without fully functioning frontal lobes, impairments in foresight, strategic thinking, and risk Increased impulsivity and management are expected. 8 difficulties in concentrating, paying attention, and selfmonitoring are common as well.69 Human brains continue to develop at least into our early twenties.70 The frontal lobes are among the last to fully develop,7 ' and while adolescents generally are able to distinguish right from wrong, they do not weigh consequences in the same way that adults do. 72 Adolescents are less independent than adults, have less life experience upon which to 63. Nitrin Gogtay et al., Dynamic Mapping of Human Cortical Development DuringChildhood Through EarlyAdulthood, 101 PROC. NAT'L at 8177 (2004), available ACAD. ScI. 8174, http://www.pnas.org/content/101/21/8174.full.pdf+html.

64. Sowell, supra note 4, at 859.

65. Gogtay, supra note 63, at 8177; see also Amici Brief, supra note 50, at *3.

66. Jun Tanji & Eiji Hoshi, Role of the Lateral Prefrontal Cortex in Executive Behavioral Control, 88 PHYSIOLOLOGICAL REv. 37, 37-57 (2008), availableat http://physrev.physiology.org/content/88/1/37.full.pdf+html.

67. See Amici Brief, supra note 50, at *10 (citing Antonio R. Damasio & Steven W. Anderson, The FrontalLobes, in ClinicalNeuropsychology 404, 434 (Kenneth M. Heilman & Edward Valenstein eds., 4th ed. 2003)).

68. Id. 69. Amici Brief, supra note 50, at * 10 (citing M. Marsel Mesulam, Behavioral Neuroanatomy, in Principles of Behavioral and Cognitive Neurology 1, 47-8 (M. Marsel Mesulam 2d ed. 2000)).

70. Michelle Haddad, Note, Catching Up: The Needfor New York State to Amend Its Juvenile Offender Law to Reflect Psychiatric, Constitutionaland Normative Trends over the Last Three Decades, 7 CARDOZO PUB. L. POL'Y & ETHICS J. 455, 480 (2009).

7 1. Id.

72. Johnson v. Texas, 509 U.S. 350, 367 (1993).

98

John MarshallLaw Journal

[Vol. IV

base their decisions, and they are less future-oriented than adults." These are important distinctions that must be taken into consideration when establishing an effective justice system.

B. Treating Juveniles as Adults Does Not Accomplish the Goals of the Justice System Our justice system is meant to accomplish several objectives: punishment, retribution, deterrence, and incapacitation.74 Broadly speaking, these goals have two different foci. The first set-punishment and retribution-focus on the individual offender, looking at how the specific person who has committed an inappropriate act should be made to pay for his or her behavior." The second set-deterrence and incapacitationfocus on society and the ways in which the community can be kept safe both before and after a crime has been committed.76 The juvenile justice system adds an additional component of rehabilitation and, in fact, is distinguishable from the adult criminal justice system for maintaining this as a priority above other goals. 7 1. Focusing on the Individual: Culpability The United States Supreme Court has repeatedly addressed the issue of juvenile culpability, culminating in two particularly notable cases within the last decade. Those cases found that juveniles and adults are different and that setting a bright line rule at eighteen years of age and treating those under eighteen as categorically different from adults does not create a

73. Elizabeth S. Scott & Laurence Steinberg, Adolescent Development and the Regulation of Youth Crime, 18 JUV. JUST. J. 15, 20 (2008), available at http://futureofchildren.org/futureofchildren/publications/docs/1 8_02_02.pdf.

74. Robert M. McFatter, Purposes of Punishment: Effects of Utilities of Criminal Sanctions on Perceived Appropriateness, 67 J. OF APPLIED PSYCHOL. 255,255 (1982).

75. Leona D. Jochnowitz, Missed or Foregone Mitigation: Analyzing Claimed Error in Missouri Capital Clemency Cases, 46 No. 3 CRIM. L. BULL. 347, 351 (2010).

76. Nancy Glass, The Social Workers of Sentencing? Probation Officers, Discretion, and the Accuracy of Presentence Reports Under the Federal Sentencing Guidelines, 46 No. 1 CRIM. L. BULL. Art. 2 (2010).

77. See supra note 18 and accompanying text.

No. 1]

Grow Up Georgia

99

constitutional infirmity." While these cases focus on Eighth Amendment jurisprudence, particularly the "evolving standards of decency" used to define cruel and unusual punishment,79 the research and analysis supporting those differences is equally applicable to the issue of jurisdiction. Writing for the majority in Roper v. Simmons, Justice Kennedy laid out three inherent differences between juveniles and adults. 0 The Court found that juveniles: (1) lack maturity and have an underdeveloped sense of responsibility; (2) are more susceptible to negative influences and peer pressure; and (3) that their character is not as well formed." An essential precept of criminal punishment is that it should be graduated and proportioned to the offense.8 2 Juveniles' susceptibility to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult."83 Furthermore, the reality for juveniles is that they are often much more constrained by their environments than are adults, as they frequently have little, if any, say in where they live or go to school.84 Many are still unable to drive, have no source of income, and have few means to escape a negative peer group, even if they so desire." As the Court acknowledged in Roper, "[juveniles'] own vulnerability and comparative lack of control over their immediate surroundings mean [they] have a greater

78. Roper v. Simmons 543 U.S. 551, 574 (2005); see also Graham v.

Florida, 130 S. Ct. 2011 (2010). In upholding eighteen as an appropriate bright line rule, the Court noted that "[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood," noting that, among other things, the vast majority of states set eighteen as the minimum age for voting, jury services, and marriage without the consent of a parent or court. Id. at 2030 (citing Roper, 543 U.S. at 574).

79. See Roper, 543 U.S. at 561.

80. Id. at 553.

81. Id. at 569-71. All three differences were earlier enunciated by the Court in Thompson v. Oklahoma, 487 U.S. 815 (1988), but only applied to youth who committed crimes before their sixteenth birthday. With the ruling in Roper, the Court extended its logic to apply to all youth who committed crimes before their eighteenth birthday.

82. Adkins v. Virginia, 536 U.S. 304, 311 (2002).

83. Thompson, 487 U.S. at 835.

84. See Roper, 543 U.S. at 553.

85. Id.

100

John MarshallLaw Journal

[Vol. IV

claim than adults to be forgiven for failing to escape negative influences in their whole environment." 86 2. Focusingon Society: Community Safety Preventing people from committing crimes in the first place-deterrence-as well as preventing people who have committed crimes from reoffending-incapacitation-are key goals of any justice system." One primary method for deterring crime is to establish harsh punishments, relying on the theory that if one knows he or she will be at risk for a particular punishment for certain behavior, he or she may avoid criminal acts to avoid the punishment. Here, as addressed above, the problem remains that juveniles have limited capacity to foresee the consequences of their actions and limited ability to delay gratification." In the late 1980s and 1990s, when penalties for juvenile offenders were increased and the number of juveniles subject to adult criminal jurisdiction expanded, legislatures were largely motivated by a theory of deterrence. 9 That is, if one makes the punishment sufficiently harsh, the juvenile will not commit the act in question (general deterrence) or at least they will not recommit any crimes (specific deterrence). 90 However, studies evaluating the effects of these "tough-oncrime" laws show they do not work for juveniles. 91 In 2008, the Office of Juvenile Justice and Delinquency Prevention ("OJJDP") reported that "[t]he bulk of the empirical evidence suggests that transfer laws have little or no general deterrent effect" on preventing serious juvenile crime.92 With regard to 86. Id. at 570.

87. Ewing v. California, 538 U.S. 11, 20 (2003).

88. Howard v. Maggio, 540 F.2d 1280, 1282 (5th Cir. 1976); Johnson v.

Texas, 509 U.S. 350, 367 (1993).

89. See supra note 40 and accompanying text.

90. In 1979, fourteen states had automatic transfer laws requiring that the cases of certain juvenile offenders be handled in adult court. Benjamin Steiner & Craig Hemmens, Juvenile Waiver 2003: Where Are We Now?, 54(2) Juv. & FAM. CT. J. 1, 1-24. By 1995, twenty-one states had such laws, and by 2003, thirty-one states had them. Id. 91. Redding, supra note 40, at 1 (summarizing six studies conducted in multiple jurisdictions regarding various transfer laws and the effectiveness of the transfer laws on juveniles based on using large sample sizes, different methodologies, and multiple measures of recidivism).

92. Id. at 23.

No. 1]

Grow Up Georgia

101

specific deterrence, these policies are abject failures. In six separate, large-scale studies, findings were similar: for juveniles convicted of violent offenses who were tried and sentenced in adult court, recidivism rates were higher than those of similar Similar offenders who were tried in juvenile court.93 conclusions were drawn in an extensive review undertaken by the Centers for Disease Control Task Force on Community Preventive Services ("CDC Task Force"), 94 concluding that "strengthened transfer policies are harmful for those juveniles who experience transfer [and] [t]ransferring juveniles to the adult justice system is counterproductive as a strategy for deterring subsequent violence." 95 One study that specifically considered deterrence when the age of jurisdiction was changed-as opposed to simply studying the effects of transfer laws-was undertaken in Wisconsin.96 In 1995, Wisconsin's law changed to reduce the age of juvenile court jurisdiction from eighteen to seventeen. 97 In the years following the change, the recidivism rate for seventeen-yearolds charged in adult court was forty-eight percent-three times higher than the rate for both juveniles in the juvenile justice system or other adults in the criminal justice system. 98 Another goal of the justice system focuses on community safety through incapacitation. The incapacitation approach rests on the fact that so long as a person is incarcerated, he or she cannot cause harm to the general public. 99 Therefore, greater 93. Id. at 1.

94. See The Task Force on Community Preventative Services, THE COMMUNITY GUIDE, http://www.thecommunityguide.org/about/task-forcemembers.html (last visited Mar. 18, 2011).

95. Angela McGowan et al., Effects on Violence of Law and Policies Facilitatingthe Transfer of Juvenilesfrom the Juvenile Justice System to the Adult Justice System: A Systematic Review, 32 AM. J. OF PREVENTIVE MED. at available (2007), S15 S7, http://www.campaignforyouthjustice.org/Downloads/Resources/CDC/Transf erAJPMReview.pdf.

96. See Breann Boggs et al., Treatment of Juveniles in the Wisconsin Criminal Court System: An Analysis of PotentialAlternatives, Robert M. La Follette School of Public Affairs Workshop 869 (Spring 2008), http://www.1afollette.wisc.edu/publications/workshops/2008/juvenile.pdf.

97. Wis. STAT. ANN. ยง 48.44 (West 2011).

98. Boggs, supra note 96, at 1.

99. United States v. Redmond, No. 09-1560, 2010 WL 2881515, at *852

102

John MarshallLaw Journal

[Vol. IV

incapacitation depends on longer periods of incarceration. At the time, while most states were increasing transfer provisions, or even dropping the age of jurisdiction, there was a general concern about juveniles "aging-out" of the juvenile system before they could be "appropriately" punished."o Thus, when laws were being changed to place more juveniles under the jurisdiction of the adult court system, a significant premise was that the change would result in longer prison sentences.

Once again, when the evidence is examined, the theory falters. Juveniles tried in adult systems are generally not incapacitated for longer periods of time than their peers in the juvenile system.'01 The CDC Task Force found conflicting data on incarceration length but concluded that the sample of studies available "do not clearly indicate greater incapacitation for transferred juveniles than for retained juveniles."l02 In 2006, the OJJDP reported on a study that found seventy-eight percent of juveniles tried in the adult criminal system were released from prison before their twenty-first birthday, and ninety-five percent Along with were released before their twenty-fifth birthday.' the failure to incapacitate for extended time periods, the shortterm incapacitation was occurring at a key developmental period when young adults should be finishing their education, obtaining employment, opening a bank account, earning a driver's license, and generally learning how to live When we deny young people these independently. opportunities to learn self-sufficiency, is it any wonder that they re-enter society and rapidly reoffend?

Finally, regarding the issue of community safety, one more important inquiry remains. How serious are the crimes of (10th Cir. July 23, 2010).

100. Peter Ash, Adolescents in Adult Court: Does the Punishment Fit the Criminal?, 34 J. AM. ACAD. PSYCHIATRY LAW 145 (2006), available at http://www.jaapl.org/cgi/content/full/34/2/145.

101. See Donna M. Bishop, Juvenile Offenders in the Adult Criminal Justice System, 27 CRIME & JUST. 81, 155 (2000); Eric J. Fritsch, Tory J. Caeti & Craig Henmens, Spare the Needle but Not the Punishment: The Incarcerationof Waived Youth in Texas Prisons,42 CRIME AND DELINQ. 593 (1996); DAVID L. MYERS, EXCLUDING VIOLENT YOUTHS FROM JUVENILE COURT: THE EFFECTIVENESS OF LEGISLATIVE WAIVER 69 (LFB Scholarly Publishing eds., Ist ed. 2001).

102. McGowan, supranote 95, at S18.

103. OJJDP 2006 REPORT, supra note 1, at 118.

No. 1]

Grow Up Georgia

103

juveniles being adjudicated in adult courts? The public has generally supported distinguishing between youth who commit violent felonies, posing a serious threat to community safety, and those who commit lesser offenses, particularly those considered normal, albeit foolish, youthful transgressions.'0 4 Even when the move to adult criminal jurisdiction stems from transfer provisions, the reality is that "lesser" offenders are Contrary to popular belief, the often included as well.' majority of youth now tried in adult criminal court are not the violent, amoral "superpredators" society came to fear in the late-nineties. 0 6 In fact, the majority of youth now tried in adult criminal courts are charged with nonviolent drug or property offenses.107 3. The TraditionalJuvenile JusticeApproach: Rehabilitation Juvenile courts were designed around the concept of rehabilitation. 0 From the earliest days of juvenile courts, American jurisprudence recognized the diminished capacity of youth, their inherent susceptibility to outside influence, and their very real potential for change.109 Just as the lack of a fully developed sense of self and of full control over negative influences lessens a juvenile's culpability, the diminished capacity of youth also supports the argument that juveniles are more amenable to reform and that rehabilitation is an appropriate function of the juvenile court. In Johnson v. Texas, which predates Roper by more than a decade, the Supreme Court recognized the "signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that 104. Alex Piquero & Laurence Steinberg, Rehabilitation Versus Incarcerationof Juvenile Offenders: Public Preferences in Four Models for Change States: Executive Summary, http://www.macfound.org/atf/cf/%7Bb0386ce3-8b29-4162-8098e466fb856794%7D/WILLINGNESSTOPAYFINAL.PDF. 105. See COAL. FOR JUVENILE JUSTICE, CHILDHOOD ON TRIAL: THE FAILURE OF TRYING AND SENTENCING YOUTH IN ADULT CRIMINAL COURT 1

available (2005), http://www.juvjustice.org/media/resources/public/resource-115.pdf [hereinafter COALITION].

106. Dilulio, supra note 33, at 23.

107. See COALITION, supra note 105, at 1.

108. Mack, supra note 1, at 106.

109. OJJDP 2006 REPORT, supra note 1, at 94-96.

at

104

John MarshallLaw Journal

[Vol. IV

may dominate in younger years can subside."no The Roper Court cited to Johnson and also looked to the latest science, directly citing research published in 2003 that found, "[f]or most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled.

Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into, adulthood.""'

The reality is that children grow up. For the vast majority of individuals, their cognitive and psychosocial abilities improve, and they gain a greater degree of control over their own lives.

4. Focusingon the Justice System as a Whole: Fairness Though our justice system is varied in purpose, by punishing the guilty, exonerating the innocent, and always respecting the inherent humanity of defendants, the system is meant to be one that punishes based upon fairness. As a nation, we uphold the ideals of justice. We attest to a belief in innocence until proven otherwise, 112 commit to providing legal counsel to those unable to afford it,"' recognize that mitigating factors such as mental disability or duress may influence a person's actions," 4 and believe that basic fairness dictates that an individual must be able to aid in their own defense at trial."' The problem we encounter today is that a growing body of research finds that juveniles are categorically less likely to understand proceedings against them and less likely to aid in their own defense." 6

110. Johnson v. Texas, 509 U.S. 350, 368 (1993).

111. Roper v. Simmons, 543 U.S. 551, 570 (2005) (citing Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM. PSYCHOLOGIST 1009, 1014 (2003) (second alterations in original)).

112. In re Winship, 397 U.S. 358, 364 (1970).

113. Alabama v. Shelton, 535 U.S. 654, 661-62 (2002).

114. Christopher Slobogin, An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases, 86 VA. L. REv. 1199, 1219-20 (2000).

115. Faretta v. California, 422 U.S. 806, 819 (1975).

116. Tamara Wong, Adolescent Minds, Adult Crimes: Assessing a Juvenile's Mental Health and Capacity to Stand Trial, 6 U.C. DAVIS J. Juv. L. & POL'Y 163, 180 (2002).

No. 1]

Grow Up Georgia

105

When evaluating a person's ability to aid in their own defense, the requirement is that a person must have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and a "rational as well as Juveniles factual understanding of the proceedings."' frequently lack the cognitive competence to understand and participate in the judicial process."' They show a greater likelihood to comply with authority figures even when it is not in their best interest, and they "are less likely, or perhaps less able than others to recognize the risks inherent in the various choices they face or to consider the long-term and not merely the immediate consequences of their legal decisions.""' In the end, due to their lack of full maturity, juveniles make judgments comparable to adults found incompetent to stand trial.120 A second issue of fairness arises with juveniles tried in the adult system when assessing what happens to them when convicted and sentenced to serve time. Juveniles suffer in adult correctional systems where there are rarely services available to meet their educational, emotional, physical, and social needs. 12 1 The adult system is simply not designed to provide the rehabilitative programs and structures needed for youth to make a successful transition into adulthood.122 As a result, they are victimized and attempt suicide at higher rates when confined in the adult justice system.123 Teenagers in adult institutions are five times more likely to be sexually assaulted than those held in a juvenile facility, three times more likely to be beaten by prison staff than 117. Dusky v. United States, 362 U.S. 402, 402 (1960).

118. Thomas Grisso et. al., Juveniles' Competence to Stand Trial: A Comparison of Adolescents' and Adults' Capacitiesas Trial Defendants, 27 L. & HUM. BEHAv. 333, 357 (2003), available at http://www.wisspd.org/html/training/ProgMaterials/Juv07/JCST.pdf 119. Id. 120. Id. at 359.

121. Jill M. Ward, Deterrence'sDifficulty Magnified: The Importance of Adolescent Development is Assessing the Deterrence Value of Transferring Juveniles to Adult Court, 7 U.C. DAVIS J. Juv. L. & POL'Y 253, 280 (2003).

122. See Shuka Rassouli, Cruel and Unusual Punishment: Juvenile Offenders Sentenced to Adult Prisons, 8 WHITTIER J. CHILD & FAM. ADVOC. 261, 263 (2009).

123. COALITION, supranote 105, at 2.

106

John MarshallLaw Journal

[Vol. IV

youth in a juvenile facility, and [fifty] percent more likely to be assaulted with a weapon than youth confined to a juveniles-only institution. In addition, the suicide rate for youth incarcerated with adults is five times higher than the rate of the general adult inmate population and eight times the rate for adolescents held in juvenile facilities.124 IV. THE GEORGIA JUVENILE CODE REWRITE PROCESS

It has been more than one hundred years since Georgia first recognized a need for specialized courts to deal with cases involving children.12 5 Around the turn of the twentieth century, Illinois created the very first juvenile court, and many states followed suit.12 6 In 1908, Georgia's legislature joined the movement and created Children's Courts as a branch of the Superior Courts of the state.127 Over the years, the group of statutes, collectively referred to as "the juvenile code," was amended many times, even seeing a few major overhauls.128 The bulk of Georgia's existing juvenile code was enacted almost forty years ago, in 1971, when the state legislature codified Chapter 11 of Title 15 of the Official Code of Georgia.12 9 It has been amended numerous times over the intervening years, in a piece-meal manner, but without undergoing a full review.' 0 "The judges and lawyers who use the current code every day describe it as 'difficult to use, lacking in clarity, and

124. Id. 125. Michael H. Trotter, The GeorgiaJuvenile Court Act of 1951, 26 GA. B.J. 411, 411 (1964) (laying out the history of Georgia's juvenile code including references to the 1908 Act passed by Georgia's General Assembly establishing Children's Courts as a branch of the Superior Court in certain counties and to the Juvenile Court Act of 1915 repairing certain constitutional infirmities in the 1908 Act but retaining the key provisions of a Children's Court).

126. Mack, supra note 1, at 107.

127. Trotter, supra note 125, at 411.

128. O.C.G.A. ยง 15-11-1 to -208 (West 2011).

129. Id. 130. Georgia's Juvenile Code: What is the Juvenile Code?, JUSTGEORGIA, http://www.justga.org/initiatives/juvenile-code (last visited Mar. 11, 2011).

Grow Up Georgia

No. 1]

107

outdated."" 3 1 In addition, a broad consensus of juvenile court judges, probation officers, social workers, attorneys, and other stakeholders agree that the current code needs, at a minimum, to be modernized and streamlined. 3 2 The current code does not reflect effective research-based best practices and the latest scientific findings on child and adolescent brain development.

In 2005, the General Assembly, recognizing the current code was out of date, passed a resolution calling for a complete Because of all the concerns overhaul of the juvenile code' about the state of the current juvenile code, there is now a project underway to bring about a full-scale rewrite.13 4 A. The Project'sBackground In 2004, Robin Nash, in his capacity as the President of the Council of Juvenile Court Judges, approached the State Bar of Georgia Young Lawyers Division Juvenile Law Committee about rewriting the Juvenile Code.' Judge Nash advocated for the revision based on the current Code's failure to implement research-based best practices, the needs of the Juvenile Courts, and the need to serve those who practice and appear in those courts. 136

The Juvenile Law Committee agreed to take on the project and began seeking funds to support the hiring of a reporter to draft a "model" code based on research and best practices.'

13 1. Georgia'sJuvenile Code: Why Does Georgia'sJuvenile Code Need to Change?, JUSTGEORGIA, http://www.justga.org/initiatives/juvenile-code (last visited Mar. 11, 2011).

132. COMMON WISDOM, supranote 46, at 28.

133. ProposedModel Code (PMC): ProjectBackground, JUSTGEORGIA,

available at http://www.justga.org/initiatives/proposed-model-code (last visited Mar. 11, 2011) [hereinafter ProjectBackground].

134. S.B. 127, 151st Gen. Assem., 1st Reg. Sess. (Ga. 2011), availableat http://www.legis.ga.gov/legislation/enUS/displaybill.aspx?BillType=SB&billNum=127.

135. SOLEDAD A. McGRATH, VELMA COWEN TILLERY & Lucy S. McGOUGH,

PROJECT: A

STATE BAR OF GEORGIA,

MODEL

CODE

THE JUVENILE

FOR GEORGIA

4

CODE REVISION

(2008),

available at

http://www.gabar.org/public/pdf/yld/modeljuvenilecode08.pdf [hereinafter JUVENILE CODE REVISION PROJECT].

136. See ProjectBackground,supra note 133.

137. STATE BAR OF GA. YOUNG LAWYERS Div. JUVENILE LAW COMM., 1, available at PROPOSED MODEL CODE: EXECUTIVE SUMMARY

108

John MarshallLaw Journal

[Vol. IV

From the start, the goal was to "investigate[] the strengths and weaknesses of the current code and explore[] other model codes and best practices in juvenile law."' The drafters focused on "three overarching themes: developing a new organizational structure, maintaining stylistic consistency throughout the code, and incorporating substantive revisions that reflect best practices."'3 9 By "reviewing academic literature, reviewing laws of other states, and consulting with experts and practitioners from across the [country,]"l 40 the committee identified the best practices available and in use. In addition, a variety of stakeholders in the juvenile system were afforded an opportunity to provide suggestions.'4 1 In early 2008, the Young Lawyers Division of the State Bar of Georgia released a Proposed Model Code ("PMC").142 In addition to organizational and stylistic changes, the PMC The first two proposed fundamental statutory revisions. revisions are the focus of this article-revising the jurisdictional age of Georgia's juvenile courts to include persons seventeen years of age and repealing the mandatory transfers to superior court for minors who commit selected crimes.14 3 The PMC struck an important balance by recognizing that children are different from adults, and should be treated as such, and also by recognizing that communities must be kept safe.'"

As a result, under the PMC all juveniles, eighteen and younger, would begin the criminal justice process in juvenile court http://www.justga.org/initiatives/proposed-modelcode/ExecutiveSummary.pdf/view [hereinafter EXECUTIVE SUMMARY].

138. Project Background,supra note 133.

139. EXECUTIVE SUMMARY, supra note 137, at 3.

140. Project Background,supra note 133.

141. COMMON WISDOM, supra note 46, at 15.

142. JUVENILE CODE REVISION PROJECT, supra note 135.

Additional 143. EXECUTIVE SUMMARY, supra note 137, at 5. fundamental revisions proposed by the Model Code are: (1) repeal the mandatory minimums for minors who commit selected crimes; (2) clarify statutory provisions regarding a child's right to counsel; (3) revise the code to permit reinstatement of parental rights; and (4) enact Child in Need of Services ("CHINS") provisions to replace existing code related to unruly and status offenders. Id. 144. MODEL JUVENILE CODE ยง 15-11-109 (Young Lawyers Division, State Bar of Ga., Proposed Official Draft 2009), available at http://www.justga.org/initiatives/proposed-model-code/Article 1/view.

No. 1]

Grow Up Georgia

109

regardless of their alleged crime.'4 5 However, acknowledging that there are certain circumstances where the child's prior record, seriousness of the offense, or welfare of the community may require it, the PMC does allow for transfer of cases from juvenile to superior court.' 46 B. The ChildProtectionand Public Safety Act In April 2009, The Child Protection and Public Safety Act 47 was filed by lead sponsor Senator Bill Hamrick as a bi-partisan bill.148 As introduced, the bill met the goals of organizational structure and stylistic consistency; however, it did not incorporate many other revisions.14 9 The Proposed Model Code, 145. MODEL JUVENILE CODE ยง 15-11-106 (Young Lawyers Division, State Bar of Ga., Proposed Official Draft 2009).

146. Transfer is allowed only after a hearing in juvenile court and such a hearing can be held on the motion of a prosecutor or on the court's own motion. MODEL JUVENILE CODE ยง 15-11-738(a) (Young Lawyers Division, State Bar of Ga., Proposed Official Draft 2009). Transfer may be granted by a court only if: (1) the juvenile is at least fifteen years of age and has committed the equivalent of a felony; or (2) the juvenile is at least fourteen years of age and has committed either a felony carrying a possible life sentence or aggravated battery resulting in serious bodily injury to the victim. MODEL JUVENILE CODE ยง 15-11-738(a)(1)-(2) (Young Lawyers Division, State Bar of Ga., Proposed Official Draft 2009). The transfer hearing is meant to be a careful, individualized examination of the facts and not a perfunctory step before nearly all motions for transfer would be granted. To help ensure such a careful, fact-based determination, the PMC lays out numerous factors for the court to consider. MODEL JUVENILE CODE ยง 15-11-739(a)(1)-(l 1) (Young Lawyers Division, State Bar of Ga., Proposed Official Draft 2009).

147. The bill was introduced in 2009 as Senate Bill 292. S.B. 292, 150th at available 2009), (Ga. Sess.

Reg. 1st Assem., Gen. The bill was http://www.legis.ga.gov/Legislation/20092010/96859.pdf. reintroduced in the Senate during the first session of the 151st General Assembly on February 23, 2011. S.B. 127, 151st Gen. Assem., 1st Reg. Sess. (Ga. 2011), available at http://www.legis.ga.gov/legislation/enUS/displaybill.aspx?BillType=SB&billNum=127.

148. Georgia'sJuvenile Code: SB 292: The Child Protection and Public Safety Act, JUSTGEORGIA, http://www.justga.org/initiatives/juvenile-code (last visited Mar. 11, 2011). As introduced the bill had twenty-three cosponsors, both Democratic and Republican. S.B. 292, 150th Gen. Assem., at available 2009), (Ga. Sess.

Reg. 1st 2 010/96859.pdf. http://www.legis.ga.gov/Legislation/2009 149. Compare MODEL JUVENILE CODE ยง 15-11-101 to -1208 (Young

110

John MarshallLaw Journal

[Vol. IV

as the name suggests, is a model code; an ideal, offering some fairly major changes to existing law. Legislatures, however, are built around compromise and majority rule. They are not designed for sweeping changes. As a result, the rewrite to the juvenile code presented in the bill actually filed in the Georgia legislature was much more restrained than the PMC. That bill, the Child Protection and Public Safety Act, if passed, would have done a lot to bring Georgia up-to-date with best practices on child abuse and neglect issues by clarifying a child's right to legal counsel in dependency proceedings and by enacting a statutory mechanism for reinstating parental rights. 5 0 In addition, the bill included a Child In Need of Services ("CHINS") provision relating to status offenders, including those children labeled as unruly."'

The bill did not, however, incorporate all of the substantive revisions. Despite the adoption of some improvements, the most vital revisions incorporated into the PMC were removed from the bill's delinquency provisions.'52 The Child Protection and Public Safety Act left the cut-off age for juvenile court jurisdiction at seventeen as opposed to eighteen, and it preserved exclusive jurisdiction in superior court for children charged with designated felonies.'13 The importance of these changes cannot be over emphasized because they deplete the Lawyers Division, State Bar of Ga., Proposed Official Draft 2009), available at http://wwwjustga.org/initiatives/proposed-model-code, with S.B. 292, available at 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009), http://www.legis.ga.gov/Legislation/20092010/96859.pdf.

150. See Summary of the Child Protection and Public Safety Act: Senate Bill 127, JUSTGEORGIA, http://www.justga.org/initiatives/juvenile-code/the(last bill-in-depth/SB%20292%20long%20summary%20091809.pdf/view visited Mar. 11, 2011).

151. S.B. 292, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009), available at http://www.legis.ga.gov/Legislation/20092010/96859.pdf.

152. See id.

153. See id. Senator Bill Hamrick and others reintroduced the bill as S.B. 127 on February 23, 2011. S.B. 127, 151st Gen. Assem., 1st Reg. Sess. (Ga. at http://www.legis.ga.gov/legislation/enavailable 2011), US/displaybill.aspx?BillType=SB&billNum=127; see also O.C.G.A. ยง 1511-28(b)(2)(A) (giving exclusive jurisdiction to superior court over cases where children ages 13 to 17 are charged with murder, voluntary manslaughter, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, and armed robbery with firearm).

No. 1]

Grow Up Georgia

111

code revision of key elements, resulting in a bill, that, despite its name, neither protects children nor provides public safety.

With the conclusion of the 2008-2010 legislative session, the bill will need to be reintroduced. 15 4 With reintroduction comes the opportunity for amendment. The bill's sponsors should consider the evidence referenced in this Article and then introduce legislation with all the necessary reforms to live up to its name-ensuring true public safety and child protection.

V. CONCLUSION Both physical and social science research support a distinction in treatment between teenagers and adults. While there is no absolute age at which we can say every person has achieved full maturity, the Supreme Court has found eighteen to be an appropriate place to draw a bright line. A majority of states reflect this "18 rule" and grant jurisdiction to juvenile courts over most youth who commit offenses before they turn eighteen. The few states that set the age cutoff lower need to remedy the situation immediately. Further, it is time to examine laws that automatically transfer juveniles to adult courts based solely on the offense with which they are charged. Given that research now shows teenagers are qualitatively different from adults, it is unacceptable that our legal system fails to acknowledge these differences. The result is unfair to youth sentenced as adults, and we now know it is also unfair to communities that are left more vulnerable when we minimize rehabilitation and actually increase recidivism.

People want to do what is right. Citizens want a justice system that is fair and that rehabilitates juveniles.' In Georgia, the existing juvenile code does not work. It is unnecessarily complex and does not protect juveniles or communities. It is

154. Government & Laws: Overview, THE NEw GEORGIA ENCYCLOPEDIA (July 8, 2004), http://www.georgiaencyclopedia.org/nge/Article.jsp?id=h1340 ("The General Assembly meets for a forty-day period each year, beginning on the second Monday in January. Because the legislative term is a biennium (a two-year period), legislation that is introduced in the first year after an election can be carried over to the second year. At the end of the second year, all legislation not passed dies and must be reintroduced in the next biennium.").

155. See MACARTHUR BRIEF, supra note 4.

112

John MarshallLaw Journal

[Vol. IV

time to remedy these problems.' 6 Georgia's legislature should return to the approach in the PMC-i.e., having all persons eighteen and younger begin the criminal justice process in juvenile court, regardless of their alleged crime-and create a bill that can honestly be called the Child Protection and Public Safety Act.

156. COMMON WISDOM, supra note 46, at 43.

ESSAY

FATHERS MATTER: ANONYMOUS SPERM DONATION AND THE AGE-OLD PROBLEM OF FATHER ABSENCE

ELIZABETH MARQUARDT* & LEAH WARD SEARS**

I.

INTRODUCTION

II.

MARRIAGE TRENDS, FATHER ABSENCE, AND CHILD

...... 114

........................................

..........................

W ELL-BEING

.....................

III.

THE OLDEST FAMILY ON EARTH

IV.

A NEW STUDY OF YOUNG ADULTS CONCEIVED THROUGH SPERM

...........

....................

116

118

121

DONATION .................................................

A. Children Born to Heterosexual Couples and Lesbian Couples.. 122 ............... 125 B. ChildrenBorn to Single Mothers............. ........ 126 C. Unknown FathersAffect Children .............

V.

WHAT DOES "FATHER" MEAN?

A. Psuedo-Fathers

*

.. .. . . .

. . .

.. .

.....

. .. .. .. . ... ..

127

......................................128

Vice-President for Family Studies, Institute for American Values; Editor,

FAMILYSCHOLARS.ORG;

Co-investigator, My Daddy's Name is Donor;

Author, Between Two Worlds: The Inner Lives of Children of Divorce (Crown, 2005). ** Partner, Schiff Hardin; Former Chief Justice, Georgia Supreme Court; William Thomas Sears Distinguished Fellow in Family Law, Institute for American Values.

B. "I Finally FoundMy Real Father LEGAL OPTIONS

VI.

[Vol. IV

John MarshallLaw Journal

114

................

.......................................

.....

130

...... 131

132 A. BanningAnonymous Donations......................

B. Rights of Children,Donors, and Parents................................... 134 VII.

CONCLUSION...............................................

137

I. INTRODUCTION In recent decades a large body of social science evidence has affirmed that the decline of marriage and, with it, the decreased presence of so many fathers in their children's daily lives, has had a negative impact on child well-being.' The struggle to connect fathers to their children can be seen as the most recent development in an age-old human drama that cultures and societies have battled with in an attempt to maintain a father's bond with his child and the child's mother. Maintaining these relationships has been encouraged primarily through the institution of marriage.2 Today, declining marriage rates, increased divorce rates, and high rates of out-of-wedlock childbearing leave children without a father present in their daily lives. In addition, the United States and other nations are seeing greater public attention to the numbers of children born through anonymous sperm donation.' A new study reported in this Essay strongly 1. INST. FOR AM. VALUES, WHY MARRIAGE MATTERS, 2D EDITION: 26

CONCLUSIONS FROM THE SOCIAL SCIENCES 25 (2005); see also THE NAT'L CTR. ON AFRICAN AM. MARRIAGES AND PARENTING, INST. FOR AM. VALUES, THE MARRIAGE INDEX: A PROPOSAL TO ESTABLISH LEADING MARRIAGE

INDICATORS

11-12

(2009),

available

at

http://www.american

values.org/pdfs/IAV MarriageIndex_09_25_09.pdf.

2. DAVID BLANKENHORN, THE FUTURE OF MARRIAGE 4 (Encounter

Books, 2007).

3. In recent years a spate of news articles in the United States and around the world confirm such interest. Nations such as the United Kingdom, Australia, and Canada are embroiled in lively debates on this topic. In the United States, the issue has been in the limelight in popular culture as well.

For example, in the summer of 2010 two Hollywood movies (The Back Up

No. 1]

FathersMatter

115

suggests that children conceived in this manner are not exempt from the risks associated with father absence. Moreover, the language and norms of the artificial reproductive technology discourse arguably shape, and are shaped by, broader uncertainties about what fathers should do for their children, as well as what women and men should expect of one another when it comes to bearing and raising children. Our law and policy responses should treat and respond to anonymous sperm donation and other more familiar causes of father absence as part and parcel of the same trends. These trends increasingly devalue the role of fathers in children's lives.

This Essay argues that fathers matter for child well-being and that newer technology, such as conception through anonymous sperm donation, do not appear to exempt children from the risks associated with father absence. Traditional causes of father absenteeism, such as divorced couples or single mothers, have encouraged lawmakers to make some attempts to alleviate the effects that children endure due to absent fathers. For example, the law requires fathers to pay child support to ensure the child's financial well-being, even though this mechanism does not encourage a father to develop a relationship with his child.

Presently in Georgia, out of wedlock children conceived by way of sperm donation do not have the opportunity to learn the identity of their biological father, let alone receive financial or emotional support.' Lawmakers should attempt to minimize father absenteeism, specifically in instances of sperm donor children, by either banning or limiting the availability of anonymous sperm donations.

Plan starring Jennifer Lopez and The Switch starring Jennifer Anniston) and one hit independent film (The Kids Are All Right starring Annette Benning and Julianne Moore) all featured sperm donation as a central theme.

4. See generally INST. FOR AM. VALUES, MY DADDY'S NAME Is DONOR: A NEW STUDY OF YOUNG ADULTS CONCEIVED THROUGH SPERM DONATION (2010), availableat http://www.familyscholars.org/assets/DonorFINAL.pdf [hereinafter MY DADDY'S NAME Is DONOR].

5. See O.C.G.A. ยง 19-7-21 (West 2011) ("All children born within wedlock or within the usual period of gestation thereafter who have been conceived by means of artificial insemination are irrebuttably presumed legitimate if both spouses have consented in writing to the use and administration of artificial insemination."); see also O.C.G.A. ยง 19-7-22 (West 2011) (outlining the process "a father of a child born out of wedlock" must follow in order to legitimate the child).

John MarshallLaw Journal

116

[Vol. IV

II. MARRIAGE TRENDS, FATHER ABSENCE, AND CHILD WELLBEING

Our nation's recent marriage trends are familiar to many. In 2008, about sixty-one percent of first marriages were intact 6 and only about sixty percent of births were to married parents.7 Decades of social science research now affirms that children raised outside of intact marriages are on average between two to three times more likely compared to other children to use drugs, to drop out of school,' to commit crimes, 0 to suffer from depression and emotional distress," to be neglected or abused,12 to be sexually active at an early age," and to commit or consider suicide.14 Later in life, such children are more likely to divorce These are the and to bear children outside of marriage." outcomes even when social scientists control for variables such

as income. 16 Georgia's children are not exempt from these trends. In 2003, one out of four children in Georgia under the age of eighteen had a case with the Office of Child Support Enforcement ("OCSE").17 Of the delinquent child support cases handled by OSCE, seventy percent of the money was collected and distributed by OCSE pursuant to a support order in superior court.' 8 The current caseload involving family and children's issues is costly in two senses. First, it affects the court's ability to deal effectively with other social and legal matters. Second, 6. THE NAT'L CTR. ON AFRICAN AM. MARRIAGES AND PARENTING, INST. FOR AM. VALUES, THE MARRIAGE INDEX: A PROPOSAL TO ESTABLISH available at INDICATORS 5 (2009), LEADING MARRIAGE

http://www.american values.org/pdfs/IAVMarriageIndex_0925_09.pdf.

7. Id. 8. INST. FOR AM. VALUES, WHY MARRIAGE MATTERS, 2D EDITION: 26 CONCLUSIONS FROM THE SOCIAL SCIENCES 25 (2005).

9. Id. 10. Id. at 29.

11. Id. at 27.

12. Id. at 31-32.

13. Id. at 17.

14. Id. at 23, 27.

15. Id. at 14.

16. See id. at 7-8.

17. Id. 18. Id.

No. 1]

FathersMatter

117

in financial terms, each year it is estimated that the taxpayer costs of divorce and unwed childbearing constitute over ten percent of the state and local tax burden in Georgia.'9 High rates of family fragmentation are putting Georgia's children and families at risk. In 2008, almost seventy percent of Georgia's children in poverty were living in an unmarried household. 20 The decline of marriage in less-advantaged communities promotes racial and class inequities across the nation, including Georgia, and the courts bear a preponderance This of the responsibilities related to these inequities. fragmentation of marriage and parenthood is threatening cherished ideals of equal opportunity for every child.

Communities and taxpayers bear the brunt of many social problems-including welfare dependency, domestic violence, child abuse, crime, and substance abuse-that are created in part when one or both parents fail to make and sustain the loving marriages that protect children. For Georgia's, and the nation's children, family fragmentation-whether fostered by divorce, non-marriage, or new technologies such as sperm donation-is affirming an age-old understanding that, for children, fathers matter, and law and policy should help to support, and not undermine, this understanding.2 1 19. INST. FOR AM. VALUES, GA. FAMILY COUNCIL, INST. FOR MARRIAGE & PUB. POLICY & FAMILIES NORTHWEST, THE TAXPAYER COSTS OF DIVORCE AND UNWED CHILDBEARING: FIRST-EVER ESTIMATES FOR THE STATES 38 (2008), available at NATION AND ALL FIFTY

http://www.americanvalues.org/html/coff mediaadvisory.htm.

20. Id. at 37.

21. See, e.g., Leah Ward Sears, Commentary: Let's End Disposable Marriage, CNN.COM (July 2, 2009), http://articles.cnn.com/2009-0702/living/sears.family.divorce_1_no-fault-divorce-tommymarriage? s=PM:LIVING (last visited Apr. 9, 2011); Leah Ward Sears, Why the Marriage Gap Is Bad for America, CNN.com (Dec. 16, 2010), http://articles.cnn.com/2010-12-16/opinion/ward.sears.marriage__marriage(last visited gap-national-marriage-project-divorce-rate?_s=PM:OPINION Apr. 9, 2011). See also THE NAT'L CTR. ON AFRICAN AM. MARRIAGES AND PARENTING, INST. FOR AM. VALUES, THE MARRIAGE INDEX: A PROPOSAL TO ESTABLISH LEADING MARRIAGE INDICATORS 13-21 (2009), available at http://www.americanvalues.org/pdfs/IAVMarriageIndex_09_25_09.pdf (providing more than one hundred policy, legal, and cultural recommendations related to marriage); MY DADDY'S NAME IS DONOR, supra note 4, at 77-81 (offering recommendations regarding anonymous sperm donation, which includes an end to anonymous sperm and egg donation in

118

John MarshallLaw Journal

[Vol. IV

When a culture of marriage wanes, children's relationships with their fathers are threatened. Children with divorced or never-married parents are more likely to have distant or absent relationships with their fathers.22 Even when both parents stay involved in a child's life, the logistical and emotional challenges of keeping a family together when its members live apart are substantial.2 3 III. THE OLDEST FAMILY ON EARTH

Since Murphy Brown exploded on the scene in the mid1990s, the rising number of births to single parents in the United States has often been presented as an edgy new experiment, one embraced by the modem professional woman intent on breaking the glass ceiling at work and refusing to pick up a man's dirty socks at home.24 Whether it is preceded by divorce or nonmarriage, the idea that there is anything new about single mothering is largely a myth. The single mother family is the oldest human family form on the planet, for fairly straightforward reasons. Mothers give birth to children and can easily identify the child as their own. Fathers are at a greater remove. Men can conceive a child and be long gone by the time the child is born or they can be on the scene but feel deeply the United States).

22. Sara McLanahan, 2004 Presidential Address, Population Association of America ("In addition to high poverty rates, single motherhood is a proxy for multiple risk factors that do not bode well for children . . .. Although we

cannot say whether these marital-status differences are due to marriage per se or something about the parents who marry, there are theoretical reasons for believing that father absence and high levels of union instability are harmful to children. Child development theory, for example, tells us that nonresidential fathers are less likely to bond with their children, sociological theory tells us that father absence reduces children's access to social capital, and some economists have argued that low contact between fathers and children reduces altruism. Moreover, the fact that married fathers have been increasing the amount of time they spend with their children suggests that father absence may become even more important in the future.").

23. Judith A. Seltzer, Demographic Change, Children's Families, and Child Support Policy in the United States, 1994 INST. FOR RES. ON POVERTY: at available (discussion paper), 2 OF WIsc. UNIV. http://www.irp.wisc.edu/publications/dps/pdfs/dpl03694.pdf.

24. See Bonnie J. Dow, Femininity and Feminism in Murphy Brown, 57 S. CoMM. J. 143 (1992).

No. 1]

FathersMatter

119

uncertain about whether the child is theirs. While there is certainty built into the mother-child dyad, there is also vulnerability because pregnant and nursing mothers face limits on how many resources and how much protection they can secure on their own.

Somewhere along the way, cultures began to recognize that children were more likely to survive, and societies were more likely to thrive, when men-fathers-were recruited into the mother-child dyad.25 With that recognition, marriage was born.

Author David Blankenhorn recounts this history of how marriage arose and became institutionalized.

[S]everal million years ago, hominoid primates apparently began to demonstrate an unusual social behavior. Females and males began to become attached to one another and stay together-to bundle sexual desire, the procreative impulse, and the needs for emotional closeness and practical cooperation into a new, quite complex, and (it turns out) very successful way of living. 26 Blankenhorn notes, "[i]t is hard to overstate the importance of this development as a turning point in the life of our species."27 He elaborates, "[t]he new way of living created in one fell swoop . . . the bond between the spouses and, deriving from it,

the bond between father and child. For the first time, children acquired fathers who know them and help care for them." 28 No one knows exactly how and where this new way of living first took root and spread. But "many centuries later, when cities were first emerging and laws written down, we humans, in another momentous leap, took steps to formalize and keep records of this way of living. We called it 'marriage."' 29 In the area of Eridu, located in lower Mesopotamia and often called the world's first city, archeologists report the rare-for-that-time discovery of burial plots that include mothers, children, and

25. BLANKENHORN, supra note 2, 26. Id. 27. Id.

28. Id. 29. Id. at 30-31.

at 30.

120

John MarshallLaw Journal

[Vol. IV

fathers.30 This provides a stark contrast to European gravesites of the same era that include only mothers and children.3 1 Meanwhile, in the world's first legal codes, the Laws of Lipit-Ishtar, the king who wishes to prove that he has established justice in the land proudly shares, "[w]ith a . . . [decree], I made the father support his children. I made the child support his father. I made the father stand by his children.

I made the child stand by his father."3 2 Blankenhorn writes, "[t]his extraordinary statement proclaims that every child has a right to a father [] [and that] [a]ll fathers must be responsible fathers."" Similarly, in the famous legal Code of Hammurabi, of approximately 275 legal provisions, a full 65 concern marriage and family life.34 These provisions address topics as diverse as cohabitation, divorce, and spousal obligations during illness and old age." It is not an exaggeration to claim that marriage and civilization were born together in human history.

Today, the United States and other nations are witnessing a newer experiment in father-absent families-those in which a woman uses a sperm donor to conceive. The first recorded case of pregnancy via donor insemination happened in 1884 in Philadelphia.3 6 While no one knows precisely how many sperm donor pregnancies have occurred since, anecdotal reports suggest that the use of sperm donation as a treatment for male infertility among heterosexual married couples increased in the post-war baby boom era.37 By the 1980s, single women and lesbian couples could also access donor sperm from some Estimates are that between 30,000 and 60,000 clinics."

30. Id. at 48.

31. Id at 39.

32. Id. at 48 (quoting MARTHA T. ROTH, LAW COLLECTIONS FROM MESOPOTAMIA AND ASIA-MINOR 25 (Scholars Press, 1997)).

33. Id 34. Id. at 51.

35. Id. at 51-53.

36. MY DADDY'S NAME IS DONOR, supra note 4, at 5.

37. NAOMI R. CAHN, TEST TUBE FAMILIES: WHY THE FERTILITY MARKET NEEDS LEGAL REGULATION 46 (N.Y. Univ. Press, 2009).

38. See LIZA MUNDY, EVERYTHING CONCEIVABLE: How ASSISTED REPRODUCTION IS CHANGING MEN, WOMEN, AND THE WORLD 108-26 (Knopf, 2007) (describing the history and origins of the lesbian-friendly Sperm Bank of California). In fact, one of the nation's largest sperm banks,

No. 1]

FathersMatter

121

children are conceived through sperm donation each year in the United States; however, since reporting of these pregnancies is not required, no one really knows exactly how many there are or how many are conceived to various household types.39 Despite the uncertainties about numbers, there are now grown generations of adults who have been conceived by donor insemination and are telling their own stories to reporters, to researchers, in literature, and in documentaries.4 0 IV. A NEW STUDY OF YOUNG ADULTS CONCEIVED THROUGH SPERM DONATION

A recent study, co-investigated by researcher Elizabeth Marquardt, Norval D. Glenn of the University of Texas at Austin, and author Karen Clark, sought to examine the experience of adults conceived through sperm donation.4 1 The team worked with the firm Abt SRBI of New York City4 2 to field a survey through a web-based panel that included more than a million households across the United States. Through this method, the team assembled a representative sample of 485 adults between the ages of 18 and 45 years old who said their mother used a sperm donor to conceive them. They also assembled comparison groups of 562 young adults who were

Xytex, is based in Georgia. David Lapp, Op-Ed, Where Is Sperm Donor available at June 17, 2010, 2035, ATLANTA J.-CONST., http://www.ajc.com/opinion/where-is-sperm-donor-551912.html.

39. Neroli Sawyer, Who's Keeping Count? The Needfor Regulation Is a Relative Matter, 92 FERTILITY AND STERILITY 1811, 1814 (2009).

40. THE ANONYMOUS Us PROJECT, http://www.anonymousus.org; BIo-

DAD (CBC Radio-Canada 2009); OFFSPRING (Telefilm Canada 2002); see, e.g., Alessandra Rafferty, Donor Conceived and Out of the Closet, at 25, 2011, available NEWSWEEK, Feb. http://www.newsweek.com/2011/02/25/donor-conceived-and-out-of-thecloset.html.

41. Elizabeth Marquardt is a co-author of this Essay. Norval Glenn is a Professor of Sociology and American Studies at the University of Texas at Austin. Karen Clark is a writer who was conceived through sperm donation.

42. Abt SRBI is a global research and strategy organization that provides research and analysis to business, government, and research institutions.

ABT SRBI, http://www.srbi.com/whatwe-do.html (last visited Mar. 26, 2011).

122

John MarshallLaw Journal

[Vol. IV

adopted as infants and 563 young adults who were raised by their biological parents.43 In the study, young adults conceived through sperm donation were born to married heterosexual couples, single women, and lesbian couples.4 All three groups of donor offspring expressed similar attitudes and experiences with regard to certain issues.4 5 For example, they are all about equally likely to agree that they feel confused about who is a member of their family and who is not, that they fear being attracted to or having sexual relations with someone they are unknowingly related to, that they worry their mother might have lied to them about important matters, that they have worried about hurting their mother's or others' feelings if they tried to seek out their sperm donor biological father, and more.46 Detailed findings regarding children born to heterosexual couples and lesbian couples are offered in Part A, while Part B presents the responses of children born to single mothers. Each Part also compares these findings with the thoughts and perspectives of children raised by adoptive and biological parents.

A. Children Born to Heterosexual Couples andLesbian Couples The researchers found that, on average, young adults conceived through sperm donation are hurting more, are more confused, and feel more isolated from their families. 47 They fare worse than their peers raised by biological parents on important outcomes such as depression, delinquency, and substance abuse.48 Nearly two-thirds agree, "[m]y sperm donor is half of who I am."49 Nearly half are disturbed that money was involved in their conception. 0 Approximately two-thirds IS DONOR, supra note 4, at 5.

44. Id Those conceived through sperm donation numbered: 262 were born to heterosexual couples, 113 were born to single women, and 39 were born to lesbian couples. Id. at 44.

45. Id. at 10.

46. Id. 47. Id. at 7.

48. Id. at 9.

49. Id. at 7.

43. MY DADDY'S NAME

50. Id.

FathersMatter

No. 1]

123

affirm the right of donor offspring to know the truth about their origins."' And about half of donor offspring have concerns about or serious objections to donor conception itself, even in cases in which parents tell their children the truth about their origins.52 In the study, the family relationships of persons conceived through sperm donations were more often characterized by confusion, loss, or tension.5 3 "Forty-three percent of donor offspring, compared to 15 percent of adopted persons and six percent of those raised by their biological parents agree, 'I feel confused about who is a member of my family and who is not."'S4 In addition, "[m]ore than half (53%) agree, 'I have worried that if I try to get more information about or have a relationship with my sperm donor, my mother and/or the father who raised me would feel angry or hurt."' 5 Seventy percent agree, "I find myself wondering what my sperm donor's family is like," and 69% agree, "I sometimes wonder if my sperm donor's parents would want to know me. "56 Nearly half of donor offspring (48%) compared to about one fifth of adopted adults (19%) agree, "[w]hen I see friends with their biological fathers and mothers, it makes me feel sad." 57 Similarly, more than half of donor offspring (53% compared to 29% of the adopted adults) agree, "[i]t hurts when I hear other people talk about their genealogical background."5 Almost half of donor offspring (47%) agree, "I worry that my mother might have lied to me about important matters when I was growing up," compared with 27% of the adopted and 18% raised by their biological parents.5 9 Similarly, 43% of donor offspring, compared to 22% and 15% of those raised by adoptive or biological parents, agree, "I worry that my father might have lied to me about important matters when I was

Id. at Id. at Id. at Id. 55. Id. at 51.

52.

53.

54.

11-12.

12.

7-8.

7.

56. Id. 57. Id. 58. Id.

59. Id. at 8.

124

John MarshallLaw Journal

[Vol. IV

growing up."60 Well over half (57%) of adult donor offspring agree, "I feel that I can depend on my friends more than my family"-about twice as many as those who grew up with their biological parents.6 1 Well over half of donor offspring (58%) agree, "[w]hen I see someone who resembles me I often wonder if we are related," compared to 45% of adopted adults and 14% raised by their biological parents.62 Donor offspring also told the researchers that they more often worry about the implications of interacting with-and possibly having intimate relationships withunknown, blood-related family members. 63 Nearly half (46%) of donor offspring, but just 17% of adopted adults and 6% of those raised by their biological parents, agree, "[w]hen I'm romantically attracted to someone I have worried that we could Similarly, 43% of adult donor be unknowingly related."' offspring, and just 16% of adopted adults and 9% of those raised by their biological parents, agree, "I have feared having sexual relations unknowingly with someone I am related to." 65 The researchers also found that donor offspring are far more likely to have experienced divorce or multiple family transitions in their families of origin.6 6 "The married heterosexual parents of the donor offspring are unusually likely to have divorced, with 27% of donor offspring reporting that their parents divorced before the respondent was age sixteen, compared to 14% of those who were adopted and 25% of those raised by their biological parents. 7 (The comparison between the parents of donor offspring and those of the adopted is apt, because in both cases the parents would likely have turned to donor conception or adoption later in their marriages, when marriages on the whole are more stable.) Overall, 44% of donor offspring experienced one or more "family transitions" between their

60. Id. 6 1. Id. 62. Id. 63. Id. 64. Id. 6 5. Id.

66. Id. 67. Id.

No. 1]

FathersMatter

125

birth and age sixteen, compared to 22% of the adopted, and 35% of those raised by their biological parents." 8 Perhaps the most important finding that resulted from the study was that "donor offspring are significantly more likely than those raised by their biological parents to struggle with serious, negative outcomes such as delinquency, substance abuse, and depression, even when controlling for socioeconomic and other factors."6 9 "Donor offspring and those who were adopted are twice as likely as those raised by biological parents to report problems with the law before age 25."70 "Donor offspring are more than twice as likely as those raised by biological parents to report substance abuse problems (with the adopted falling between the two groups)."7 1 "Donor offspring are about one and a half times more likely than those raised by their biological parents to report mental health problems, with the adopted being closer to twice as likely as those raised by biological parents to report the same thing."72 B. Children Born to Single Mothers Overall, the study's results display the notion that "donor conceived persons born to single mothers seem to be somewhat more curious about their absent biological father, and seem to be hurting somewhat more, [compared] to those born to couples[-]whether those couples were heterosexual or lesbian."73 "Donor offspring born to single mothers are more likely than the other two groups to agree, 'I find myself wondering what my sperm donor's family is like.'" 7 4 "With regard to '[m]y sperm donor is half of who I am,' 71 percent of those born to single mothers agree, compared to 46 percent born to lesbian couples and 65 percent born to married heterosexual parents.""

68. Id. at 9.

69. Id. 70. Id. 71. Id. 72. Id. 73. Id. at 10.

74. Id. 75. Id.

John MarshallLaw Journal

126

[Vol. IV

"Regarding family transitions, the single mothers by choice appear to have a higher number of transitions, although if the single mother married or moved in with someone, that would count as at least one transition.7 6 Still, with about half (49%) of the offspring of women choosing single motherhood in our sample reporting one or more family transitions between their birth and age sixteen, it is clear that family change was not uncommon for them."77 "Regarding troubling outcomes, even with controls, the offspring of single mothers who used a sperm donor to conceive are almost two and a half times as likely as those raised by biological parents to report problems with the law before age twenty-five." Similarly, even with controls, the offspring of single mothers who used a sperm donor to conceive are more than two and a half times as likely as those raised by biological parents to report struggling with substance abuse.""

C. Unknown FathersAffect Children The study also affirmed that donor offspring as a group broadly support "the right to know about their origins.""

Depending on which question is asked, approximately twothirds of grown donor offspring support the right of offspring to have non-identifying information about the sperm donor biological father (68%), to know his identity (67%), to have the opportunity to form some kind of relationship with him (63%), to know about the existence and number of halfsiblings conceived with the same donor (64%), to know the identity of half-siblings conceived with the same donor (62%), and to have the opportunity as children to form some kind of relationship with half-siblings conceived with the same donor (62%).1

"In recent years, Britain, Sweden, Norway, the Netherlands, Switzerland, New Zealand, and some parts of Australia have banned anonymous donation of sperm and eggs."8 2 "In Canada, 76.

77.

78.

79.

80.

81.

82.

Id. Id. Id. at 11.

Id. Id. at 11, 97-99.

Id. at 10-11, 97-99.

Id. at 12; Tom Sylvester, The Case Against Donor Anonymity 33

FathersMatter

No. 1]

127

a class-action suit has been launched seeking a similar outcome." 83 This study affirms that a majority of donor offspring, drawn from a household panel survey in the United States, also supports an end to anonymous sperm donation.

Overall, this study suggests that even when technologies are used to make planned pregnancies-with parents presumably able to afford such pregnancies-the deliberate denial of their own father's presence in children's lives carries unfortunate risk.

V. WHAT DOES "FATHER" MEAN?

Reproductive technologies directly affect only a relatively small number of people.8 4 However, it appears that new practices are reshaping our language and furthering deep uncertainties about the meaning of fatherhood in ways that potentially affect many children, not just those conceived through the use of newer technologies.

Evidence of this uncertainty is found in rulings, proposals, and anecdotes from around the world. In Australia, sperm donors now have the right to contact their over-age-eighteen progeny, even if the offspring did not know they were conceived using donor sperm." Are these men simply sperm (unpublished paper, Yale University Law School), available at http//www.donorsiblingregistry.com/legal.pdf.

83. My DADDY'S NAME IS DONOR, supra note 4, at 12; See Case Update: Pratten v. British Columbia (A.G.) and College of Physicians and Surgeons of B.C., EQUALITY RIGHTS CENTRAL (2010), http://www.equalityrightscentral.com/canadaequalityrightslaw.php?page =charter equality rights&subtopic=Cases&id=20101116102644&doc=Pratt en+v++British+Columbia.htm.

84. See Elizabeth Marquardt, One Percent, FAMILYSCHOLARS.ORG (June 7, 2010, 12:24 AM), http://familyscholars.org/2010/06/07/one-percent/ ("offspring conceived through sperm ... may constitute just under 1% of all babies bom in the U.S. today") (quoting statements by Namoi Chahn on FAMILYSCHOLARS.ORG).

85. Assisted Reproductive Treatment Act 2008, (76th) (Austl.), available at http://www.legislation.vic.gov.au/Donino/WebNotes/LDMS/PubStatbook. nsf/f932b66241ecfl b7ca256e92000e23be/3ADFC9FBA2COF526CA2575 1C 0020E494/$FILE/08-076a.pdf; see, e.g., Carol Nader, Pressure on Sperm 1, 2005), AGE.COM.AU (June Donor Laws, THE http://www.theage.com.au/news/National/Pressure-on-sperm-donor-

128

John MarshallLaw Journal

[Vol. IV

donors, or are they fathers who have unilateral rights to contact their children? In New Zealand and Victoria, Australia, separate law commissions have proposed that sperm and egg donors be allowed to "opt in" to legal parenthood if they wish.8 6 Are these men and women "donors" or are they legal parents?

If these biological parents can opt in and out of responsibility to children at their discretion, what is the rationale for not allowing other biological parents to opt in or out in the same way?

A. Psuedo-Fathers The Washington Post Magazine reported a story about a woman who bore two children from the same anonymous sperm donor, located him, and brought the children across the country to meet him when the children were three- and seven-years-old, respectively." She and her children stayed for a week in his home." Since that time, she has legally changed the children's names, making the donor's surname their middle names, and designated him their guardian if she were to die.89 She has instructed the children to call him "Daddy," but there are no definite plans for the future. 90 An unknown number of other

laws/2005/05/31/1117305621899.html; Tanya Giles, Ad Campaign Planned

for Sperm Donor Kids, HERALD SUN (June 2, 2005); see also Editorial, Revisiting a Law That Was Ahead of Its Time, THE AGE.COM.AU, (June 6, 2005), http://www.theage.com.au/news/Editorial/Revisiting-a-law-that-wasahead-of-its-time/2005/06/05/1117910189034.html(stating that "[b]y 1995, an estimated 10,000 Victorians [have] been born using donor sperm or eggs" and argues that the rights of children to know their genetic origins outweigh the rights of their parents to keep this information from them).

86. NEW ZEALAND LAW COMM'N, REPORT 88: NEW ISSUES IN LEGAL at 2005), available 175 (Apr. PARENTHOOD http://www.austlii.edu.au/nz/other/nzlc/report/R88/R88.pdf;VICTORIAN LAW REFORM COMM'N, ASSISTED REPRODUCTwE TECHNOLOGY AND ADOPTION available at 2007), 138 (Mar. http://www.lawreform.vic.gov.au/wps/wcm/connect/justlib/Law+Reform/res ources/b/8/b8609f00404a0d2c9828fbf5f2791d4a/ART+WEB+VERSION.pd f.

87. Michael Leahy, Family Vacation, WASH. POST, June 19, 2005, http://www.washingtonpost.com/wpat available dyn/content/article/2005/06/15/AR2005061501885.html.

88. Id. 89. Id. 90. Id.

No. 1]

FathersMatter

129

offspring were conceived with his sperm. 91 For this three- and seven-year-old, is this man a father? A sperm donor? Who decides?

In an op-ed that later ran in the same newspaper, a different man writes about being the biological father of a lesbian couple's children. 92 "Am I their father or their sperm donor?" he asks.93 "The labels don't matter," 9 4 he concludes, apparently deciding the matter in a way that satisfies him. However, he gives no consideration to how his daughters might answer the question now or in the future. 95 Even as "sperm donor" is being equated with fatherhood in some arenas, in others it has become a term of opprobrium, hurled by women at the ex-boyfriends who are the fathers of their children. One teenage girl refers to the ex-boyfriend who got her pregnant as her "baby daddy .. . calling her son's father what she says he is . . . 'the sperm donor."'

96

And, some men

who had an actual sexual relationship with a woman that resulted in a child can recoil at being thought of as just thatthe "mere sperm-donor."9 7 In this brave new world of parenthood, sperm donors can sometimes be fathers. Surrogate mothers can sometimes be mothers. Egg donors are rarely considered mothers, but could be. Absent fathers, when they anger their ex-girlfriends, may be reduced rhetorically to mere sperm donors. But generally, unlike sperm donors, the state holds these men accountable for child support for years to come.

91. Id. 92. Mike Livingston, My Life as a Sperm Donor Dad, WASH. PosT, Dec. http://www.washingtonpost.com/wpat available 2006, 17, dyn/content/article/2006/12/15/AR2006121501812.html.

93. Id. 94. Id. 95. Id. 96. Rodney Thrash, Baby Mamas, ST. PETERSBURG TIMES, May 6, 2005, at available http://www.sptimes.com/2005/05/06/Floridian/Babymamas.shtml.

97. Message boards and blogs are lively with this sort of chatter. See, e.g., Give Modern Women the Husband They Deserve. None., ETERNAL PM) 9:47 13, 2006, (Sept.

BACHELOR http://eternalbachelor.wordpress.com/2007/07/18/pod-porridge-reserves-arerunning-low/.

130

John MarshallLaw Journal

[Vol. IV

B. "I Finally FoundMy Real Father" Not long ago, one of us overheard one end of a young woman's telephone conversation while riding an Amtrak train between Battle Creek, Michigan and Chicago, Illinois.9 8 Her end of the conversation went like this: I found my real father. I'm going to meet him on Thursday.

I've only wanted this for, like, thirty years? So I'm trying to call my mom and tell her to tell my dad don't be jealous because I finally found my real father. He's white and my mother is mixed so that means I'm, well . . . whatever. So

anyway, they showed him pictures of me and J., and they said I look like him, and he has a daughter, and my son and her son look alike. (pause) I know. I know. Now I feel complete. Now I won't feel like an abandoned child anymore. (pause) Thank you so much. I'm so happy too. I love you. Bye. 99 Chances are this young woman was not conceived through sperm donation. Given the statistics, it is more likely she is the product of divorce or unmarried childbearing.100 She has been fortunate to be reared with a man in her life-her mother's new husband or long-term partner-whom she grew close enough to that she is worried about his feelings and calls him "Dad." Yet despite having "Dad" in her life, for many years she has wanted to know the identity of her "real" father. She has wanted answers to questions regarding her ethnic and racial background. She wants to know how she, and now her own son, fit into the larger, biologically-based web of the human family.

She desperately wants to meet this man she has yearned to know for thirty years. Meeting her father is not just mere curiosity. It is as simple and as profound as needing to "feel 98. A young woman had boarded the car, sat behind Marquardt, and begun leaving messages on her phone. "Call me, call me, okay? It's an emergency." "Call me, okay?" Marquardt happened to be working on her laptop computer, and, as the woman began telling her story to a friend who had returned her call, she wrote it down.

99. Id. 100. See Marquardt,supra note 84.

No. 1]

FathersMatter

131

complete." It is so soul-wrenching that a young mother who has a mother and a man she loves so much she calls him "Dad" has, for thirty years, nonetheless felt like an "abandoned child." Her story is germane because it would be a mistake to think that today's fragmentation of parenthood is happening mainly in our nation's fertility clinics-in fact, far from it.

Whether father absence happens through a fertility clinic or in an old-fashioned game of "wham-bam-thank you ma'am," the results are the same: countless children grieve the absence of their fathers. Today, it is especially important to examine father loss in fertility clinics and father loss resulting from out of wedlock childbearing or divorce because increasingly these trends are used rhetorically to reinforce and justify one another.

Single mothers who use an anonymous sperm donor to get pregnant look at single moms and downplay the use of donor sperm, since plenty of children grow up without a father these days. Single mothers who had children the old fashioned way can point to the existence of legal, socially accepted sperm banks offering anonymous sperm to claim that it is acceptable for their children to lack a father since doctors and lawmakers are willing to help other women establish the exact same kinds of families. Despite these justifications, the study outlined above demonstrates that fathers matter, and lawmakers should consider this in crafting possible solutions directed at addressing the impact that artificial reproductive technologies have on American families.

VI. LEGAL OPTIONS

As the above discussion highlights, children who grow up without their father at home or without knowing their father can be at higher risk of negative outcomes than children who know their biological fathers. The use of artificial insemination seems likely to continue, compounding the number of fatherless children. However, the overarching question remains: how do we address this problem in Georgia? Moreover, can the law address this problem?

This Part poses potential legal options that lawmakers may consider to address father absenteeism that stems from anonymous sperm donations. Depending on the desires and needs of Georgians, legislators should consider a ban of all anonymous sperm donation, as other states have attempted in a

132

John MarshallLaw Journal

[Vol. IV

few circumstances. As this measure may be extreme, legislators could limit access to a donor's identity for a specific purpose, such as a court's determination that the information is necessary for health, medical, and safety reasons. These proposals are presented below, along with legal solutions proposed in other states.

A. Banning Anonymous Donations Many scholars have advocated for a ban of anonymous sperm donations in the United States as health, consanguinity, and psychological concerns have been raised.o'0 Although some sperm clinics conduct an extensive screening of donations for inheritable diseases and other clinics offer prospective parents an opportunity to review any non-identifying characteristics, the collection and distribution of donations is not heavily regulated by state or federal authorities.102 Therefore, offspring conceived through sperm donation should, at the least, be allowed to access the genetic data of their donor to determine if they have a possibility of developing diseases that are genetically inherited or to diagnose and treat a disease with greater ease."o0 Given that most donors are young and healthy at the time of their donation, registries should also be established where donors can later report back new health problems and offspring can access such information. '0

Going further, states should consider making the identity of sperm donors available to offspring because individual's conceived through sperm donation may experience effects such as identity confusion and kinship loss' from not knowing the 101. See generally Michelle Dennison, Revealing Your Sources: The Case for Non-Anonymous Gamete Donation, 21 J. L. & HEALTH 1 (2007-08) (advocating for the end of anonymous gamete donation and the rights of donor-conceived children to information identifying their gamete donor); H.K. Jorgenson & O.J. Hartling, Anonymity in Connection with Sperm Donation, 26 MED. & L. 137 (2007) (asserting non-disclosure reform through educational methods as opposed to outright abolishment of anonymous sperm denotation); Karen M. Ginsberg, Note, FDA Approved? A Critique of the Artificial Insemination Industry in the United States, 30 U. MICH. J. L. REF. 823 (1997).

102. Dennison, supra note 101, at 14-15.

103. Id. at 14.

104. Id. at 15.

105. MY DADDY'S NAME IS DONOR, supra note 4, at 21-36.

No. 1]

FathersMatter

133

identity, not only of their donor, but also the numbers and identities of half-siblings.10 6 Due to inadequate regulation, individual clinics determine the number of times a donor may contribute and how many times one sample is divided.10 7 Because one donor can create many children, banning anonymous donations would provide basic information that others in our society can expect regarding knowledge of their parentage and would help to alleviate the conceived child's concerns about entering into a relationship with a half-siblingor even a donor. 10

Three states have attempted to pass legislation to limit anonymous sperm donations. In 2006, Virginia legislators introduced a bill to require a sperm donor's identity be recorded in medical records of unmarried females who used the donation to conceive, prohibiting anonymous donations for unmarried women specifically. 109 That same year, Michigan legislators proposed that licensed fertility clinics give donors the option of signing a contract to provide the donor-conceived child with information about the donor.o Therefore, the contract was optional, leaving open the possibility that many donors would choose not to provide children with their identifying information and failing to remedy concerns raised about absent fathers. Missouri legislators most recently introduced a bill in 2009 requiring a donor be listed as the biological parent on the birth certificate, enabling a donor-conceived child to obtain the donor's identity upon turning eighteen, and providing a registry to connect the biological parents and siblings who voluntarily register."' This type of legislation provides children conceived by sperm donation the ability to acquire knowledge about their father, and perhaps, establish a relationship. Although these bills have not been successful, Georgia should consider a ban on anonymous sperm donations to provide donor-conceived 106. Id. at 36.

107. Id. at 32.

108. Id. at 34-36.

109. H.B. 187, Gen. Assem., Reg. Sess. (Va. 2006), available at http://lis.virginia.gov/cgi-bin/legp604.exe?061+ful+HB 187+pdf (last visited Apr. 9, 2011).

110. H.R. 5605, 93d Gen. Assem., Reg. Sess. (Mich. 2006).

Ill. H.B. 355, 95th Gen. Assem,st Reg. Sess. (Mo. 2009), available at http://www.house.mo.gov/billtracking/bills091/biltxt/intro/HBO355I.htm.

134

John MarshallLaw Journal

[Vol. IV

children some avenue for obtaining their donor's identity and genetic information to combat father absenteeism and its negative effects on the resulting children.

B. Rights of Children, Donors, and Parents Remedying the concerns associated with anonymity may require a compromise, as opposed to a complete ban. This position is highlighted when considering the rights of the parties that are involved. For instance, donor-conceived children have a right to know of their genetic origins.l 12 Not only is this a right to know the truth, but identifying information is "essential to human well-being, both physical and mental[.]" I' Many states have tried to address what are viewed as competing rights among offspring, donors, and parents raising children. Donors may value their privacy rights, particularly to avoid legal duties to offspring.114 Some argue that individuals will not donate if the anonymity component is completely removed.1 I In addition, others posit that parents have an interest in fostering a feeling of family that may be jeopardized if confidential information is disclosed.'16 Parents may also feel threatened by a potential interest by the donor in obtaining visitation or other legal rights.' 17 Our view is that the best interest of the child trumps these other considerations. Donors do not have to donate, and parents do not have to avail themselves of donor sperm in order to have a family. The child is the only one in the scenario who has no choice in the matter and who enters the arrangement as a vulnerable and wholly dependent human being.

Some states have acted of their own accord, focusing legislation on all artificial insemination. These states have passed laws proclaiming the donor and child acknowledge each 112. Jennifer A. Baines, Note, Gamete Donors and Mistaken Identities: The Importance of Genetic Awareness and Proposals Favoring Donor Identity Disclosurefor Children Bornfrom Gamete Donations in the United States, 45 FAM. CT. REv. 116, 118 (2007).

113. Id. 114. Kristin E. Koehler, Comment, Artificial Insemination:In the Child's Best Interest?, 5 ALB. L.J. SCI. & TECH. 321, 333 (1996).

115. Id. at 334-35.

116. Baines, supranote 112, at 119-20.

117. Koehler, supra note 114, at 332.

No. 1]

FathersMatter

135

has no rights or duties with regard to the other."' Some states further establish a sperm donor is not a natural father, and if the woman is married, her husband is legally the father."' Other states have responded to concerns by adopting the Uniform Parentage Act ("UPA"), which specifically applies to married heterosexual couples. Twelve states have adopted the 1973 UPA calling for confidential donor information, except that the records "are subject to inspection" upon a showing of good cause by the court. 12 0 The 2000 UPA, enacted by nine states, further permits agencies that maintain birth records to "release information relating to the acknowledgement of paternity or denial of paternity" to donors, state and federal agencies, and courts.12 ' Such legislative actions may serve to protect the rights of donors and parents; however, the requirement of a judicial determination that good cause exists to reveal a donor's identity or non-identifying characteristics may inadequately protect a child's interest in knowing of or learning about his or her biological father.

Courts have also wrestled with balancing the interests of children, donors, and parents. For example, in Johnson v.

Superior Court, the legal parents of a child conceived by artificial insemination were verbally assured the sperm bank had 118. See, e.g., CONN. GEN. STAT. § 45a-775 (West 2010); FLA. STAT. ANN. § 742.14 (West 2010); OR. REV. STAT. ANN. § 109.239 (West 2010); VA. CODE ANN. § 32.1-257 (West 2010).

119. See, e.g., ARK. CODE ANN. § 9-10-201 (West 2010); 750 ILL. COMP. STAT. ANN. 40/2 (West 2010); N.Y. DOM. REL. LAW § 73 (McKinney 2010).

120. See, e.g., CAL. FAM. CODE §§ 7600-7730 (West 1975); COLO. REV. STAT. §§ 19-4-101 to -130 (West 1977); HAW. REV. STAT. §§ 584-1 to -26 (West 1975); 750 ILL. COMP. STAT. ANN. 45/1-45/28 (West 1984); KAN. STAT. ANN. §§ 38-1110 to -1138 (West 1985); MINN. STAT. ANN. §§ 257.51 to -257.75 (West 1980); MO. STAT. ANN. §§ 210.817-854 (West 1987); MONT. CODE ANN. §§ 40-6-101 to -135 (West 1975); NEV. REV. STAT. ANN. §§ 126.011-371 (West 1979); N.J. STAT. ANN. §§ 9:17-38 to -59 (West 1983); OHIO REV. CODE ANN. §§ 3111.01-.19 (West 1982); R.I. GEN. LAWS ANN. §§ 15-8-1 to -27 (West 1979).

121. See, e.g., ALA. CODE §§ 26-17-101 to -905 (West 2008); DEL. CODE ANN. tit. 13 §§ 8-101 to -904 (West 2003); N.M. STAT. ANN. §§ 40-1 lA-101 to -903 (West 2009); N.D. CENT. CODE §§ 14-20-01 to -66 (West 2005); OKLA. STAT. ANN. tit. 10 §§ 7700-101 to -902 (West 2006); TEX. FAM. CODE ANN. §§ 160.001-.763 (West 2001); UTAH CODE ANN. §§ 78B-15-101 to 902 (West 2005); WASH. REV. CODE ANN. 26.26.011-.914 (West 2002); Wro. STAT. ANN. §§ 14-2-401 to -907 (West 2003).

John MarshallLaw Journal

136

[Vol. IV

conducted proper testing for possible disease and genetic abnormalities.'2 2 However, at age six, the child was diagnosed with a genetically transmitted kidney disease that originated from the sperm donation.' 23 The donor had disclosed to the sperm bank that his mother and sister had been diagnosed previously with kidney disease, but the sperm bank used the donor's sample despite the medical dangers. 2 4 The parents brought a fraud claim against the sperm bank.'2 5 In their discovery request, the parents sought personal medical information about the anonymous sperm donor.'26 However, the sperm bank refused to produce the information on grounds it violated the donor's privacy rights, among other things.'27 In deciding the issue of first impression, the court noted that, legally, a person's medical history is a protected privacy interest.'2 8 Because a donor's identity is also connected to his medical history, a donor's identity is a privacy interest as well.129 The court also stated that the limited disclosure of donor documents, under California law, provided sperm donors a limited privacy interest.'3 0 However, the court reduced a sperm donor's expectation of privacy by providing for disclosure of artificial insemination information, which could reasonably include the identity of the parties.'

After explaining the donor's diminished privacy interest, the court addressed whether a compelling state interest existed to overcome this right to privacy. 3 2 The court held that California possessed a compelling interest in protecting the health and welfare of children conceived by artificial insemination.' The court then acknowledged that occasionally it becomes necessary for those using artificial insemination to obtain biological and 122.

123.

124.

125.

126.

127.

95 Cal. Rptr. 2d 867, 867 (Cal. Dist. Ct. App. 2000).

Id at 868.

Id. Id. at 867.

Id. at 868.

Id.

128. Id. at 876.

129.

Id.

130. Id. 131. Id. at 877.

132. Id. at 878.

133.

Id.

No. 1]

FathersMatter

137

genetic information of their child's donor. 134 Therefore, parents of donor-conceived children must have some avenue to uncover the otherwise confidential documentation regarding artificial The court then ordered the disclosure of insemination.' information that was necessary and relevant to the litigation."'

Although the court identified a rather broad state interest, since this case applies to the issues of medical diagnosis and disease treatment, it is difficult to determine how a court may rule on other health and welfare issues, particularly consanguinity and psychological concerns.

Neither the legislature nor courts in Georgia have addressed how to accommodate an offspring's right to genetic data about their donor and a donor's perceived right to maintain his privacy. As a result, the state lacks a standard to determine how much information and what information can be exchanged between the parties of artificial insemination. Without a process, donor-conceived offspring will find great difficulty connecting with their biological fathers. If they cannot find each other, people who are the product of anonymous donation may suffer physical and other consequences from living their lives without this knowledge. Georgia's legislative and judicial leaders must provide some guidance for its citizens born of sperm donation.

VII. CONCLUSION New technologies and practices are reshaping our language and fostering deep uncertainties in the meaning of fatherhood that potentially affect many children, not just those conceived The use of through use of reproductive technologies. technologies that separate fathers from their children is only the most recent development in an age-old struggle to connect fathers to their children and to the mothers of their children. As marriage declines, this bond between fathers and children is weakening for many children, not just those conceived by more recent innovations such as anonymous sperm donation. Given the solid body of evidence about the importance of fathers in children's lives and new scholarship about the specific effects 134. See id.

135. See id.

136. Id. at 878-79.

138

John MarshallLaw Journal

[Vol. IV

on offspring of being conceived through sperm donation, states, including Georgia, should seek to provide persons conceived this way with the knowledge of their parentage and affirm, for all its citizens, the importance of fathers.

COMMENTS

DEATH AND DISINHERITANCE IN GEORGIA: RECONCILING YEAR'S SUPPORT AND THE ELECTIVE SHARE .........................

I.

INTRODUCTION

II.

THEORIES OF MARRIAGE..........................

A.

B.

1.

.....................

140

............. 142

.............. 142 Support Theory .................. .............. 143 1. Dower and Curtesy .............

145 2. TraditionalElective Share ............... .............. 147 PartnershipTheory................ ...... 148 1. The 1969 Uniform ProbateCode....... ....... 150 2. The 1990 Umform Probate Code......

3. The2008UniformProbateCode.......................... 152

GEORGIA'S PROBATE PROCEDURES................

.............. 154

A. Year's Support......................................... 154 159 .......

B. Is Year's Support a ForcedShare? ............

IV.

GEORGIA NEEDS REFORM

.........................................

164

A. Year's Support Ignores the MaritalPartnershipTheory......... 164 166 B. Year's Support is Contraryto Probate Goals .........................

C. Year's Support Fails to Provide Long-term Protection........... 169 ..... 171 ..........................

D. Recommendation V.

CONCLUSION

....................................................

176

140

John MarshallLaw Journal I.

[Vol. IV

INTRODUCTION

Georgia is the only state in the nation that condones spousal disinheritance.' In Georgia, a testator legally may distribute his estate in any manner of his choosing, which includes leaving his property to perfect strangers, even to the exclusion of his surviving spouse and minor children.2 As a result, these family members are not properly protected from the possibility of being left destitute after the testator's demise.

By contrast, every other separate property jurisdiction in America provides some protective mechanism ensuring that a surviving spouse will not be cut off completely from the decedent's estate. Although a handful of states accomplish this protection through the common law doctrines of dower and curtesy, by and large, surviving spouses are safeguarded through the elective share-a statutory mandate that automatically entitles a surviving spouse to some portion of the testator's assets.4 Georgia remains the only separate property state in the United States without an elective share statute.

Nonetheless, Georgia does employ one device that ameliorates somewhat the potential detriment caused by spousal disinheritance. A group of provisions in the probate code establish a device known as "year's support,"6 which is designed to maintain a surviving spouse's way of life for one year following the death of the decedent so as to facilitate the administration of the decedent's estate.'

Although year's support is intended only as a stop-gap measure to provide for the surviving spouse during estate administration, because it is

1. See O.C.G.A.

§ 53-4-1 (West 2010);

JESSE DUKEMINIER ET AL., WILLS,

425 n. 1 (Aspen Publishers, 7th ed. 2005).

2. O.C.G.A. § 53-4-1 (West 2010).

3. See, e.g., ARK. CODE ANN. § 28-11-301 (West 2010); Ky. REv. STAT. ANN. § 392.020 (West 2010); MICH. ComP. LAWS ANN. § 558.1 (West 2010); OHIO REv. CODE ANN. § 2103.02 (West 2010).

4. See infra notes 149-50 (citing elective share statutes); see also infra Parts II.A.2, II.B. 1-3 (discussing various elective share mechanisms).

5. See DUKEMINIER ET AL., supra note 1, at 425 & n.1 (identifying Georgia as the only separate property state without elective share statute).

6. See O.C.G.A. §§ 53-3-1 to -20 (West 2010).

7. MARY F. RADFORD, REDFEARN WILLS AND ADMINISTRATION IN GEORGIA § 10:1 (Thomson Reuters, 7th ed. 2010).

TRUSTS, AND ESTATES

No. 1]

Death andDisinheritancein Georgia

141

the only method available to safeguard against complete disinheritance, the courts at times have shown a tendency to use the year's support statute as a de facto elective share,' often leading to arbitrary and unpredictable results. Moreover, year's support suffers from several additional flaws. First, it is out of line with modem theories of marriage, which view the marital relationship as an economic partnership between the spouses.'

Second, it is contrary to the primary goals of the probate process, which is designed to foster predictability and ease of estate administration. 0 Finally, year's support, if applied as intended, is merely transitional in nature and fails to provide the survivor with any real long-term protection.II This Comment seeks to evaluate the inadequacies of Georgia's year's support system and to recommend an alternative that balances the testator's wishes with the needs of the surviving spouse. Part II discusses the support and partnership theories of marriage, as well as the mechanisms that states have employed to protect surviving spouses deriving from these theories. Part III explains year's support and attempts to demonstrate that the operation of year's support as a forced share leaves too much discretion with the courts. Part IV submits that year's support is contrary to theories underlying the modem marriage, the goals of probate, and policies encouraging long-term financial protection. This Comment concludes that Georgia can protect surviving spouses more effectively from disinheritance by eliminating year's support and adopting the 2008 Uniform Probate Code ("UPC").

8. David A. Kelly, Note, Determining Eligibility for Year's Support in Georgia: The Tension Between Status and Dependence Requirements, 22 GA. L. REv. 1167, 1183 (1988).

9. See infra Part II.B. (discussing the partnership theory of marriage).

10. Alan Newman, Incorporating the Partnership Theory of Marriage into Elective Share Law: The Approximation System of the Unform Probate Code and the Deferred-Community-Property Alternative, 49 EMORY L.J. 487, 491-92 (2000).

11. See, e.g., Richards v. Wadsworth, 496 S.E.2d 535, 538 (Ga. Ct. App. 1998) ("The intent is to protect the family survivors from a reduction in their standard of living while the estate is being settled, at least for one year. It is a transitional allowance.") (internal quotations omitted).

142

John MarshallLaw Journal

II.

[Vol. IV

THEORIES OF MARRIAGE

A discussion of the theories underlying marriage is necessary to understand the evolution of elective share provisions and the inadequacies of Georgia's year's support statute. The solutions to spousal disinheritance developed by legislatures will largely depend on how they define family,12 particularly whether the legislature envisions the couple in their traditional roles as breadwinner and caretaker or as one unit equally contributing to the economic success of the marital relationship. Moreover, since Georgia's year's support offers surviving spouses only limited support, as opposed to an equal share of property accumulated from contributions made during marriage," Georgia's legislature must consider theories of marriage in revising year's support to coincide with society's current beliefs. Both the support theory and the partnership theory, along with the common law rights and elective share statutes that flow from them, should be examined to influence the legislature to modernize Georgia's year's support.

A. Support Theory The support theory of marriage originated from English common lawl4 and traditional family arrangements."

According to common law principles, women surrendered to their husbands much of their financial freedom during marriage. 16 Therefore, women oftentimes lost control over personal property held before marriage, as well as over "services and earnings during the marriage."" Women were

12. Ralph C. Brashier, Disinheritanceand the Modern Family, 45 CASE W. RES. L. REv. 83, 148 (1994). In order to create family laws that apply universally to all families, legislators associate certain features with the concept "family." The features chosen for consideration will influence their decisions when legislating. See id. at 148 n.212.

13. Laura A. Rosenbury, Two Ways to End a Marriage: Divorce or Death, 2005 UTAH L. REv. 1227, 1245-46.

14. Raymond C. O'Brien, Integrating Marital Property into a Spouse's Elective Share, 59 CATH. U. L. REv. 617, 620 (2010).

15. Peter H. Strott, Note, Preventing Spousal Disinheritancein Georgia, 19 GA. L. REv. 427, 433 (1985).

16. O'Brien, supra note 14, at 620.

17. Id.

No. 1]

Death andDisinheritancein Georgia

143

also unable to control or influence the husband's transfer of real or personal property," except for dower, which only the wife could transfer." The husband's dominant position over his wife and her wealth created an obligation to secure her welfare by requiring the husband to provide reasonable necessities for his wife.20 Conventional family dynamics saw the husband as the provider of the household. 2 1 Alternatively, the wife devoted her time and efforts to domestic concerns, such as caring for the children and maintaining the residence.2 2 Further, the role of homemaker often left a wife with diminished earning capacity The wife's due to non-participation in the workforce. 23 dependence on her husband, created by the structure of the family, prompted policy development of the husband's duty to support his wife and children. 24 Due to the cultural shift toward gender equality, American society has largely abandoned the concepts underlying the support theory. 25 Nonetheless, it persists in states that retain the common law rights of dower and curtesy 26 and traditional elective share statutes. 2 7 1. Dower and Curtesy American states adopted the common law concepts of dower and curtesy from England to protect a surviving spouse after the death of his or her marital partner. 28 The rights of dower and 18. Id.

19.

20.

21.

22.

Porter v. Lazear, 109 U.S. 84, 88 (1883).

O'Brien, supra note 14, at 620.

Strott, supra note 15, at 433.

Id.

23. Id. 24. Id.

25. See Rosenbury, supra note 13, at 1239-40 (arguing the equitable division approach to divorce, which incorporates the partnership theory, developed as a consequence of no-fault divorces and the adverse economic affects that women suffered).

26. See, e.g., ARK. CODE ANN. ยง 28-11-301 (West 2010); KY. REV. STAT. ANN. ยง 392.020 (West 2010); MICH. COMP. LAWS ANN. 2010); OHIO REv. CODE ANN. ยง 2103.02 (West 2010).

ยง 558.1 (West

27. See infra note 149.

28. Angela M. Vallario, Spousal Election: Suggested Equitable Reform

for

the Division of Property at Death, 52 CATH. U. L. REv. 519, 526-27 (2003).

144

John MarshallLaw Journal

[Vol. IV

curtesy existed as contingent future interests during the marriage, and they became present interests upon the death of a spouse. 2 9 Dower provided wives a life estate in one-third of the husband's real property that he had owned at any time during the marriage.3 0 The law protected the wife's interest by requiring her consent before the husband conveyed the interest to a third party and by refusing to use the interest to satisfy the husband's debts.3 1 Although married women enjoyed few rights with regard to property,3 2 judges desired to provide wives with Curtesy entitled husbands to a access to the marital home. lifetime interest in all of the wife's land.3 4 However, before the husband's interest was recognized, the law required the marriage to produce a child to inherit the property." Wives presumably wished to support the husband throughout his remaining years,3 6 particularly because the property was ultimately transferred to the wives' issue.

As the country changed "from an agrarian society to an industrial nation," men placed increasing amounts of wealth in personal property as opposed to real property, which had been This transition proved the traditional form of wealth.37 problematic for surviving spouses because when spouses died without real property, surviving spouses had no access to the

29. Pemberton's Lessee v. Hicks, 3 U.S. 479, 481, 483 (1798); see also Kennedy v. Nedrow, 1 U.S. 415, 417 (1789) (explaining that dower requires: marriage, seisen, and the death of the husband); Van Ness v. Hyatt, 28 F.Cas. 1044, 1050 (C.C.D.C. 1837) (No. 16,865) (Morsell, J., dissenting) (identifying four requisites of curtesy: marriage, seisen of the wife, issue, and death of the wife).

30. DUKEMINIER, supra note 1, at 422-23.

31. Porter v. Lazear, 109 U.S. 84, 88 (1883).

32. See Vallario, supra note 28, at 527 ("While a single woman could own land, transfer it, and keep any income and rents from her real property, a married woman could not. Upon marriage, all lands, incomes from those lands, and the right to devise land automatically transferred from the wife to her husband.").

33. R. WILSON FREYERMUTH ET AL., PROPERTY AND LAWYERING 399 (Thomson West, 2d ed. 2006).

34. DUKEMINIER, supra note 1, at 423.

35. Pemberton's Lessee v. Hicks, 3 U.S. 479, 481 (1798).

36. FREYERMUTH, supra note 33, at 398-99.

37. Vallario, supranote 28, at 527.

No. 1]

Death andDisinheritancein Georgia

145

protective interests of dower and curtesy.38 The inadequacy of dower and curtesy caused many states to abolish or modify the rights.3 9 2. TraditionalElective Share In response to the ineffective protection dower and curtesy provided surviving spouses, common law states enacted elective share statutes.4 0 These statutes sought to address several policy concerns, the chief of which was protecting the family unit"the obligation of support, the presumed contribution of the survivor's family, and the state's interest in protection from the burden of indigents[.]" 4 1 Elective share statutes replaced the life estate in real property with a mandated portion of the decedent's probate estate in the spirit of the marital support theory.42 Under these elective share statutes, if the testator's bequest to the surviving spouse is less than the statutory minimum, then the surviving spouse can take against the will. 43 Therefore, the surviving spouse can forego the bequest and receive a "fixed fractional portion ... of the value of the testator's probate

38. Verner F. Chaffin, A Reappraisal of the Wealth Transmission Process: The Surviving Spouse, Year's Support andIntestate Succession, 10 GA. L. REv. 447, 457 (1976).

39. Vallario, supra note 28, at 528-29. In addition to changes in sources of wealth, states began enacting statutes to provide rights to married women, "particularly the right to her own earnings, to contract with third parties, and to buy and sell property without her husband's consent." O'Brien, supra note 14, at 620. Some states codified these advances by adopting the Married Women's Property Act, further leading to the demise of dower and curtesy. Id. at 620-21.

40. Brashier, supra note 12, at 99-100. "The elective share is also often called a forced share, because the surviving spouse can force the estate to provide her with the prescribed statutory minimum despite the testator's contrary wishes clearly expressed in his otherwise binding will." Id. at 100.

41. Sheldon J. Plager, The Spouse's Nonbarrable Share: A Solution in Search of a Problem, 33 U. CHI. L. REV. 681, 681 (1966) (listing additional policy concerns such as efficient property transfers, gender equality, and fairness among beneficiaries).

42. Vallario, supra note 28, at 530; see also Lawrence W. Waggoner, MaritalPropertyRights in Transition,59 Mo. L. REV. 21, 47 (1994).

43. See, e.g., D.C. CODE ยง 19-113(a) (2011); see also Brashier,supranote 12, at 99-100.

146

John MarshallLaw Journal

[Vol. IV

estate[.]"" The elective share consists of real and personal property and is usually one-third or one-half of the net probate estate of the decedent.4 5 Traditional elective share statutes are simple to administer because the probate court only requires the estate's total value and the statutorily mandated fraction, leaving little opportunity for familial testimony or judicial discretion.4 6 However, traditional elective share statutes-have been subject to criticism for ignoring "the reason why the testator, who presumably knew his family situation as well as anyone, preferred his particular dispository plan." 47 In addition, they disregard the amount of the estate; the survivor's need, earning capacity, income sources, and marital conduct; and the duration of the marriage.4 8 The fixed fractional portion is insufficient for surviving spouses in long-term marriages, and it overcompensates them in shortterm marriages. 49 Finally, because the elective share only applies to the probate estate, a decedent can plan in advance to prevent application of the elective share.s0 An individual can transfer property upon death outside of probate to non-surviving spouses by utilizing will substitutes, life insurance, joint ownership, or retirement benefits.s"

44. Brashier, supranote 12, at 101.

45. See, e.g., D.C. CODE ยง 19-113(e) (2011); see also Terry L. Turnipseed, Why Shouldn't I Be Allowed to Leave My Property to Whomever I Choose at My Death? (Or How I Learned to Stop Worrying and Start Loving the French), 44 BRANDEIS L.J. 737, 748 (2006).

46. Plager, supra note 41, at 682.

It is essential to understand that American forced-share law is entirely a consequence of the separate-property regime for marital property. Our community-property states do not have forced-share statutes. Forced-share law is the law of the second best. It undertakes upon death to correct the failure of a separate-property state to create the appropriate lifetime rights for spouses in each other's earnings.

John H. Langbein & Lawrence W. Waggoner, Redesigning the Spouse's ForcedShare, 22 REAL PROP. PROB. & TR. J. 303, 306 (1987).

47.

48.

49.

50.

51.

Plager, supra note 41, at 682.

Brashier, supranote 12, at 10 1-02.

Waggoner, supra note 42, at 53.

Strott, supra note 15, at 430.

Vallario,supra note 28, at 536.

No. 1]

Death and Disinheritancein Georgia

147

Although approximately half of the separate property states still employ the traditional elective share, some states have revised their statutes to reflect the partnership theory of marriage.

B. PartnershipTheory The partnership or contribution theory of marriage has roots in colonial legislation from the eighteenth century.5 2 This theory rests on three primary ideas. First, the marriage results from the voluntary and knowing union between equal partners.53 Presumably, wives and husbands "intend to combine their Second, both resources acquired during the marriage."5 4 spouses contribute to the marital property, regardless of whether To the contributions are monetary or non-monetary. accommodate for the wife's traditional role as the homemaker, the partnership theory considers the wife's home and child care as valuable contributions to the economic success of the marital enterprise. 56 Further, the partnership theory avoids categorizing one spouse as wage-earner or homemaker, and, instead, it recognizes that both spouses perform these vital functions.57 This view of marital contributions provides compensation for the spouse that may choose to remain at home as opposed to pursuing a career or other lucrative endeavors.58 Third, the most equitable manner to distribute marital property is through a perfectly equal division.59 This partnership theory presumes that "partners agree that each is to enjoy a half interest in the economic production of the marriage," although the partners 52. Langbein & Waggoner, supra note 46, at 308 (quoting LEWIS M. SIMES, PUBLIC POLICY AND THE DEAD HAND 13-14 (1955) "The [North Carolina forced share statute's 1784] preamble explains that, because dower in unimproved frontier real estate 'is a very inadequate Provision for the support of such Widows, ... it is highly just and reasonable that those who by their Prudence, Economy and Industry, have contributed to raise up an estate to their Husbands, should be entitled to share in it."').

53. Rosenbury, supra note 13, at 1241.

54. Brashier, supra note 12, at 107 n.82.

55. Rosenbury, supranote 13, at 1241.

56. Id. 57. O'Brien, supra note 14, at 622.

58. Id. at 623.

59. Rosenbury, supra note 13, at 1242.

148

John MarshallLaw Journal

[Vol. IV

entered no formal agreement and one spouse may possess title to all the property.6 0 Contrary to the support theory, "the partnership theory recognizes that marriage is no longer a hierarchical relationship, but rather is an enterprise freely chosen by two equal individuals."'

The partnership theory has gained popularity because it supports many modem policy goals concerning gender and marriage institutions. 62 For example, cultivating an attitude of partnership among spouses may strengthen their cooperation in household assignments and parenting decisions and break down gender stereotypes still plaguing some families.6 3 In addition, promoting marriage as a partnership encourages greater workplace equality, particularly in the allocation of salaries and benefits."4 Most importantly, the partnership theory recognizes that the stay-at-home spouse's contributions enable the other spouse to work, thereby providing the family with financial resources. Society's general acceptance of these policy goals has caused the marital partnership theory to influence the development of probate law, including the UPC's elective share provisions.

1. The 1969 Uniform Probate Code The 1969 UPC sought to remedy the problems with elective share statutes by introducing the "augmented estate" that specifically identified the categories of the decedent's property that were "subject to the surviving spouse's elective share."6 The augmented estate serves dual purposes in computing elective shares. First, the augmented estate prevents "the owner of wealth from making arrangements which transmit his property to others by means other than probate deliberately to defeat the right of the surviving spouse to a share[.]"6 6 The augmented estate includes the probate estate and certain non60. Waggoner, supra note 42, at 43.

61. Rosenbury, supra note 13, at 1241.

62. Waggoner, supra note 42, at 44.

63. Id. 64. Id. 65. G. Michael Bridge, Note, Uniform Probate Code Section 2-202: A Proposalto Include Life InsuranceAssets Within the Augmented Estate, 74 CORNELLL. REV. 511, 522 (1989).

66. UNIF. PROBATE CODE ยง 2-202 cmt. (1969).

No. 1]

Death andDisinheritancein Georgia

149

probate assets, "such as property transferred by the decedent to a revocable trust or into joint tenancy with rights of survivorship,"67 and certain gifts made to individuals by the decedent within two years of death. 8 Although these transfers allow the decedent to retain some benefit or control over the property, the augmented estate prevents the decedent's ability to defeat entirely the spouse's elective share."9 Second, the augmented estate prevents "the surviving spouse from electing a share of the probate estate when the spouse has received a fair share of the total wealth of the decedent either during the lifetime of the decedent or at death . . . ."70 The augmented estate includes the property transferred by the decedent to the surviving spouse either during the marriage or outside of probate, "such as through life insurance or the ownership of property by the spouses as joint tenants with rights of survivorship[,]" 71 as well as revenue from pensions, disability compensation, or death benefit or retirement plans. 72 These non-probate transfers reduce the augmented estate's amount to prevent a surviving spouse, who had been provided for sufficiently, from upsetting the testamentary plan of the decedent. 3 After the augmented estate is calculated, the surviving spouse receives a one-third fractional share.74 Although the 1969 UPC provisions protect a spouse against disinheritance by the depletion of the probate estate,75 unfair outcomes occasionally occur because the augmented estate calculations do not consider the duration of the marriage, the size of the estate, or the surviving spouse's need.76

67. Newman, supra note 10, at 496-97; see also UNIF. PROBATE CODE

§

2-202(1)(i-iii) (1969).

68.

69.

70.

71.

UNIF. PROBATE CODE § 2-202(1)(iv) (1969).

UNIF. PROBATE CODE § 2-202 cmt. (1969).

UNIF. PROBATE CODE § 2-202 cmt. (1969).

Newman, supra note 10, at 497; see also UNIF. PROBATE CODE

202(2)(i) (1969).

72. UNIF. PROBATE CODE 73. UNIF. PROBATE CODE

§ 2-202(2)(i) (1969). § 2-202 cmt. (1969).

74. Brashier, supra note 12, at 105.

75. UNIF. PROBATE CODE

§ 2-202 cmt. (1969).

76. Brashier, supra note 12, at 105.

§ 2-

150

John MarshallLaw Journal

[Vol. IV

2. The 1990 Uniform Probate Code Addressing the 1969 UPC's shortcomings, the elective share provisions were revised in 1990.77 The General Comment explains that "[t]he main purpose of the revisions is to bring elective-share law into line with the contemporary view of marriage as an economic partnership.""7 Therefore, the drafters designed a formula to determine the approximated amount the surviving spouse is to receive from the augmented estate. 79 This amount should mirror the division of property principles established in community property jurisdictions: "an equal division of the couple's marital property and no division of their separate property.""

However, the UPC provisions do not distinguish between marital property and separate property, presuming instead that all property is marital." To compensate for this presumption, the elective share percentage increases with each year of the marriage.82 The increments range from zero to fifty percent of the decedent's augmented estate in an effort to estimate the amount of marital property at a given point in the marriage.83 77. Id. at 105-06.

78. Newman, supra note 10, at 489 (quoting 1990 UNIF. PROBATE CODE art II., pt. 2, gen. cmt. (amended 1993), 8 U.L.A. 93, 93 (1998)).

Under this approach, the economic rights of each spouse are seen as deriving from an unspoken marital bargain under which the partners agree that each is to enjoy a half interest in the fruits of the marriage, i.e., in the property nominally acquired by and titled in the sole name of either partner during the marriage (other than property acquired by gift or inheritance).

Id. The 1990 revision also has a support theory back-up in the form of a supplemental elective share amount ($50,000). UNIF. PROBATE CODE ยง 2202(b) (1990) (amended 1993).

79. Newman, supranote 10, at 491.

80. Id. at 490.

81. Lawrence W. Waggoner, The Uniform Probate Code's Elective Share: Time for a Reassessment, 37 U. MICH. J.L. REFORM 1, 7 (2003).

82. Id. 83. UNIF. PROBATE CODE

ยง 2-202(a) (1990) (amended 1993) ("The surviving spouse of a decedent who dies domiciled in this State has a right of election, under the limitations and conditions stated in this Part, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following

No. 1]

Death and Disinheritancein Georgia

151

For example, in a marriage of less than one year, the surviving spouse receives a supplemental amount because the couple has yet to acquire a substantial amount of marital property. 84 For couples married between seven and eight years, the elective share is twenty-one percent, which means that forty-two percent of the couple's property is considered as acquired during the marriage and fifty-eight percent not so acquired." In addition, in a marriage of fifteen years or more, the surviving spouse is entitled to one-half of the augmented estate because most of the couple's assets were likely acquired during the marriage.

Although it was subject to criticism from some scholars," the 1990 revision evidenced progress in elective share laws. In particular, the drafters incorporated the partnership theory of marriage by seeking to structure property division in a manner similar to a community property jurisdiction," providing greater equality of property distribution in long-term, early-in-life schedule: ...Less than 1 year... Supplemental Amount Only; 1 year but less than 2 years.. .3% of the augmented estate; 2 years but less than 3 years.. .6% of the augmented estate; 3 years but less than 4 years... 9% of the augmented estate; 4 years but less than five years... 12% of the augmented estate; 5 years but less than 6 years... 15% of the augmented estate; 6 years but less than 7 years... 18% of the augmented estate; 7 years but less than 8 years.. .21% of the augmented estate; 8 years but less than 9 years.. .24% of the augmented estate; 9 years but less than 10 years.. .27% of the augmented estate; 10 years but less than 11 years.. .30% of the augmented estate; 11 years but less than 12 years...34% of the augmented estate; 12 years but less than 13 years.. .38% of the augmented estate; 13 years but less than 14 years.. .42% of the augmented estate; 14 years but less than 15 years...46% of the augmented estate; 15 years or more...50% of the augmented estate.").

84. UNIF. PROBATE CODE ยง 2-202(a) (1990) (amended 1993).

85. UNIF. PROBATE CODE ยง 2-202(a) (1990) (amended 1993); see also Waggoner, supra note 42, at 53 (discussing UPC system).

86. UNIF. PROBATE CODE ยง 2-202(a) (1990) (amended 1993).

87. See, e.g., Tumipseed, supra note 45, at 750 (explaining one key difference between the augmented estate and community property: the augmented estate includes all the property owned by both spouses, and community property does not include property owned before marriage or acquired by gift or inheritance).

88. Newman, supra note 10, at 489-90. Also, the 1990 revision included "additional non-probate property controlled by both spouses[,]" such as accident insurance, joint annuities, pensions payable to non-surviving spouses, and the wealth of the spouse electing a statutory share of the decedent's estate. Vallario, supra note 28, at 546.

152

John MarshallLaw Journal

[Vol. IV

marriages, and reducing the forced share in short-term, late-inlife marriages. 89 The revision avoided expenses often associated with required documentation or potential litigation necessary for distinguishing marital property and separate property. 90 3. The 2008 Uniform Probate Code The UPC was revised once more in 2008 to "better incorporate the economic partnership of marriage, better approximate the assimilation of all property (separate and A more marital), and better mirror what occurs at divorc." direct process is employed for determining the division of property to meet these goals. 92 The revision's theoretical and practical effects are best understood by an illustration of the revision, created by Professor O'Brien: [C]onsider a couple married for more than five years but less than six. Each spouse is over the age of seventy, and when the husband dies, his net probate estate is worth $300,000.

He has created a revocable inter vivos trust worth $100,000, from which he derived income during his life. At his death, the remainder (corpus) was to go to his children from a prior marriage. The husband had made no transfers to his wife, and at the date of his death, she had net assets worth $200,000; neither spouse made transfers to the other. 93 To compute the elective share amount, a two-part process is employed to calculate the marital estate.9 4 The augmented estate is initially calculated by adding all the property from the decedent's probate estate and the surviving spouse's property, along with non-probate transfers from either party.95 89. Waggoner, supra note 42, at 53.

90. Brashier, supranote 12, at 110.

91. O'Brien, supranote 14, at 676.

92. Waggoner, supra note 81, at 11.

93. O'Brien, supra note 14, at 676. Professor O'Brien borrows the hypothetical's substance from Professor Waggoner's article. Waggoner, supra note 81, at 8.

94. See UNIF. PROBATE CODE ยง 2-203(a) and (b) (2008).

95. UNIF. PROBATE CODE ยง 2-203(a) (2008) ("[T]he sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute: (1) the decedent's net probate estate; (2) the decedent's nonprobate transfers to others; (3) the decedent's nonprobate transfers to the surviving spouse; and (4) the surviving spouse's

No. 1]

Death andDisinheritancein Georgia

153

Considering the illustration, the decedent's net probate estate is $300,000, the surviving spouse's property is valued at $200,000, and the decedent made non-probate transfers of $100,000. The sum of these items equal $600,000, which is the value of the augmented estate. Second, the augmented estate is separated into marital property and individual property by applying a percentage that corresponds to the years the decedent and surviving spouse are married.96 Because the couple is married more than five years but less than six years, according to the schedule, the marital portion of the augmented estate is thirty percent. Thirty percent of $600,000 is $180,000, which is the marital portion of the augmented estate, or the marital estate.9 7 Next, the elective share amount is computed, and the 2008 UPC elective share percentage is always fifty percent. 98 Applying this to the illustration, fifty percent of the marital estate, or $180,000, is $90,000.99 To satisfy the elective share amount, any non-probate transfers to the surviving spouse, such as life insurance proceeds or retirement plan benefits, 00 and the surviving spouse's marital property must be used.101 In the hypothetical problem, the decedent did not voluntarily transfer any property to the surviving spouse. However, the surviving spouse's property is valued at $200,000.102 Because thirty percent of this amount is considered marital property, the surviving spouse is already in possession of $60,000 worth of marital property.103 This property and nonprobate transfers to others.").

96. UNIF. PROBATE CODE ยง 2-203(b) (2008) ("Less than 1 year... 3%; 1 year but less than 2 years.. .6%; 2 years but less than 3 years.. .12%; 3 years but less than 4 years...18%; 4 years but less than five years.. .24%; 5 years but less than 6 years.. .30%; 6 years but less than 7 years.. .36%; 7 years but less than 8 years.. .42%; 8 years but less than 9 years...48%; 9 years but less than 10 years.. .54%; 10 years but less than 11 years.. .60%; 11 years but less than 12 years.. .68%; 12 years but less than 13 years.. .76%; 13 years but less than 14 years.. .84%; 14 years but less than 15 years.. .92%; 15 years or more... 100%.").

97. Waggoner, supra note 81, at 8.

98. UNIF. PROBATE CODE ยง 2-202(a) (2008).

99. Waggoner, supra note 81, at 10.

100. UNIF. PROBATE CODE ยง 2-209(a)(1) (2008).

101. UNIF. PROBATE CODE ยง 2-209(a)(2) (2008).

102. Waggoner, supra note 81, at 10.

103. Id.

John MarshallLaw Journal

154

[Vol. IV

amount is deducted from the total elective share amount.10 4 Finally, applying the decedent's net probate estate or nonprobate transfers to others satisfies the remaining balance.'0 o Since $30,000 remains, the surviving spouse can force an involuntary transfer in this amount as the elective share. 06 As discussed, elective share statutes can be justified by the theories of partnership and support; however, tension develops when designing the actual elective share to be implemented in practice. 0 "For example, the partnership theory militates toward awarding the surviving spouse one-half of the decedent's property acquired during the marriage, whereas in many cases the support theory justifies a smaller share but would apply it to all the decedent's property." 0 8

III.

GEORGIA'S PROBATE PROCEDURES

Georgia has not adopted any type of elective share statute, perhaps because the General Assembly believes that probate law consists of well-settled, tolerable, non-intrusive rules and plans, or maybe because most probate judges in Georgia counties are not trained lawyers and do not advocate to expand their influence.109 Regardless, the legislature has preserved and the judiciary has developed a doctrine, called year's support, that provides widows and minor children with temporary allowances following the death of a spouse or parent."10 However, year's support suffers from defects, including its failure to provide any long-term support to a decedent's survivors and the potential for its application as a forced share by the Georgia courts.

A. Year's Support Georgia historically offered surviving spouses some protection from disinheritance in the form of dower; however, 104. UNIF. PROBATE CODE 105. UNIF. PROBATE CODE

ยง 2-209(a)(2) (2008). ยง 2-209(c) (2008).

106. Waggoner, supra note 81, at 11.

107. DUKEMINIER, supra note 1, at 425.

108. Id. 109. See Richard V. Wellman, Essay, Georgia Lawyers Revise Their ProbateCode, 13 GA. ST. U. L. REv. 783, 783-84 (1997).

110. O.C.G.A. ยง 53-3-1(c) (West 2010).

No. 1]

Death andDisinheritancein Georgia

155

this interest was ineffective because Georgia's dower provisions were modified from common law principles."' According to common law, the wife was entitled to one-third of all the husband's real property that he owned at any time during the marriage.112 In Georgia, however, the wife's interest was limited to land in the husband's possession at the time of his death." During the marriage, this negated the wife's protection of withholding consent to property transfers and provided the husband with complete freedom to convey his property. 14 Consequently, it was possible that the husband's probate estate would contain little or no real property to pass to the wife for protection."' The Georgia legislature abolished dower in 1969 but failed to enact an elective share provision to protect surviving spouses from disinheritance. 1 6 Quite the opposite, the legislature maintained a provision allowing the complete disinheritance of a surviving spouse in favor of distributing the property to a stranger." 7 Although some claim Georgia is the only state embracing testamentary freedom,"' the legislature did enact one provision that may interfere with the decedent's intended dispositions." 9 111. Chaffin, supranote 38, at 457.

112. DUKEMINIER, supra note 1, at 422-23.

113. La Grange Mills v. Kener, 49 S.E. 300, 301 (Ga. 1904); see also Chapman v. McClelland, 286 S.E.2d 290, 291 (Ga. 1982).

114. Chaffin, supra note 38, at 457.

115. Id.

116. Id. at 458 (citing 1969 Ga. Laws 123); see also O.C.G.A ยง 53-1-3 (West 2010).

117. O.C.G.A. ยง 53-4-1 (West 2010). The Georgia Code explains, "[a] testator, by will, may make any disposition of property that is not inconsistent with the laws or contrary to the public policy of the state and may give all the property to strangers, to the exclusion of the testator's spouse and descendants." Id. The legislature did not maintain a provision that required close scrutiny of a will that excluded the testator's spouse or children "because the Georgia courts have held that that sentence could be evaded by leaving a spouse or child some nominal sum, such as $1.00."

O.C.G.A ยง 53-4-1 cmt. (West 2010); see also Beman v. Stembridge, 85 S.E.2d 434, 439-40 (Ga. 1955).

118. Turnipseed, supra note 45, at 751 ("America is uniquely the land of testamentary freedom. (But, only in Georgia!)").

119. O.C.G.A. ยง 53-3-1(c) (West 2010) ("The surviving spouse and minor children of a testate or intestate decedent are entitled to year's support in the form of property for their support and maintenance for the period of 12

156

John MarshallLaw Journal

[Vol. IV

If a decedent eliminates the surviving spouse from his will or bequests inadequate resources for the surviving spouse's future,'2 0 the surviving spouse may petition the probate court for a year's supportl2 ' within twenty-four months of the passing of the decedent. 2 2 The petition must include a legal description of real property the surviving spouse requests to have set aside as well as an inventory of personal property and furniture.' 23 After publishing the petition for four weeks to provide notice to interested parties,' 24 the court will order the requested property to be set aside if no interested person objects.125 If an objection is raised, then the court must hold a hearing to determine the amount of property to provide for year's support.12 6 The court's goal is to "set apart an amount sufficient to maintain the standard of living that the surviving spouse and each minor child had prior to the death of the decedent." 27 The statute is designed to provide the decedent's family or surviving spouse with "support and maintenance" for twelve months following the decedent's death, which may include general financial security or specific resources for basic needs like food and board.128 To determine the proper amount, the court will months from the date of the decedent's death.").

120. See infra text accompanying notes 145-46 (explaining that without the testator's specific objection, the surviving spouse may receive bequests from the will and obtain year's support).

121. O.C.G.A. § 53-3-5(a) (West 2010).

122. O.C.G.A. § 53-3-5(c) (West 2010).

123. O.C.G.A. § 53-3-5(b) (West 2010).

124. O.C.G.A. § 53-3-6(b) (West 2010).

125. O.C.G.A. § 53-3-7(a) (West 2010).

126. O.C.G.A. § 53-3-7(b) (West 2010); see also O.C.G.A. § 53-3-6(a) (West 2010) (defining interested persons as children, spouses, heirs, beneficiaries, creditors, or others with rights or claims against the estate of decedent).

127. O.C.G.A. § 53-3-7(c) (West 2010); see also Ehrlich v. Silverstein, 48 S.E. 703, 706 (Ga. 1904) ("The widow and children are to be provided for until they may become adjusted to their altered conditions . . . and in accordance with the manner in which they have been accustomed to live, the widow and children have the first claim for a twelvemonth's support from the date of the qualification of the administrator or executor.").

128. Edwards v. Addison, 2 S.E.2d 77, 79 (Ga. 1939) (explaining that the widow and children "may be clothed, housed, and maintained" in a similar manner as if the husband and father were still alive); accord Chaffin, supra note 38, at 478; RADFORD, supra note 7, at § 10:1.

No. 1])

Death and Disinheritancein Georgia

157

consider the financial resources of the surviving spouse, 129 the estate's solvency,3 0 and other factors the "court deems equitable and proper."l 3 ' The petitioner must establish that the requested property is reasonably related to the amount needed to maintain the pre-death standard of living for a period of twelve months.1 2 Georgia courts have defined the inherent purpose of year's support, while also identifying instances where year's support is inapplicable. The year's support statute serves to "prevent a family being turned away houseless-a widow and childrenand cast upon the world in their forlorn condition. Hence, it provides, that whether the deceased departed his life testate or intestate, solvent or insolvent, still the family should have a year's support under all circumstances."' 3 3 Further, "[t]he intent is to protect the family survivors from a reduction in their standard of living while the estate is being settled, at least for one year.""' In addition, the year's support is not intended to compensate the surviving spouse for sacrifices made during the marriage, for the death itself, or lost relations with the spouse.13 5 Nor is the statute meant to assist in distributing the estate or provide support for an extended duration.'3 6 The year's support statute seeks to protect a surviving spouse's interest by giving it priority over other claims.3 7 The claim for year's support takes precedence over all other debts of the estate,"' including burial and last illness expenses, "the claim of legatees or devisees under the will of the decedent 129. O.C.G.A. ยง 53-3-7(c)(1) (West 2010); Taylor v. Taylor, 654 S.E.2d 146, 149 (Ga. Ct. App. 2007); Anderson v. Westmoreland, 649 S.E.2d 820, 822 (Ga. Ct. App. 2007); Holland v. Holland, 599 S.E.2d 242, 245 (Ga. Ct. App. 2004).

130. O.C.G.A. ยง 53-3-7 (c)(2) (West 2010).

131. O.C.G.A. ยง 53-3-7(c)(3) (West 2010).

132. O.C.G.A. ยง 53-3-7(c) (West 2010).

133. Ehrlich v. Silverstein, 48 S.E. 703, 706 (Ga. 1904) (quoting Blassingame v. Rose, 34 Ga. 418, 421 (1866)).

134. Anderson, 649 S.E.2d at 822 (quoting Holland,599 S.E.2d at 255).

135. Id.; Richards v. Wadsworth, 496 S.E.2d 535, 538 (Ga. Ct. App. 1998).

136. Holland,599 S.E.2d at 245.

137. O.C.G.A. ยง 53-3-1(b) (West 2010).

138. Id.

158

John MarshallLaw Journal

[Vol. IV

spouse[,]"'" and state and county property taxes.14 0 Also, year's support has priority over judgment liens resulting from alimony,14' deeds securing debt (except purchase money security deeds),142 and liens created by the decedent during his life.143 Allowing the surviving spouse to make an election against the will further protects the year's support interest.14 4 The decedent can require the surviving spouse to decide between the will's provisions and year's support.145 However, if the will is silent regarding election, the surviving spouse can both receive bequests from the will and petition for property under year's support.146 These provisions prevent the decedent and other interested parties from interfering with or defeating the surviving spouse's right to twelve months of support.

Although Georgia appears committed to protecting spouses during the administration and settlement of the decedent's probate estate, the legislature has neglected to protect spouses from long-term financial hardship. 47 Georgia represents the only separate property state in the nation that has not enacted elective share provisions to protect the surviving spouse from disinheritance.14 8 Every other state following separate property

139. Chaffin, supra note 38, at 481; see also Park v. Minton, 194 S.E.2d 465, 467 (Ga. 1972) ("The claim of the widow for a year's support is superior to legacies given by her husband in his will.").

140. O.C.G.A. § 53-3-4 (West 2010).

141. Wainwright v. Morrow, 178 S.E. 155, 155 (Ga. 1935) ("An allowance of the statutory year's support to a widow and children, or a widow, or children, is superior to the lien of a judgment for alimony.").

142. O.C.G.A. §§ 53-3-16 to -17 (West 2010).

143. Philpot v. Ramsey, 171 S.E. 204, 204 (Ga. Ct. App. 1933) ("[T]he right to a year's support is superior to 'other liens created during the lifetime of deceased,' where the same do not constitute a landlord's special lien on the crops for rent or supplies . . . .") (citing Civil Code 1910

§§ 4048, 4049,

4050).

144. See O.C.G.A. § 53-3-3 (West 2010) (allowing testator to make testamentary provision in lieu of year's support).

145. Id. 146. RADFORD, supra note 7, at § 10:11.

147. See, e.g., O.C.G.A. § 53-4-1 (West 2010) (providing a testator may distribute his property to strangers and exclude his spouse and descendants).

148. Turnipseed, supra note 45, at 748.

No. 1]

Death andDisinheritancein Georgia

159

principles protects surviving spouses through the traditional elective sharel49 or the augmented estate.15 0 B. Is Year's Support a ForcedShare?

Despite the language of and commentary to Georgia's year's support statute, the courts often tend to enforce the statute as a substitute for an elective share. When Georgia's legislature abolished dower, choosing not to replace it with an elective share provision, the legislature left only one way of protecting a surviving spouse from disinheritance: year's support.' ' This single method of providing support to widows and minor children seems to influence courts to apply year's support in a In manner that imposes something akin to a forced share.' be actually support-may fact, the statute's name-year's misleading.15 149. See, e.g., ALA. CODE § 43-8-80 (2010); ARK. CODE ANN. § 28-39-401 (2010); CONN. GEN. STAT. § 45a-436 (2010); D.C. CODE § 19-113 (2010); 755 ILL. COMP. STAT. ANN. 5/2-8 (2010); IND. CODE § 29-1-3-1 (2010); KY. REV. STAT. ANN. § 392.080 (West 2010); MD. CODE ANN., EST. & TRUSTS § 3-203 (2010); MICH. COMP. LAWS § 700.2202 (2010); Miss. CODE ANN. § 915-25 (2010); N.H. REV. STAT. ANN. § 560:10 (2010); OHIO REV. CODE ANN. § 2106.01 (West 2010); OKLA. STAT. ANN. tit. 84, § 44, (2010); OR. REV. STAT. § 114.105 (2010) (repealed Jan. 1, 2011); R.I. GEN. LAWS § 33-25-2 (2010); S.C. CODE ANN. § 62-2-201 (2010); TENN. CODE ANN. § 31-4-101 (2010); VT. STAT. ANN. tit. 14, § 311 (2010); WYo. STAT. ANN. § 2-5-101 (2010).

150. See, e.g., COLO. REV. STAT. ANN. § 15-11-201 (2010); DEL. CODE ANN. tit. 12, § 901 (2010); FLA. STAT. § 732.2035 (2010); HAW. REV. STAT. § 560:2-202 (2010); IOWA CODE § 633.238 (2010); KAN. STAT. ANN. § 596a203 (2010); ME. REV. STAT. tit. 18-A, § 2-201 (2010); MASS. GEN. LAWS ch. 191, § 15 (2010); MINN. STAT. § 524.2-202 (2010); Mo. REV. STAT. §§ 474.160, 474.163 (2010); MONT. CODE ANN. § 72-2-221 (2010); NEB. REV. STAT. § 30-2313 (2010); N.J. STAT. ANN. § 3B:8-1 (2010); N.Y. EST. POWERS & TRUSTS LAW § 5-1.1-A (McKinney 2010); N.C. GEN. STAT. §§ 30-3.1 to 3.2 (2010); N.D. CENT. CODE § 30.1-05-01 (2010); 20 PA. CONS. STAT. § 2203 (2010); S.D. CODIFIED LAWS § 29A-2-202 (2010); UTAH CODE ANN. § 75-2-202 (West 2010); VA. CODE ANN. § 64.1-13 (2010); W. VA. CODE § 423-1 (2010).

151. Kelly, supra note 8, at 1182-83.

152. Id. at 1183.

153. Probate Court of Athens-Clarke County, http://www.athensclarkecounty.com/index.aspx?NID=1 104 (last visited Feb. 3,2011).

160

John MarshallLaw Journal

[Vol. IV

Year's support is similar to traditional elective share statutes because both stem from the marital support theory. Since the nineteenth century, Georgia courts have explained that the purpose of year's support is to provide support to those members of the decedent's family that the husband is responsible for supporting during his lifetime. 15 4 Likewise, traditional elective share statutes result from a desire to extend the obligation of support from the wage-earner to the homemaker, even after death.'

Therefore, year's support and traditional elective share statutes share the same underlying rationale of providing the surviving spouse with sufficient assets for support and maintenance.

The court's liberal construction of year's support provisions may lead to outcomes akin to an elective share statute. Year's support attempts to provide resources for basic needs during the period between the decedent's death and the estate's administration,15 6 limiting both the amount of support and the period to receive it. However, Georgia courts have adopted a policy' that opens the door to increase the amount and extend the duration of year's support for widows and minor children.

Public policy behind year's support dictates liberal construction of statutory provisions that award assets from the probate estate.5 8 Additionally, 154. Woodes v. Morris, 279 S.E.2d 704, 706 (Ga. 1981); Goss v. Harris, 43 S.E. 734, 735 (Ga. 1903); see also Ehrlich v. Silverstein, 48 S.E. 703, 706 (Ga. 1904); Blassingame v. Rose, 34 Ga. 418, 421 (1866).

155. See Vallario, supranote 28, at 532.

156. Edwards v. Addison, 2 S.E.2d 77, 79 (Ga. 1939) ("So for the time during which [the administrator or executor] is ascertaining the condition of the estate, collecting the debts owing to it, gathering together the assets belonging to it, and arranging to distribute them according to the duties imposed upon him by law, the statute makes provision for the widow and children, that they may be clothed, housed, and maintained in like circumstances as if the husband and father were in life. The widow and children are to be provided for until they may become adjusted to their altered conditions." (quoting Erlich v. Silverstein, 48 S.E. 703, 706 (Ga. 1904))).

157. Wade v. Thompson, 104 S.E.2d 250, 252 (Ga. Ct. App. 1958) (overruled in part by Sanders v. Fulton County, 142 S.E.2d 293 (Ga. Ct. App. 1965)); Montgomery v. McCants, 175 S.E. 397, 398 (Ga. Ct. App. 1934).

158. See, e.g., Driskell v. Crisler, 515 S.E.2d 416, 422 n.21 (Ga. Ct. App.

No. 1]

Death and Disinheritancein Georgia

161

[i]t is the policy of the law to provide an immediate and effectual means of support of the widow and children for such time, and the courts should, in all proper ways, forward and carry out this policy. The provision for a year's support out of the estate of a decedent is an anomaly dictated solely by a very humanitarian public policy, and in its administrationthis public policy should not be overlooked or disregarded in any instance. Its provisions are highly

beneficial. The courts, in passing upon cases involving the rights of the beneficiaries under such statutes, should keep in mind the beneficial and benevolent purposes of the law and should jealously protect rights accruing thereunder. The ends to be obtained under the act are not to be incumbered with technicalities .... 9 Such language favors the decedent's family members above all others by emphasizing the charitable nature of year's support while also encouraging the courts to guard the surviving spouse's interests. Further, the courts mandate the practice of this policy, influencing the decision-makers by implicitly encouraging the consideration of unwritten criteria. Engaging in this practice may cause the courts to award more than is necessary to maintain the standard of living that the surviving spouse has previously enjoyed. Instead, the award may be more of an arbitrary fractional portion of the decedent's probate estate, as is awarded by an elective share statute.16 0 Year's support, like an elective share, may provide resources for an extended duration due to the judiciary's ruling that surviving spouses may retain excess funds not used within the year for which the support is ostensibly given. The court's award of year's support is supposed to enable the decedent's family members to continue their standard of living for twelve months only. 16 1 However, the Georgia Supreme Court has established a way to circumvent the intended limited duration of the year's support statute by allowing the surviving spouse to retain any unused portion of the amount set apart that is not consumed within the twelve months.16 2 Because the surplus 1999).

159. Montgomery, 175 S.E. at 398 (internal citations and quotations omitted).

160. See infra text accompanying notes 164-78.

161. O.C.G.A. ยง 53-3-1(c) (West 2010).

162. Miller v. Ennis, 34 S.E. 302, 303 (Ga. 1899); Whitt v. Ketchem, 10

162

John MarshallLaw Journal

[Vol. IV

does not revert to the estate from which it is set apart,'6 the surviving spouse may receive benefits from year's support long after the decedent passes away. Consequently, the year's support evolves into an interest comparable to an elective share because the amount set aside from the estate may provide support for an unlimited period.

Driskell v. Crisler'" provides evidence that Georgia's year support statute may operate less as limited support during the estate's administration and more as permanent support maintaining the surviving spouse. The probate court in that case awarded the petitioner year's support of $193,000,165 and In the court of appeals held the amount was not error.'16 affirming the probate court's decision, the court of appeals awarded the petitioner approximately one-third of the same fixed fractional share decedent's estate' 6 -the representing common law dower and traditional elective share statutes.'6 8 Although the petitioner applied for this amount,169 the court justified such an award by liberally construing the statute.

Rather than considering the years immediately before the decedent's death, 170 "the Court of Appeals took into account the standard of living enjoyed by the couple throughout the term of their marriage.""' Also, the court considered non-transitional S.E. 503, 503 (Ga. 1889).

163. Miller, 34 S.E. at 303; Whitt, 10 S.E. at 503.

164. 515 S.E.2d 416 (Ga. Ct. App. 1999).

165. Id. at 418.

166. Id. at 422.

167. Id. at 421.

168. See supra text accompanying notes 30, 45. The value of the estate was $584,000, plus an automobile and furnishings. Driskell, 515 S.E.2d at 418. This amount equally divided into three parts is $194,666, making the widow's award of year's support just $1,666 shy of exactly one-third of the decedent's estate.

169. Driskell, 515 S.E.2d at 418.

170. Id. at 420.

171. RADFORD, supra note 7, at ยง 10:5. The court stated that "the statute does not limit consideration to the year before the death or any particular time other than 'prior to the death of the testator or intestate."' Driskell, 515 S.E.2d at 420 & n.12 (quoting O.C.G.A. ยง 53-5-26 (West 2010)). The court cited Dorsey v. Georgia RailroadBank & Trust Co. in which the court "took into account as relevant the standard of living of the couple 'for many years'

No. 1]

Death and Disinheritancein Georgia

163

allowances,17 2 including medical expenses, home repair, and personal maintenance,17 which had accrued while the decedent's health declined prior to his death. Although the case law repeatedly states that year's support "is not intended to pay the surviving spouse for ... personal sacrifices made during the marriage,"l7 it appears the court of appeals sympathized with the petitioner for her suffering and misfortune due to her husband's debilitating illness. 7 The petitioner undoubtedly had a need for financial support from her husband's estate.17 6 However, the amount awarded was inconsistent with the purpose underlying year's support, which is not intended to "support the spouse for many years to come[.]"l 7 7 Nonetheless, the court held firmly to the policy of liberal construction and affirmed a generous amount to the petitioner that probably Petitioners in like provided for her future indefinitely. situations need to be adequately provided for,178 but this should not be accomplished by using year's support as a pseudoelective share.

prior to testator's death." Id. at 411 n.13 (quoting Dorsey, 60 S.E.2d 828, 830 (Ga. Ct. App. 1950)).

172. Driskell, 515 S.E.2d at 422.

173. Id. at 418. The petitioner was unable to afford her prescribed medications, needed eye surgery, dentures, new shoes or clothes, a drycleaner, a hairdresser, handicap access to her personal residence, updated household appliances, and assistance with housecleaning or yard maintenance. Id. 174. Richards v. Wadsworth, 496 S.E.2d 535, 538 (Ga. Ct. App. 1998).

175. The Court of Appeals begins its opinion, "Annabelle Crisler, the nearly destitute widow of Thomas Crisler. . . ." Driskell, 515 S.E.2d at 418.

The petitioner's deceased husband had been institutionalized for Alzheimer's disease or dementia for the final four years of their twenty-four year marriage. Id. 176. The petitioner was seventy-seven or seventy-eight years of age with numerous physical ailments. Her income consisted of $544 per month in Social Security benefits and $500 or $1000 each month provided by her daughter. Id. at 418-19.

177. Holland v. Holland, 599 S.E.2d 242, 245 (Ga. Ct. App. 2004).

178. Otherwise, there may be no other support. See supra notes 147-48.

164

John MarshallLaw Journal

[Vol. IV

IV. GEORGIA NEEDS REFORM Regardless of whether Georgia's year's support statute operates, in practice, similarly to an elective share, the underlying problem remains that the statute is not uniformly applied and the awards are not consistent amounts-one just never knows how it will be used. The statute needs reform to bring it within the marital partnership theory, align it with the goals of probate law, and statutorily provide a surviving spouse with protection from disinheritance. To accomplish these objectives, Georgia's legislature should abolish year's support and enact the 2008 Uniform Probate Code's elective share provisions.

A. Year's Support Ignores the MaritalPartnershipTheory As suggested above, modem family law embraces the partnership theory "as the dominant theory of marriage and divorce."'7 9 In fact, when a marriage ends in divorce, all fifty states have adopted rules requiring an equal or equitable division of all marital property.'s This evidences the states' conception of marriage as an economic partnership.' 8 ' However, Georgia's year's support statute does not embrace the partnership theory of marriage because the amount set aside is determined by the surviving spouse's dependency on the deceased.'8 2 Year's support stems from the decedent's legal obligation to support his spouse during the marriage and The entitlement to support is throughout his lifetime.'

179. Alicia Brokars Kelly, Rehabilitating Partnership Marriage as a Theory of Wealth Distributionat Divorce: In Recognition of a Shared Life, 19 WIS. WOMEN'S L.J. 141, 143 (2004).

180. Rosenbury, supra note 13, at 1230.

18 1. Id.

182. Richards v. Wadsworth, 496 S.E.2d 535, 537 (Ga. Ct. App. 1998) ("[D]ependency is clearly a factor in the amount of the award." (quoting RADFORD, WILLS & ADMINISTRATION IN GEORGIA (5th ed. 1988)

ยง 324, p.

4)).

183. Woodes v. Morris, 279 S.E.2d 704, 707 (Ga. 1981) ("The hinge upon which the right of a year's support hangs is the legal obligation to support during the life time of the deceased. The granting of a year's support is an extension of that obligation beyond the life of the person so obligated thereby creating a debt of the estate as a necessary expense of administration.").

No. 1]

Death andDisinheritancein Georgia

165

triggered by the marital relationship and its associated status, which determines if an individual qualifies for a protected class, such as spouse or minor child, for which the decedent is required to provide after his death.8 4 Further, the amount of year's support is governed in part by dependency of the surviving spouse on the deceased spouse.' 8 Although a petitioner does not have to "demonstrate actual or legal dependency[,]"' 8 6 the testimony or evidence presented by the petitioner must show that the requested funds are necessary to The maintain the standard of living during the marriage.' repeated themes of support and dependence are inconsistent with the partnership theory of marriage because they disregard contributions made by both spouses and equal division of marital property.

The absence of the partnership theory in the statute is illustrated by decisions of the Georgia courts. For example, in Howard v. Howard, the petitioner earned income that was deposited and commingled with her husband's earnings as a result of her working in two yarn mills; driving tractors; and raising, selling, and preserving vegetables. 8s While the court acknowledged her contribution to the couple's accounts, the petitioner received a portion of the property, not because she contributed, but because the amount set apart for year's support was "property belonging to the husband's estate.""'

In addition, in Hunter v. Hunter, the probate court awarded the marital residence to the surviving spouse as year's support.19 0 However, the court of appeals reversed the decision because the surviving spouse's contributions during the marriage did not entitle her to "claim year's support based on an equitable

184. Gentry v. Black, 351 S.E.2d 188, 189 (Ga. 1987).

185. Richards, 496 S.E.2d at 537.

186. Gentry, 351 S.E.2d at 190.

187. See Taylor v. Taylor, 654 S.E.2d 146, 149 (Ga. Ct. App. 2007).

188. Howard v. Howard, 257 S.E.2d 336, 338-39 (Ga. Ct. App. 1979).

189. Id. at 339. The value of the estate was $176,809, and the jury awarded the petitioner $45,000 plus three tracts of land. Id. at 337. The court acknowledged that year's support provides for household furniture, and such items are often acquired during marriage and considered common ownership. Id. at 339.

190. Hunter v. Hunter, 569 S.E.2d 919, 919 (Ga. Ct. App. 2002).

166

John MarshallLaw Journal

[Vol. IV

interest in the marital residence.""' These situations represent the conflict between year's support and partnership theories.

Year's support is further contrary to the partnership theory of marriage because the assets provided by year's support derive solely from the probate estate.19 2 Therefore, a decedent can transfer all of his or her property before death in order to prevent the surviving spouse from receiving assets from the This is contrary to the estate as a year's support award.' partnership theory of marriage because it fails to consider all of the property the couple acquired during the marriage. Under this theory, both spouses have a one-half undivided interest in the marital property due to the collective contributions, whether monetary or non-monetary, to the economic well-being of the marital partnership.194 B. Year's Support is Contrary to Probate Goals Georgia's year's support statute also requires reform because it is contrary to the goals of probate law: predictability and ease of administration.'95 When determining the amount that a surviving spouse is entitled to receive under the year's support statute, the court may take into consideration "[s]uch other relevant criteria as the court deems equitable and proper."196 What constitutes equitable and proper criteria is not established in the statute, nor have the courts attempted to identify factors 191. Id. at 920-21. The couple had been married over thirty years. Id. at 920.

192. See Johnson v. Johnson, 405 S.E.2d 544, 545 (Ga. Ct. App. 1991); see also Kirksey v. Teachers' Ret. Sys. of Ga., 302 S.E.2d 101, 103 (Ga. 1983) (explaining retirement benefits are exempt from family support claims); Kenner v. Kenner, 104 S.E.2d 896, 898 (Ga. 1958) ("Where the title to property was not vested in a decedent at the time of his death, it can not be set apart as a year's support for his widow and minor children so as to vest title in them."); Summerford v. Gilbert, 37 Ga. 59, 63 (1867) (explaining property conveyed by deed in trust is unavailable to a widow in her petition for year's support award).

193. This constitutes yet another similarity between year's support and traditional elective share statutes. This deficiency of traditional elective share statutes was resolved through the introduction of augmented estates.

See supraPart II.B.1.

194. See supra Part II.B. 195. Newman, supra note 10, at 491-92.

196. O.C.G.A. ยง 53-3-7(c)(3) (West 2010).

No. 1]

Death and Disinheritancein Georgia

167

that should be reviewed. The lack of definition or identification allows the courts to consider different factors in each case or to construe similar factors in more than one way. The limitless options presented by relevant equitable and proper criteria can decrease predictability that, in turn, can create delay in disbursing probate estates.

An examination of Johnson v. Johnson and Hunter v. Hunter provides evidence of the potential for an unpredictable outcome when courts determine year's support after considering other relevant equitable and proper criteria. For both cases, Judge Dodd of the Cobb County Probate Court presided over the hearings, and Judge Andrews authored the appellate court opinions.197 In Johnson, the probate court awarded an eightyyear-old gentleman, who had been married for thirty-four years, the decedent wife's interest in the marital residence valued between $50,000 and $65,000.198 In Hunter, the probate court awarded a seventy-four-year-old woman, who had been married for thirty years, the marital residence in fee simple valued at $91,500.199 Both surviving spouses were still living in the marital residence, had medical needs, and received Social Security payments.2 00 However, the spouse in Johnson was no longer working,20 1 while the spouse in Hunter "was unsure how much longer she would be able to supplement her Social Security income by continuing the dry cleaning business work she had done for the last [fifteen] years."20 2 The court of appeals affirmed the Johnson decision.20 3 It reversed the 2 04 decision in Hunter.

Two similar factual scenarios, although not identical, eventually resulted in different outcomes, leading

197. See Hunter v. Hunter, 569 S.E.2d 919 (Ga. Ct. App. 2002); Johnson v. Johnson, 405 S.E.2d 544 (Ga. Ct. App. 1991).

198. 405 S.E.2d at 545-46. The couple's son held title in trust for the benefit of the decedent and her husband. Id at 545.

199. 569 S.E.2d at 919-20. The decedent's will devised a life estate to the wife. Id. 200. Hunter, 569 S.E.2d at 920; Johnson, 405 S.E.2d at 546.

201. Johnson, 405 S.E.2d at 546.

202. Hunter, 569 S.E.2d at 920.

203. Johnson, 405 S.E.2d at 546 (holding the evidence was sufficient to support probate court's determination).

204. Hunter, 569 S.E.2d at 921 (holding the evidence was insufficient to support probate court's determination).

168

John MarshallLaw Journal

[Vol. IV

to the conclusion that perhaps the year's support statute lacks the structure necessary to provide the predictability desired in probate law.

Moreover, contrary to the predictability sought in probate law, year's support is quite arbitrary. As previously discussed, the overarching goal of the statute is to provide the decedent's family members with support and maintenance, sufficient to maintain their standard of living, for twelve months following the decedent's death.2 05 To obtain this support, a surviving spouse "may file a petition for year's support in the probate court having jurisdiction over the decedent's estate."20 6 This petition must set forth all personal and real property the surviving spouse proposes to have set aside.207 However, the statute does not restrict the petitioner from requesting the entire estate or a fractional share.208 If no interested person files an objection to the petition,2 09 or such a petition "is disallowed or withdrawn, the probate court shall enter an order setting aside as year's support the property applied for in the petition." 2 10 Without objection, the surviving spouse gets the decedent's property he or she desires by default, regardless of standard of living,21 1 which means the surviving spouse determines the amount of support received from the decedent's estate.

Because the petitioner controls this procedure, any standard or consistency is eliminated, likely leading to arbitrary results. One statutory safeguard protects the decedent's estate against a massive year's support awardobjection to the petition. If an interested party objects to the year's support petition, the probate court conducts a hearing to

205. See supra Part III.A. 206. O.C.G.A. ยง 53-3-5(a) (West 2010).

207. O.C.G.A. ยง 53-3-5(b) (West 2010).

208. See O.C.G.A. ยง 53-3-5(b) (West 2010) ("The petition shall set forth, as applicable, the full name of the surviving spouse, the full name and birthdate of each surviving minor child and a schedule of the property, including household furniture, which the petitioner proposes to have set aside.").

209. O.C.G.A. ยง 53-3-6(a) (West 2010) (identifying decedent's children, spouse, and other heirs, beneficiaries, creditors, and other persons having claims against the estate as "interested persons").

210. O.C.G.A. ยง 53-3-7(a) (West 2010).

211. Id.

No. 1]

Death and Disinheritancein Georgia

169

consider the evidence to "set apart an amount sufficient to maintain the standard of living that the surviving spouse and each minor child had prior to the death of the decedent[.]" 2 12 An interested person's objection places the burden of proof on the surviving spouse to show the needed amount for year's support.2 13 This is the only method to remove the petitioner's ability arbitrarily to select the portion of the decedent's probate estate he or she desires.

C. Year's SupportFails to ProvideLong-term Protection Georgia's year's support is intended to "protect the family survivors from a reduction in their standard of living while the estate is being settled, at least for one year. It is a transitional allowance."2 14 Because the statute focuses on short-term objectives, in particular, maintaining the surviving spouse's standard of living for twelve months following the decedent's death, 215 the courts may ignore some long-term factors affecting the surviving spouse's well-being. For instance, most cases awarding a lifetime interest in the marital residence do not consider long-term consequences, 2 16 but the surviving spouse may need to sell the marital residence to pay for mounting expenses, and a life tenancy may restrict selling the property.

Under derivative title, the surviving spouse can only transfer his or her lifetime rights to the marital residence,2 17 likely deterring buyers. On top of that, potential conflicts between the surviving spouse and future interest holders can make conveying fee simple title challenging. 218 To resolve this problem, courts should be required to consider factors that may alleviate future financial uncertainty for a surviving spouse. The courts' current 212. O.C.G.A. ยง 53-3-7(c) (West 2010).

213. Id. 214. Anderson v. Westmoreland, 649 S.E.2d 820, 822 (Ga. Ct. App. 2007) (quoting Holland v. Holland, 599 S.E.2d 242, 245 (Ga. Ct. App. 2004)).

215. See supra Part III.A. 216. See Hunter v. Hunter, 569 S.E.2d 919 (Ga. Ct. App. 2002) (failing to discuss the possible negative consequences of awarding a life estate in the marital residence to the surviving spouse).

217. See FREYERMUTH, supra note 33, at 246.

218. See id. at 261 (explaining disagreeable life tenants and holders of future interests can be ordered to sell property only if it is in all the parties' best interest).

170

John MarshallLaw Journal

[Vol. IV

practice does not routinely consider the future implications of awarding life estates, which can lead to insufficient protection for surviving spouses under year's support.

Georgia courts have provided one example highlighting the considerations necessary to an effective award of year's support. Unfortunately, the reasoning is uncommon. In Byrd v.

McKinnon, the probate court awarded the surviving spouse his wife's one-half interest in the marital residence after showing concern over whether the grant of a life estate would give rise to future disputes over who was responsible for maintenance expenses, taxes, and insurance premiums on the property and whether it would 'tie-up' the property in such a manner as to prevent the [husband] from using it as collateral in a financial crisis.2 19 The court of appeals affirmed the decision, concluding the court did not abuse its discretion by considering the criteria to determine the amount.2 2 0 This reasoning should be standard practice in Georgia courts, not left to the discretion of individual judges. Georgia law should protect surviving spouses with more than transitional, short-term allowances; instead, the inclusion of relevant, long-term factors should be standard.

Georgia's failure to examine the long-term factors that could affect the financial well-being of a surviving spouse, and thus physical and emotional well-being, is contrary to the purpose of providing protection for the surviving spouse. Because the statute directs the courts to set apart only the amount necessary to maintain the standard of living enjoyed prior to the death of the decedent,22 1 the statute fails to acknowledge that the surviving spouse's standard of living may be inadequate. For example, in Dorsey v. Georgia R. Bank & Trust Co., the husband amassed an estate valued at $307,257 in real estate and 219. 377 S.E.2d 686, 687 (Ga. Ct. App. 1989). The couple was married for twenty-eight years. Id. The marital residence was jointly purchased, valued at $24,000, and held as tenants in common. Id. The surviving spouse derived income from social security and worker's compensation and possessed no additional assets but the home. Id. at 688.

220. Id. at 688.

221. Driskell v. Crisler, 515 S.E.2d 416, 420 (Ga. Ct. App. 1999) ("Support for a year may be estimated according to the circumstances and standing of the family previous to the death.").

No. 1]

Death andDisinheritancein Georgia

171

government bonds.222 However, the courts allocated the wife only $150 per month because the couple practiced a frugal lifestyle. 223 In addition, in Holland v. Holland, the wife was denied fee simple title to two tracts of land.2 24 Noting that her expenses the year preceding her husband's death and the year following her husband's death exceeded her reported income, the appellate court nonetheless reasoned that her standard of living was maintained because she did not present evidence of a more favorable income-expense ratio prior to the death of her husband. 225 The year's support statute's use of the standard of living is an inadequate protection for surviving spouses.

D. Recommendation Georgia's legislature should adopt the 2008 Uniform Probate Code revision because it resolves the problems associated with year's support by incorporating the partnership theory of marriage, promoting the goals of probate, and protecting surviving spouses.

The 2008 revision implements the partnership theory by an approximation method, attempting to achieve a fifty-fifty split

222. 60 S.E.2d 828, 831 (Ga. Ct. App. 1950). The appraisers awarded the surviving spouse $75,000, and when the trial ended, the jury awarded the wife $50,000. Id. at 829.

223. Id. at 830-3 1. The couple's choice to live modestly for fifteen years caused the court to award no more than $3500. Id. at 831.

224. 599 S.E.2d 242, 245 (Ga. Ct. App. 2004). The wife was eighty-fouryears-old at the time of the trial. Id. at 244. She petitioned for "fee simple title to real property located in Pierce County, Bacon County, and Brantley County. She also requested various tools and farming equipment, two certificates of deposit, [her husband's] personal possessions, household goods, furnishings, appliances, and title to four vehicles." Id. at 243. Her son did not challenge the award of personal property by the jury; however, he claimed awarding the Bacon County and Pierce County real estate in fee simple was excessive for support. Id. at 244.

225. Id. at 245-46. In 1996, the couple earned $46,175.76 but spent $51,313.55, for a loss of $5137.79. In 1997, the wife's total income was $29,505.07, and her expenses totaled $27,941.65, gaining $1563.42. In 1998, the wife earned $12,958.43 but spent $14,360.75, for a loss of $1402.32. Id. at 244. Also, family members testified that the wife needed clothing and the house needed repair; however, the wife did not pay for these necessities because she "was so worried about what she could and could not spend . .. she paid only her monthly bills and medical expenses." Id.

172

John MarshallLaw Journal

[Vol. IV

of the marital assets. 22 6 Approximation is accomplished by calculating the couple's augmented estate, including property acquired before the marriage, by gift or inheritance, and during the marriage, 2 27 and multiplying it by a percentage corresponding to the marriage's duration. 2 28 The result is divided equally between the decedent's estate and the surviving spouse 2 29 to represent the contributions both spouses made to the marriage's economic interests.

Although the 2008 revision incorporates the partnership theory of marriage, it has been criticized because it fails to distinguish a spouse's separate inherited or premarital individual property and the couple's marital property.230 Identifying separate property may be effective in some marriages; however, other situations will present a challenge, and this discrepancy may disadvantage some spouses.23' Further, because the 2008 revision attempts to emulate the results of community property jurisdictions, it is reasonable to consider the presumption embraced by community property 226. UNIF. PROBATE CODE § 2-202 cmt. (2008); Waggoner, supra note 81, at 6. To incorporate the partnership theory of marriage, the 2008 revision provides an alternative to approximation: the deferred-marital property system. UNIF. PROBATE CODE § 2-203(b) (2008). According to this approach, "the surviving spouse would have a right to claim an amount equal to fifty percent of the couple's marital assets-that portion of the couple's combined assets that were acquired during the marriage other than by gift or inheritance." Waggoner, supra note 81, at 30-31. Although a deferredmarital property system more closely mirrors community property jurisdictions, it is plagued by the necessity of categorizing property after death as separate or marital. Id. at 31. The 2008 revision maintains a "support theory back-up." UNIF. PROBATE CODE § 2-202 cmt. (2008). "The support theory suggests that the surviving spouse is entitled to force a sufficient transfer of the decedent's assets to bring the survivor's assets up to a predetermined amount deemed to be at least minimally sufficient for support[.]" Waggoner, supra note 81, at 4. Section 2-202(b) "provid[es] a $75,000 supplemental elective-share amount, in case the surviving spouse's assets and other entitlements are below this figure." UNIF. PROBATE CODE § 2-202 (b) cmt. (2008).

227. UNIF. PROBATE CODE § 2-203(a) (2008).

228. UNIF. PROBATE CODE § 2-203(b) (2008).

229. UNIF. PROBATE CODE § 2-202 (a) (2008).

230. O'Brien, supra note 14, at 677. The 1990 revision was subject to similar criticism. Id.; Turnipseed, supra note 45, at 750.

231. Waggoner, supra note 81, at 20.

No. 1]

Death andDisinheritancein Georgia

173

"that all of the couple's property is marital property."2 32 Combining all property and subsequently approximating the marital portion of the estate avoids the administrative costs associated with classifying the property as separate or marital after a death.233 Lawrence Waggoner23 4 recognizes "an approximation system will hardly ever be exactly on the mark in any individual case" 235 but "[in] a long-term marriage that begins during the working years and extends into retirement, the approximation system is likely to produce a reasonably accurate Therefore, decreased expenses and reasonable result ... ."236 results outweigh the required comingling of the couple's separate and marital property.

The 2008 revision remedies another problem inherent in the year's support statute by advancing the predictability and ease of administration sought in probate law. These probate goals are realized because the approximation method is a mechanical system.2 37 The statute dictates the property included in the 232. Id.

233. Id. at 30.

234. Professor Waggoner is the Director of Research for the Joint Editorial Board for Uniform Trust and Estate Acts and principal drafter of the UPC elective

share.

UNIVERSITY

OF MICHIGAN LAW

SCHOOL,

http://web.law.umich.edu/_facultybiopage/facultybiopagenew.asp?ID=199 (last visited Mar. 11, 2011).

235. Waggoner, supra note 81, at 31.

236. Id. at 32. These long-term marriages include first marriages and post-divorce remarriages where the majority of wealth is accumulated during the marriage and, thus, classified as marital. Id. at 20. Professor Waggoner acknowledges "[i]n a late in life marriage that begins near or after retirement, the administrative costs of post-death classification are likely to be mitigated and the approximation system is more likely to deem property as marital property even though it is provably individual property." Id. at 32. This is so because "[a] widow and widower who marry in late-middle to older age are likely to come into the marriage with substantial individual property, typically carried over from their earlier long-term marriages." Id. at 22. To remedy this situation, he recommends the schedule for approximation be lengthened from fifteen years to twenty or twenty-five years. Id. at 22.

"Government data indicate that the median length of a first marriage that does not end in divorce is 46.3 years, the median length of a post-divorce remarriage that does not end in divorce is 35.1 years, and the median length of a post-widowhood remarriage that does not end in divorce is 14.4 years."

UNIF. PROBATE CODE

ยง 2-203 cmt. (2008).

237. Waggoner, supra note 81, at 7.

174

John MarshallLaw Journal

[Vol. IV

augmented estate,238 a schedule indicates the percentage applied to the formula for the duration,2 3 9 and the marital estate is always divided in half 240 Because the statute minimizes discretion, a court or party possessing the relevant information should reach identical conclusions.

The elective share drafters intended the revised provisions to improve clarity and increase transparency.2 4 1 The statute, as revised, approximates marital property in a direct, rather than indirect, manner.242 Thus, increased familiarity with and greater practice of the approximation method's mechanical system will promote efficiency in its application because those working with it will know its components, understand its operation, and be aware of errors likely to occur. Also, the 2008 revision provides a mechanism for calculating an elective share without a court's initial intervention, allowing the estate's administrator and surviving spouse to make informed decisions about the execution of the will and disbursement of the estate.

A formulaic method of calculating an elective share can alleviate arbitrariness present in the year's support statute.

However, the court of appeals has stated, "[n]othing in the law requires a mechanical measurement or the exclusion of relevant factors or time periods when the probate court must exercise discretion in assessing which is equitable and proper. Each case will stand on its own unique circumstances.

Precise mathematical formul[ae] have little utility in these instances."243 To the contrary, a mechanical system facilitates the goals of probate by creating a systematic, consistent, and equitable means of determining a surviving spouse's one-half interest, considering marital contributions, in the decedent's estate.

Also, the 2008 revision protects a surviving spouse from disinheritance, intentional or unintentional, because the elective share provisions are designed to offer a permanent award from the decedent's estate, as opposed to a transitional allowance for a limited duration or specific purpose. This should enable the surviving spouse to afford daily basic needs, and maybe even 238. UNIF. PROBATE CODE 239. UNIF. PROBATE CODE 240. UNIF. PROBATE CODE

ยง 2-203(a) (2008). ยง 2-203(b) (2008). ยง 2-202(a) (2008).

241. Waggoner, supranote 81, at 10.

242. Id. 243. Driskell v. Crisler, 515 S.E.2d 416, 420 (Ga. Ct. App. 1999).

No. 1]

Death and Disinheritancein Georgia

175

The only increase future wealth through investments. limitations in the statute are based on the present resources of the surviving spouse, so this will not serve to affect the surviving spouse's ability to secure financial protection.

Regardless of the long-term protection afforded by the provisions, some may argue "[t]he plight of the impoverished widow wronged by her husband's unfair estate plan appears to be overdrawn and perhaps even fanciful, in light of actual But the fact remains that spousal disinheritance experience. occurs. In 2000, Jeffrey Pennell published a study of wills in which surviving spouses were easily identifiable,245 including a variety of Georgia jurisdictions and probate courts.246 Of the 2529 wills examined in the survey, Pennell recorded 432 cases of spousal disinheritance.2 47 Nine surviving spouses objected to the decedent's exclusionary provisions; however, none filed contests to challenge the disinheritance. 248 Although some speculate that this means not one surviving spouse thought they were being treated unfairly,24 9 there are other potential explanations for not contesting the will, such as costs of litigation, possible health problems, or influence of family or friends. Spousal disinheritance may not occur often, but it does happen, and Georgia should protect surviving spouses, mainly those likely to burden public resources, from an uncertain future and financial struggle.

Georgia's year's support statute is riddled with problems, making its provisions ineffective, arbitrary, and inadequate.

The legislature can remedy these issues by repealing the statute and adopting the 2008 UPC revision.

244. Chaffin, supra note 38, at 469.

245. Turnipseed, supra note 45, at 771 n.225 (citing Jeffrey N. Pennell, Minimizing the Surviving Spouse's Elective Share, 32 U. MIAMI L. CENTER EST. PLAN. ยง 903 (1998)).

246. Id. at 771 (citing Jeffrey N. Pennell, Minimizing the Surviving Spouse's Elective Share, 32 U. MIAMI L. CENTER EST. PLAN. ยง 900-906 (1998)).

247. Id. at 771 n.224 (citing Jeffrey N. Pennell, Minimizing the Surviving Spouse's Elective Share, 32 U. MIAMI L. CENTER EST. PLAN. ยง 903 (1998)).

248. Id. at 771-72 (citing Jeffrey N. Pennell, Minimizing the Surviving Spouse's Elective Share, 32 U. MIAMI L. CENTER EsT. PLAN. ยง 903 (1998)).

249. Id. at 772.

176

John MarshallLaw Journal

[Vol. IV

V. CONCLUSION For hundreds of years, public policy has dictated that spouses should be protected following the death of a partner. This protection has evolved from dower and curtesy to traditional elective share statutes to the augmented estate and approximation system of the Uniform Probate Code. Each development has evidenced America's changing economy and sources of wealth, as well as advancing theories of marriage and family dynamics. Georgia, however, has not participated in this evolution; rather, Georgia has not progressed at all. Because of the inaction of the legislature, Georgia courts have been left to construe a statute intended for twelve-months' support as substitution for legislation protecting a surviving spouse from complete disinheritance that may well impact his or her longterm finances. Georgia's legislature can remedy the abandoned evolution by adopting the 2008 revision to the Uniform Probate Code, which will bring its elective share statute in line with twenty-first century principles of marriage as a partnership, probate's desired predictability, and adequate support for surviving spouses.

Kristi L. Barbre*

Juris Doctor Candidate, Atlanta's John Marshall Law School, May 2011; Bachelor of Science in Education, University of Georgia, Dec. 2001. I want to thank Prof. Michael Kent for suggesting the topic for this Comment, revising multiple drafts, and providing guidance all through the writing process. Also, I am grateful to my husband, Blake, for his patience and support over the past three years. *

TIME FOR CHANGE: HANDLING CHILD PROSTITUTION CASES IN GEORGIA I.

INTRODUCTION

II.

LEGAL FRAMEWORK

III.

........................................

177 181

A. Current GeorgiaLaw ..................................

B. The ChildProtectionand Public Safety Act...............................

181 184

CURRENT TRENDS AND PROPOSED CHANGES ........................

186

A. B. C. D. IV.

........................................

Juvenile Offenders Are Less Culpable than Adult Offenders..... 187 .......... 190 Children Cannot Consent to Sex............

194 ............................................

Funding Federal ........ 195 Safe HarborLegislation in Georgia............

CONCLUSION

..............................................

1.

200

INTRODUCTION

In Atlanta, a girl is raped for profit-through forced prostitution-every fifty-four seconds on Thursday, Friday, and Saturday.' In fact, Georgia's capital city is "among the top three cities in the United States for child prostitution." 2 The commercial sexual exploitation of children ("CSEC") has been, and continues to be, a major problem across Georgia, the United States, and the world. Although it is difficult to track the figures due to unreported offenses, estimates suggest between 300,000 and 800,000 children are sexually exploited in the

1. J. Gerald Harris, Atlanta: A Center of Sexual Exploitation?, THE at available 2009), 30, (July INDEX CHRISTIAN http://www.christianindex.org/5678.article (referencing a speech made by Mary Frances Bowley, President of Wellspring Living, a residential rehabilitative facility for sexually exploited girls).

2. Id.

178

John MarshallLaw Journal

[Vol, IV

United States each year.3 It is further estimated that "each month over 400 girls are commercially sexually exploited in Georgia," and the average age of entry-often forced entryinto prostitution is between the age of twelve and fourteen. In fact, the Federal Bureau of Investigation has identified its Atlanta field office as one of fourteen field offices "having the highest incidence of children used in prostitution."'

With such high numbers of sexually exploited children in the state, a system that addresses the needs of exploited youth and the underlying issues of CSEC cases is imperative. The problem with the way CSEC cases are currently handled is twofold. First, under current law, juveniles too young to consent legally to having sex can be prosecuted for prostitution.

Second, the initial intervention with a CSEC case is in a courtroom, with either a label of being delinquent' (based on a charge of prostitution) or being unruly' (based on a charge of 3. Exploiting Americans on American Soil: Domestic Trafficking Exposed: HearingBefore the Comm'n on Sec. & Cooperation in Eur., 109th at available (2005), 53 Cong., http://csce.gov/index.cfnFuseAction=ContentRecords.ViewDetail&Conten tRecordid=348&Region id=O&Issue id=0&ContentType=H,B&ContentRe [hereinafter cordType=H&CFID=49819380&CFTOKEN=28195428 Domestic Trafficking Exposed] (providing a transcript of the statement made

by Chris Swecker, Assistant Director of the FBI's Criminal Investigation Division, concerning the sexual exploitation of children in the United States).

4. Governor's Office for Children and Families, Pioneering Sex Trafficking Assessment Team to Support Victims of Child Prostitution in 2010), 25, (Jan. GEORGIA.GOV Georgia, http://www.georgia.gov/00/article/0,2086,113927404_113969896_15600499 8,00.html.

5. Domestic Trafficking Exposed, supra note 3, at 54.

6. O.C.G.A. ยง 16-6-9 (West 2010) (providing that a person commits the offense of prostitution by performing, offering to perform, or consenting to perform a sexual act for money or some other form of value).

7. "'Delinquent act' means: (A) An act designated a crime by the laws of this state, or by the laws of another state if the act occurred in that state, under federal laws, or by local ordinance, and the crime . . . is not a juvenile traffic offense. . . ." O.C.G.A.

ยง 15-11-2(6)(A) (West 2010).

8. "'Unruly child' means a child who: (A) While subject to compulsory school attendance is habitually and without justification truant from school; (B) Is habitually disobedient of the reasonable and lawful commands of his or her parent, guardian, or other custodian and is ungovernable; (C) Has committed an offense applicable only to a child; (D) Without just cause and

No. 1]

Time for Change

179

running away from home or loitering at night). In addition, the provisions addressing both delinquency and unruly cases are intermingled within the current juvenile code, causing much confusion.9 Because of the way the current juvenile code is written,"o CSEC cases are dealt with in an adversarial manner from the very beginning, regardless of the initial charge of the child.

This Comment proposes several changes to handle CSEC cases in a better manner. First, Georgia should adopt the Child Protection and Public Safety Act, originally introduced in the state Senate in 2009.11 Article 6 of the Child Protection and Public Safety Act creates the designation "Child in Need of Services" ("CHINS"),12 which provides the legal framework for processing cases of children determined to be in need of Second, in conjunction with that rehabilitative services. framework, Georgia should enact a "Safe Harbor" bill," without the consent of his or her parent or legal custodian deserts his or her home or place of abode; (E) Wanders or loiters about the streets of any city, or in or about any highway or any public place, between the hours of 12:00 Midnight and 5:00 A.M.; (F) Disobeys the terms of supervision contained in a court order which has been directed to such child, who has been adjudicated unruly; or (G) Patronizes any bar where alcoholic beverages are being sold, unaccompanied by such child's parents, guardian, or custodian, or possesses alcoholic beverages; and (H) In any of the foregoing, is in need of supervision, treatment, or rehabilitation; or (I) Has committed a delinquent act and is in need of supervision, but not of treatment or rehabilitation."

O.C.G.A. § 15-11-2(12) (West 2010).

9. See O.C.G.A. §§ 15-11-65 to -67 (West 2010) (providing the same timeframes and possible orders of disposition for unruly and delinquency cases); see also O.C.G.A. § 15-11-39(a)-(b) (West 2010) (mandating an adjudicatory hearing for unruly and delinquency cases within ten days if the child is detained and sixty days from the filing of the petition if the child is not in custody).

10. See O.C.G.A. §§ 15-11-65 to -67 (West 2010) (explaining the similar processes, and possible orders, for unruly and delinquency cases); see also O.C.G.A. § 15-11-39(a)-(b) (West 2010) (providing the same timeframes for adjudicatory hearings for unruly and delinquency cases).

11. S.B. 127, 151st Gen. Assem., 1st Reg. Sess. (Ga. 2011), available at http://www.legis.ga.gov/Legislation/20112012/110825.pdf.

12. Id.

13. "Safe Harbor" legislation varies from state to state; however, the legislation generally establishes that children below the age of consent cannot be charged with prostitution and should be provided rehabilitative

180

John MarshallLaw Journal

[Vol. IV

creating a rebuttable presumption that individuals below the age of eighteen charged with prostitution are victims and children in need of services.'4 This legislation should establish that: (1) a person under the age of eighteen who is charged with prostitution or solicitation of sodomy is a severely trafficked person under the federal Trafficking Victims Protection Act of 2000;11 (2) any case involving a person under the age of eighteen who is a severely trafficked person shall proceed under Article 6 of the Child Protection and Public Safety Act; and (3) these children shall receive services from Georgia's Governor's Office for Children and Families through Georgia Care Connection.16 In addition, the legislation should retain a criminal element giving discretion to the court for determining whether the rehabilitative process in Article 6 is futile. If the process is futile, then the case may proceed through the court process with a delinquency petition.

If Georgia legislators fail to change the procedures for dealing with commercially sexually exploited children soon, Georgia courts may be forced to resolve the issue. The recent Texas Supreme Court decision, In re B. W., provides such an example, holding that children under the age of fourteen cannot be prosecuted for prostitution because children below that age can never legally consent to sex.17 The enactment of safe harbor laws is a national movement, thus timely action could provide Georgia with substantial federal funding for child victims of sex trafficking to be used for shelters, rehabilitative services, and service provider training.1

services. See, e.g., N.Y. Fam. Ct. Act ยง 311.4(3) (McKinney 2010), amendedby 2010 N.Y. Sess. Laws ch. 58 (McKinney).

14. Id. 15. Victims of Trafficking and Violence Protection Act of 2000 ยง 103, 22 U.S.C. ยง 7102(8)(A) (2008).

16. See Governor's Office for Children and Families, Unprecedented Private-Public Collaboration to Support Victims of Child Prostitution in Georgia, GEORGIA.GOV (Jan. 29, 2009), http://www.georgia.gov/00/article/0,2086,113927404_113969896_15467959 6,00.html.

17. In re B.W., 313 S.W.3d 818, 826 (Tex. 2010).

18. Domestic Minor Sex Trafficking Deterrence and Victims Support Act of 2010, H.R. 5575, 111th Cong. (2010) (as referred to House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, July 26, 2010).

No. 1]

Time for Change

181

II. LEGAL FRAMEWORK This Part begins by taking a look at the current legal framework for juvenile offenders in Georgia. It then discusses how the legal framework would look if the Child Protection and Public Safety Act becomes law.

A. Current GeorgiaLaw Before expounding on suggested changes to the law, it is important to understand the current framework. In Georgia, the juvenile court has "exclusive original jurisdiction over juvenile matters and shall be the sole court" for actions concerning a child alleged to be delinquent or unruly. 9 A delinquent child is one "who has committed a delinquent act and is in need of treatment or rehabilitation."20 A delinquent act includes any act designated as a crime by federal law, state law, or local In addition, Georgia defines prostitution as ordinance.2 1 performing, offering to perform, or consenting to perform a sexual act, "including but not limited to sexual intercourse or sodomy, for money or other items of value."22 Because prostitution is prohibited under Georgia law, it constitutes a delinquent act. Therefore, a child who participates in a sex act for money or some other form of payment can be prosecuted for prostitution with the juvenile court having exclusive original jurisdiction.

By contrast, an unruly child is one who is truant, habitually disobedient to his or her guardian, leaves home without permission, loiters after midnight, goes to a bar, disobeys the terms of supervision in a court order, or commits another status offense. 23 A status offense is an act that would not be a crime if committed by an adult because the offense is based on the actor's age alone.24 In Georgia, many sexually exploited youth 19. O.C.G.A. § 15-11-28(a)(1)(A)-(B) (West 2010).

20. O.C.G.A. § 15-11-2(7) (West 2010).

21. O.C.G.A. § 15-11-2(6)(A) (West 2010). Juvenile traffic offenses and violations of court orders are not delinquent acts. O.C.G.A. § 15-11-2(6)(A)(C) (West 2010).

22. O.C.G.A. § 16-6-9 (West 2010).

23. O.C.G.A. § 15-11-2(12)(A)-(I) (West 2010).

24. O.C.G.A. § 15-11-2(11) (West 2010) ("Such offenses shall include, but are not limited to, truancy, running away from home, incorrigibility, and

182

John MarshallLaw Journal

[Vol. IV

are charged with underlying offenses such as running away from home or loitering after midnight, as opposed to prostitution. 25 Although these are status offenses, the process, the effect on the child, and the outcome are generally the same as delinquency actions because the two are intermingled in the current juvenile code.26 Under the current code, if there are reasonable grounds to believe a child committed a delinquency or unruly offense, law enforcement officers may take a child into custody.27 Once in custody, an informal detention hearing must be held within seventy-two hours.2 8 If a child is released at the detention hearing, a petition must be filed within thirty days to begin the prosecutorial process.29 If the child is not released from custody, the petition must be filed within seventy-two hours of the detention hearing. 0 Once the petition is filed, the court must set an adjudicatory hearing within sixty days if the child has been released and within ten days if the child has been detained."

If, at the adjudicatory hearing, "the court finds on proof beyond a reasonable doubt that the child committed the acts by reason of which he or she is alleged to be [either] delinquent or unruly, it shall proceed immediately[.]" 3 2 Otherwise, the court must hold a dispositional hearing within thirty days to determine "whether the child is in need of treatment, unruly behavior.").

25. Telephone Interview with Janice Barrocas, Policy Dir., "A Future. Not a Past." (Aug. 10, 2010) [hereinafter Barrocas Interview]. Under Georgia's Third Year Practice Act, the author interviewed, represented, and advocated on behalf of sexually exploited youth in the Fulton County Juvenile Court for the Georgia Public Defenders Standards Council's Metro Conflict Defenders Office. GEORGIA SUPREME COURT RULES Part XV (2011) (providing guidelines for third-year law students).

26. See O.C.G.A. §§ 15-11-65 to -67 (West 2010); see also O.C.G.A. § 15-11-39(a)-(b) (West 2010); see also supra text accompanying notes 9 & 10.

27. O.C.G.A. § 15-11-45(a)(3) (West 2010); O.C.G.A. § 15-11-45(b) (West 2010) ("The taking of a child into custody is not an arrest[.]").

28. O.C.G.A. § 15-11-49(c)(1)-(2) (West 2010).

29. O.C.G.A. § 15-11-49(b) (West 2010).

30. O.C.G.A. § 15-11-49(e) (West 2010).

31. O.C.G.A. § 15-11-39(a) (West 2010).

32. O.C.G.A. § 15-1 1-65(a) (West 2010).

No. 1]

Time for Change

183

rehabilitation, or supervision[.]"3 3 During the dispositional hearing, the court may order the child be placed on probation; 34 be placed in an institution, camp, or other facility;35 be committed to the Department of Juvenile Justice;3 6 pay restitution or a fine; 3 7 or perform community service." At this stage, only one difference between delinquency and unruly cases exists. For unruly cases, the court must find that placing the child on probation or placing the child in an institution, camp, or other facility is "not amenable" before it may commit an "unruly" child to the Department of Juvenile Justice.3 9 Aside from this one requirement for unruly cases, orders of disposition for unruly and delinquency cases are the same.40 Orders of disposition are generally enforceable for two years; however, a court may terminate its order earlier4 ' or extend its duration depending on the case.4 2 Regardless of the charge pursued, the current process for dealing with CSEC cases begins in the courtroom with an adversarial process, thus creating a negative environment and putting the child on the defensive. A change in the current process for dealing with CSEC cases is essential to ending the negative, defensive environment created by the current adversarial setting.

33. Id. 34. O.C.G.A. § 15-11-66(a)(2) (West 2010); O.C.G.A. § 15-11-67 2010).

35. O.C.G.A. § 15-11-66(a)(3) (West 2010); O.C.G.A. § 15-11-67 2010).

36. O.C.G.A. § 15-11-66(a)(4) (West 2010); O.C.G.A. § 15-11-67 2010).

37. O.C.G.A. § 15-11-66(a)(5) (West 2010); O.C.G.A. § 15-11-67 2010).

38. O.C.G.A. § 15-11-66(a)(6) (West 2010); O.C.G.A. § 15-11-67 2010).

39. O.C.G.A. § 15-11-67 (West 2010).

40. Compare O.C.G.A. § 15-11-66 (West 2010), with O.C.G.A. § 67 (West 2010).

41. O.C.G.A. § 15-11-70(c) (West 2010).

42. O.C.G.A. § 15-11-70(a) (West 2010).

(West (West (West (West (West

15-11-

184

John MarshallLaw Journal

[Vol. IV

B. The ChildProtection andPublic Safety Act The Child Protection and Public Safety Act ("the Act") proposes a complete revision of the Juvenile Code of Georgia.43 Barton Child Law and Policy Clinic summarizes the purpose of the Act as reorganizing the juvenile code for "ease of understanding and application, moderniz[ing] substantive provisions to reflect advances in research and practice, and bring[ing] Georgia into compliance with federal laws applicable to juvenile court proceedings."4 As previously mentioned, the provisions for dealing with unruly cases currently are intermingled among the provisions for delinquency or criminal violations, creating much confusion. 45 The Act solves this problem by reorganizing the Juvenile Code into twelve separate sections 46 or "articles" depending on the type of case at issue. 47 43. S.B. 127, 151st Gen. Assem., 1st Reg. Sess. (Ga. 2011), available at http://www.legis.ga.gov/Legislation/20112012/110825.pdf.

44. Barton Child Law and Policy Clinic, Summary of Senate Bill 292: The Child Protection and Public Safety Act, CHILDWELFARE.NET

(2009),

at available http://childwelfare.net/activities/legislative2009/SB292SummaryShort.pdf 45. See O.C.G.A. §§ 15-11-65 to -67 (West 2010); see also O.C.G.A. § 15-11-39(a)-(b) (West 2010); see also supra text accompanying notes 9 & 10.

46. To review each section of the Act, the legislature created a special process to discuss the juvenile code rewrite. The hearing for Article 6 of S.B. 292 took place on August 9, 2010; however, because it was the end of the legislative session, the bill needed to be reintroduced. Barrocas Interview, supra note 25. On February 23, 2011, Senator Bill Hamrick reintroduced the substance of S.B. 292, which has been named S.B. 127 for the 2011-2012 legislative session. Ga. Gen. Assem., S.B. 127, (March 14, http://www.legis.ga.gov/legislation/en2011), US/History.aspx?Legislation=33026.

47. Ga. S.B. 127. Article 1 of the bill contains the general provisions including definitions, while Article 2 covers juvenile court administration.

Articles 3 and 4 deal with deprivation and the termination of parental rights cases respectively. Article 5 creates a new set of provisions regarding children in foster care, while Article 6 creates CHINS, Child in Need of Services. Article 7 of the bill deals with delinquencies with Article 8 governing competency in delinquency cases. Article 9 simply renumbers parental notification provisions. Article 10 deals with access to hearings and records, and Article 11 provides the provisions for emancipation. Finally, Article 12 provides the Georgia Child Advocate for the Protection of Children Act.

No. 1]

Time for Change

185

Article 6 of the Act creates CHINS, "Child in Need of Services," and provides the framework for dealing with children labeled as unruly under current law.48 Under Article 6, "a complaint alleging a child is in need of services may be filed by a parent, guardian, or legal custodian, DFCS [Division of Family and Child Services], a school official, a law enforcement officer, a guardian ad litem, or a prosecuting attorney who has knowledge" of the allegations leading to the petition.4 9 Further, one of the previously mentioned individuals may file a complaint if he or she is informed by another that the child needs services and he or she believes the allegations to be true.so Upon filing the complaint, the intake officer assigned to the case arranges a multidisciplinary conference "to be attended by the child, the child's parent, guardian, or legal custodian, DFCS, and any other agency or public institution having legal responsibility or discretionary authority to supply services to the family[.]"" In addition to DFCS, counselors, mental health professionals, educational advocates, and other organizations will attend the multidisciplinary conference depending on the services that are needed and available in the community.5 2 This multidisciplinary conference is beneficial because it replaces the initial adversarial process that currently takes place with children considered to be unruly." However, if the intake officer believes that the multidisciplinary conference would be inappropriate or futile, then a CHINS petition must be filed within thirty days of this determination.54 On the other hand, if 48. Id. 49. Ga. S.B. 127 (see § 15-11-390(a) of the bill).

50. Id. 51. Ga. S.B. 127 (see § 15-11-391(a) of the bill).

52. Telephone Interview with Sharon Hill, Exec. Dir., Ga. Appleseed (Sept. 9, 2010). Ms. Hill is a former Associate Judge in Fulton County Juvenile Court and an advocate of the Child Protection and Public Safety Act. 53. Ga. S.B. 127 (see § 15-11-391 of the bill).

54. Ga. S.B. 127 (see §§ 15-11-401(b)(1)(A) of the bill). The intake officer makes this determination by screening the child and, if a parent or guardian files the complaint, considering any participation in, and compliance with, previous multidisciplinary conferences or informal family services plan agreements. Ga. S.B. 127 (see § 15-11-391(b)(1)-(2) of the bill). Then, if the multidisciplinary conference is determined to be futile and a CHINS petition is filed, an adjudicatory hearing must be held no later than

186

John MarshallLaw Journal

[Vol. IV

the intake officer does not find the process to be futile, then the multidisciplinary conference will take place."5 After the multidisciplinary conference, any member of the conference "may effect an informal family services plan agreement."5 6 This agreement shall identify the conduct causing harm to the child and describe the services necessary to fix the problem, while considering the availability of these services in the community and a plan for ensuring that these services will be received." In addition, the agreement shall describe all action to be taken by each person in the family, identify the DFCS caseworkers responsible for assuring implementation of the agreement, and establish an estimated time necessary to accomplish the goals set forth in the agreement." If the goals are not achieved within the time provided,5 9 then the CHINS petition shall be filed within thirty days if "there are reasonable grounds to believe that the child is still in need of services."60 The case then comes before the court for an adjudicatory hearing. If the goals are successfully obtained and the child is no longer in need of rehabilitative services, then no petition is filed. 1 Article 6 provides a viable, improved approach to the current adversarial system by focusing on the circumstances, needs, and rehabilitation of each individual child.

III. CURRENT TRENDS AND PROPOSED CHANGES

This Part addresses the current trends surrounding CSEC cases and the proposed changes to the process. This Part begins with an explanation of the neuroscientific evidence that suggests juvenile offenders are, in fact, less culpable than adult offenders. Attention is then focused on the problem of charging sixty days from the filing of the petition. Ga. S.B. 127 (see § 15-11401(b)(3) of the bill).

55. Ga. S.B. 127 (see § 15-11-391(a) of the bill).

56. Ga. S.B. 127 (see § 15-11-392(a) of the bill).

57. Ga. S.B. 127 (see § 15-11-392(b)(1)-(5) of the bill).

58. Id. 59. Ga. S.B. 127 (see § 15-11-392(e) of the bill) (noting that the court may extend this time for one additional period not exceeding six months).

60. Ga. S.B. 127 (see § 15-11-401(b)(1)(D) of the bill).

61. Ga. S.B. 127.

No. 1]

Time for Change

187

juveniles who are too young to consent to sex with an offense that includes consent as an element of the crime, looking at the recent Texas Supreme Court case, In re B. W 62 Next comes a discussion of the possibility of federal funding to be used for shelter and services for minor victims of sex trafficking as well as for training service providers. Finally, this Part focuses on the need for safe harbor legislation in Georgia.

A. Juvenile Offenders Are Less Culpable than Adult Offenders Recent technological advances have changed the manner in which neuroscientists study the juvenile brain, 63 explaining the need to modernize "substantive provisions to reflect advances in Through the use of magnetic research and practice."' resonance imaging ("MRI") and functional magnetic resonance imaging ("fMRI"), neuroscientists have concluded that the juvenile brain, once thought to be fully developed between the ages of eight and twelve, continues to develop until the early to mid-twenties.s More specifically, the prefrontal cortex of the frontal lobe continues to develop through adolescence. 6 This area of the brain controls functions such as judgment, selfcontrol, emotional regulation, reasoning, and impulse control.67 Academics suggest that these developments in understanding the teenage brain support continuing separate juvenile and adult justice systems and show "the proper perspective on the adjudication and treatment of young offenders."68 Although 62. In re B.W., 313 S.W.3d 818 (Tex. 2010).

63. See generally Michelle Haddad, Note, Catching Up: The Need for New York State to Amend Its Juvenile Offender Law to Reflect Psychiatric, Constitutionaland Normative National Trends over the Last Three Decades, 7 CARDOZO PUB. L. POL'Y & ETHICS J. 455, 476-79 (2009); see also 0.

Carter Snead, Neuroimaging and the "Complexity" of Capital Punishment, 82 N.Y.U. L. REV. 1265, 1273 (2007).

64. Barton Child Law and Policy Clinic, Summary of Senate Bill 292: The Child Protection and Public Safety Act, CHILDWELFARE.NET (2009), http://childwelfare.net/activities/legislative2009/SB292SummaryShort.pdf.

65. Haddad, supra note 63, at 477-78.

66. Id. 67. See id.; see also Johanna Cooper Jennings, Comment, Juvenile Justice, Sullivan, and Graham: How the Supreme Court's Decision Will Change the Neuroscience Debate, 2010 No. 6 DUKE L. & TECH. REV. 1, 16.

68. Terry A. Maroney, The False Promise ofAdolescent Brain Science in Juvenile Justice, 85 NoTRE DAME L. REv. 89, 91 (2009).

188

John MarshallLaw Journal

[Vol. IV

every case is unique, juveniles may be less blameworthy for committing the same criminal acts as adults because the juveniles' brains are still developing. 9 In addition, "youths' developmental plasticity makes them more likely to stop offending" if rehabilitative services are provided. 0 The United States Supreme Court has recognized the decreased culpability of juvenile offenders. In 2002, Justice Stevens stated in In re Stanford that "[n]euroscientific evidence of the last few years has revealed that adolescent brains are not fully developed, which often leads to erratic behaviors and thought processes in that age group."" Justice Brennan, in Stanford v. Kentucky,7 2 recognized that evidence shows adolescents to be "more vulnerable, more impulsive, and less self-disciplined than adults."73 He further noted that "youth crime .. . is not exclusively the offender's fault; offenses by the young represent a failure of family, school, and the social system, which share responsibility for the development of America's youth."7 4 In 2005, Justice Stevens' view prevailed when a majority of the United States Supreme Court recognized the differences between juvenile and adult criminal offenders in Roper v.

Simmons.75 The Court held that the death penalty could not be imposed on persons below the age of eighteen, 6 identifying three main reasons why juvenile offenders are less culpable than

69. Jennings, supra note 67, at 10; Roper v. Simmons, 543 U.S. 551, 570 (2005).

70. Maroney, supranote 68, at 91.

71. In re Stanford, 537 U.S. 968, 971 (2002) (Stevens, J., dissenting from denial of certiorari).

72. Stanford v. Kentucky, 492 U.S. 361, 382 (1989) (Brennan, J., dissenting) (asserting that sentencing sixteen and seventeen year olds to death violated the Eighth Amendment's Cruel and Unusual Punishment Clause), abrogatedby Roper v. Simmons, 543 U.S. 551 (2005).

73. Id. at 395 (quoting TWENTIETH CENTURY FuND TASK FORCE ON SENTENCING POLICY TOWARD YOUTH OFFENDER, CONFRONTING YOUTH

CRIME 7 (1978)).

74. Id. at 395-96 (quoting TWENTIETH CENTURY FUND TASK FORCE ON SENTENCING POLICY TOWARD YOUTH OFFENDER, CONFRONTING YOUTH

CRIME 7 (1978)).

75. 543 U.S. 551 (2005).

76. Id. at 578.

No. 1]

Time for Change

189

adult offenders.77 First, the Court noted that a "lack of maturity and an underdeveloped sense of responsibility" are more common and understandable among juveniles than adults."

Second, the Court recognized "that juveniles are more vulnerable or susceptible to negative influences and outside Third, the Court pressures, including peer pressure."7 9 explained that a juvenile's character is not as well formed and his or her personality traits are more likely to change because "impetuousness and recklessness" tend to subside as one The Court also noted that there is a greater matures.o likelihood that the character deficiencies of a juvenile might be reformed as opposed to the character deficiencies of an adult."

For these reasons, the Court concluded that "[t]he susceptibility of juveniles to immature and irresponsible behavior means 'their irresponsible conduct is not as morally reprehensible as that of an adult."' 82 Due to their vulnerability and lack of control over their surroundings, juveniles should "be forgiven for failing to escape negative influences in their whole environment." 83 In addition, since juveniles are still struggling to define their identity, even a heinous crime committed by a juvenile is not evidence of an "irretrievably depraved character." 84 Based on the abovereferenced studies, in addition to the reasoning expressed by the Court in Roper v. Simmons regarding the decreased culpability of juvenile offenders, juveniles involved in prostitution should be treated as victims who are in need of rehabilitative services.

77. Id. at 569.

78. Id. (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).

79. Id. (citing Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)).

80. Id. at 570 (quoting Johnson, 509 U.S. at 368).

8 1. Id. 82. Id. (quoting Thompson v. Oklahoma, 487 U.S. 815, 835 (1988) (plurality opinion)).

83. Id.

84. Id. 85. See supra notes 63-84.

190

John MarshallLaw Journal

[Vol. IV

Because juveniles lack the maturity to make responsible decisions, readily succumb to outside influences, and are more responsive to rehabilitation, juvenile offenders should not be prosecuted as prostitutes 86 -rather they should be provided rehabilitative services.

B. Children Cannot Consent to Sex In addition to the decreased culpability of juveniles, it is problematic to treat a person who legally cannot consent to sex as a criminal when an element of the underlying crime depends on consent. Applying this reasoning, in In re B. W, the Texas Supreme Court recently held that children under the age of fourteen cannot be prosecuted for prostitution because "the Legislature cannot have intended to apply the offense of prostitution to children under fourteen because children below that age cannot legally consent to sex. "87 In reaching its decision, the Texas Supreme Court reviewed and analyzed the prostitution statute contained in the Texas Penal Code." The court looked at the legislature's intent when adopting the Penal Code into the Texas Family Code, which governs all cases involving "delinquent conduct" of children between ten and seventeen years of age.89 The Texas Family Code defines delinquent conduct as "conduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail."9 o Because prostitution is an offense punishable by confinement in jail, it falls within the Family Code's definition of delinquent conduct. 91 Under Texas law, a person commits the act of

86. Roper, 543 U.S. at 569-70.

87. In re B.W., 313 S.W.3d 818, 820 (Tex. 2010) (holding that a thirteenyear-old who waived over an undercover police officer and offered to engage in oral sex with him for twenty dollars cannot be prosecuted for prostitution because she lacks the capacity to consent meaningfully to sexual acts).

88. Id. at 819-23.

89. Id. at 819-20; see TEX. FAM. CODE ANN. ยง 51.04(a) (West 2011) (providing jurisdiction over proceedings in all cases involving delinquent conduct); see also TEX. FAM. CODE ANN. ยง 51.02(2)(A) (West 2011) (defining a child as a person ten years of age or older and under the age of seventeen).

90. TEX. FAM. CODE ANN. ยง 51.03(a)(1) (West 2011).

91. In re B.W., 313 S.W.3d at 820.

No. 1]

Time for Change

191

prostitution if he or she "knowingly offers to engage, agrees to engage, or engages in sexual conduct for a fee." 92 "A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist."93 The Texas Supreme Court noted that an underage child lacks the legal capacity to consent to sex, a proposition that derives from common law and is well established.94 The court also noted that all fifty states have increased the age of consent by statute since the time of Blackstone, and that Texas differentiates between sex with younger children and sex with older teens because of the lack of "capacity to appreciate the significance or the consequences of agreeing to sex."' In response to the court's ruling, the Texas legislature made it a crime to have sex intentionally or knowingly with anyone under the age of seventeen. 9 6 Although there are rare exceptions if the child is at least fourteen years of age,97 a child under the age of fourteen can never legally consent to sex. 98 In addition, the court noted that the Texas legislature has provided further protection against the sexual exploitation of children by enacting harsher penalties for sexual crimes involving children.99 Compelling a child under the age of 92. Id. (citing TEX. PENAL CODE ANN. § 43.02(a)(1) (West 2011)).

93. TEX. PENAL CODE ANN. § 6.03(b) (West 2011); In re B.W., 313 S.W.3d at 820.

94. In re B.W., 313 S.W.3d at 820; see State v. Hazelton, 915 A.2d 224, 233-34 (Vt. 2006) ("The rule that an underage child cannot consent to sex need not derive from statute, as suggested by the dissent, but is a part of common law."); Payne v. Commonwealth, 623 S.W.2d 867, 875 (Ky. 1981) ("The conclusive presumption of inability to consent is not of recent vintage.

It has been with us at least from the reign of Queen Elizabeth of England (1558-1603).").

95. In re B.W., 313 S.W.3d at 820.

96. TEX. PENAL CODE ANN. § 22.011 (West 2011).

97. TEX. PENAL CODE ANN. § 22.011(e) (West 2011).

98. See May v. State, 919 S.W.2d 422, 424 (Tex. Crim. App. 1996) (holding that a person under the age of fourteen cannot legally consent to sex).

99. See TEX. PENAL CODE ANN. § 43.05 (West 2011) (making it a felony to cause a person below the age of eighteen to prostitute by any means); TEX. PENAL CODE ANN. § 43.25 (West 2011) (imposing harsher penalties for

192

John MarshallLaw Journal

[Vol. IV

eighteen to engage in prostitution is a second-degree felony, and its punishment is equivalent to that of using force, threat, or fraud to compel an adult into prostitution.'00 Compelling an adult to prostitute without force, threat, or fraud is a 0 misdemeanor.o' Similarly, the sexual assault of a child under the age of fourteen is considered aggravated sexual assault and carries the same penalties as the rape of an adult involving serious bodily injury or other aggravating circumstances.102 The court determined that, in passing these statutes, among others, 03 "the legislature [] expressed both the extreme importance of protecting children from sexual exploitation, and the awareness that children are more vulnerable to exploitation by others even in the absence of explicit threats or fraud."'"

For the reasons expressed above, the Texas Supreme Court could not reconcile the legislature's acknowledgment that children are especially vulnerable and need more laws to protect them against sexual exploitation with an intent to find that persons under the age of fourteen have the capacity to, and can in fact, understand the consequences of their conduct when participating in prostitution.'"0 Because of the special laws that the legislature passed in response to its recognition of the special vulnerability of children, the court held that the legislature could not have intended to consider children under the age of fourteen delinquents or criminals based on their involvement with their own sexual exploitation.'0 6 "Because a thirteen-year-old child cannot consent to sex as a matter of

inducing a child under fourteen to engage in sexual conduct or performance); see also TEX. PENAL CODE ANN. § 22.021 (West 2011) (making sexual assault of a person below the age of fourteen aggravated sexual assault).

100. TEX. PENAL CODE ANN. § 43.05 (West 2011).

101. See TEX. PENAL CODE ANN. § 43.03 (West 2011).

102. TEX. PENAL CODEANN. §§ 22.011, .021 (West 2011).

103. TEX. PENAL CODE ANN. § 43.25(e) (West 2011) (imposing harsher penalties for inducing a child under fourteen to engage in sexual conduct or performance); TEX. PENAL CODE ANN. § 20A.02 (West 2011) (imposing harsher penalties for trafficking a child under eighteen for purposes of compelling prostitution or sexual performance).

104. In re B.W., 313 S.W.3d 818, 821 (Tex. 2010).

105. Id. at 821-22.

106. Id. at 822.

No. 1]

Time for Change

193

law," the court held that the juvenile defendant in that case "could not be prosecuted as a prostitute." 107 Georgia is in a similar position to Texas prior to In re B. W As discussed earlier, prostitution is prohibited under state law,'0 and a child who participates in a sex act for money or some other form of payment can be prosecuted for prostitution with the juvenile court having exclusive original jurisdiction.' 09 At the same time, however, the Georgia legislature has made it a felony to have sex with any person under the age of sixteen who The General Assembly has is not that person's legal spouse.' also enacted harsher penalties for sex crimes that involve children.' Pimping or pandering an adult is not a felony; they are high and aggravated misdemeanors.1 2 In contrast, pimping and pandering a minor are both automatic felonies carrying five to twenty year penalties irrespective of whether force or A conviction of sexual assault is coercion is present."' generally "punished by imprisonment for not less than one nor more than twenty-five years or by a fine not to exceed $100,000, or both."ll 4 However, if a person is convicted of sexual assault and the victim is a person below the age of sixteen, then the offender "shall be punished by imprisonment for not less than twenty-five nor more than fifty years.""'

107. Id. 108. O.C.G.A. § 16-6-9 (West 2010).

109. O.C.G.A. § 15-11-28(a)(1)(A) (West 2010) (designating the juvenile court as having exclusive original jurisdiction over matters involving children alleged to be delinquent); O.C.G.A. § 15-11-2(6)(A) (West 2010) (defining a delinquent act as one that is designated a crime by state law, federal law, or local ordinance).

I10. O.C.G.A. § 16-6-3(a) (West 2010). Note, however, section (c) states "[i]f the victim is at least 14 but less than 16 years of age and the person convicted of statutory rape is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor." O.C.G.A. § 16-6-3(c) (West 2010).

111. See O.C.G.A. § 16-6-13(b) (West 2010) (making pimping a minor, pandering a minor, keeping a place of prostitution involving a minor, and soliciting a minor all felonies with five to twenty year sentences).

112. O.C.G.A. § 16-6-13(a) (West 2010).

113. O.C.G.A. § 16-6-13(b) (West 2010).

114. O.C.G.A. § 16-6-5.1(f) (West 2010).

115. O.C.G.A. § 16-6-5.1(f)(1) (West 2010).

194

John MarshallLaw Journal

[Vol. IV

These laws differentiating between sex acts and crimes committed against adults and those committed against children display the General Assembly's belief that children "lack the capacity to appreciate the significance ... of agreeing to sex."l16 Similar to the reasoning in In re B. W, if the Supreme Court of Georgia hears a case challenging the conviction of a juvenile for prostitution, it is not beyond the realm of possibility that the Court would find that a person under the age of consent cannot be prosecuted for prostitution. The special laws passed by the General Assembly in response to its recognition of the vulnerability of children exemplifies it could not have intended to consider children delinquents or criminals based on their involvement in their own sexual exploitation. If Georgia legislators and citizens do not garner more support and take action to address the procedures for handling CSEC cases, then the decision, like what happened in Texas, may be determined by the judiciary.mI C. FederalFunding Although some might advocate waiting for the Court to determine whether a minor too young to agree to sex can consent to and be prosecuted for prostitution, acting quickly will prove beneficial in fighting the problem of sexual exploitation of children in Georgia. United States Representative Carolyn Maloney of New York's Fourteenth District introduced the Domestic Minor Sex Trafficking Deterrence and Victims Support Act of 2010 in the United States House of Representatives on June 23, 2010.118 This bill would authorize the Assistant Attorney General for the Office of Justice Programs of the Department of Justice to award one-year block grants of $2,000,000 to $2,500,000 for six political subdivisions that have "serious" sex trafficking problems and are in compliance with the Domestic Minor Sex Trafficking Deterrence and Victims Support Act."' To be eligible for the grants, state or local governments must be in accordance with all parts of the legislation, including treating minors involved in 116. In re B.W., 313 S.W.3d 818, 820 (Tex. 2010).

117. Id. 118. Domestic Minor Sex Trafficking Deterrence and Victims Support Act of 2010, H.R. 5575, 111th Cong. (2010).

119. Id.

No. 1]

Time for Change

195

sex trafficking as victims rather than delinquents. 120 States must adopt laws that establish the presumption that a child under eighteen charged with prostitution is a victim of sex trafficking, consider the child a victim, avoid charging the child with prostitution, and strengthen criminal provisions prohibiting the

purchase of sex acts from minors. 12 1 Although the legislation did not become law before the end of the 111th Congress, progress has been made.12 2 If the Domestic Minor Sex Trafficking Deterrence and Victims Support Act is passed and signed into law, this should pave the way for a bill that accomplishes these requirements of federal legislation, similar to the Safe Harbor for Exploited Children Act in New York, discussed below.123 This would then make Georgia eligible for the federal grants referenced in the Domestic Minor Sex Trafficking Deterrence and Victims Support Act.124 D. Safe HarborLegislation in Georgia Although the passage of the Child Protection and Public Safety Act ("the Act") will accomplish the goal of changing the way CSEC cases are handled in Georgia with regard to juveniles initially charged with status offenses, safe harbor legislation is needed to address the problems surrounding the procedures for juveniles charged with prostitution. About onehalf of the cases involving child sexual exploitation will fall directly under the CHINS definition provided in Article 6 because the children are charged with running away from home, curfew violations, or other status offenses.' 25 With regard to the other half of sexually exploited children, those actually charged 120. Id. 121. Id.

122. The Senate companion bill passed both the United States Senate and House of Representatives. This bill advocates changes to the National Crime Information Center and block grants to be used to provide shelter and services to areas with "significant" sex trafficking problems, among other things. Domestic Minor Sex Trafficking Deterrence and Victims Support Act of 2010, S. 1275, 111th Cong. (2010).

123. See N.Y. FAM. CT. ACT ยง 311.4(3) (McKinney 2010), amended by 2010 N.Y. Sess. Laws ch. 58 (McKinney).

124. Domestic Minor Sex Trafficking Deterrence and Victims Support Act of 2010, H.R. 5575, 111th Cong. (2010).

125. Barrocas Interview, supra note 25.

196

John MarshallLaw Journal

[Vol. IV

with prostitution, there is a need for implementation of safe harbor legislation. Although similar bills have been proposed in the past, they have not been successful.12 6 Hopefully the passing and implementation of CHINS, providing a clear legal framework for dealing with children that the court determines are in need of services, will ease much of the opposition.

According to the Polaris Project, 127 an anti-trafficking organization, the basic objectives of safe harbor laws are to "remove minor victims of commercial sexual exploitation from the jurisdiction of the criminal justice and juvenile delinquency systems" and "protect these children and provide them with specialized services, in recognition of their status as victims of crime and of the unique trauma that child victims of sex trafficking endure."1 28 In New York, the Safe Harbor for Exploited Children Act creates the presumption that a person under eighteen years of age who is charged with prostitution is a severely trafficked person under the Trafficking Victims Protection Act of 2000.129 By motion of the accused, without the consent of the agency or authority responsible for bringing the petition, a petition alleging that a person below the age of eighteen committed the offense of prostitution must be replaced 126. See S.B. 304, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2009); see also H.B. 1256, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2009).

127. The Polaris Project is an anti-trafficking organization in the United States and Japan that focuses on international and domestic trafficking, including many cases of child prostitution. The organization's approach "includes conducting direct outreach and victim identification, providing social services and transitional housing to victims, operating the National Human Trafficking Resource Center (NHTRC) serving as the central national hotline on human trafficking, advocating for stronger state and federal anti-trafficking legislation, and engaging community members in local and national grassroots efforts." NATIONAL HUMAN TRAFFICKING http://old.nhtrc.polarisproject.org/about-us/polarisCENTER, RESOURCE

project.html (last visited Mar. 17, 2011).

128. POLARIS PROJECT, OVERVIEW OF STATE LEGISLATIVE POLICY TO ADDRESS THE COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN - STATE

"SAFE

HARBOR"

LAWS

(2010),

available

at

http://www.polarisproject.org/storage/documents/policy_documents/model% 201aws/model%20safe%20harbor%'/2Olaw%20overview%20final-1.pdf (last visited Apr. 1, 2011) [hereinafter POLARIS PROJECT).

129. N.Y. FAM. CT. ACT ยง 311.4(3) (McKinney 2010), amended by 2010 N.Y. Sess. Laws ch. 58 (McKinney); Victims of Trafficking and Violence Protection Act of 2000 ยง 103, 22 U.S.C. ยง 7102(8)(A) (2008).

No. 1]1

Time for Change

197

by a "Person in Need of Supervision" petition ("PINS"), which A alleges the child is in need of rehabilitative services.' person falls within the Trafficking Victims Protection Act's definition of a "sexually exploited child" if she is under the age of eighteen and has been subject to sexual exploitation because she engages, or offers to engage, in prostitution.1 31 The Trafficking Victims Protection Act further provides that each local service district must have a plan and safe house available to provide the necessary services for sexually exploited youth.'32 Finally, the Trafficking Victims Protection Act describes the plan required of each local service district and the law enforcement training the district shall supply.3 3 Importantly, the Trafficking Victims Protections Act does not completely decriminalize prostitution for children.'3 4 Although it presumes a child under the age of eighteen is a person in need of supervision, it leaves the court with some discretion.' The court may proceed with a juvenile delinquency petition if it finds that the child has previously been adjudicated as a juvenile delinquent for an act of prostitution or "expresses a current unwillingness to cooperate with specialized services for sexually exploited youth .. . "136 Fortunately, Georgia has already made strides placing it ahead of where New York was before it enacted the Safe Harbor for Exploited Children Act. First, in addition to the objectives for safe harbor laws, the Polaris Project also recommends that legislatures look to "amend state statutes 130. N.Y. FAM. CT. ACT ยง 311.4(3) (McKinney 2010), amended by 2010 N.Y. Sess. Laws ch. 58 (McKinney).

131. N.Y. Soc. SERV. LAW ยง 447-a(1)(b) (McKinney 2010), amended by 2010 N.Y. Sess. Laws ch. 58 (McKinney).

132. N.Y. Soc. SERV. LAW ยง 447-b (McKinney 2010), amended by 2010 N.Y. Sess. Laws ch. 58 (McKinney).

133. N.Y. Soc. SERV. LAW ยง 447-b(3) (McKinney 2010), amended by 2010 N.Y. Sess. Laws ch. 58 (McKinney).

134. N.Y. FAM. CT. ACT ยง 311.4(3) (McKinney 2010), amended by 2010 N.Y. Sess. Laws ch. 58 (McKinney) (providing that it is in the court's discretion to continue with a delinquency petition if the respondent has previously been adjudicated as a juvenile delinquent for a prostitution offense or expresses an unwillingness to cooperate with services provided to sexually exploited youth).

135. Id.

136. Id.

198

John MarshallLaw Journal

[Vol. IV

prohibiting sex trafficking of children or pimping and pandering of children, to ensure that stiff penalties apply and that force or coercion is not a required element of the crime."'" Georgia has amended the statutes prohibiting the pimping and pandering of children to make such conduct a felony punishable by a minimum of five years regardless of whether force or coercion

is present.138 Second, the Polaris Project also recommends that legislatures "prevent [the] commercial sexual exploitation of children through training of law enforcement officers and other state officials and educating the general public about its dangers."139 Georgia already has organizations and campaigns aimed at training and educating law enforcement, state officials, and the general public. 14 0 In 2005, "Hidden in Plain View," a comprehensive study of the commercial sexual exploitation of girls in Atlanta was published. 14 1 In response, then Mayor Shirley Franklin launched the "Dear John" awareness campaign in 2006 to educate the public of the "Hidden in Plain View" results.14 2 In 2008, the Juvenile Justice Fund, along with the Atlanta Women's Foundation, launched the campaign, "A Future. Not A Past.," which was the "first coordinated statewide effort to raise awareness and seek comprehensive policy change to stop the prostitution of children in Georgia." 43 "A Future.

Not A Past." began lobbying legislators, raising funds, and The holding training sessions throughout Georgia.14 4 organization has created a "toolkit and action guide" that has 137. POLARIS PROJECT, supra note 128.

138. O.C.G.A. ยง 16-6-13(b) (West 2010).

139. POLARIS PROJECT, supra note 128.

140. See A FUTURE. NOT A PAST., TOOLKIT AND ACTION GUIDE TO STOP THE PROSTITUTION OF OUR NATION'S CHILDREN 7 (Whitman Publ'g 2010) [hereinafter TOOLKIT].

141. ALEXANDRA PRIEBE & CRISTEN SUHR, HIDDEN IN PLAIN VIEW: THE COMMERCIAL SEXUAL EXPLOITATION OF GIRLs IN ATLANTA (2005),

available

at

http://www.atlantaga.gov/clientresources/mayorsoffice/womensagenda/hidd

eninplainview.pdf.

142. Dear John Campaign, ATLANTAGA.GOV, http://www.atlantaga.gov/mayor/dearjohn_111006.aspx (last visited Mar. 18, 2011).

143. TOOLKIT, supra note 140.

144. Id.

Time for Change

No. 1]

199

been provided to educate officials and service providers.14 5 In addition to the training and legislative changes so far, Georgia now has three rehabilitative homes available for child victims of

sexual exploitation.14 6 Because Georgia has already laid a foundation for improving the process for dealing with CSEC cases, the safe harbor legislation should: 1. Establish that a person under the age of eighteen who is charged with prostitution or solicitation of sodomy is a severely trafficked person under the federal Trafficking Victims Protection Act of 2000.

2. Establish that any case involving a person under the age of eighteen who is a severely trafficked person shall proceed under Article 6 of the Child Protection and Public Safety Act-CHINS.'4 7 3. Establish that these children shall receive services from Georgia's Governor's Office for Children and Families through Georgia Care Connection.148 4. Establish that the court may proceed with a delinquency petition if the court determines: a. The child has previously been adjudicated for a prostitution offense;

145.

Id.

146. See

Angela's

House,

JUVENILE

JUSTICE

FUND,

(last http://www.juvenilejusticefund.org/programs/cease/angelashouse.aspx visited Mar. 18, 2011); WELLSPRING LIVING, http://www.wellspringliving.org/ (last visited Mar. 18, 2011); LIVING WATER FOR GIRLS, http://www.livingwaterforgirls.org/ (last visited Mar. 18, 2011).

147. See supra Part II.B. 148. Georgia's Governor's Office for Children and Families created the first statewide response to child sex trafficking victims in the United States.

First on the agenda was to establish the Georgia Care Connection office, "designed to connect victims to essential services and support." Georgia Care Connection is a one-stop shop for any child identified as possibly being sexually exploited. See Governor's Office for Children and Families, Unprecedented Private-Public Collaboration to Support Victims of Child Prostitution

in

Georgia,

GEORGIA.GOV

(Dec.

29,

2009),

http://www.georgia.gov/00/article/0,2086,113927404_113969896_15467959 6,00.html.

200

John MarshallLaw Journal

[Vol. IV

b. The child is unwilling to participate in services ordered by the court; or c. Proceeding under CHINS would be futile.

The passage of the Act, and more specifically Article 6, will provide a clear legal framework for dealing with children in need of services. Article 6 will also provide a legal framework for Georgia to provide services and rehabilitation to child prostitutes without going through an adversarial court process.

The implementation of safe harbor legislation will provide the court with the necessary discretion to proceed under CHINS, but will leave prosecution as a possible option when the court determines the process outlined in Article 6 is inappropriate.

Hopefully, the combination of these pieces of legislation will accomplish the goal of providing rehabilitative services to child prostitutes so they can become productive and successful members of society.

IV. CONCLUSION

The commercial sexual exploitation of children is a major problem in Georgia and across the nation. The Georgia General Assembly should pass the Child Protection and Public Safety Act to establish a legal framework addressing youth in need of therapeutic and rehabilitative services-without going through an adversarial courtroom procedure. The passage of this bill will pave the way for legislation creating a presumption that children who lack the capacity to consent to sex should be treated as victims. In addition to establishing that commercially sexually exploited youth are victims, the legislation should provide for rehabilitative services for the children. This new legislation, similar to the Safe Harbor for Exploited Children Act in New York, will establish that sexually exploited youth are children in need of services. This is a national movement that could provide Georgia the possibility of substantial federal funding to be used for shelter and services for minor victims of sex trafficking as well as for training service providers. But, in order to be eligible, Georgia must "treat minor victims of sex trafficking as crime victims rather than as criminal defendants

No. 1]

Time for Change

201

or juvenile delinquents."' 4 9 Georgia must act now with the passage of the Child Protection and Public Safety Act, coupled with appropriate safe harbor legislation, so that the next steps can be taken toward the fight against child prostitution in Georgia.

K. Michael Baker *

149. Domestic Minor Sex Trafficking Deterrence and Victims Support Act of 2010, H.R. 5575, 111th Cong. (2010). * J.D., Atlanta's John Marshall Law School (2011); B.A., Journalism and Mass Communications, University of South Carolina (2008). First I would like to thank Mr. Timothy Spruell. Without Mr. Spruell's insight and guidance during my internship in the Fulton County Juvenile Court I might never have explored this issue. I would also like to thank Kristi Barbre, Richard Bentley, and the rest of the Journalstaff for their thorough edits and advice throughout this process. Finally I would like to thank my family and friends for their continued support.

GEORGIA DELIVERS THE PROMISE OF SELF-DETERMINATION: A TEMPLATE FOR MEDIATING CASES IN THE PRESENCE OF DOMESTIC VIOLENCE 204

I.

INTRODUCTION

II.

WHAT IS MEDIATION?

III.

UNDERSTANDING THE COMPLEXITIES OF DOMESTIC VIOLENCE ...... 208

IV.

THE OVERLAP OF MANDATORY MEDIATION AND DOMESTIC VIOLENCE .

A. B. C. V.

............................................. . . .. .. .. .. .. . .. .. .. .. .. . .. .. .. . .

.. . . . . .

..................................................

. 206

213

Power to Control the ProcessandAcquiring 213 ..............................

Self-Determination The Confinement of Mediation Versus the Courtroom............ 215 ..... 218 BargainingPower in an Abusive Relationship......

GEORGIA: A TEMPLATE FOR MEDIATING CASES IN THE PRESENCE OF 220 .....................................

DOMESTIC VIOLENCE...

..... 222 .........................

Mediator Training ........ 225 ...................

The Screening Process 1. PhaseOne: Initial Screening ofAll Domestic Relations 225 Cases....................................

2. Phase Two: FurtherScreening Where There Is an .......... 226 ........

IndicationofDomestic Violence 3. Phase Three: Referral to Mediation if Domestic Violence ........ 228 .........................

Is Alleged. ........ 228 C. Georgia'sAdditional Safeguards ............

A. B.

VI.

CONCLUSION

................................................

232

204

John MarshallLaw Journal

I.

[Vol. IV

INTRODUCTION

"Domestic violence is one of the most chronically underreported crimes."' "Only approximately one-quarter of all physical assaults, one-fifth of all rapes, and one-half of all stalkings perpetuated against females by intimate partners are reported to the police." 2 Estimates suggest "[o]ne in every four women will experience domestic violence in her lifetime."'

Each year, among women eighteen and older, nearly 5.3 million are victims of intimate partner abuse, resulting in nearly 1,300 deaths and 2 million injuries.'

While men are occasionally victims of domestic violence, "[n]inety to ninety-five percent of domestic abuse victims are women and women are ten times more likely to be abused by an intimate partner than are men."' Intimate partner violence also permeates dating relationships of young women, with estimates that one-third of females under the age of twenty will suffer dating violence.6 Although such statistics are alarming on their own, consider the following situation. A woman is being forced to sit down and mediate a divorce with a man whom she truly fears. The man emotionally and physically abuses her through intimidation and control. No one in the room other than the two of them 1. NAT'L COAL. AGAINST DOMESTIC VIOLENCE, DOMESTIC VIOLENCE at available 1, FACTS

http://www.ncadv.org/files/DomesticViolenceFactSheet(National).pdf visited Mar.16, 2011).

2. Id. at 2.

3. Id. at 1.

(last

4. NAT'L CTR. FOR INJURY & PREVENTION CONTROL, CTRS. FOR DISEASE CONTROL AND PREVENTION, DEP'T OF HEALTH & HUMAN SERVS., COSTS OF INTIMATE PARTNER VIOLENCE AGAINST WOMEN IN THE UNITED STATES 25

(2003), available at http://www.cdc.gov/violenceprevention/pdf/IPVBooka.pdf ("Of [those] injuries, more than 555,000 require medical attention, and more than 145,000 are serious enough to warrant hospitalization for one or more nights.").

5. Nancy Ver Steegh, Yes, No, and Maybe: Informed Decision Making About Divorce Mediation in the Presence of Domestic Violence, 9 WM. & MARY J. WOMEN & L. 145, 149 (2003).

6. Id. 7. The idea for this hypothetical stems from Kerry Loomis' Comment.

See infra note 37.

No. 1] GeorgiaDelivers the Promise ofSelf-Determination 205 knows this to be the case. The man is her husband and he wants to maintain a relationship with their children after their divorce proceedings become final. As they discuss the division of their possessions and the custody of their children, she finds herself agreeing to everything he wants. She keeps thinking, "What choice do I have?" If she leaves the mediation, the mediator will tell the judge, and her husband will beat her again for her attempts to betray his control. She could stay and refuse to allow him to see the kids, but then he will beat her again. She can cry foul, suggest the mediator is incompetent, and confess she had been abused, but she is scared that he will beat her again. She wonders, "What did the mediator mean when he said this was to be a process that we controlled?" She has not controlled anything in her life for the past several years, and the mediation on this day is no exception. Always willing to give him the benefit of the doubt, she believes that her husband ultimately is a good man and means well.'

Many states mandate mediation in certain types of cases.

Mediation allows parties to settle out of court by offering opposing parties equal bargaining power and financial capability.' Furthermore, it allows the judiciary to free up courtrooms, judges, staff, and funds for other projects."o Despite its increasing popularity, mandating mediation for cases arising out of various family-law related claims is not always proper." Specifically, cases involving litigants with a history of domestic violence, or allegations of domestic violence,12 should 8. Mediating cases in the presence of domestic violence can arise in almost any type of legal proceeding. For the purposes of this Comment, divorce and custody proceedings will be used for analysis. However, it is important to note that the arguments in this Comment apply with equal weight to any type of case. While the arguments and analysis found within this Comment apply regardless of the gender of either party, for the sake of uniformity and clarity, this Comment is structured upon the woman being the victim and the man the abuser.

9. Alison E. Gerencser, Family Mediation: Screeningfor Domestic Abuse, 23 FLA. ST. U. L. REv. 43, 50 (1995).

10. Id. at 49.

11. Ver Steegh, supranote 5, at 147.

12. This Comment focuses on cases in the civil context and does not address domestic violence from its criminal aspect. Someone accused of domestic violence is innocent until proved otherwise in a criminal proceeding. All references to domestic violence in this Comment are meant

206

John MarshallLaw Journal

[Vol. IV

only be referred to, and allowed to proceed with, mediation if proper safeguards are instituted. Unfortunately, some states that require mandatory mediation have not taken steps to ensure that such safeguards are in place.

The debate over the appropriateness of mediating cases where domestic violence is present is still unsettled. Absent nationally adopted standards, each jurisdiction must institute measures to ensure the safety of domestic violence victims forced to mediate their cases. This Comment demonstrates why those states, jurisdictions, and courts that mandate mediation should consider the steps and safeguards promulgated in Georgia as a template for ensuring a process that does not compromise the safety of the abused mediating party.

Part II discusses the process of mediation, while Part III discusses the complexities and effects of domestic violence.

Part IV addresses the overlap of these two concepts, along with the various issues and debates arising when domestic violence is present during mediation. Part V explains Georgia's effective solution to mandated mediation for cases involving domestic violence and highlights various practices around the country that have been criticized as harmful to parties in mediation.

Finally, Part VI concludes that absent a set of uniform guidelines to help courts deal with mediation in the presence of domestic violence, jurisdictions from around the country should look to Georgia as a template for implementing correct procedures.

II.

WHAT IS MEDIATION?

Mediation is a form of alternative dispute resolution ("ADR"). ADR refers to any method other than litigation for resolution of disputes." In mediation, a third-party neutral facilitates settlement negotiations between parties.14 However, the mediator lacks any decision-making ability, and any agreement set forth at the end of a mediation session is a result to refer to allegations of domestic violence and not convictions for crimes of domestic violence.

13. DOUGLAS H. YARN & GREGORY TODD JONES, GEORGIA ALTERNATIVE DISPUTE RESOLUTION: PRACTICE AND PROCEDURE IN GEORGIA 3 (Thomson West eds., 3d ed. 2006).

14. Id. at 138.

No. 1] GeorgiaDelivers the Promise of Self-Determination 207 of the determination of the parties." The mediator focuses the parties' attention on their needs and interests and away from the tendency to assert rights and positions. 16 Although the goals of mediation-"justice and fairness in the resolution of disputes"-are ultimately the same as the goals of our court system, mediation offers something that the parties may not be able to find in a courtroom. 7 One objective of mediation is that, through the mediator's assistance and guidance, the parties stand on equal ground and retain equal bargaining power." Mediation allows adverse parties to come together, on equal grounds, in an attempt to settle their conflicts through a voluntary and confidential process that "promotes self-determination and autonomy," leaving the parties with a feeling of control. 19 As such, it is no surprise that mediation "continues to gain momentum and finds its greatest proponents in the courts themselves."2 0 In recent decades, courts have continued to witness not only a rise in the number of case filings, 2 1 but also a rise in the costs associated with moving these cases through the judicial system. In an effort to streamline the judicial process, many states have begun to mandate that parties participate in various forms of ADR before appearing in court.2 2 Id. at 141.

16. Id. 17. Jacqueline M. Nolan-Haley, Informed Consent in Mediation: A Guiding Principlefor Truly EducatedDecisionmaking, 74 NOTRE DAME L. REv. 775, 777 (1999).

18. Ver Steegh, supra note 5, at 183-89. "Equal bargaining power" promises that the facilitation of the mediator places the parties in a position that allows them to face their conflict without giving the upper hand to either party. Id. at 186-88.

19. Nolan-Haley, supra note 17, at 777 ("Disputing parties are said to be empowered jointly in owning their dispute, participating in the process of its resolution, and controlling its outcome.").

20. YARN & JONES, supra note 13, at 139 ("Court-connected mediation is the fasted growing caseload for mediation today.").

21. Id. at 377.

22. Id. at 3 ("The goals of private and public ADR processes are often similar and include any one or more of the following: avoiding the cost and delay of litigation, relieving court congestion, providing a more 'effective' or constructive resolution between disputants, enhancing community involvement in the process of resolving disputes, and facilitating access to 15.

John MarshallLaw Journal

208

[Vol. IV

"In 1981, California became the first state in the country to enact mandatory child custody mediation legislation."2 3 Not long after, California began requiring mediation for all cases arising out of family law, even those cases involving domestic violence.2 4 Many states followed suit by enacting similar mediation mandates for cases dealing with family law issues.25 Today, the use of mediation to resolve cases arising out of family law "has received widespread attention from legislators, judges, attorneys, and mental health professionals."26 This attention has centered around a debate over whether family law cases involving domestic violence between the parties should be mediated.2 7 While very few dispute the benefits of mediation in general, the debate has yet to yield a consensus on the issue of whether mediation can function properly when domestic violence is present.28 III.

UNDERSTANDING THE COMPLEXITIES OF DOMESTIC VIOLENCE

Most people recognize domestic violence as "the inflict[ion] of physical injury by one family or household member on another; [] a repeated or habitual pattern of such behavior. "29 However, the definition used for legal and psychological purposes is "[c]ausing or attempting to cause physical harm to a justice.").

23. Lauri Boxer-Macomber, Revisiting the Impact of California's Mandatory Custody Mediation Program on Victims of Domestic Violence through a Feminist Positionality Lens, 15 ST. THOMAS L. REv. 883, 883 (2003); see CAL. FAM. CODE

ยง 3170 (West 2011).

24. CAL. FAM. CODE ยง 3170 (West 2011).

25. See, e.g., N.C. GEN. STAT. ANN. ยง 50-13.1(c) (West 2010); WIs. STAT. ANN. ยง 767.405(8) (West 2011); see generally 50 State Surveys: Family Law: Divorce and Dissolution, WESTLAW, http://web2.westlaw.com (search "0080 surveys 12") (last visited Mar. 18, 2011).

26. 50 State Surveys: Family Law: Divorce and Dissolution, WESTLAW, http://web2.westlaw.com (search "0080 surveys 12") (last visited Mar. 18, 2011).

27. Ver Steegh, supra note 5, at 147.

28. See Alexandria Zylstra, Mediation and Domestic Violence: A Practical Screening Method for Mediators and Mediation Program Administrators,2001 J. DISP. RESOL. 253, 253-55.

29. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 371 (11th ed. 2003).

No. 1] GeorgiaDelivers the Promiseof Self-Determination 209 current or former intimate partner or spouse; placing that person in fear of physical harm; or causing that person to engage involuntarily in sexual activity by force, threat of force or duress.""o As indicated by these differing definitions, a stagnant and inflexible definition is often "difficult to apply because domestic violence encompasses a continuum of behavior that might start with ridicule and ultimately end in homicide.""

As domestic violence rates have risen over the past several decades, it has become apparent that domestic violence is more complex and diverse than previously considered.3 2 Domestic violence is more than just physical harm to the victim. "Abuse can cause post-traumatic stress disorder" in which the [abused suffers from] psychological hyper-arousal,3 4 re-experiencing,35

30. GUIDELINES DOMESTIC

FOR

MEDIATION VIOLENCE

IN

CASES

INVOLVING

ISSUES

OF

3 (2003), http://www.godr.org/files/DV%20Mediation%20Guidelines.pdf [hereinafter GA. GUIDELINES].

[D]omestic violence may include abusive and controlling behaviors (such as intimidation, isolation, and emotional, sexual or economic abuse) that one current or former intimate partner or spouse may exert over the other as a means of control, generally resulting in the other partner changing her or his behavior in response."

Id. 31. Ver Steegh, supra note 5, at 152.

32. Id. 33. Post-traumatic stress disorder is [a] syndrome occurring after a person experiences trauma outside the Symptoms may include range of normal human experience. flashbacks, nightmares, severe stress with numbness to stimuli resembling the trauma whether actually or symbolically, anxiety, and depression. In some cases [post-traumatic stress disorder] may trigger antisocial or suicidal behavior.

J.E. SCHMIDT, M.D., ATTORNEY'S DICTIONARY OF MEDICINE AND WORD FINDER 395 (Lexis-Nexis, 4th ed. 2009).

34. Hyper-arousal is "a state of increased psychological and physiological tension marked by such effects as reduced pain tolerance, anxiety, exaggeration of startle responses, insomnia, fatigue, and accentuation of THE FREE DICTIONARY BY FARLEX, available at personality traits." (last visited http://medical-dictionary.thefreedictionary.com/hyperarousal Feb. 9, 2011).

35. "Re-experiencing symptoms are symptoms that involve reliving the traumatic event. .. . Reliving the event may cause intense feelings of fear, helplessness, and horror similar to the feelings they had when the event took

210

John MarshallLaw Journal

[Vol. IV

and avoidance."3 6 Although domestic violence manifests itself as physical abuse in a majority of situations, it is driven by the abuser's "need to control and dominate" the other person.

Many times an abuser feels entitled to control every aspect of Other times, the abuser develops "a his victim's life." domination within the home" as a and subculture of control result of being unable to control anger or frustration.3 9 On the other hand, victims of domestic violence live their lives in constant fear.4 0 A systematic pattern of abuse creates a set of "abuser-created rules," that when violated, makes the victim feel further physical harm and that the abuse is justified.4 1 To those never exposed to domestic violence, perhaps the most confusing and misunderstood phenomenon is that many victims continue to stay in abusive relationships. 42 Unfortunately, should one decide to leave an abusive relationship, the abuse will not necessarily end.43 In fact, once a pattern of abuse has been established, "the woman is in particular danger because the violence is likely to escalate upon separation." 44 Domestic violence involves a victim who trusts the abuser; often the abuser "profess[es] love, comfort, or

place." U.S. DEP'T OF VETERAN AFFAIRs NAT'L CTR FOR PTSD, WHAT IS available at http://www.ptsd.va.gov/public/pages/handoutsPTSD, pdf/handout What is PTSD.pdf (last visited Mar. 27, 2011).

36. Zylstra, supra note 28, at 255. "Avoidance symptoms are efforts people make to avoid the traumatic event. Individuals with PTSD may try to avoid situations that trigger memories of the traumatic event." U.S. DEP'T OF VETERAN AFFAIRS NAT'L CTR FOR PTSD, WHAT IS PTSD, available at http://www.ptsd.va.gov/public/pages/handoutspdf/handoutWhatis PTSD.pdf (last visited Mar. 27, 2011).

37. Kerry Loomis, Comment, Domestic Violence andMediation: A Tragic Combinationfor Victims in California Family Court, 35 CAL. W. L. REv. 355, 358 (1999).

38. See id. at 359.

39. Id. 40. Id.

41. See id.

42. LENORE E. A. WALKER, THE BATTERED WOMAN SYNDROME Xii (Springer Publ'g Co. 2d ed. 2000).

43. Ver Steegh, supra note 5, at 150; see also WALKER, supra note 42, at XII. 44. Ver Steegh, supra note 5, at 150.

No. 1] GeorgiaDelivers the Promise ofSelf-Determination 211 reassurance," resulting in a dissociated coercion. 45 What an outside third party observer can fail to recognize is that the victim may disregard the seriousness of the abuse or believe that she deserves it. 4 6 Furthermore, a victim may feel forced to stay in an abusive relationship for a variety of other reasons, including lack of financial stability, low self-esteem, fear of harm to her children, fear of being alone, and fear of further abuse if she attempts to leave.4 7 As a result of countless studies and analyses of the causes and effects of domestic violence, various schools of thought on the many ways in which domestic violence presents itself have For example, Dr. Lenore Walker's 48 "Cycle of evolved.

Violence" theory, proposes that relationships in which domestic violence is present "become enmeshed in an insidious, repetitive cycle of violence and control."4 9 In the first stage, the "tension-building" phase, various stressors in the couple's lives, such as financial worries, work problems, "children, illness, and relationship problems, accumulate as the tension builds within the batterer."so The next stage occurs when the tension has escalated to the point that a violent incident occurs.' The third stage, the "honeymoon phase," ensues during which the abuser expresses contrition and attempts to gain forgiveness from the 45. Zylstra, supra note 28, at 255.

46. Id. at 255-56.

47. Laurel Wheeler, Comment, Mandatory Family Mediation and Domestic Violence, 26 S. ILL. U. L.J. 559, 561-62 (2002). "Between 50% and 70% of the men who batter their wives/partners also abuse their children." Id. at 562.

48. WELCOME

TO

DRLENOREWALKER.COM,

http://www.drlenorewalker.com (last visited Mar. 18, 2011) ("Lenore E. A. Walker, Ed.D. has been called the 'mother' of the batteredwoman syndrome as it was her research back in the late 1970's that named the psychological phenomenon that has assisted millions of people in better understanding why battered women have such difficulty in getting out of domestic violence relationships. First used in treatment planning by therapists and in legal defenses when battered women killed in self-defense, battered woman syndrome is seen as a subcategory of Post Traumatic Stress Disorder and as part of other trauma responses.").

49. Ver Steegh, supra note 5, at 152; see also WALKER, supra note 42, at 126-27.

50. WALKER, supra note 42, at 126-27.

5 1. Id.

212

John MarshallLaw Journal

[Vol. IV

victim.5 2 If the cycle is not broken, it continues to repeat with each cycle getting shorter, and the injuries increasing in severity."

In addition to Dr. Walker's work, various other studies and theories expanded the understanding of domestic violence to a more sophisticated level.54 These theories, along with results of research," have shown that domestic violence is not uniform.

As a result, the legal community must strive towards a better understanding of the various ways that domestic violence affects the abused, the abuser, and any children involved, as well as the manner in which the judicial system must address cases that present issues of domestic violence. The judicial system should not treat all domestic violence situations the same, and it cannot do so if it wishes to protect the victim while

52. Id.

53. Id. Although Walker's theory has been widely accepted, it has also been subject to criticism for being too limited, especially with respect to her passive characterization of the victim suffering from 'learned helplessness.' In contrast, some commentators have noted that many battered women actively seek help and openly rebel against the abuser.

Ver Steegh, supranote 5, at 153. See also Karla Fischer, et al., The Culture ofBattering and the Role of Mediation in Domestic Violence Cases, 46 SMU L. REv. 2117, 2136 (1993). However, Dr. Walker believes that the term has been confused with actually being helpless and "not its original intended meaning of having lost the ability to predict that what you do will make a particular outcome occur." WALKER, supra note 42, at 116 (emphasis added).

54. Ver Steegh, supra note 5, at 159. A second model/theory of domestic violence was proposed by Janet Johnson and Linda Campbell, which recognizes the "cycle of violence relationship described by" Dr. Walker, but states that some "violent families [] do not fit [Dr.] Walker's profile." Id. at 154. Instead, "[t]hey theorize that there are five distinct profiles of domestic violence and that each type requires a different response." Id. Other theories have been proposed by Susan E. Hanks (explaining a typology of family violence with four distinct types of abuse), Ellis and Stuckless (focusing on three conceptions of spousal abuse), Jacobson and Gottman (suggesting "that there are two basic types of batterers, which they have characterized as 'cobras' and 'pit bulls'), and Joanna Miles (dealing with domestic violence on a personal "micro-level" and a broader societal "macro-level" problem).

Id. at 155-58.

55. Id. at 159.

No. 1] GeorgiaDelivers the Promise of Self-Determination 213 moving these cases through the courts. To achieve these goals, the judicial system must become cognizant of the various implications that may arise from mediating cases involving domestic violence and must appropriately tailor the process in which it does so.

IV. THE OVERLAP OF MANDATORY MEDIATION AND DOMESTIC VIOLENCE Even after decades of studying domestic violence and the rapid growth of mediation, there remains little consensus among courts with regard to mediating cases involving domestic violence. The following subsections outline a few issues and concerns that are raised when mediation becomes mandatory and domestic violence is present between the parties.

A. Power to Control the ProcessandAcquiring SelfDetermination One highly debated issue is whether mandatory mediation can deliver the promise of self-determination and power to control the process.5 6 The concerns and arguments against mandating mediation in domestic violence cases mirror those for mandating mediation in all other cases. Claims that the parties are making their own decisions, are in control of the outcome, and have attained self-determination are deceiving.57 Proponents of mandatory mediation argue that mediation allows the parties to speak on their own behalf and arrive at an outcome based on their own decisions." This argument posits that "[p]atterns of domination characteristic of adversary adjudication are challenged in two ways: no outside decisionmaker is present, and the [parties] need not be the passive recipient of a lawyer's advice and decisionmaking.

Instead, [they] can explore alternatives, create options, and make decisions."5 9 Therefore, the ability to control the outcome 56. The debate is centered on the process of mediation itself and whether or not the stated purpose is lost when mediation becomes mandatory.

57. Trina Grillo, The MediationAlternative: ProcessDangersfor Women, 100 YALE L.J. 1545, 1581 (1991).

58. Id. 59. Id. ("In this very immediate way, mediation can challenge the hierarchical, professionalized way that family law is usually practiced.").

214

John MarshallLaw Journal

[Vol. IV

of the mediation and, ultimately, how the case will settle, gives the participating parties the sense of self-determination and control that the mediation process promises.

Proponents further emphasize that judicial systems are unlikely to be informed enough to make a meaningful determination regarding all aspects of a custody agreement. 0 Conversely, the mediation process allows for a divorcing mother and father to focus on the dynamics of their family; reflect on their child's social, academic, and work schedules; and make a decision that fits the needs of their family.6' Thus, the posited argument is that even mandatory mediation can further strengthen the sense of self-determination and control over the process and the outcome of the parties' case.

Professor Trina Grillo's rebuttal to this argument suggests three reasons that, although a party may gain control and selfdetermination through mediation, the dynamic through which this becomes a possibility is profoundly different when She argues first that mediation becomes mandatory.6 2 mandating mediation does not consider the timeliness of the process or whether the parties are prepared to face it.63 Second, Professor Grillo believes the parties are deprived of their attorney's legal protection, losing the power to decide to what extent their attorney participates in the outcome of the proceedings. 64 Finally, Professor Grillo theorizes there can be no sense of control or self-determination in mandated mediations because the parties "are not permitted to choose the mediator, and they often cannot leave without endangering their legal positions even if they believe the mediator to be biased against them."s6 60. Wheeler, supranote 47, at 559.

6 1. Id. 62. Grillo, supranote 57, at 1581.

63. Id. Again, this argument applies to mediation mandated in any type of case. For example, a divorcing couple, whose marriage was free of domestic violence, simply may not be in the proper state of mind-emotionally and/or psychologically-to sit face to face with their soon to be former spouse and discuss the terms of their divorce. Similarly, a woman whose marriage was plagued with domestic violence may be in such a state of fear of her husband that she would be incapable of meaningful participation in the process.

64. Id. 65. Id. at 1581-82. This third argument, which is the primary focus of

No. 1] GeorgiaDelivers the Promise of Self-Determination 215 When mediation is required, the idea that it gives the participants the power to control the process and achieve selfdetermination is simply unfounded.6 6 Furthermore, when the mediation process involves a domestic violence victim abused by the opposing party, she has most likely already lost the power of self-determination and the ability to control anything in her life. 7 B. The Confinement of Mediation Versus the Courtroom Proponents of mediating cases in the presence of domestic violence have argued that mediation is better suited to deal with those non-legal issues that fall outside the scope typically addressed in the adversarial process. 8 In mediation, unlike the courtroom, legal rights are not central to the process; therefore, the participating parties are free to focus their attentions on the Case actual real-world problems of their relationship." precedent, statutory enactments, and rules of civil procedure no longer control the process and outcome. Rather, mediation allows for parties to address their emotions in a relational context." Thus, the parties are directed toward a solution

Professor Grillo's article, relates specifically to California law. As highlighted in Part V.C. of this Comment, Professor Grillo focuses her reader's attention on the fact that, in California, a mediator is permitted to make a recommendation to the court. CAL. FAM. CODE §§ 3183(a), 3188(a)(4) (West 2011). In certain counties, these recommendations are continuously followed. Grillo, supra note 57, at 1555. However, this author believes that this recommendation can still be applicable to other states by way of analogy. For example, although the "recommendation process" is unique to California, all states require parties to mediate in "good-faith."

YARN & JONES, supra note 13, at 30. This author proposes that in either case, a victim is more or less restricted from walking out of a mediation session and that her hesitations to do so primarily arise out of the same consideration of consequences.

66. Grillo, supra note 57, at 1581.

67. Ver Steegh, supra note 5, at 153.

68. JACK P. ETHERIDGE WITH LAUREL-ANN DOOLEY, COMING TO THE TABLE A GUIDE TO MEDIATION IN GEORGIA 8 (Fulton County Daily Report & American Lawyer Media 1994).

69. Grillo, supranote 57, at 1559-60.

70. Id. at 1560. See also Maggie Vincent, Note, Mandatory Mediation of Custody Disputes: Criticism, Legislation, and Support, 20 VT. L. REv. 255, 263 (1995).

John MarshallLaw Journal

216

[Vol. IV

grounded on "reasonableness and compromise, rather than moral vindication."" However, the benefit of a less-confining process is fundamentally different when the process becomes mandatory and one of the parties is a victim of domestic violence.

"Rights assertion cannot take place in a context in which discussion of fault and the past are not permitted, for recognition and assertion of rights are ordinarily based on some perceived past grievance, as well as on some notion of right and As previously discussed, if one of the aims of wrong."7 mediation is to focus the parties' attention away from rights and positions, then it promotes a sense of disentitlement, and in turn, "interfere[s] with the perception and redress of injuries in cases While it may be a where they have in fact occurred."7 reasonable practice to follow in a variety of other cases, the presence of domestic violence should mandate a different approach.74 It often takes months or years for a victim to work up the strength and courage to break the cycle of abuse by filing for divorce. Perhaps, a victim views the courts as "a place where [she] can obtain vindication and a ruling by a higher authority."75 However, when a case is sent to mandatory mediation, the abused party is unable to attain the result that she 71. Grillo, supranote 57, at 1560.

72. Id. at 1567.

73. Id. 74. Id. at 1581.

The reason for the lack of focus on values and principles in many models of mediation is, in part, simply practical. If the essence of mediation entails trading off interests and compromising, each

person's interests are important, but which person violated societal values and why he did so, is not. To the extent that principles and faultfinding based on those principles enter into the discussion, reaching an agreement might be delayed or disrupted.

Deemphasizing principles also might appear to be the sensible approach in a society that is increasingly pluralistic in terms of

cultures, religions, and varieties of family structures. Where there are conflicting moral codes, as there often are when couples divorce, making the only standard for agreement be that it is accepted by both parties means that it will not be necessary for a third party to decide which moral code is superior.

Id at 1560.

75. Id. at 1561.

No. 1] Georgia Delivers the Promise of Self-Determination 217 sought from the courts. Although mediation promises that parties may voice concerns and display emotions that are not encouraged in the courtroom, the process looks unfavorably upon certain types of expression. For example, mediation discourages displays of anger, sending a message that expressing anger is counterproductive, does not foster an environment for agreement, and is unacceptable. 6 Therefore, not only does mediation not stop any ongoing violence or prevent any future violence, its lack of focus on past behavior actually serves to "absolve[] the abuser of accepting responsibility for past behavior."7 7 "[V]iolence and coercion are not negotiable-a process whereby each party assumes responsibility and agrees to make concessions." 78 Therefore, "the existence or occurrence of' specific acts or allegations of domestic violence "should never be mediated." 79 This leads to an interesting, albeit unsettling and ironic, dichotomy. In a situation where the mediator is aware that there has been a history of domestic violence, the mediator is unable to label openly the behavior as "bad."8 0 Although it is unlikely that the mediator thinks otherwise, the interjection of the mediator's own viewpoints on any subject matter is not only inappropriate, but places his or her neutrality in question. 1 Ironically, when the mediator does not address the actual abuse, the abused party may perceive the mediator, and perhaps the judicial system as a whole, as condoning or absolving the abuser of his actions, thus jeopardizing the neutrality of the

76. Id. at 1572. Professor Grillo wisely states "this anger may turn out to be the source of [the victim's] energy, strength, and growth in the months and years ahead. An injunction from a person in power to suppress that anger because it is not sufficiently modulated may amount to nothing less than an act of violence." Id. at 1572-73.

77. ZyIstra, supranote 28, at 258.

78. Id. at 261.

79. Id. Although this statement may seem contrary to the overall conclusion of this Comment, it is not. If the goal of mediation is to focus the parties' attention away from asserting their rights and attributing faults, then any allegation of abuse or violence itself simply cannot be mediated. Id. at 256. Acting to the contrary will imply that the abused party holds some responsibility for the acts of the abuser. Id. 80. Wheeler, supra note 47, at 570.

8 1. Id.

218

John MarshallLaw Journal

[Vol. IV

process. 82 Furthermore, if the abused party is left with the notion that the process or the mediator is not neutral, then that party may potentially revert back to feeling disempowered and lose the hope of experiencing a self-determining process that mediation falsely promised.

C. BargainingPower in an Abusive Relationship For the mediation process to be successful, the parties must "begin from equal positions of power." 84 If the positions of power are unequal, then the mediator must facilitate the process to balance the power. Power can arise from various sources, including the parties' beliefs, personalities, self-esteem, gender, The self-interest, and financial support and security. 86 imbalance of power between parties is a concern in any mediation. However, the issue has been widely debated and studied in cases that present domestic violence."

Where a history of severe abuse of power by one party over the other already exists, any power imbalance arising during the course of mediation can make the process impossible." This imbalance of power continues to persist, regardless of the corrective measures taken by the mediator during the course of

82. Id 83. Id.

84. Id. at 559 (quoting Leigh Goodmark, Alternative Dispute Resolution and the Potentialfor Gender Bias, 39 No. 2 JUDGES' J. 21, 22 (2000)).

85. YARN & JONES, supra note 13, at 142-44.

86. Ver Steegh, supra note 5, at 183. This is a list that the article places under "nonviolent relationships." Id. However, this author posits that the earlier discussion, explaining that domestic violence is no longer confined to a definition that must include some form of physical violence/harm, lays the foundation to conclude correctly that the sources of "power" for both violent and nonviolent relationships must necessarily be the same (excepting those sources that are physically violent/harmful). In the divorce of a nonviolent relationship, "power generally corresponds with who originated the divorce, who has the more favorable legal case, who feels more guilty, and who has the stronger lawyer or support system." Id. However, the author would once again posit that these sources can easily arise in the divorce of a couple who has experienced physical violence/harm.

87. Ver Steegh, supra note 5, at 147.

88. Id at 184 ("Barbara Hart argues that cooperation between spouses when domestic abuse had occurred is 'an oxymoron."').

No. 1] GeorgiaDelivers the Promise of Self-Determination 219 the mediation.89 As a result, the parties become unable to "negotiate" meaningfully because the abused party may fear that disagreements with the abuser will result in retaliatory violence.90 However, those that argue that bargaining power may be balanced, even in the face of domestic violence, suggest that the "[clapacity to mediate can only be assessed on an individual level." 9 ' Skilled mediators are able to use a variety of techniques to equal out power imbalances between parties with "moderate power differentials."9 2 As the imbalance of power becomes corrected, "the mediator gradually transfers power from himself or herself to the divorcing couple as they become able to use it appropriately." 93 Therefore, there are some who argue that trained mediators are capable of correcting an imbalance of bargaining power, even if domestic violence is an issue.9 4

89. See id.

90. Id. 91. Id. at 186.

92. Id. However, "[i]n some cases, the power imbalance is too severe for mediation to take place." Id. Mediators are able to restore bargaining power by establishing preliminary rules that both parties must abide by, choosing the topic that the parties are to focus on, directing who is recognized to speak and for how long, helping the parties understand what the other is attempting to communicate, deciding when a certain discussion is over, and a variety of other techniques designed to help structure and facilitate the mediation process. Id. at 186-87.

93. Id. at 187. A mediator must be cautious when doing so, because "[i]f the mediator retains too much power the couple will not "own" the agreement, but if the mediator relinquishes power prematurely, sessions are unproductive and, in the case of domestic violence, potentially dangerous."

Id. However, those skeptical of a mediator's ability to correct an imbalance in the presence of domestic violence suggest "that mediators cannot deal with the power imbalance without jeopardizing their neutrality and impartiality." Id. Conversely, the posited argument is that a mediator does, in fact, remain neutral. Id. at 188. "[I]gnoring power imbalances would essentially amount to siding with the more powerful party." Id. 94. Id. at 188.

John MarshallLaw Journal

220

V.

GEORGIA:

[Vol. IV

A TEMPLATE FOR MEDIATING CASES IN THE

PRESENCE OF DOMESTIC VIOLENCE

In the absence of nationally adopted uniform rules or procedures, Georgia should serve as a model for other states and jurisdictions. The Georgia Constitution of 1983 states that the judiciary must provide "speedy, efficient, and inexpensive resolution of disputes and prosecutions." 5 On September 26, 1990, in an effort to fulfill this constitutional mandate, the Georgia Supreme Court established the Commission on Alternative Dispute Resolution ("the Commission") to oversee the development of court-connected ADR programs in Georgia. 96 The Commission, working through its staff at the Georgia Office of Dispute Resolution ("GODR"), has created a statewide plan for ADR in Georgia. 97 This plan enables any superior, state, probate, magistrate, or juvenile court in Georgia to offer litigants alternatives to trial under provisions set forth in the Georgia Supreme Court Alternative Dispute Resolution Rules ("ADR Rules").98 Although this statewide plan does not mandate that every court in Georgia establish ADR programs, it stresses that each court should consider doing so to provide a "system of justice which is more efficient and less costly in human and monetary terms." 99 This emphasis on "human terms" can be seen throughout the ADR Rules and is evident in the precautionary steps taken by Georgia to ensure that mediation programs are adequately and justly administered.

The ADR Rules cover the following duties with which the Commission is charged: 1) overseeing the development, and ensuring the quality of, all court-connected ADR programs; 2) approving various court programs throughout the state; 3) providing guidelines for ADR programs; 4) developing provisions of criteria for training and qualifications of neutrals; 5) developing provisions of established standards of conduct for

95. GA. CONST. art. VI, ยง 9, para. 1.

96. GA. ADR RULES (2009), available at http://www.godr.org/index.php?option=comcontent&view-article&id=58& Itemid=57.

97. Id. 98. Id. 99. GA. ADR RULES R. IV.

No. 1] GeorgiaDelivers the Promise ofSelf-Determination 221 neutrals; and 6) administering a statewide comprehensive ADR program. 00 Although the authority for Georgia courts to establish courtconnected ADR programs is based upon statutory language,' 0 the process is governed by the ADR Rules. 0 2 Before any court is able to establish an ADR program, the court must apply to the Commission for approval.'

The ADR Rules express the Supreme Court's desire for Georgia courts to consider ADR options and for established mediation programs to assist courts The ADR Rules seeking to institute new programs.'" encourage established programs to provide information to and facilitate observations for mediator trainees in the developing programs. 1os

However, as the benefits of mediation have become more apparent, Georgia began to realize that not all cases can be mediated in the same manner; specifically, cases involving domestic violence require special attention. Therefore, in 1995, the Committee on Ethics of the Georgia Commission of Dispute Resolution ("Ethics Committee") studied the various issues that may arise when domestic violence is presented in the mediation process.106 The Ethics Committee did not agree with those arguments that posited mediation is never appropriate in cases Therefore, the Committee involving domestic violence.' proposed, and the Commission adopted, "Guidelines for 100. GA. ADR RULES R. II(A)(2). The author would argue that the first responsibility is more the overlying "theme" that becomes apparent through the implementation of all the rules and guidelines that are promulgated through the ADR Rules, the Commission, and the Georgia Office of Dispute Resolution. This theme is the reason that Georgia should be acknowledged as a template for other states to look to when implementing adequate mediation programs. An analysis of the subsequent enumerated duties establishes the manner in which Georgia ensures that its court-connected mediation programs do not become unjust and inadequate as a result of the various criticized practices discussed above.

101. O.C.G.A. ยง 15-23-10 (West 2010).

102. GA. ADR RULES. 103. GA. ADR RULES R. IV. 104. Id. 105. Id. The "theme" concept referenced above begins at this stage.

106. GUIDELINES FOR MEDIATION IN CASES INVOLVING ISSUES OF DOMESTIC VIOLENCE, Preamble.

107. Id.

222

John MarshallLaw Journal

[Vol. IV

Mediation in Cases Involving Issues of Domestic Violence" ("Guidelines"). These Guidelines reflected the philosophy that an automatic exclusion of those cases would deny victims the opportunity to use what might be their preferred alternative to the courtroom.10 In 2002, the Strategic Planning Committee of the Georgia Commission on Dispute Resolution began its review of the original 1995 Guidelines and adopted the current amended version. 109 The focus of the amended Guidelines was on the intake and screening procedureso10 that would allow all alleged victims of domestic violence to choose, based upon informed consent, whether or not to utilize mediation; enable ADR programs to more consistently apply the screening guidelines; clarify the nature of informed consent to participate in mediation; provide that all alleged victims of domestic violence are referred to a specially trained mediator; and, place the responsibility of assessing the benefit of participating in the mediation process on the alleged victim and her/his attorney rather than the program director."'

Therefore, by governing the manner in which courtconnected ADR programs are created, encouraging courts to collaborate in the training of mediators, and the manner in which Georgia courts screen for domestic violence, Georgia ensures that ADR programs include appropriate safeguards.

A. Mediator Training Unlike many other states, Georgia requires that all practicing mediators meet the standards set forth by the ADR Rules.1 12 In general, neutrals are not required to have specific subject matter expertise, and even if mediators have a particular area of expertise, they are frequently asked to mediate matters outside 108. Id. 109. Id.

110. Id. "The term 'intake' refers to the procedure for identifying cases involving allegations of domestic violence, and the term 'screening' refers to discussion with the alleged victim to determine whether s/he chooses to proceed with mediation." Id. at 2 n.4.

111. GUIDELINES

FOR MEDIATION

DOMESTIC VIOLENCE, Preamble.

112. See GA. ADR RULES R. V.

IN CASES

INVOLVING

ISSUES

OF

No. 1] GeorgiaDelivers the Promise of Self-Determination 223 of that area."' The ADR Rules require that mediators undergo training more extensive than that of other ADR neutrals.114 Mediators must acquire at least twenty-eight hours of classroom training in addition to observing or co-mediating with a However, Georgia mediators who registered mediator."s mediate cases with allegations of domestic violence issues must have a baccalaureate degree from an accredited four-year college." 6 These mediators must also satisfy the training requirements for "general mediators" and complete an additional forty-two hours of domestic relations training."'

Mediators in divorce and custody cases must receive special domestic violence training, which must be at least fourteen hours of classroom instruction approved by the GODR."I Any mediator who handles cases involving domestic violence must not only complete the required training but must be registered as a domestic relations mediator."19 Conversely, screening and training procedures and policies implemented in other states are not adequate in comparison to Georgia. In 2003 "[fjifty percent of couples [] entering mediation programs [had] experienced domestic violence." 2 0 However, only "five percent of cases are excluded from mediation because of domestic violence."'21 This extreme disparity increases when mediators are unable, or unwilling, to screen adequately for domestic violence. "[A]s few as eighty

113. GA. ADR RULES app. B, R. I(A).

114. Id.

115. Id. Classroom training must include role-play and other participatory exercises. Id. Furthermore, mediators should be acquired from a "variety of disciplines and should reflect the racial, ethnic and cultural diversity of our society. Id. 116. Id. 117. Id.

In addition, the mediator must "provide a letter of 118. Id. recommendation from a director of a superior court ADR program who is familiar with the mediator's work as a domestic relations mediator." GA. ADR RULES app. B, R. II (referring to section on Specialized Domestic Violence Mediation).

119. GA. ADR RULES app. B, R. 1I (referring to section on Specialized Domestic Violence Mediation).

120. Ver Steegh, supra note 5, at 194.

121. Id.

224

John MarshallLaw Journal

[Vol. IV

percent of mediation programs [outside of Georgia] are formally screening for abuse and [] only half of these programs use private interviews in addition to written questionnaires and

observation."l 22 Further exacerbating the problems associated with screening procedures is inadequate training for professionals possessing the task of recognizing domestic violence situations. 2 3 Those "gatekeepers" must obtain adequate training through various "continuing legal education, domestic violence education programs, or shadowing/mentoring programs with practicing family mediators."l 24 Such training must "include an awareness of the central dynamics of a domestic violence relationship including the nature of dissociated coercion, coercive control, and the physiological and psychological dimensions of domestic violence[.]"l 2 5 Education and training should ideally continue as various mediation practices and the understanding of

domestic violence evolve.12 6 In addition, there is a lack of consensus as to the stage at which screening should occur. Some have argued that because an individual's first discussion about mediation is likely with an attorney, the attorney is initially in the best position to identify domestic violence.'2 7 Arguments have also been made that the clerk of court should institute interviewing procedures once the parties' case has entered the court system.128 However, a majority of jurisdictions place the task of screening on judges

and mediators.12 9 The additional training that Georgia requires of mediators handling cases involving domestic violence benefits the mediation process on several levels. First, these mediators are more likely to spot domestic violence issues than untrained mediators. Second, by understanding the dynamics of domestic 122. Id. "Thirty percent of mediators may not be trained regarding domestic violence and twenty percent may not be screening for it." Id. at 195.

123. Zylstra, supranote 28, at 268.

124. Id. at 270.

125. Id. 126. Id. 127. Gerencser, supra note 9, at 63-64.

128. Id. at 65.

129. See Ver Steegh, supra note 5, at 194; Gerenscer, supra note 9, at 66.

No. 1] GeorgiaDelivers the Promise ofSelf-Determination 225 violence, mediators are better able to determine whether they are capable of correcting any imbalance of power in the mediation process. Finally, and perhaps most importantly, mediators are able to determine whether the parties should be exempted from the mandatory process due to domestic violence.

By mandating statewide uniform training, Georgia ensures that mediators are in the best position possible to be able to identify the presence of domestic violence during mediation and to address the issue appropriately.

B. The ScreeningProcess The Guidelines establish that the responsibility of screening for domestic violence is to be shared between the court, program directors, attorneys, mediators, and the parties.13 0 However, the final determination as to whether the case is appropriate for mediation lies with the court.13 ' The screening process, upon which the court makes this determination, is accomplished by completing three phases.

1. Phase One: Initial Screening ofAll Domestic Relations Cases The first screening step for domestic violence requires that the ADR program determine whether the case was filed under the Family Violence Act. 3 2 If the answer is affirmative, the 130. GUIDELINES FOR MEDIATION IN CASES INVOLVING ISSUES DOMESTIC VIOLENCE ยง I. 131. Id.

OF

132. Id. at ยง I(A)(a). The Guidelines carve out two absolute prohibitions against referring cases to mediation: criminal cases that involve domestic violence and those cases that arise solely under the Family Violence Act ("FVA"). However, the Guidelines apply to domestic relations cases, other than cases filed solely under the FVA, that may contain a claim for relief under the FVA, among other claims. The purpose of Subsection (I)(A)(a) is to indicate that a petition for or order granting relief pursuant to the FVA, whether past or pending, is a clear indication to the screener that domestic violence allegations are or have been a factor in the case that has been referred to mediation, and that the screener should proceed with the informed consent interview process with the alleging party so that the party can make a decision about whether or not to participate in mediation. This provision is not intended to imply that cases filed solely pursuant to the FVA should be referred

226

John MarshallLaw Journal

[Vol. IV

Guidelines consider such cases to be an indication of domestic violence, and the program should proceed directly to "Phase Two."' 3 3 If the answer is negative, then the ADR program must inquire about domestic violence in every domestic relations case.3 4 This furthers the possibility that cases not suited for mediation will be exempted from the process. The inquiry can be accomplished in a variety of ways: direct contact with the parties or their attorneys;' written questionnaires; check-off worksheets filled out by the parties; or review of pleadings for allegations of domestic violence.'3 6 If the inquiry results in no indication of domestic violence, then the case will be scheduled However, if there are allegations of domestic for mediation.' violence, then the program should continue onto "Phase Two."' 2. Phase Two: FurtherScreening Where There Is an Indication ofDomestic Violence Phase Two uses further screening to determine the degree of domestic violence that has occurred and to inform the abused party about the mediation process so that she is able to exercise her choice as to whether she wishes to continue with the Additional screening should include mediation process."' personal contact with either the party's attorney or the alleged victim and must be conducted by a trained mediator that has received the required advanced domestic violence mediation

training.140 This explanatory footnote was added by the to mediation.

Commission on Dispute Resolution on March 22, 2005.

Id. at § I(A)(a) n.5.

133. Id. at § I(A)(a).

134. Id. at § I(A)(b).

135. If the party is represented then the Guidelines require that the program contact the attorney prior to contacting the party in an effort to minimize any potential risk to the party. Id. at app. A, § I. 136. Id. at § I(A)(b). However, the absence of such allegations in the pleadings does not exempt the program from conducting the screening inquiry. Id. 137. Id. at § I(A)(c).

138. Id. at § I(A)(d).

139. Id. at § I(B).

140. Id. at § I(B)(1).

No. 1] GeorgiaDelivers the Promise ofSelf-Determination 227 Because the dynamics of an abusive relationship may become apparent during mediation, an alleged victim is afforded the ability to choose whether to participate in mediation.14 1 To ensure that the victim's choice to proceed with the mediation process is self-determined, she must be provided with adequate information to give informed consent.14 2 Acquiring informed consent from the victim requires the mediator to explain the mediation process and have an in-depth discussion to determine whether the victim's ability to participate meaningfully in the process is inhibited by her circumstances.143 Although the mediation process is oriented towards the future, past and present interactions between the participating parties are excellent measures of whether the alleged victim is truly able to make an informed decision.144 In assessing the individual's current circumstances, the following questions should be asked of the victim by the mediator: whether she is able to think about her own future needs at the present time; whether she is able to separate her own needs from those of her spouse; the reasons why she feels she may not be able to discuss things with her spouse openly; whether she is afraid of her spouse; whether she still lives with him; and whether she is worried for her safety.145 Although these questions help the mediator acquire information, they ultimately extend beyond that and "should assist the party in focusing on barriers and the capacity to mediate." 46 This process not only acknowledges the effect of domestic violence on a victim, but also emphasizes the primacy that mediation places on the principles of self-determination and voluntariness.147 Where other states have failed to give the choice to the victim, Georgia grants the ability to make a rational decision, based on informed consent, about the manner in which the victim chooses to proceed in resolving the case.

141. Id. at ยง I(B)(2).

142. Id. 143. Id. 144. Id. 145. Id. at ยง I(B)(2)(1)-(1 1).

146. Id. at ยง I(B)(2).

147. Id.

228

John MarshallLaw Journal

[Vol. IV

Without informed consent of the alleged victim, the case will not be allowed to proceed to mediation.148 After the mediator has inquired further into the degree of domestic violence, has explained the mediation process, has discussed the specific circumstances of the alleged victim, and has established that the victim does not need any further information to decide whether she is willing to mediate, the mediator then proceeds to "Phase Three."1 4 9 3. Phase Three: Referral to Mediation ifDomestic Violence Is Alleged In Phase Three, the alleged victim decides whether to proceed to mediation. In the event that the victim declines to proceed, the program releases the case and notifies the court that mediation is not appropriate and the case should continue through the court system.5 0 If the alleged victim chooses to proceed with mediation, the case is scheduled accordingly.'5 ' However, the program, or the court, may still determine that there are compelling reasons that make the case inappropriate for mediation, such as extreme violence.15 2 To ensure that a victim of domestic violence does not endure further abuse, it is absolutely necessary to have adequate screening. By mandating the three step screening process, Georgia attempts to minimize the risk of compelling inappropriate cases to proceed to mediation.

C. Georgia'sAdditional Safeguards Throughout the Guidelines there are a variety of additional safeguards designed to further protect any potential victim of domestic violence. For example, the Guidelines strictly prohibit communication, by program directors and their staff, of information elicited during screenings unless absolutely

ยง I(C). ยง I(B)-(C).

150. Id. at ยง I(C)(a).

151. Id. at ยง I(C)(b).

148. Id. at 149. Id. at

152. Id.

No. 1] GeorgiaDelivers the Promiseof Self-Determination 229 necessary.'

They mandate that "[t]he court should simply be informed that the case is inappropriate for mediation."lS4 The opposite of this safeguard is allowing mediators to make recommendations to the court.'

California law allows the mediator to "render a recommendation to the court as to the In more custody or visitation of the child or children. ... than half of California's counties, mediators are required to In these counties, make recommendations to the court.'

Professor Grillo has observed mediators assuring participating parties of confidentiality in order to help them reach an If the parties are unable to reach an agreement, agreement.' the mediator uses information elicited from the mediation when making a recommendation to the court.15 9 In fact, the California Court of Appeals stated that the official information privilege does not belong to the parties, but rather to the court.160 By maintaining confidentiality, Georgia minimizes the risk that participating parties will lose a crucial benefit of mediation.

If certain disclosures are permitted, the process loses its neutrality, mediators become judges, and the parties lose any feeling of self-determination and acquire a feeling of forced resolution. If parties are mandated to participate in mediation, they must be afforded the privilege of confidentiality.

A second safeguard Georgia has in place is granting victims the right to an attorney or advocate for the entire mediation session.161 In the absence of an attorney, the victim is allowed 62 to bring a friend to the session for consultation and protection.1 153. danger 154.

155.

156.

157.

Id. at ยง III. (e.g., a present threat by one of the participating parties or of immediate harm).

Id. Grillo, supra note 57, at 1554-55.

Id. at 1554; CAL. FAM. CODE ยง 3183(a) (West 2011).

Grillo, supra note 57, at 1555.

158. Id.

159. Id. ("In some counties, [] the recommendations of the mediators are almost always accepted by the judge; indeed, some mediators disclose this fact in an effort to pressure the parties into reaching an agreement.").

160. In re Marriage of Rosson, 224 Cal. Rptr. 250, 253 (Cal. Ct. App. 1986).

161. GUIDELINES FOR MEDIATION IN CASES INVOLVING ISSUES DOMESTIC VIOLENCE ยง 11(3).

162. Id.

OF

230

John MarshallLaw Journal

[Vol. IV

In addition, the mediation is conducted with opposing parties entirely in caucus if necessary.'1 However, in California, mediators are empowered with the ability to exclude attorneys from the mediation process without the consent of the parties, and mediators routinely do so.'" Some may argue that this further serves the purpose of mediation and further provides for a party's self-determination. By excluding attorneys, the parties are now able truly to control the process.165 However, this argument ignores the fact that the attorney was hired for a reason.' 6 6 Attorneys are hired for their ability to use their legal expertise and to protect the interests of their client.167 Although, mediation is outside of the courtroom, the reasons that a client hires an attorney do not disappear.168 Aside from providing expertise, the attorney also serves as a protective barrier between the parties. Information shared outside the presence of the attorney may ultimately harm the client's position in the future should the case be litigated in court.169 An attorney further serves to level the bargaining power for the abused client.'7 0 Thus, outside of the attorney's presence, an abused party "may agree to something because [she] is nervous, intimidated, exhausted, or frightened.""' If mediation is mandatory in other states, those states should follow the practice in Georgia and allow the participating parties to decide whether they want their attorney or a supportperson present.

A third safeguard offered by Georgia is that victims of domestic violence enjoy the right to complete exemption if they decide mediation is not in their best interest. However, not all 163. Id. at ยง 11(6). Notably, the private caucus practice in Georgia is a sharp contrast to the one practiced in California, where the caucus is used to mediate inappropriate cases instead of granting an exemption from the process. CAL. FAM. CODE ยง 3181(a) (West 2011).

164. Grillo, supra note 57, at 1597; CAL. FAM. CODE ยง 3182(a) (West 2011).

165. Grillo, supranote 57, at 1599-1600.

166. Id. at 1597.

167. Id. 168. Id. 169. Id. at 1597-98.

170. Id. at 1597.

171. Id. at 1598.

No. 1] GeorgiaDelivers the Promise of Self-Determination 231 states grant victims a complete exemption from mediation. For example, all of California's family law cases, including those involving domestic violence, are subject to mandatory Perhaps one of the most ill-designed of mediation.17 2 California's procedures in this context is the practice of "attempting" to protect the safety of abused parties by placing them in separate rooms from their abuser during the mediation process. 7 3 Despite any good intentions that California may have had in implementing these "protection policies," they do little to protect the victim. While, the victim may be free from direct harm during mediation, there is no guarantee that the victim will remain safe after the mediation concludes.

Some states have attempted to find a middle ground between mandating participation and a complete exemption from the mediation process by exempting those cases with a history of Although this proposition sounds domestic violence.174 reasonable in theory, its operation is ineffective. For example, in Florida a party qualifies for exemption from mandatory mediation only upon a finding of fact by the court that "there has been a history of domestic violence that would compromise the mediation process." 75 This standard places a difficult, and at times impossible, burden on the abused party."'7 Domestic violence in this country is highly underreported,' 77 leaving no trail of police reports, restraining orders, and no hospital records Furthermore, many victims do not documenting injuries."'7 acknowledge the abuse they endure, choosing instead to minimize its effects and continue in the abusive relationship.' 7 9 Lack of evidence of domestic violence results in the abused party's inability to meet the requisite burden of proof and alternatively discourages attempts to meet the burden because it

172. Boxer-Macomber, supra note 23, at 883.

173. CAL. FAM. CODE ยง 3181(a) (West 2011).

174. See Sarah Krieger, The Dangers of Mediation in Domestic Violence Cases, 8 CARDOZO WOMEN'S L.J. 235, 254 (2002).

175. FLA. STAT. ANN. ยง 44.102(2)(c) (West 2011); see also Krieger,supra note 174, at 254.

176. Krieger, supra note 174, at 254.

177. See id.

178. Id. 179. Id.

John MarshallLaw Journal

232

[Vol. IV

is perceived as futile.'s Absent an exemption from mandatory mediation, victims of domestic violence are forced into a process that may be emotionally, physically, and psychologically harmful. Mediation in such a case renders the process ineffective because the victim is not able to participate meaningfully.

Georgia protects its domestic violence victims by allowing a process that safeguards self-determination, allowing only desirable agreements to be reached, and protecting participants By implementing a comprehensive from further abuse. framework for courts to utilize when establishing courtconnected mediation programs, the Commission ensures that all courts function in uniformity, particularly with regard to cases involving domestic violence.

VI. CONCLUSION

Despite years of research and experience, various courtconnected mandatory mediation programs across the country are still implementing procedures that are harmful and prejudicial to parties that come before them. Specifically, parties whose cases present issues of domestic violence are harmed the most. Although mediation allows participating parties to control the outcome of their case, gives a sense of self-determination, reduces the cost of litigation, and increases the efficiency of processing their case through the courts, it must only be allowed under the proper circumstances.

Although Georgia has adopted the position that the value gained through successful mediation is too great to exclude parties who allege domestic violence automatically, it has not done so at the expense of victims of domestic violence.

Through implementation of the Guidelines, Georgia guarantees that the mediation process will be strictly confidential, that a participating party is entitled to be accompanied by an attorney, and that all domestic violence mediators are appropriately trained to identify and handle issues of domestic violence.

However, the most important safeguard offered in Georgia is that the final decision to mediate is always left in the hands of the parties. By allowing parties to become exempt from the

180. Id.

No. 1] GeorgiaDelivers the Promise of Self-Determination 233 process, Georgia raises the probability that a participating victim of domestic violence will freely enter into an agreement, will retain self-determination, and will truly benefit from the Absent a nationally adopted set of mediation process. guidelines, jurisdictions around the country should look to Georgia as a template for establishing procedures to deal with domestic violence situations.

Boris Y. Milter*

* J.D., Atlanta's John Marshall Law School; B.S.B.A. Finance and Banking, Appalachian State University (2008). I would like to thank my parents, my sister, and my grandmother for their unwavering support, encouragement, and understanding over the last three years. I would like to thank Arnie Marie Dry for always pushing me to become a better person. Special thanks to Gail Oldt, Managing Editor of the Law Journal, for her invaluable insight and tireless editing of this Comment.

THE MARITAL CRIME EXCEPTION: WHY GEORGIA'S MARITAL PRIVILEGE LAW SHOULD BE CHANGED ........................................

1.

INTRODUCTION

II.

THE LAW OF MARITAL PRIVILEGE

A. B. C.

IH.

.......................

..... 236 ...... 239

........

How Georgia Views the MaritalPrivilege....... .......

Defining ConfidentialMarital Conversation.....

A Comparison of Georgia'sMarital Privilege with Other ......... ..........................

Jurisdictions .................................

1. Spousal Crime .....................................

2. Joint Crime

WHY GEORGIA SHOULD ADOPT MAINSTREAM MARITAL PRIVILEGE ...........................................

EXCEPTIONS ..................................

A. CrimesAgainst a Spouse ....................

1. The Problem ofDomestic Abuse ..................

Abuser to the Response 2. The State's B. Joint CriminalParticipantException....................

IV.

CONCLUSION

..........................................

242 243 244 246 249

250 251 252 254 259

..... 264

John MarshallLaw Journal

236

I.

[Vol. IV

INTRODUCTION

Married in 2004 at the ages of fifty-eight and sixty, Linda Poole and William Henry Hilton, Jr. were unconventional newlyweds. William's family was shocked when he fell in love and moved away from his hometown to be with Linda.' But after their marriage, William's daughter, Kimberly, said "[her dad] was happier than I had ever seen him." 2 While William's family adjusted to their dad's marriage, Linda's son, Timothy Poole, struggled with accepting William's influence over Linda. William's influence ultimately resulted in Linda ending her financial support of Timothy.3 Timothy, a former sheriffs deputy who had not worked since 2002, had grown accustomed to living well beyond his means. 4 In fact, along with his wife, Jodie Ann, Timothy spent over $400,000 of Linda's money in just a few years.'

Unwilling to accept his mother's dwindling financial support, Timothy began casing the Lakewood, South Carolina plantation where his mother and stepfather lived.6 After weeks of casing his mother's land, Timothy went to the plantation and shot and killed his mother and stepfather execution-style.

On one side of this story is a happily married couple, Linda and William, who likely discussed their personal secrets, their histories, and the challenges of blending their two families and lives. These are the type of communications made in reliance

1. Glenn Smith, Ex-Deputy, Wife Charged with Fraud, THE POST AND at available 2, 2009, May COURIER, http://www.postandcourier.com/news/2009/may/02/exdeputywife-charged fraud80853/.

2. Id. 3. Jamie Rogers, Wife and Former Co-Defendant Could Testify Against Poole in Trial, SCNOW.COM, Feb. 22, 2010, http://www2.scnow.com/news/2010/feb/22/wife andformer codefendantcould tesifyagainst-ar-352545/.

4. Id.

5. WBTW-TV 13, Killer of Pawleys Island Businesswoman Gets 400 Year

Sentence,

GEORGETOWN

TIMES,

June

3,

2010,

available at

http://www.gtowntimes.com/story/Killer-of-Pawleys-Island-businesswomangets-400-year-sentence.

6. Id. 7. Id.

No. 1]

The MaritalCrime Exception

237

on the relationship that the marital privilege seeks to foster and protect.8 On the other side of the story, Timothy and Jodie Ann also shared conversations in reliance on their marital relationship.

The problem, however, is that Timothy's and Jodie Ann's marital communications included the details of the murders of Linda and William, details of Timothy's false alibi, and the couple's plan to defraud the estate.9 These communications reach far beyond the intimate and commonplace aspects of married life that justify the continued existence of the marital privilege. Because Georgia does not recognize either crime against the spouse or joint crime participationexceptions to its marital privilege statute,10 spousal abuse and joint marital crimes, like those of Timothy and Jodie Ann, are protected.

The issue of marital privilege exceptions is vitally important to the legitimate judicial goals of seeking truth and providing equal justice." While the principal rationale behind the marital privilege aims to foster marital harmony by encouraging confidential communications,12 crimes committed within the confines of marriage and protected by the marital privilege have long been seen to affect adversely both lawful criminal prosecutions and the perceived legitimacy of justice." Georgia, 8. See, e.g., Century 21 Pinetree Prop., Inc. v. Cason, 469 S.E.2d 458, 460 (Ga. Ct. App. 1996); see also R. Michael Cassidy, Reconsidering Spousal PrivilegesAfter Crawford, 33 AM. J. CluM. L. 339, 362-63 (2006) (arguing the contemporary justifications for marital privilege exceptions are unpersuasive beyond the narrow scope of non-criminal communications).

9. See Press Release, W. Walters Wilkins, United States Attorney for the District of South Carolina, Florence Couple Indicted for Fraud Scheme 2009), 1, (May Murder to Related http://columbia.fbi.gov/dojpressrel/pressrel09/co050109.htm.

10. O.C.G.A. §§ 24-9-21, -23 (West 2010).

11. See Harvard Law Review Ass'n, Modes ofAnalysis: The Theories and Justifications of Privileged Communications, 98 HARV. L. REv. 1471, 1499 (1985) [hereinafter PrivilegedCommunications] (discussing the background of the marital privilege, the grant of unjustified privileges to those in power, and the delegitimizing effect that unjustified privileges have on the legal system).

12. Id. at 1472.

13. See Trammel v. United States, 445 U.S. 40, 51-52 (1980) (noting that preventing a wife from testifying about a husband's discernable wrongdoing at his say-so "goes far beyond making 'every man's house his castle,' and

238

John MarshallLaw Journal

[Vol. IV

along with a small minority of states, continues to grant special legal recognition to criminals who commit a crime with or against a spouse because it has not adopted the majority marital privilege exceptions.14 This Comment begins by discussing the two types of marital privilege-testimonial and confidential communication-and their intersection. The codified and common law exceptions permits a person to convert his house into 'a den of thieves."' (quoting JEREMY BENTHAM, 5 RATIONALE OF JUDICIAL EVIDENCE 340 (1827)). When the legal system is unable to discern the truth because a privilege prevents disclosure of relevant information, the legitimacy of the judiciary is challenged because society views the procedural rules (in this case privilege rules) as an impediment to the search for truth. PrivilegedCommunications, supra note 11, at 1499.

14. Cassidy, supra note 8, at 367-68 (stating that only Georgia, Alabama, Massachusetts, Missouri, and the District of Columbia "still do not recognize any spousal crime exception to the marital adverse testimonial privilege"); see, e.g., United States v. Kahn, 471 F.2d 191, 194 (7th Cir. 1972) (holding marital privilege does not apply to joint criminal activity); United States v.

Mendoza, 574 F.2d 1373, 1379-80 (5th Cir. 1978) (holding marital communications concerning the commission of a crime not protected by the marital privilege); United States v. Ammar, 714 F.2d 238, 257-58 (3d Cir. 1983) (holding confidential communication about ongoing or future criminal activity is not privileged); United States v. Broome, 732 F.2d 363, 365 (4th Cir. 1984) (holding where marital communications involve the commission of a crime in which both spouses participate, the marital privilege does not apply); United States v. Neal, 743 F.2d 1441, 1446 (10th Cir. 1984) (holding a spouse who becomes an accessory to a crime after the fact is not protected by the marital privilege); United States v. Sims, 755 F.2d 1239, 1243 (6th Cir. 1985) (holding marital conversations about ongoing or future patently illegal activity are not protected by the marital privilege); United States v.

Marashi, 913 F.2d 724, 731 (9th Cir. 1990) (recognizing a partnership in crime exception to confidential marital communications made in furtherance of a crime); United States v. Evans, 966 F.2d 398, 401 (8th Cir. 1992) (holding the marital privilege does not apply to spouses who are "partners in crime"); United States v. Rakes, 136 F.3d 1, 3 (1st Cir. 1998) (recognizing the crime fraud exception does not apply if a spouse participates in the crime under duress); State v. Browder, 486 So. 2d 504, 506 (Ala. Crim. App. 1986) (holding the marital privilege does not apply when a spouse actively or overtly participates in the fruits of the crime or in concealing it); Gill v.

Commonwealth, 374 S.W.2d 848, 851 (Ky. 1964) (holding no marital communication privilege applies when husband and wife are particeps criminis); State v. Witchey, 388 N.W.2d 893, 895 (S.D. 1986) (holding marital communication privilege does not apply when spouses participate jointly in crime).

No. 1]

The Marital Crime Exception

239

follow with a discussion of the nature of the confidential marital privilege and a comparison of Georgia's approach to other jurisdictions. The practical realities of the crime against the spouse exception are then analyzed in light of the widespread problem of domestic abuse and the State's legitimate goals of Then the joint crime reducing intimate partner abuse. participation exception is discussed, along with the practical problems that arise when spouses commit crimes together. This Comment concludes that Georgia should adopt the marital privilege exceptions of crime against the spouse and joint crime participationto its marital privilege statute.

II. THE LAW OF MARITAL PRIVILEGE

Relevant information in criminal and civil cases is often shared with one's spouse. A murderer may tell his spouse where he buried the body or give inside details on how he killed his mother-in-law the night before. In a civil case, a wife may tell her husband that she intended to defraud the victim, or she may provide him with the intimate details of her conspiracy.

Alternatively, a couple may engage in joint criminal activitieslike planning to kill an elderly mother so they can collect money from her estate.

When a spouse takes the stand in either a criminal or civil proceeding, there are two types of marital privilegetestimonial and confidential communication-that may be called upon to shield marital conversations and communicative acts from disclosure." Although the modern-day rationale for the existence of each privilege-to foster marital harmony-is identical, each privilege protects a different type of marital communication.16

15. O.C.G.A. §§ 24-9-21, -23 (West 2010); see also Smith v. State, 227 S.E.2d 84, 86 (Ga. Ct. App. 1976) (holding the spouse cannot be compelled to answer any question or give any evidence whether such evidence helps or harms).

16. Trammel v. United States, 445 U.S. 40, 44 (1980).

John MarshallLaw Journal

240

[Vol. IV

A Venn diagram is an effectual way to visualize how the two types of marital privilege intersect."

Defendant spouse can prevent testimony regarding confidential communications in criminal proceedings.

Testimonial

Confidential

Privilege -

Communication Privilege -

Applies only in Criminal Proceedings

Applies in both Criminal & Civil Proceedings

The left circle, representing the testimonial privilege, embodies the right of a spouse to choose not to testify against the other spouse in a criminal proceeding even if that spouse has relevant or exculpatory evidence." The testimonial privilege also provides a complete disqualification of the witness.19 Although the testimonial privilege has antiquated roots that reflect a time when women were property of the husband and incompetent to testify,2 0 the rationale for the privilege has evolved over time.2 1 The modem view posits that marital harmony is fostered when one spouse is not required to testify against the other in a criminal proceeding.22

17. Venn diagrams were introduced in 1880 in a paper by John Venn.

John Venn, On The Diagrammatic and Mechanical Representation of Propositions and Reasonings, THE LONDON, EDINBURGH, & DUBLIN PHILOSOPHICAL MAG. & J. OF SCI. 9, 1-18 (1880).

18. O.C.G.A. ยง 24-9-21 (West 2010).

19. Barbara J. Nelson, The Marital Privileges in Georgia: What You Should Know, 6 GA. BAR J. 8, 8 (2001).

20. Trammel, 445 U.S. at 41.

2 1. Id. 22. Id.

No. 1]

The Marital Crime Exception

241

The right circle of the Venn diagram represents the confidential communication privilege. This spousal exception, which applies in both civil and criminal proceedings, encompasses only those confidential communications, including communicative acts, which occur in reliance upon the marital relationship. 23 Like the testimonial privilege, the confidential privilege also seeks to foster marital harmony and purports to accomplish this goal by providing a safe-haven where spouses are free to share personal feelings and other intimate communications without the fear that those communications will be used against them to cause humiliation or embarrassment.2 4 However, unlike the testimonial privilege where the testifying spouse holds the privilege, this privilege is held by the communicating spouse.25 The intersection of the two circles represents the criminal proceeding where a witness spouse waives the testimonial privilege and chooses to testify. While the testifying spouse may have waived his testimonial privilege, this testimony still falls within the scope of the confidential privilege and allows the non-testifying spouse-the holder of the confidential communication privilege-to object and prevent the testifying spouse from disclosing any confidential communication. 26 For example, even if the testifying spouse chooses to testify against her husband about severe abuse suffered over many years, the criminal defendant can still prevent and frustrate her testimonial narrative in each instance where he holds a confidential communication privilege.27

23. O.C.G.A. ยง 24-9-21 (West 2010).

24. Ga. Int'l Life Ins. Co. v. Boney, 228 S.E.2d 731, 735 (Ga. Ct. App. 1976).

25. Id. at 734.

26. Id. (explaining the holder of the confidential communication privilege takes the privilege into the grave).

27. See generally United States v. Harrison, No. 6:05-cr-17(HL), 2006 U.S. Dist. LEXIS 23556 at *2-4 (M.D. Ga. Apr. 26, 2006) (discussing which confidential marital communications between husband and wife would be admissible at trial where the wife was abused by the husband).

242

John MarshallLaw Journal

[Vol. IV

A. How Georgia Views the MaritalPrivilege Georgia recognizes one statutory and one judicial exception to the marital privilege. 28 The Georgia code mandates that neither privilege "shall [] apply in proceedings in which the husband or wife is charged with a crime against the person of a minor child, but such person shall be compellable to give evidence only on the specific act for which the defendant is This exception nullifies the testimonial and charged." 29 confidential communication privileges of both spouses with regard to relevant evidence when either the husband or the wife is charged with a crime against a minor. 0 The judicial exception recognizes the possibility that a criminal defendant's constitutional right to present exculpatory evidence may, in certain circumstances, abrogate the marital For example, if the criminal defendant's wife privilege." possessed exculpatory evidence that would exonerate her husband, the court could compel her testimony even if she invoked the testimonial privilege and chose not to testify.

However, Georgia courts have not found actual circumstances that are sufficient to abrogate the marital privilege and compel

testimony.3 2 Specific conduct can also nullify the marital privileges under Georgia law. Georgia courts recognize three forms of general conduct that vitiate the confidential communication privilege.33 This conduct includes: "(1) conversations through or with third parties; (2) instances where the communication is actionable by one spouse against the other; and (3) impersonal communications or actions performed without regard for the special confidence between spouses in the marital relation."3 4 28. O.C.G.A. ยง 24-9-23(b) (West 2010).

29. Id. 30. Reaves v. State, 664 S.E.2d 207, 210 (Ga. 2008).

31. See, e.g., Robinson v. State, 473 S.E.2d 519, 521 (Ga. Ct. App. 1996) (explaining a defendant's right of confrontation may, upon a sufficient showing, necessitate the "abrogation of the marital privilege.") (citing Brown v. State, 401 S.E.2d 492, 496 (Ga. 1991)).

32. The author could not find any case where a Georgia court abrogated the marital privilege under the exculpatory exception.

33. White v. State, 440 S.E.2d 68, 70 (Ga. Ct. App. 1994) (citing Ga. Intl.

Life Ins. Co. v. Boney, 228 S.E.2d 731, 735-36 (Ga. Ct. App. 1976)).

34. Id.

No. 1]

The MaritalCrime Exception

243

But even if the confidential communication privilege is vitiated, the testimonial privilege survives.3 5 B. Defining Confidential Marital Conversation If Timothy Poole had returned home after casing his mother's plantation and discussed the detailed movements of his mother and stepfather with Jodie Ann, would the conversation be confidential? Does a private marital discussion planning the execution-style murder of Linda and William fall within the What if Timothy confidential communication exception? simply confided to Jodie Ann that he was contemplating the murder of Linda and William? In Georgia, a confidential communication turns on whether the communication was made in reliance upon the marital relationship.36 In one example, Wilcox v. State," the husband was on trial for the murder of a female employee. During trial, the State questioned his ex-wife about her general observations and the conversations she had with her husband on the day the female employee disappeared.38 The ex-wife's testimony revealed that the husband called to inform her that he would be late for a party, the time he arrived, and that he left to make sure his office was locked.3 9 In deciding whether the communications made by the husband were privileged, the court held, "[e]very spoken word between a husband and wife is not confidential; if the communication is an impersonal one not made in reliance on the marital relationship, the communication is not confidential, and no policy reason bars its admissibility." 4 0 The Georgia Supreme Court concluded that the ex-wife's testimony was admissible because such communications were not made in reliance on any special trust or otherwise attributable to the marital relationship, but were "impersonal communications concerning [the husband's] daily activities."4 1

35. See O.C.G.A. §§ 24-9-21, -23 (West 2010).

36. Wilcox v. State, 301 S.E.2d 251, 259 (Ga. 1983).

37. 301 S.E.2d 251 (Ga. 1983).

38. Id. at 257.

39. Id. at 259.

40. Id. 4 1. Id.

244

John MarshallLaw Journal

[Vol. IV

In another example, White v. State,42 the husband was charged with the aggravated sodomy of his two and a half yearold granddaughter, among other crimes, the wife testified that she had engaged in repeated anal intercourse with her The husband had anally sodomized the husband.43 granddaughter, and the State presented the wife's testimony about anal intercourse to show a similar act." Here, the Georgia Court of Appeals held that the testimony was improper because the wife's knowledge of the communicative act was "acquired by virtue of her voluntary participation ... resulting from a reliance upon . .. the confidential marital relationship."4 5 The court viewed the very personal intimate act-repeated anal intercourse-as something premised on the marital relationship and therefore privileged.4 6 C. A Comparisonof Georgia'sMaritalPrivilege with Other Jurisdictions Legislatures and courts have also adopted additional exceptions when the purpose of the marital privilege is frustrated.4 7 Only Georgia, Alabama, Massachusetts, Missouri, and the District of Columbia do not recognize a testimonial crime against the spouse exception to the marital privilege.48 In all but these five jurisdictions, a domestic abuse victim does not have a right to refuse to testify against a spouse in a domestic violence prosecution. 4 9 Additionally, Georgia, New Hampshire, North Carolina, South Carolina, and West Virginia are the only states that do not recognize a confidential communication

42. 440 S.E.2d 68 (Ga. Ct. App. 1994).

43. Id. at 70.

44. Id.at 71.

45. Id. at 70.

46. See id. If the testimony in White, regarding the anal intercourse, was directly related to a crime against a minor child, the court could compel the wife's testimony. O.C.G.A. ยง 24-9-23(b) (West 2010).

47. See Amy G. Bermingham, Partnersin Crime: The Joint Participants Exception to the PrivilegeAgainst Adverse Spousal Testimony, 53 FORDHAM L. REv. 1019, 1024-25 (1985).

48. Cassidy, supra note 8, at 367-68. The crime against the spouse exception is "consistent with English common law." Id. 49. See id.

No. 1]

The Marital Crime Exception

245

exception when one spouse commits a crime against the other."o In the context of spousal battery, the omission of this exception permits the defendant batterer to further threaten and intimidate the victim without fear that his words and conduct will be exposed at trial."

Most federal courts that have addressed the issue of joint crime participation have adopted the exception when the spouses are engaged in joint criminal activity." Further, many states have either adopted the joint crime participation exception by statute, judicially recognized one, or have held that

50. Id. at 369.

Because the defendant batterer holds the confidential 51. Id. communication privilege, he can prevent his wife from testifying about confidential communications regardless of the content. Id. 52. Several federal courts recognize joint crime exceptions. See, e.g., United States v. Kahn, 471 F.2d 191, 194 (7th Cir. 1972) (holding marital privilege does not apply to joint criminal activity); United States v.

Mendoza, 574 F.2d 1373, 1379-80 (5th Cir. 1978) (holding marital communications concerning the commission of a crime not protected by the marital privilege); United States v. Ammar, 714 F.2d 238, 257-58 (3d Cir. 1983) (holding confidential communication about ongoing or future criminal activity is not privileged); United States v. Broome, 732 F.2d 363, 365 (4th Cir. 1984) (holding where marital communications involve the commission of a crime in which both spouses participate, the marital privilege does not apply); United States v. Neal, 743 F.2d 1441, 1444 (10th Cir. 1984) (holding a spouse who becomes an accessory to a crime after the fact is not protected by the marital privilege); United States v. Sims, 755 F.2d 1239, 1243 (6th Cir. 1985) (holding marital conversations about ongoing or future patently illegal activity are not protected by the marital privilege); United States v.

Marashi, 913 F.2d 724, 731 (9th Cir. 1990) (recognizing a partnership in crime exception to confidential marital communications made in furtherance of a crime); United States v. Evans, 966 F.2d 398, 401 (8th Cir. 1992) (holding the marital privilege does not apply to spouses who are "partners in crime"); United States v. Rakes, 136 F.3d 1, 3 (1st Cir. 1998) (recognizing the crime fraud exception does not apply if a spouse participates in the crime under duress); United States v. Harrison, No. 6:05-cr-17(HL), 2006 U.S. Dist. LEXIS 23556, at *3 (M.D. Ga. Apr. 26, 2006) (endorsing the joint participation exception, but declining to extend it to include confidential communications where only one spouse was engaged in a crime). But see, In re Malfitano, 633 F.2d 276, 278 (3d Cir. 1980) (declining to recognize the exception only as it applies to the adverse testimonial privilege).

246

John MarshallLaw Journal

[Vol. IV

spouses who are engaged in joint criminal activity do not act in reliance on their marriage and thus the marital privilege does not apply."

1. Spousal Crime Georgia is one of only five jurisdictions that do not recognize any exception to the testimonial privilege for crimes committed by one spouse against the other.5 4 Under this widely adopted exception to the testimonial privilege," the victim may not refuse to testify against her abuser in domestic violence cases.s" In effect, without a crime against the spouse exception, domestic abuse becomes one of the only criminal prosecutions where the perpetrator's coercive power routinely overpowers both the victim and the state."

Moreover, in response to the Supreme Court's holding in Crawford v. Washington," where the Court restricted the use of 53. Some state courts also recognize joint crime exceptions. See e.g., State v. Browder, 486 So. 2d 504, 506 (Ala. Crim. App. 1986) (holding no joint crime exception applies when spouse does not encourage, acquiesce, or aid); People v. Von Villias, 15 Cal. Rptr. 2d 112, 140 (Cal. Ct. App. 1992) (holding confidential marital communication privilege does not attach when spouses are engaged in crime and fraud); Gill v. Coin., 374 S.W.2d 848, 851 (Ky. 1964) (holding no marital communication privilege applies when husband and wife are particeps criminis); State v. Smith, 384 A.2d 687, 694 (Me. 1978) (holding communications made in furtherance of criminal conduct are not privileged); State v. Heistand, 708 S.W.2d 125, 126 (Mo. 1986) (holding no marital privilege applies to contemplation of future crime); State v. Witchey, 388 N.W.2d 893, 895 (S.D. 1986) (holding marital communication privilege does not apply when spouses participate jointly in crime); Goforth v. State, 273 S.W. 845, 847 (Tex. Crim. App. 1925) (holding declarations made by wife not privileged when husband and wife are coconspirators in making whiskey).

54. Cassidy, supra note 8, at 367-68.

55. Trammel v. United States, 445 U.S. 40, 46 n.7 (1980) (citing the famed case of Lord Audley, Lord Audley's Case, 123 Eng.Rep. 1140 (1631), who allowed his wife to be gang raped by friends, the Supreme Court recognized, consistent with English common law, an exception to the marital privilege when "one spouse commits a crime against the other.").

56. Cassidy, supra note 8, at 367.

57. Id. at 368.

58. 541 U.S. 36 (2004) (holding defendant's Sixth Amendment rights were violated when a tape recording of Mrs. Crawford was admitted even though she had invoked the testimonial marital privilege and had chosen not

No. 1]

The Marital Crime Exception

247

testimonial victim statements, 9 domestic abuse prosecutions have become more difficult when the victim refuses to testify.o In light of this difficulty, Professor R. Michael Cassidy has called on Georgia and the four other jurisdictions to consider promptly changing their marital privilege exceptions to conform to mainstream jurisprudence.6 1 The rationale that a "defendant spouse may not commit abuse and then hide behind the marital privilege to shield himself from criminal prosecution based on that abuse" 62 acknowledges both mainstream established firmly and common sense In United States v. Marashi,63 the court jurisprudence. articulated the rationale behind why marital privileges must be narrowly construed, stating that "[bjecause [the privilege] obstructs the truth seeking process[,] [the] [u]se of the privilege in criminal proceedings requires a particularly narrow construction because of society's strong interest in the administration of justice." 64 Courts acknowledge the injustice of allowing the abuser to hide behind the marital privilege and understand that privileges are disfavored because they impede the search for truth.65 Further, because "[t]he power of government to compel persons to testify ... is firmly established in Anglo-American jurisprudence[,]" 66 the absence of a crime against the spouse exception, which permits the abuser to force the victim to "choose" not to testify, circumvents this established sovereign

to testify). The impact of the Crawford decision restricted the use of some out-of-court statements. Cassidy, supra note 8, at 339. Prior to Crawford, prosecutors could introduce a victim's statement to police or other authorities as evidence, but the Crawford decision significantly limited the admission of most of those statements if the victim was unavailable or decided to use the marital privilege to not testify. Cassidy, supra note 8, at 339.

59. See Cassidy, supra note 8, at 339.

60. Id. at 368.

61. Id. at 368-69.

62. United States v. Harrison, No. 6:05-cr-17(HL), 2006 U.S. Dist. LEXIS 23556, at *11 (M.D. Ga. Apr. 26, 2006).

63. 913 F.2d 724 (9th Cir. 1990).

64. Id. at 730 (citing United States v. Roberson, 859 F.2d 1376, 1380 (9th Cir. 1988)).

65. United States v. Nixon, 418 U.S. 683, 710 n.18 (1974).

66. Kastigar v. United States, 406 U.S. 441, 443 (1972).

248

John MarshallLaw Journal

[Vol. IV

power of the State.67 The power of the State to compel testimony in domestic abuse cases recognizes the true nature of domestic abuse-a crime against society and not simply a tort against the victim spouse.68 This power arises "not from any one person or set of persons, but from the community as a whole-from justice as an institution and from law and order as indispensable elements of civilized life."6 9 Turning to confidential communications, all but five states recognize an exception for crimes against a spouse.7 0 In these five states, the victim may not testify to confidential communications "even if those conversations occur in the Marital context of and/or promote a spousal battery[.]"" harmony-the preeminent reason for both marital privilegescannot be promoted when the abuser hides behind the marital privilege and uses violence, intimidation, and his defense attorney 72 to coerce the victim into not testifying or prevent her from telling the jury the whole truth about the scope of her abuse.

67. See Malinda L. Seymore, Isn't It a Crime: Feminist Perspectives on Spousal Immunity and Spousal Violence, 90 Nw. U. L. REV. 1032, 1081 (1996).

68. Id. 69. Id. at 1044. (quoting 8 John H. Wigmore, Evidence ยง 2192, at 72-73 (McNaughton rev. 1961)).

70. Cassidy, supra note 8, at 369.

7 1. Id.

72. Many domestic partner violence victims claim that defense attorneys often inform the husband (while he is seated alongside his victim wife) that his wife does not have to testify at her husband's trial if she does not want to or if she changes her mind. Telephone Interview with Susan BerrymanRodriguez, Dir. of Comty. Relations, P'ship Against Domestic Violence ("PADV") & Jasmine Williams Miller, Licensed Master Social Worker, (Sep. 21, 2010) [hereinafter PADV Interview].

No. 1]

The Marital Crime Exception

249

2. Joint Crime The vast majority of jurisdictions that have confronted the joint crime participationexception have held that the nature and intent of a criminal communication cannot arise from the privacy of the marital relationship." Courts have acknowledged that the marital privilege applies only to (1) "words or acts intended as communication" from one spouse to another; (2) "communications made during a valid marriage[;]" and (3) "communications which are confidential."74 The logic follows that only communications based upon confidential marital relations, like the testimony regarding the sexual proclivity of the husband and wife in White v. State," can qualify as confidential marital communications.

In contrast, communications made without any regard to the confidential nature of the relationship, like those in Wilcox v. State, where the husband did not want his ex-wife to testify as to his whereabouts, 76 fall outside the purview of a confidential marital communication. One criticism of the joint crime participation exception is that the joint criminal activity may purposefully rely on the confidential relationship to perpetrate wrongdoing.77 But the absence of the exception can also prevent a coerced spouse from accepting a plea bargain because she cannot Moreover, many disclose the confidential communication. courts "reason[] that the public's interest in discovering the truth about criminal activity outweigh[s] the public's interest in protecting the privacy of marriage where the conversations in question relate[] directly to criminal activity."7 9

73. Trammel v. United States, 445 U.S. 40, 50 (1980); see cases cited supranotes 52-53.

74. United States v. Marashi, 913 F.2d 724, 729-30 (9th Cir. 1990).

75. 440 S.E.2d 68 (Ga. Ct. App. 1994).

76. 301 S.E.2d 251 (Ga. 1983).

77. MILTON C. REGAN, ALONE TOGETHER: LAW AND THE MEANINGS OF MARRIAGE 97 (Oxford Univ. Press 1999). The author explores both an internal and external view of marriage. One suggestion is that married couples should have the right to engage in a cost benefit analysis of their criminal enterprise and choose the benefit of speaking freely. Id. at 97, 103.

78. Id. at 99.

79. See, e.g., United States v. Sims, 755 F.2d 1239, 1241 (6th Cir. 1985).

250

John MarshallLaw Journal

[Vol. IV

Additionally, some courts posit that married criminal activity cannot occur within a productive and happy marriage." As a consequence, the purpose of the marital privilege-fostering marital harmony-is already frustrated and incompatible with those married persons who are engaged in criminal activity.

Moreover, encouraging a spouse to enlist her partner in a criminal scheme because the criminal conspiracy is protected by the marital privilege creates incentives to turn the institution of marriage into a "den of thieves." 1

III. WHY GEORGIA SHOULD ADOPT MAINSTREAM MARITAL PRIVILEGE EXCEPTIONS In 2009, Georgia Representative Doug Collins, of the 27th district, introduced House Bill 840, which proposed two additional exceptions to Georgia's existing marital privilege statute, O.C.G.A. ยง 24-9-23." The proposed changes would prevent the marital privilege from applying in cases where (1) a spouse committed "a crime or tort against the person or property of the other spouse;" or (2) the spouses were shown to be involved in unrefuted joint spousal criminal activity.8 3

80. See, e.g., In re Malfitano, 633 F.2d 276, 278 (3d Cir. 1980).

81. Trammel v. United States, 445 U.S. 40, 51-52 (1980).

82. H.B. 840, 150th Gen. Assem., 1st Reg. Sess., (Ga. 2009), availableat http://www.legis.ga.gov/legis/2009_10/search/hb840.htm.

83. Id. The proposed language of the bill (additions are denoted in underlined text and omissions are denoted by strikethrough text) is: (b) The privilege created by subsection (a) of this Code section or by corresponding privileges in paragraph (1) of Code Section 24-9-21 or subsection (a) of Code Section 24-9-27 shall not apply in proceedings in which the; (1) The husband or wife is charged with a crime against the person of a minor child, but such person shall be compellable to give evidence only on the specific act for which the defendant is chargedL (2) The husband or wife is charged with a crime or tort against the person or property of the other spouse: or (3) An unrefuted showing is made in a criminal proceeding that the spouses acted jointly in the commission of the crime charged.

No. 1]

The MaritalCrime Exception

251

A. Crimes Against a Spouse How would the proposed change to Georgia's marital privilege statute affect married Georgians? Currently, Georgia courts recognize that a victim spouse has a right to testify about spousal abuse because the victim spouse holds the testimonial privilege.84 As such, the testifying spouse can choose to testify about conduct and communications that are actionable against the other spouse only if they fall within that narrow scope created when the testimonial and confidential communication However, all other confidential privileges intersect." communications are barred.

In reality, all too often the testifying spouse is intimidated and coerced by the defendant spouse not to testify.86 In virtually all cases, the victim spouse is the only witness to the crime, and without her testimony or her "availability" the state is left with few tools, if any, to counter the abuser's power over the victim." But the problem does not end there. Because the state lacks the power to compel the victim's testimony, the defendant abuser is empowered to continue his cycle of control and abuse." Unfortunately, even if the victim makes statements to investigators, those statements are likely to be inadmissible hearsay unless they qualify as excited utterances89 or fall within the very narrow scope of an investigatory response to an emergency situation.9 o

84. See Lowry v. Lowry, 153 S.E. 11, 17 (Ga. 1930) (holding that a wife is permitted to testify to cruel treatment by husband).

85. See supra Part II. 86. EVE S. BUZAWA & CARL G. BUZAWA, DOMESTIC VIOLENCE: THE CRIMINAL JUSTICE RESPONSE 183-84 (Sage Publ'ns 3d ed. 2003).

87. See id. at 181-85; Cassidy, supra note 8, at 349, 352-54.

88. Cassidy, supranote 8, at 350.

89. O.C.G.A. ยง 24-3-3 (West 2010) ("Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.").

90. Cassidy, supra note 8, at 346-47; see also Crawford v. Washington, 541 U.S. 36, 68 (2004) (holding unavailability of spouse precludes admission of testimonial statements).

John MarshallLaw Journal

252

[Vol. IV

1. The Problem ofDomestic Abuse According to The Centers for Disease Control and Prevention, "[e]ach year, women experience about 4.8 million intimate partner related physical assaults and rapes."' Intimate partner violence ("IPV") resulted in 1510 deaths in 2005.92 IPV cost the United States an estimated $8.3 billion in 2003.91 According to the United States Surgeon General, the largest cause of physical injury to women in the United States is IPV. 94 These numbers represent individual stories of abuse, victimization, pain, suffering, and heart-ache. IPV is unique because the victim is intimately involved with the assailant, and although each story has its own unique narrative, Donna Houston's reflects the typical scenario.

During their brief one year marriage, Donna reported escalating attacks by her jealous husband on three separate occasions. Early in the marriage, Donna's ten year old son witnessed the defendant push his mother into a bookshelf, causing a heavy statue to fall and lacerate her head. Donna later "minimized" this incident by telling police that her injury was an accident . . . . Months later, after another argument, Donna's husband stabbed her in the face with scissors, causing a serious jagged laceration. Only after she pleaded with him for medical help and promised not to report his behavior to authorities did he take her to the emergency room for sutures to close the gaping wound.

When Donna told the hospital staff what had happened, they called the police who arrested the defendant .

. .

. A few

days before the preliminary hearing, Donna came to the District Attorney's Office and insisted that she wanted to drop the charges . . . . When [she was] told that the

prosecution would not be dismissed, Donna made herself "unavailable" to testify .

.

..

The case was dismissed for

insufficient evidence to proceed. 95

91. UNDERSTANDING INTIMATE PARTNER VIOLENCE 1, available at http://www.cdc.gov/violenceprevention/pdf/IPV-factsheet-a.pdf (last visited

Mar. 28, 2011).

Id. Id 94. Cassidy, supra note 8, at 347.

95. Donna Wills, Forum: Mandatory Prosecution in Domestic Violence Cases: Domestic Violence: The Case for Aggressive Prosecution, 7 UCLA 92.

93.

WOMEN'S

L. J. 173, 177-78 (1997).

No. 1]

The MaritalCrime Exception

253

Donna's real life story continued to unfold and reached a pinnacle when the defendant kidnapped their five-month-old daughter from the babysitter's house and "led [] police on a high-speed chase [] with the baby unrestrained[.]" 9 6 Sadly, the story ended when the defendant, after being bailed out of jail by his parents, went to a gun store, bought a 12-gauge shotgun, and shot Donna "in broad daylight, at close range, in front of six horrified co-workers," killing her and orphaning her children. 97 The cycle of domestic abuse usually begins with minor battering where the victim chooses not to report the violence.98 Even when the police are finally called, studies indicate that victims fail to cooperate after the initial incident in eighty percent of cases. 99 Moreover, "despite increased societal attention to domestic violence, the rate of prosecution is still limited by the unwillingness of victims to cooperate."100 Justice Scalia acknowledged that "this particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial."101 The retaliation and intimidation Justice Scalia acknowledged was documented in one study where "nearly half of the victims reported that their assailants had physically threatened them if they preceded [sic] further. .. "102 with prosecution. Likewise, studies indicate that defendant abusers often threaten to harm, kidnap, and remove children via social service organizations if the victim continues to pursue legal action. 0 Abusers also frequently promise to change, send love letters, vow the future will be happy and abuse free-anything to stop the victim from Additionally, because the abuser has often testifying.'" exaggerated the victim's mental disabilities and substance abuse 96. Id. at 178.

97. Id. 98. See Seymore, supra note 67, at 1038; BUZAWA, supra note 86, at 72 (citing a well-executed study of 6000 households which found that only 6.7 percent of domestic violence incidents were actually reported to police).

99. Cassidy, supra note 8, at 347. But see BUZAWA, supranote 86, at 182 (indicating victim attrition rates between sixty and eighty percent).

100. BUZAWA, supra note 86, at 182.

101. Davis v. Washington, 547 U.S. 813, 832-33 (2006).

102. BUZAWA, supra note 86, at 183.

103. Id. at 183.

104. Wills, supranote 95, at 179.

254

John MarshallLaw Journal

[Vol. IV

problems in an effort to gain power and control over her throughout the escalating cycle of abuse, he will skillfully continue to exploit these, and many other control points, after the abuse occurs to coerce the victim into submission.105 A victim calls upon the criminal justice system to enhance her safety, protect her children, and maintain the economic viability of the family.10 6 The ongoing economic reality of being dependent upon the abuser for financial support continues to fuel the strong tensions between the immediate needs of the victim and that of the State's goals to deter physical violence. 0 7 As a result, all too often, a victim simply does not see the After it is criminal justice system as a viable solution.' invoked to deal with immediate safety concerns, a victim often abandons the system in favor of her family's physical need for food and shelter, as well as her emotional needs where she is often "desperate to forgive and forget and to placate the abuser." 09 2. The State's Response to the Abuser Although the right to chastise one's wife was affirmed during the early American period,"o throughout the late nineteenth century, states began to reject the notion that a husband had the right to beat his wife."' The right of a husband to discipline his wife once rested upon "a low and barbarous custom" and considered an "unchristian 'privilege,' wholly to the 'lower rank of the people.""' 2 Other states limited the right of a husband to beat his wife if the beating caused permanent injury or the abuse 105. See BUZAWA, supranote 86, at 183; Wills, supra note 95, at 179.

106. See e.g., BUZAWA, supra note 86, at 182.

107. Id. 108. Wills, supra note 95, at 179-80.

109. Id. This comports with psychologist Abraham Maslow's hierarchy of needs theory. Maslow suggests that people must fulfill their basic need for food and shelter before moving on to higher level needs. ABRAHAM H. MASLOW, MOTIVATION AND PERSONALITY 15-31 (2d ed. 1970).

110. Bradley v. State, 1 Miss. 156, 157 (1824) (holding a husband may "use salutary restraints in every case of a [wife's] misbehavior, without being subjected to the vexatious prosecutions [] resulting in the mutual discredit and shame of all parties concerned.").

111. Fulgham v. State, 46 Ala. 143, 146-47 (1871).

112. Id.

No. 1]

The MaritalCrime Exception

255

was excessive."' Although the first law against wife beating was enacted in 1850,114 society viewed non-serious abuse as a private act, concerning the family, and generally refused to interfere."' 5 However, in the 1960's and 1970's, the battered women's movement began to take shape,"' which lead to all fifty states adopting legislation to address domestic abuse."'7 In 1984, a study by Lawrence Sherman and Richard Berk showed that arresting the abuser dramatically reduced recidivism."'

Similar studies followed, and by the 1990's, police, prosecutors, and state legislatures started changing their response to better address the endemic problem of IPV." 9 Today, Georgia remains one of a handful of states that have not fully addressed the far reaching and devastating effects of IPV because it has not adopted a crime against the spouse Granting prosecutors the power to compel exception. testimony, notwithstanding the coercive power the abuser exerts on the victim, better protects society and the victim because it disincentivizes the abuser and puts him on notice that society will not tolerate his continued abuse.12 0 Studies indicate that when victim testimony can be compelled, the pressure on the victim from the abuser is relieved, and he is less likely to blame the victim because she has no choice whether to testify.' 2 ' More importantly, studies show that when the abuser is successful in

113. See, e.g., State v. Oliver, 70 N.C. 60, *2 (1874) (holding that a husband striking his pregnant wife with his fists was excessive and indictable).

114. Debora Epstein, ProceduralJustice: Tempering the State's Response to Domestic Violence, 43 WM. & MARY L. REv. 1843, 1850 n.19 (2002).

115. Id. at 1850-51.

116. Id. at 1845.

117. BUZAWA, supra note 86, at 3.

118. Epstein, supra note 114, at 1853-54.

119. See id. at 1853-57.

120. See Casey G. Gwinn & Anne O'Dell, Symposium: Domestic Violence and Child Abuse: Stopping the Violence: The Role of the Police Officer and the Prosecutor, 20 W. ST. U. L. REv. 297, 310-11 (1993); BUZAWA, supra note 86, at 194-96 (citing studies by Cahn & Lerman, 1991; Waits, 1985, Wills, 1997).

121. BUZAWA, supra note 86, at 195-96 (citing studies by Cahn & Lerman, 1991; Waits, 1985, Wills, 1997).

256

John MarshallLaw Journal

[Vol. IV

coercing the victim not to testify, the cycle of abuse is more

likely to continue.12 2 When a state recognizes a crime against the spouse exception, the abuser quickly learns that he cannot stop his victim from testifying and will be held accountable.123 Often, this knowledge results in the defendant abuser entering a plea.124 Statistics also show that when a victim can be compelled to testify, that victim rarely ends up charged with contempt.125 In reality, the use of a contempt action against the victim only occurs when the prosecution has no other options available and both the severity and nature of the abuse warrant prosecution using an unavailable victim. 126 In determining whether to compel victim testimony, prosecutors often consider such factors as "the seriousness of the battery, the defendant's prior criminal record, the level of lethality of the defendant's future predicted behavior, the exposure of children to the violence, and the availability of evidence other than the victim's testimony to

prove the case."1 2 7 When victim testimony can be compelled in IPV cases, other prosecutorial options used during trial become far more effective and the testimonial problems of Crawford are eliminated.12 8 The testimony of all emergency responders and investigatory agencies becomes admissible because the defendant is able to confront his accuser as required by the Sixth Amendment and Crawford.129 in most cases, when the 122. Cassidy, supra note 8, at 350.

123. Id.; See Gwinn & O'Dell, supra note 120, at 310-11 (comparing the effect of a policy change: "In San Diego, we learned a number of years ago that abusers would become more violent and aggressive toward the victim when they learned that she controlled the outcome of the criminal prosecution."). Although the statistics were based on a no-drop policy, the underlying rationale-stopping the abuser from coercing the victim and manipulating the criminal justice system by forcing the victim not to testify-is the same rationale behind compelling victim testimony. See Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 HARV. L. REv. 1849, 1867 (1996).

124. Hanna, supra note 123, at 1867.

125. Id. 126. Id. at 1867-68.

127. Cassidy, supra note 8, at 348.

128. See id. at 352-54.

129. Id.

No. 1]

The MaritalCrime Exception

257

State has the victim's testimony and corresponding investigatory evidence available at trial, the prosecution can garner a plea or simply use the "availability" of the victim to introduce key testimonial evidence without ever calling the victim to testify at trial.13 0 The arguments against compelling victim testimony suggest that forcing a victim to testify against her spouse will be neither productive nor truthful."' The victim may recant, "profess a lack of memory," or simply lie. 3 2 Others argue that making the victim describe the events through testimony further punishes the victim. 13 3 While these arguments raise some legitimate concerns, they fail to recognize the importance of the strategic power of preventing the abuser from making the victim "unavailable" so that the State cannot offer testimonial evidence.' 34 The State's ability to compel the victim to testify becomes quite powerful during trial. It allows the victim not to testify while still permitting the State to introduce testimonial evidence at trial, which would otherwise be prohibited as violating the defendant's Sixth Amendment right to confront his accuser."' Even if the victim testifies and recants or professes a lack of knowledge, the Confrontation Clause issues are no longer a concern; the State can still present all of its evidence, and the jury can weigh the credibility of the victim's testimony. 3 6 Moreover, if the victim does recant or claim lack of memory, the State can tender a variety of other evidence on the cycle of domestic abuse and the immense harm it works on the family and society in response. 3 1 Although domestic violence is primarily an individual problem, its public impact is substantial."' One state legislature found that "spousal abusers present a clear and present danger 130. Id. at 374.

131. Id. at 372.

132. Id. 133. See Angela Corsilles, Note, No-Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?, 63 FORDHAM L. REv. 853, 876 (1994).

134. Cassidy, supra note 8, at 350.

135. Id. at 354-55.

136. Id. 137. Id. 138. Wills, supra note 95, at 174.

John MarshallLaw Journal

258

[Vol. IV

to the mental and physical well-being of' its citizens; that spousal abuse is a primary cause of injury to women, a foremost factor in homicide, suicide, and child abuse; and a "major precursor for future batterers and violent youth offenders."' 39 The criminal justice system does not exist to defend the interests of the individual, but rather it intervenes for the benefit of all society.14 0 When the victim calls upon resources such as police officers, firemen, emergency responders, and the judicial system, she is not only asking society for help but also alerting society to a dangerl41-a danger to herself, her children, 4 2 and the abuser's future partners. Once societal resources are summoned and the danger is noticed, the victim no longer has the right to veto "how society decides to respond to the In concert with the loud outcry from IPV threat[.]"l 43 now recognizes the importance of treating society organizations, domestic abuse as a public crime like rape, assault, and other forms of personal violence.'"

In virtually every criminal case, the victim faces both "internal and external pressure[s] to drop criminal charges[.]"l 4 5 However, because the State does not acquiesce to the demands of the victim in any crime except domestic abuse, it sends a clear message that defendants charged with a crime against the spouse are free to manipulate society's response. When the criminal defendant coerces his victim into refusing to cooperate with the police or prosecutor, which occurs over eighty percent of the time, the legitimacy of the justice system is compromised because the defendant controls the outcome.14 6 Ultimately, the numbers tell the real story. Aggressive and efficient prosecution policies can have a dramatic impact on the cycle of IPV, and some studies indicate that IPV incidents have "fallen by as much as fifty percent" when these policies are adopted.14 7 In one example where "the City of San Diego 139. Id at 174-75.

140. Id 14 1. Id. 142. Id

143.

144.

145.

146.

147.

Cassidy, supra note 8, at 351.

Id at 350-51; see generallyWills, supra note 95, at 174-75.

Cassidy, supra note 8, at 351.

Id at 352.

Id. at 351-52.

No. 1]

The Marital Crime Exception

259

adopted a 'no-drop' prosecution strategy, the number of annual fell from a high of domestic violence-related homicides .

thirty to a low of seven."

48

The Georgia statistics show the opposite trend in domestic violence homicides. The rate of domestic homicides is climbing despite the bold efforts of many organizations dedicated to reducing or eliminating IPV.' 49 Adopting a crime against the spouse exception to the marital privilege in Georgia would send a clear message to abusers that they can no longer hide behind the marital privilege to commit IPV. This would likely correspond to both a decrease in the occurrence of IPV and an More increase in aggressive and efficient prosecutions. importantly, it would better enable Georgia's prosecutors to stop the insidious cycle of IPV and reduce the number of IPV related deaths.

B. Joint CriminalParticipantException Spouses who engage in joint criminal activity also hide behind the marital privilege. In Georgia, if Jodie Ann Poole was called to testify about Timothy's disclosure regarding the murder and plans to defraud the Hilton estate, those statements would not be admissible at trial due to the confidential marital privilege.s 0 Because the confidential marital privilege protects communications made in reliance on the special confidence of the marriage, Timothy's sharing the details of his actions and plans to Jodie Ann fall within the scope of the privilege, even if the communications include a discussion of his crimes.'

If, however, Jodie Ann did more than listen, and she actually participated in the plan to conceal Timothy's involvement to defraud the Hilton estate, under Georgia's current statute, those 148. Id. at 352.

149. GA. COMM'N ON FAMILY VIOLENCE & GA. COAL. AGAINST DOMESTIC VIOLENCE, 2009 GEORGIA DOMESTIC VIOLENCE FATALITY 24 (2010), REPORT REVIEW ANNUAL

http://www.fatalityreview.com/homepage/tmp/2009%20Fatality%/2OReview %20Annual%20Report.pdf; PADV Interview, supra note 72 (confirming domestic abuse fatalities for 2009 are higher than 2008).

150. State v. Peters, 444 S.E.2d 609, 610-11 (Ga. Ct. App. 1994) (holding the marital privilege protects communications not covered by the legislative exceptions regardless of the underlying motives for the marriage).

151. Id.

260

John MarshallLaw Journal

[Vol. IV

statements would still be considered confidential. The proposed joint criminal participant exception does not disturb Jodie Ann's ability to listen, but it does remove the privilege protection when confidential communications are made in furtherance of joint criminal activity.

Joint marital criminal activity can extend beyond just concealing Jodie Ann's actions. The United States Supreme Court recognized the problem of allowing a spouse to hide behind a privilege in United States v. Nixon by stating that privileges are disfavored because they impede the search for truth.'5 2 If Timothy and Jodie Ann jointly planned the murder and carefully orchestrated a complex scheme to defraud the Hilton estate, such joint participation would be protected by Georgia's current marital privilege statute, potentially preventing a successful prosecution of one or both spouses.

Although the Supreme Court did not adopt a federal joint participant exception to the marital privilege, it did spend a great deal of time criticizing the testimonial marital privilege.'15 3 Citing Professor Wigmore and others, the Supreme Court noted that many have called for the elimination of the marital privilege.' 5 4 Pointing to the authority of the federal courts to continue to evolve testimonial privileges, the Court said privileges should be "governed by the principles of the common law as they may be interpreted ... in the light of reason and As with the evolution of all laws, "[a]ny rule experience."' that impedes the discovery of truth in a court of law impedes as well the doing of justice."' 6 Closer to home, the Georgia Court of Appeals was asked to rule on the testimonial privilege in State v. Peters, where the The defendant was charged with killing her husband.' defendant was having an affair with another man, and after her husband was murdered, her lover inadvertently provided

152. United States v. Nixon, 418 U.S. 683, 710 (1974) (holding that President Nixon's executive privilege must yield to the subpoena power of the court).

153. Trammel v. United States, 445 U.S. 40, 50 (1979).

154. Id. at 44-45.

155. Id. at 47 (citing FED. R. EvID. 501).

156. Hawkins v. United States, 358 U.S. 74, 81 (1958).

157. State v. Peters, 444 S.E.2d 609 (Ga. Ct. App. 1994).

No. 1]

The Marital Crime Exception

261

incriminating information to the police.'s The defendant subsequently married her lover to seal his lips, and the Court reluctantly ruled the lover's testimony could not be compelled."' The Court did, however, send a message to the legislature. "The circumstances of this case amply demonstrate the potential for abuse of the far-reaching protection granted by However, the General the marital testimonial privilege.

Assembly has determined the limits of that privilege, and we are not permitted to alter that determination by judicial amendment." 60 Most states and federal circuits that have addressed the issue have adopted the joint participation exception to the marital privilege.161 Citing binding precedent on the Eleventh Circuit, the United States District Court for the Middle District of Georgia said, "conversations between husband and wife about crimes in which they are jointly participating when the conversations occur are not marital communications for the purpose of the marital privilege." 62 Returning to the underlying reason the marital privilege exists-fostering harmonious relationships-most courts find that those who engage in joint criminal activity do not have a harmonious relationship worthy of protection. 163 However, even if one thinks a criminal marital enterprise can be accomplished harmoniously, the courts have consistently recognized that concomitant criminal conversations or conspiracies are criminal enterprises worthy of punishment.16 4 Therefore, it is hard to see how fostering criminal marital enterprises helps marriages or society. In United States v.

158. Id. at 610.

159. Id. at 610-13. The Court also noted that the Georgia General Assembly failed to enact SB 609, which would have added an exception to the marital privilege for crimes committed before the marriage. Id. at 611 n.3.

160. Id. at 612-13.

161. See cases cited supra notes 52-53.

162. United States v. Harrison, No. 6:05-cr-17 (HL), 2006 U.S. Dist.

Lexis 23556, at *8 n.1 (M.D. Ga. Apr. 26, 2006) (quoting United States v.

Mendoza, 754 F.2d 1373, 1381 (5th Cir. 1978)).

163. See, e.g., United States v. Trammel, 583 F.2d 1166, 1170-71 (10th Cir. 1978), affd on other grounds, 445 U.S. 40 (1980).

164. See, e.g., State v. Witchey, 388 N.W.2d 893, 895 (S.D. 1986).

262

John MarshallLaw Journal

[Vol. IV

Miller, the Millers had ongoing conversations about Mr. Miller's decision not to file income tax returns. 6 s The Millers claimed that the marital privilege protected the confidential communication, but the court disagreed.166 The court of appeals affirmed the ruling of the lower court, which held that "the testimony was not protected by the confidential marital communications privilege because the conversations related to joint participation in criminal activity." 6 7 The reality of abuse from Georgia's far reaching marital privilege was witnessed by the author during a recent JacksonDennol68 hearing in Union County, Georgia where the defendant was charged with aggravated assault, burglary, and attempted murder in connection with an alleged attack on his mother-in-law.' 69 During the course of the investigation the defendant submitted to a polygraph examination and during the pre-examination interview confessed to committing the assault.7 0 The evidence also established that the clothing worn by the defendant on the night of the assault matched the motherin-law's description of her assailant, and the sledge hammer handle used to commit the assault came from the defendant's carport.'

165. United States v. Miller, 588 F.3d 897, 905 (5th Cir. 2009). The court recognized an exception to the confidential marital communications where the husband and wife discussed crimes in which they were jointly participating. The court went on to say that "[t]he testifying spouse need not be charged with a crime, so long as the testimony conveys joint criminal activity." Id. at 905.

166. Id. 167. Id. 168. Jackson v. Denno, 378 U.S. 368 (1964). A Jackson-Denno hearing is a court proceeding where a judge determines whether a defendant's statement, sought to be introduced into evidence at trial, was freely and voluntarily made. Id. at 391.

169. Audio Transcript at 1:42, State of Georgia v. Leonard Lewis Freeman, No. 09-CR-005-DB (Superior Court of Union County, Aug. 20, 2010) (on file with the John Marshall Law Journal).

170. Order on Jackson-Denno Hearing at 4, State of Georgia v. Leonard Lewis Freeman, No. 09-CR-005-DB (Superior Court of Union County, Nov. 8, 2010).

171. Id. at 2.

No. 1]

The Marital Crime Exception

263

The evidence presented at the hearing also indicated that the defendant's wife was a suspect in the assault. 17 2 The police questioned the defendant during one investigation as to whether he knew about the similar circumstances surrounding the murder of his wife's aunt.7" Further, the similarity between the mother-in-law's and aunt's attacks, the lack of blood on the defendant's clothing, 17 4 and other statements made by the defendant lend support to the distinct possibility that the wife was involved or may have actually perpetrated the attack.

Abuse of the marital privilege would arise after the State presented its evidence at trial. After resting, in this real-life hypothetical scenario, the defendant could take the stand and admit he made the statements. The defendant would say that he does not have a firsthand knowledge of the crime because he was trying to protect his wife when, in fact, it was his wife who committed the assault and orchestrated the crime.

Because the evidence presented by the State during the Jackson-Denno hearing posits that the wife's aunt had been killed in a similar manner,175 the logical inference for the jury would be that the wife was somehow involved.

In addition, a competent defense attorney would point out that because law enforcement did not search the house to see whether another set of matching clothes were present, reasonable doubt remains as to whether there was another set of matching clothes. Or in the alternative, the wife could have simply worn the defendant's clothes when she, not the defendant, committed the assault. In this real-life inspired scenario, the plausible alternative story might very well give rise to reasonable doubt and lead to a not-guilty verdict.

Even worse, if the State subsequently attempted to bring the wife to justice under the current marital privilege statute, the 172. See Audio Transcript at 49:58, State of Georgia v. Leonard Lewis Freeman, No. 09-CR-005-DB (Superior Court of Union County, Sept. 17, 2010) (on file with the John Marshall Law Journal).

173. Id. at 49:58.

174. Order on Jackson-Denno Hearing at 2, State of Georgia v. Leonard Lewis Freeman, No. 09-CR-005-DB (Superior Court of Union County, Nov. 8,2010).

175. Audio Transcript at 49:58, State of Georgia v. Leonard Lewis Freeman, No. 09-CR-005-DB (Superior Court of Union County, Sept. 17, 2010) (on file with the John Marshall Law Journal).

264

John MarshallLaw Journal

[Vol. IV

husband could claim both testimonial and confidential communication privilege. In this situation, the marital privilege is exploited as a double-edge sword, yielded to thwart any attempt by the State to administer justice and seek the truth, and "amply demonstrate[s] the potential for abuse of the farreaching protection granted by the marital testimonial privilege"' 7 6 statute.

IV. CONCLUSION

On June 3, 2010, Timothy Poole was sentenced to 400 years in prison for the mail and wire fraud he committed in connection with the killing of his mother and step-father. 7 Timothy's wife, Jodie Ann, admitted at trial, in exchange for full immunity, that she and Timothy had conspired to cover up Timothy's involvement so he would remain an eligible heir and gain access to his mother's various trusts and estate."7 However, if Timothy had been tried in Georgia, the substance of Jodie Ann's testimony, under the current law, would likely be considered a confidential marital communication. As such, Timothy could prevent Jodie Ann from disclosing any marital confidential communication where he held the privilege even if the State struck a deal with Jodie Ann in exchange for her testimony.

If Georgia adopts House Bill 840, the purpose of the marital privilege will remain intact. Married couples, like Linda and William, will still be free to discuss their personal secrets, their histories, and the challenges of being married late in life, without any fear that those conversations will be exposed. Even marriages like Timothy's and Jodie Ann's will be protected when a spouse confides a secret or even the most heinous wrongdoing. But when a spouse commits a crime against the 176. State v. Peters, 444 S.E.2d 609, 611 (Ga. Ct. App. 1994).

177. Press Release, Federal Bureau of Investigation, United States Attorney for the District of South Carolina, Former Florence County Deputy Sentenced to 400 Years' Imprisonment (June 4, 2010), available at http://columbia.fbi.gov/dojpressrel/pressrell0/co060410.htm.

178. Glenn Smith, Ex-Deputy, Wife Chargedwith Fraud,THE POST AND COURIER,

May

2,

2009,

available

at

http://www.postandcourier.com/news/2009/may/02/ex-deputywife-charged fraud80853/.

No. 1]

The Marital Crime Exception

265

other spouse or elicits the help of his wife to cover-up his criminal activity, marriages, like Linda's and William's, will be protected against those nefarious crimes, even if a married couple is the perpetrator.

Kenneth J. Lewis *

* J.D. Candidate, May 2011, Atlanta's John Marshall Law School; B.A., North Georgia College. I would like to thank Richard Bentley and Gail Oldt for their valuable editing assistance. I would also like to thank my family for their patience, understanding, and support.

150TH GEORGIA GENERAL ASSEMBLY 2009 LEGISLATIVE SESSION

HOUSE BILL 3511: FAMILY-PLANNING SERVICES; DEFINE CERTAIN TERMS; CHANGE CERTAIN PROVISIONS

Amending O.C.G.A. ยง 49-7-2 First Signature: Representative Barry Loudermilk (14th) Co-Sponsors: Representative Tom Rice (51st), Representative Mike Coan (101st), Representative James Mills (25th), Representative Len Walker (107th), and Representative Jay Neal (1st) Summary: House Bill 351 seeks to amend Chapter 7 of Title 49 of the Official Code of Georgia Annotated, relating to family planning services for unemancipated minors, as to require any agency offering family planning or medical referral services, such as birth control, to obtain consent from a parent or legal guardian before performing or providing these services to unemancipated minors.2 The Bill requires not only parental consent in these situations, but also notification of the request of these services to be sent to the parent or legal guardian of the unemancipated minor.' The Bill also gives medical service providers authorization to provide family planning and

1. H.B. 351, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009), availableat http://wwwl.1egis.ga.gov/legis/2009 10/pdf/hb35 1.pdf.

2. Ga. Gen. Assem., H.B. 351 (Nov. 7, 2010), http://www.legis.state.ga.us/legis/2009_10/sum/hb351.htm [hereinafter H.B. 351 Status Sheet].

3. Id.

268

John MarshallLaw Journal

[Vol. IV

contraceptive services to anyone who is not an unemancipated minor.4 Status: House Second Readers on February 11, 20091 TEXT OF HOUSE BIL 351

ยง 1.

Chapter 7 of Title 49 of the Official Code of Georgia Annotated, relating to family-planning services, is amended by revising Code Section 49-7-2, relating to definitions, as follows: "49-7-2.

As used in this chapter, the term: (1) 'Agencies' means the department, county boards of health, health districts, county departments of family and children services, and district departments of family and children services.

(2) 'Birth control device' or 'contraceptive' means any drug, medical preparation, medical procedure, medical device, rhythm chart, or any related product whose primary function is to prevent impregnation during sexual activity.

(3) 'Family-planning services' means counseling and interviews with trained personnel regarding birth control, infertility, and family-planning methods and procedures; and distribution of literature relating to birth control, infertility, and family planning; referral to licensed physicians or local health departments for consultation, examination, tests, medical treatment, and prescriptions for the purposes of birth control, infertility, and family planning; and, to the extent prescribed, the distribution of rhythm charts, drugs, medical preparations, contraceptive devices, and similar products used for birth control and family planning.

4. Id. 5. Id.

No. 1]

House Bill 351

269

(4) 'Medical referral services' means referral to licensed physicians or local health departments for consultation, examination, tests, medical treatment, and prescriptions for the purposes of birth control, infertility, and family planning.

(5) 'Proper identification' means any document issued by a governmental agency containing a description of the person, the person's photograph, or both, including, but not limited to, a driver's license, an identification card authorized under Code Sections 40-5-100 through 40-5-104 or similar identification card issued by another state, a military identification card, a passport, or an appropriate work authorization issued by the United States Citizenship and Immigration Services.

(6) 'Unemancipated minor' means any person under the age of 18 who is not or has not been married or who is under the care, custody, and control of such person's parent or parents, guardian, or the juvenile court of competent jurisdiction."

ยง 2.

Said chapter is further amended by adding a new Code section to read as follows: "49-7-3.1.

Within the limitations of the funds available to such agencies, all agencies are further authorized to offer medical referral services, contraceptives, and birth control devices to any person who is not an unemancipated minor and is requesting such services." ยง3.

Said chapter is further amended by revising Code Sections 49-7-4 through 49-7-7 as follows: "49-7-4.

Agencies may support family-planning services at no cost to the recipients of such services in accordance with rules and regulations of said agencies. The agencies, employees of such agencies, or contractors of the agencies shall not provide any medical referral service or birth control device to an

270

John MarshallLaw Journal

[Vol. IV

unemancipated minor unless such minor is accompanied by a parent or guardian who shows proper identification and states that such parent or guardian is the lawful parent or guardian of such minor and that such parent or guardian has been notified that such service or device has been requested by such minor.

49-7-5.

The refusal of any person to accept family-planning services or medical referral services shall in no way affect the right of such person to receive public assistance or public health services or to avail himself or herself of any other public benefit. The employees of the agencies engaged in the administration of this chapter shall recognize that the right to make decisions concerning family planning and birth control is a fundamental personal right of the individual; and nothing in this chapter shall in any way abridge such individual right, nor shall any individual be required to state his or her reason for refusing the offer of family-planning services or medical referral services.

49-7-6.

Any employee of the agencies engaged in the administration of this chapter may refuse to accept the duty of offering family-planning services or medical referral services to the extent that such duty is contrary to such employee's personal religious beliefs; and such refusal shall not be grounds for any disciplinary action, for dismissal, for any interdepartmental transfer, for any other discrimination in his or her employment, for suspension from employment, or for any loss in pay or other benefits. The directors or supervisors of such agencies shall be authorized, however, to reassign the duties of any such employees in order to carry out this chapter effectively.

49-7-7.

The department is authorized and directed to develop plans and programs to carry out this chapter. Such plans and programs shall include, but shall not be limited to, provisions for:

No. 1]

House Bill 351

271

(1) A training program offered by the department for its employees who are in contact with and counsel those persons likely to desire family-planning services or medical referral services. Such training program should be designed to provide such employees with complete information regarding family planning and birth control and all matters related thereto; and (2) A systematic plan for coordinating the activities of the department and its counterparts at the county and district level in the area of family-planning services or medical referral services."

ยง 4.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Representative Barry Loudermilk's conservative platform played a large part in the movement of House Bill 35 1.6 Representative Loudermilk has sponsored several other bills relating to family services and rights, including a bill criminalizing abortion in relation to certain races or economic against government-mandated and legislation classes In the recent Georgia Senate election, healthcare.'

Representative Loudermilk's platform stated, "[o]ur children are depending upon us to give them a state and a nation that is Representative free, safe, and full of opportunity."'

Loudermilk's "family first" stance supported House Bill 351, as

6. See Barry Loudermilk for Georgia State Senate, www.barryloudennilk.com, (last visited Apr. 10, 2011).

7. H.B. 1155, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2010), available at http://wwwl.legis.ga.gov/legis/2009 10/fulltext/hb 1155.htm (criminalizing the solicitation, coercion, or performance of an abortion if the abortion is motivated by the race, gender, or color of the baby, especially if done to control the population of a specific race or gender). See also Barry Loudermilk, Seeking Legal Challenge to Socialized Health Care, CAPITOL at available 2001), 15, (Jan. BRIEF http://www.loudermilkforga.com/PDF/weekl.pdf 8. Barry Loudermilkfor GeorgiaState Senate, supra note 6.

272

John MarshallLaw Journal

[Vol. IV

it seeks to restrict unemancipated minors from receiving birth control devices or family planning services without the notification and consent of a parent or legal guardian.'

The Bill seeks to mandate persons under eighteen to gain parental consent, by a parent or legal guardian who is required to show proper identification, if they wish to access confidential family planning and contraceptive services from either private or state services.' 0 House Bill 351 further requires the medical service provider to notify the parents or guardians of the minor seeking such services." Representative Loudermilk's restrictive approach to family planning services is consistent with his view on national healthcare as a whole.12 He has recently spoken out against the national healthcare legislation, stating that it "threatens the individual liberties of Americans and violates the sovereignty of the state of Georgia as protected by the Tenth Amendment of the [United States] Constitution.""

Though Representative Loudermilk stands firm on his conservative approach to government, opposition to the Bill was not silenced. Those against the Bill have stated that teens most at risk for pregnancy and sexually transmitted diseases are those who need the family planning services. 14 However, if these atrisk teens are restricted by parental consent and notification, they will likely be the least capable of obtaining parental consent, for reasons of unavailable or disinterested parents or legal guardians." A Planned Parenthood blog that outlines the downsides of the legislation stated, "[n]ot every family is a model family," and the restriction of such services would be detrimental to those who need it the most.16

9. H.B. 351 Status Sheet, supranote 2.

10. Ga. H.B. 351.

11. Id. 12. Loudermilk, supra note 7.

13. Id. 14. Id.

15. Anticipated 2010 Legislative Issues, PLANNED PARENTHOOD, SOUTHEAST, http://www.plannedparenthood.org/ppse/32009.htm (last visited Apr. 10, 2011).

16. Id.

No. 1]

House Bill 351

273

LEGISLATIVE GENEALOGY

House Bill 351 was first read in the House of Representatives on February 10, 2009.17 It was read for a second time on February 11, 2009, when it was referred to the House Judiciary Committee." No further action has been taken on the Bill since that date.' 9 Prepared by: Kimberly Colmey

17. H.B. 351 Status Sheet, supra note 2.

18. Id. 19. Id.

HOUSE BILL 3881: THE OPTION OF ADOPTION ACT

Creating§§ 19-8-40 to -43; andAmending O.C.G.A. § 15-1128, § 19-8-26, § 29-2-22, and§ 49-5-12 First Signature: Representative James Mills (25th) Co-Sponsors: Representative Melvin Everson (106th), Representative Jerry Keen (179th), Representative Ben Harbin (118th), Representative Len Walker (107th), and Representative Ed Setzler (35th) Summary: House Bill 388 amends Chapter 8 of Title 10 of the Official Code of Georgia Annotated so that the person who holds the legal rights to an embryo may relinquish those rights to another before the embryo is placed into the uterus.2 The recipient of those rights will become legally responsible for the embryo and any child that may result from the embryo transfer.3 Status: Enacted into law as Act 171 on May 5, 20094 TEXT OF HOUSE BILL

388

§1.

This Act shall be known and may be cited as the "Option of Adoption Act."

1. H.B. 388, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (enacted), availableat http://www.legis.state.ga.us/legis/2009_10/pdf/hb388.pdf.

2. Id. 3. Id. 388 (Oct. 29, 2010), Gen. Assem., H.B. 4. Ga. http://www.legis.state.ga.us/legis/200910/sum/hb388.htm [hereinafter H.B. 388 Status Sheet].

276

John MarshallLaw Journal

[Vol. IV

ยง 2.

Chapter 8 of Title 19 of the Official Code of Georgia Annotated, relating to adoption, is amended by designating the existing chapter as Article 1 and adding a new article to read as follows: "ARTICLE 2 19-8-40.

As used in this article, the term: (1) 'Embryo' or 'human embryo' means an individual fertilized ovum of the human species from the single-cell stage to eight-week development.

(2) 'Embryo relinquishment' or 'legal transfer of rights to an embryo' means the relinquishment of rights and responsibilities by the person or persons who hold the legal rights and responsibilities for an embryo and the acceptance of such rights and responsibilities by a recipient intended parent.

(3) 'Embryo transfer' means the medical procedure of physically placing an embryo into the uterus of a female.

(4) 'Legal embryo custodian' means the person or persons who hold the legal rights and responsibilities for a human embryo and who relinquishes said embryo to another person or persons.

(5) 'Recipient intended parent' means a person or persons who receive a relinquished embryo and who accepts full legal rights and responsibilities for such embryo and any child that may be born as a result of embryo transfer.

19-8-41. (a) A legal embryo custodian may relinquish all rights and responsibilities for an embrvo to a recipient intended parent prior to embryo transfer. A written contract shall be entered into between each legal embryo custodian and each recipient intended parent prior to embryo transfer for the legal transfer of rights to an embryo and to any child that may result from the embrvo transfer. The contract shall be signed by each legal embryo

No. 1]

House Bill 388

277

custodian for such embryo and by each recipient intended parent in the presence of a notary public and a witness. Initials or other designations may be used if the parties desire anonymity. The contract may include a written waiver by the legal embryo custodian of notice and service in any legal adoption or other parentage proceeding which may follow. (b) If the embryo was created using donor gametes, the sperm or oocyte donors who irrevocably relinquished their rights in connection with in vitro fertilization shall not be entitled to any notice of the embryo relinquishment, nor shall their consent to the embryo relinquishment be required. (c) Upon embryo relinquishment by each legal embrvo custodian pursuant to subsection (a) of this Code section, the legal transfer of rights to an embryo shall be considered complete, and the embryo transfer shall be authorized. (d) A child bom to a recipient intended parent as the result of embryo relinquishment pursuant to subsection (a) of this Code section shall be presumed to be the legal child of the recipient intended parent, provided that each legal embryo custodian and each recipient intended parent has entered into a written contract.

19-8-42. (a) Prior to the birth of a child or following the birth of a child, a recipient intended parent may petition the superior court for an expedited order of adoption or parentage. In such cases, the written contract between each legal embryo custodian and each recipient intended parent shall be acceptable in lieu of a surrender of rights.

(Lb) All petitions under this article shall be filed in the county in which any petitioner or any respondent resides. (c) The court shall give effect to any written waiver of notice and service in the legal proceeding for adoption or parentage. (d) In the interest of justice, to promote the stability of embrvo transfers, and to promote the interests of children who may be bom following such embryo transfers, the court in its discretion may waive such technical requirements as the court deems iust and proper.

278

John MarshallLaw Journal

[Vol. IV

19-8-43.

Upon a filing of a petition for adoption or parentage and the court finding that such petition meets the criteria required by this article, an expedited order of adoption or parentage shall be issued and shall be a final order.

Such order shall terminate any future parental rights and responsibilities of any past or present legal embryo custodian or gamete donor in a child which results from the embryo transfer and shall vest such rights and responsibilities in the recipient intended parent." ยง3.

Code Section 15-11-28 of the Official Code of Georgia Annotated, relating to jurisdiction of the juvenile court, is amended by revising subparagraph (a)(2)(C) as follows: "(C) For the termination of the legal parent-child relationship and the rights of the biological father who is not the legal father of the child, other than that in connection with adoption proceedings under Article 1 of Chapter 8 of Title 19, in which the superior courts shall have concurrent jurisdiction to terminate the legal parent-child relationship and the rights of the biological father who is not the legal father of the child;"

ยง 4.

Code Section 19-8-26 of the Official Code of Georgia Annotated, relating to how surrender of parental rights is executed, is amended by revising subsection (c) as follows: "(c) The surrender of rights by a parent or guardian pursuant to paragraph (1) of subsection (e) of Code Section 19-8-5 shall conform substantially to the following form: SURRENDER OF RIGHTS FINAL RELEASE FOR ADOPTION NOTICE TO PARENT OR GUARDIAN: This is an important legal document and by signing it you are surrendering all of your right, title, and claim to the child identified herein, so as to

No. 1]

House Bill 388

279

facilitate the child's placement for adoption. You are to receive a copy of this document and as explained below have the right to withdraw your surrender within ten days from the date you sign it.

I, the undersigned, being solicitous that my (male) (female) child, born (insert name of child), on (insert birthdate of child), should receive the benefits and advantages of a good home, to the end that (she) (he) may be fitted for the requirements of life, consent to this surrender.

I, the undersigned, (insert relationship to child) of the aforesaid child, do hereby surrender the child to (insert name, surname not required, of each person to whom surrender is made), PROVIDED each such person is named as petitioner in a petition for adoption of the child filed in accordance with Article 1 of Chapter 8 of Title 19 of the Official Code of Georgia Annotated within 60 days from the date hereof. Furthermore, I promise not to interfere in the management of the child in any respect whatever; and, in consideration of the benefits guaranteed by (insert name, surname not required, of each person to whom surrender is made) in thus providing for the child, I do relinquish all right, title, and claim to the child herein named, it being my wish, intent, and purpose to relinquish absolutely all parental control over the child.

It is also my wish, intent, and purpose that if each such person is not named as petitioner in a petition for adoption as provided for above within the 60 day period, other than for excusable neglect, or, if said petition for adoption is filed within 60 days but the adoption action is dismissed with prejudice or otherwise concluded without an order declaring the child to be the adopted child of each such person, then I do hereby surrender the child as follows: (Mark one of the following as chosen) I wish the child returned to me, and I expressly acknowledge that this provision applies only to the limited circumstance that the child is not adopted by the person or persons designated herein and further that this provision does not impair the validity, absolute finality, or totality of this surrender under any circumstance other than the failure of the designated person or persons to adopt the child and that no other provision of this surrender impairs the validity, absolute finality, or totality of this surrender once the revocation period has elapsed; or

280

John MarshallLaw Journal

[Vol. IV

I surrender the child to (insert name of designated licensed childplacing agency), a licensed child-placing agency, for placement for adoption; or I surrender the child to the Department of Human Resources, as

provided by subsection (k) of Code Section 19-8-5, for placement for adoption; and (insert name of designated licensed child-placing agency) or the Department of Human Resources may petition the superior court for custody of the child in accordance with the terms of this surrender.

Furthermore, I hereby agree that the child is to be adopted either by each person named above or by any other such person as may be chosen by the (insert name of designated licensed child-placing agency) or the Department of Human Resources and I do expressly waive any other notice or service in any of the legal proceedings for the adoption of the child.

Furthermore, I understand that under Georgia law an agent appointed by the court is required to conduct an investigation and render a report to the court in connection with the legal proceeding for the legal adoption of the child and I hereby agree to cooperate fully with such agent in the conduct of this investigation.

Furthermore, I hereby certify that I have received a copy of this document and that I understand I may only withdraw this surrender by giving written notice, delivered in person or mailed by registered mail or statutory overnight delivery, to (insert name and address of agent of each person to whom surrender is made) within ten days from the date hereof; that the ten days shall be counted consecutively beginning with the day immediately following the date hereof; however, if the tenth day falls on a Saturday, Sunday, or legal holiday then the last day on which the surrender may be withdrawn shall be the next day that is not a Saturday, Sunday, or legal holiday; and I understand that it may NOT be withdrawn thereafter.

Furthermore, I hereby certify that I have not been subjected to any duress or undue pressure in the execution of this surrender document and do so freely and voluntarily.

No. 1]

281

House Bill 388

Witness my hand and seal this

day of_,

.

(SEAL) (Parent or guardian)

Unofficial witness Sworn to and subscribed before me this

day of

Notary public (SEAL) ."

My commission expires

ยง5.

Code Section 29-2-22 of the Official Code of Georgia Annotated, relating to authority of a guardian, is amended by revising paragraph (4) of subsection (a) as follows: "(4) Execute a surrender of rights to enable the adoption of the minor pursuant to the provisions of Article 1 of Chapter 8 of Title 19 or the adoption laws of any other state; and"

ยง 6.

Code Section 49-5-12 of the Official Code of Georgia Annotated, relating to licensing and inspection of child welfare agencies, is amended by revising paragraphs (1) and (2) of subsection (q) as follows: "(1) Adopt a child or children from receiving or accepting a child or children in the individual's home in anticipation of filing a petition for adoption under Article 1 of Chapter 8 of Title 19; or

282

John MarshallLaw Journal

[Vol. IV

(2) Have that individual's child or children placed for adoption from placing that individual's child or children in the home of an individual who is not related to the child or children in anticipation of the individual's initiation of adoption proceedings pursuant to Article 1 of Chapter 8 of Title 19." ยง 7.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE Representative James Mills introduced House Bill 388 to provide intended parents5 with the option of adopting an embryo before the in vitro fertilization process takes place.' Prior to this Bill, an adoption could not proceed in Georgia until after the child was born.7 The purpose of the Bill was to prevent the original egg or sperm donor from claiming ownership of a child that resulted from the donor's genetic material.' Representative Mills' goal was to settle the adoption and parental rights upon the implantation of the embryo in order to avoid litigation.9 It was an option Representative Mills felt was logically and emotionally needed by some parents in Georgia.10 Representative Mills was also proud to sponsor this legislation because it was the first of its kind in the United States." During his presentation of the Bill before the House, some representatives were concerned about being the first state

5.The term "recipient intended parent" refers to the person or persons who accept responsibility for a relinquished embryo and any child that may result from an embryo transfer. Ga. H.B. 388.

6. General Assembly Video Archive: House Session Part I (Georgia Public Broadcasting internet broadcast Mar. 12, 2009),

http://mediaml.gpb.org/ga/leg/2009/house_031209_1.wmv

[hereinafter

Video Archive: Part1].

7. Id.

8. E-mail from Rep. James Mills, H. Dist. 25, to Stacie Chapman, Staff Member, John Marshall Law Journal (Oct. 11, 2010, 10:54 EST) (on file with the John Marshall Law Journal).

9. Id. 10. Id. 11. Video Archive: PartI, supra note 6.

No. 1]

House Bill 388

283

to initiate such legislation, but Representative Mills stated that it was the right thing to do.12 He stressed that this legislation is only an option that parents may choose or they may continue to utilize the existing adoption procedures in Georgia.13 While some donors relinquish their rights at fertilization clinics, Representative Mills pointed out that House Bill 388 applies to all donors and provides a sense of certainty and finality to the

intended parents.14 As a member of the House Judiciary Committee, Representative Mills was involved with the research that went into this Bill, which included working with leading adoption and domestic lawyers in Georgia." Representative Mills and the Committee also gained support from both pro-life and prochoice groups to ensure House Bill 388 was acceptable, and those who provided input ultimately supported the Bill.'6 Representative Mills has intended the legislation to foster the growth of in vitro fertilization clinics and encourages women who cannot have children naturally to utilize this method to protect their rights."

Although Representative Mills personally believes that an embryo is a biological person, he assured the members of the House that his personal beliefs are irrelevant to this legislation and House Bill 388 does not provide any new rights or changes when an embryo legally becomes a person.' 8 LEGISLATIVE GENEALOGY

The first reading of House Bill 388 took place on February 11, 2009, and the Speaker of the House assigned the Bill to the House Judiciary Committee.19 The second reading took place on February 12, 2009.20 On March 9, 2009, the Chairman of the 12. Id. 13. Id. 14. Id. 15. Id. 16. Id. 17. Id. 18. Id. 19. H.B. 388 Status Sheet, supranote 4.

20. Id.

284

John MarshallLaw Journal

[Vol. IV

House Judiciary Committee favorably reported on House Bill 388 and recommended the Bill pass by Substitute.2 1 Most significantly, the House Committee Substitute changed the Bill's language so that the rights to an embryo are relinquished by the "persons who hold the legal rights and responsibilities," rather than "the genetic parents." 2 2 The Substitute deleted any reference to age of the embryo, whereas the original language stated that an embryo was considered to be "from the single-cell The Substitute also stage to eight-week development." 23 provided for contractual procedures and the ability for intended parents to have an order of expedited parentage.2 4 The third reading and final vote of the Bill took place on March 12, 2009.25 Representative Mills presented the Bill and answered questions on the floor.26 Representative Robin Shipp, of the 58th district, stated her concern that House Bill 388 would have a chilling effect on in vitro fertilization, but Representative Mills again asserted that the Bill is only an option.27 Representative Shipp also asked if the legislation was necessary because donors already relinquish their rights at the time of donation at the fertilization clinics. 2 8 Representative Mills explained that the Bill applied to all donors, not just clinic donors, and would allow intended parents to choose when to assert their parental rights.2 9 Representative Bobby Franklin, of the 43rd district, spoke against House Bill 388, stating that the law "dehumanizes" a living human being and furthers the notion that women should

21. Ga. H., 150th Gen. Assem., Ist Reg. Sess., at 1401 (2009), http://wwwl.legis.ga.gov/legis/2009_10/house/clerk/09Journals/Day%2028. pdf [hereinafter House Journal].

22. H.B. 388, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (H. Comm. at available Substitute), http://www.legis.ga.gov/Legislation/20092010/92945.pdf.

23. Id. 24. Id. 25. H.B. 388 Status Sheet, supra note 4.

26. Video Archive: PartI, supra note 6.

27. Id. 28. Id 29. Id.

No. 1]

House Bill 388

285

surrender their eggs for money.3 0 Representative Mike Jacobs, of the 80th district, spoke in favor of the Bill by supporting intended parents who wish to ensure their rights from the moment of embryo transfer, prevent any future litigation, and have a sense of finality." House Bill 388 passed through the House by a vote of 96-66.32 Representative Shipp moved for the House to reconsider the vote, but the House denied the motion 67-93.33 The first reading of House Bill 388 by the Senate took place on March 12, 2009, and the President of the Senate referred the Bill to the Judiciary Committee.3 4 On March 30, 2009, the second reading of the Bill took place." The Chairman of the Judiciary Committee favorably reported on House Bill 388 and recommended the Bill pass by Substitute. 36 The Senate Committee Substitute added the age of the embryo, previously removed by the House Substitute, back into the language.3 7 The Substitute also inserted "gamete donor" into the termination of rights section as an additional individual who no longer has rights to the embryo upon relinquishment, in case that person was different than the "legal embryo custodian."3 On April 1, 2009, the Senate read the Bill for the third time.3 9 Senator 30. Id. 3 1. Id.

32. H.B. 388 Status Sheet, supra note 4.

33. House Journal, supra note 21, at 2563; H.B. 388 Status Sheet, supra note 4.

34. H.B. 388 Status Sheet, supra note 4; Ga. S., 150th Gen. Assem., 1st http://dlg.galileo.usg.edu/cgi(2009), 2155 at Sess, Reg. http://dlg.galileo.usg.edu/cgibin/govdimag.cgi?page=2&path=dbs/2009/ga/1402/20 0 9/elecp_btext.con/& lastpage=4&ext-pdf&style=default&height-800&width=600&retumggpd %3Fuserid%3Dgalileo%26dbs%3Dggpd%26action%3Dretrieve%26reeno% 3D2%26numrecs%3D10%26_rtype%3Drecno%26key%3Dy-ga-bl402b2009-belec-p-btext&user-galileo [hereinafter Senate Journal].

35. H.B. 388 Status Sheet, supra note 4.

36. Senate Journal, supra note 34, at 2918.

37. H.B. 388, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (S. Comm. at available Substitute), http://www.legis.ga.gov/Legislation/20092010/94721.pdf.

38. Id. 39. General Assembly Video Archive: Senate Session Part IP (Georgia

286

John MarshallLaw Journal

[Vol. IV

David Shafer, of the 48th district, sat on the Judiciary Committee and carried House Bill 388 in the Senate. 40 He spoke in favor of the Bill and stated that both Georgia Right to Life and several fertility clinic doctors supported the passage of House Bill 388.41 The Senate adopted the Senate Committee Substitute by a vote of 45-9.42

On April 3, 2009, the House agreed with the Senate Substitute by a vote of 108-61.43 Representative Mills explained that the change the Senate made in the Bill from the House Committee Substitute was to provide a legal definition of when an embryo is no longer an embryo, and set the timeline from a single cell to eight weeks of development." The House sent the Bill to the Governor on April 14, 2009.45 Governor Sonny Perdue signed House Bill 388 into law on May 5, 2009, with an effective date of July 1, 2009.46 Prepared by: Stacie Chapman

broadcast Apr. Broadcasting internet Public http://mediaml.gpb.org/ga/leg/2009/senate040109_1A.wmv Video Archive: PartIP].

40. Id. 4 1. Id.

42. H.B. 388 Status Sheet, supra note 4.

43. Id. 44. Video Archive: PartIP, supra note 39.

45. H.B. 388 Status Sheet, supra note 4.

4 6. Id.

1, 2009), [hereinafter

HOUSE BILL 4281: DEPARTMENT OF HUMAN RESOURCES; ADOPTING A SPECIAL NEEDS CHILD; PROVIDING FINANCIAL ASSISTANCE

Amending O.C.G.A. ยง 49-5-8 First Signature: Representative Margaret Kaiser (59th) Brian Thomas (100th), Representative Co-Sponsors: Representative Pat Gardner (57th), Representative Judy Manning (32nd), Representative Kathy Ashe (56th), and Representative Cecily Hill (180th) Summary: House Bill 428 seeks to amend Code Section 49-5-8 of the Official Code of Georgia Annotated so that financial assistance that was originally granted by the Department of Human Resources to an adoptive parent of a special needs child will continue to be provided to the legal guardian named by the adoptive parent in the event of the parent's death. 2 Status: House Second Readers on February 18, 20091 TEXT OF HOUSE

BILL 428

ยง1I. Code Section 49-5-8 of the Official Code of Georgia Annotated, relating to powers and duties of the Department of Human Resources, is amended by revising subparagraph (a)(7)(F) as follows:

1. H.B. 428, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009), available at http://www.legis.state.ga.us/legis/2009_10/pdf/hb428.pdf.

2. Id. 29, 2010), H.B. 428 (Oct. 3. Ga. Gen. Assem., http://www.legis.state.ga.us/legis/2009_1 0/sum/hb428.htm [hereinafter H.B. 428 Status Sheet].

288

John MarshallLaw Journal

[Vol. IV

"(F) Providing financial assistance after the consummation of a legal adoption to families adopting children who would otherwise remain in foster care at state expense. Financial assistance may only be granted for hard-toplace children with physical, mental, or emotional disabilities or with other problems for whom it is difficult to find a permanent home. Financial assistance may not exceed 100 percent of the amount paid for boarding such child and for special services such as medical care not available through insurance or public facilities. Such supplements shall only be available to families who could not provide for the child adequately without continued financial assistance. If a person who has adopted a hard-to-place child with a physical, mental, or emotional disability and is receiving financial assistance pursuant to this subparagraph dies, such financial assistance shall continue to be paid to the legal guardian named by the parent of the child until such child reaches the age of 21. The department may review the supplements paid at any time but shall review them at least annually to determine the need for continued assistance."

ยง 2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Representative Margaret Kaiser introduced House Bill 428 to provide a smoother transition for one who becomes a legal guardian to a special needs child that lost an adoptive parent.4 The idea came from her neighbors who had adopted a special needs child but are not a married couple.' Because financial assistance benefits for a special needs child do not travel with the child, her neighbors were concerned about what would happen to the benefits if one of them passed.6 Under current 4. Telephone Interview with Rep. Margaret Kaiser, H. Dist. 59 (Jan. 24, 2011) [hereinafter Kaiser Interview].

5. Id.

6. Id.; Basic financial assistance benefits are based on the age of the child and range from $441.04 to 486.67 per month, and specialized rates are available for those children with extraordinary needs. Family & Children Serv., Ga. Dep't of Human Res., Is Financial Assistance Available?, http://dfcs.dhr.georgia.gov/portal/site/DHSGEORGIA.GOV, DFCS/menuitem.8237042e9dbda3aa50c8798dd03036a0/?vgnextoid=a30dId

No. 1]

House Bill 428

289

Georgia law, if the adoptive parent of a special needs child dies, the named legal guardian has to reapply for the same financial assistance the adoptive parent already received, and then hope for approval from the Georgia Department of Human Resources.' House Bill 428 would help by allowing the same financial assistance to be paid to the legal guardian named by the deceased parent without interruption.'

In order to receive financial assistance, the adoptive parent or legal guardian must apply through the Department of Family and Children Services in the county where he or she lives.' For the initial adoptive parent, the financial assistance is available for those whose income is below a certain amount. 0 The Bill does not address the issue of whether the legal guardian gets more or less assistance than necessary because the original assistance is based upon the adoptive parent's income.

However, the Department of Human Resources has procedures for overpayment and termination of benefits." This Bill is part of Representative Kaiser's platform to enhance the quality of families in Georgia. 2

e5f694001OVgnVCM1000OObf01010aRCRD&vgnextchannel=7abalde5f69 4001OVgnVCM100000bfO101OaRCRD (last visited Mar. 11, 2011).

7. E-mail from Adrian J. Owens, Adoption Program Consultant, Ga. Dep't of Human Res., to Stacie Chapman, Staff Member, John Marshall Law Journal (Nov. 9, 2010, 5:14 EST) (on file with the John Marshall Law Journal).

8. Ga. H.B. 428.

9. Family & Children Serv., Ga. Dep't of Human Res., Adoption Assistance in Georgia: Form 560 Adoption Assistance Fact Sheet, http://dfcs.dhr.georgia.gov/portal/site/DHSGEORGIA.GOV, DFCS/menuitem.83054cdalaO84d2f7daldf8ddal01OaO/?vgnextoid=80792b 48d9a4ffOOVgnVCMI00000bf01OaRCRD (last visited Mar. 11, 2011).

10. The amount is set according to the number of people in the family unit. Family & Children Serv., Ga. Dep't of Human Res., Income Requirements, GEORGIA.GOV, http://dfcs.dhr.georgia.gov/portal/site/DHSDFCS/menuitem.5d32235bb09bde9a50c8798dd03036a0/?vgnextoid=cdfa2b 48d9a4ffO0VgnVCMI000000bfl10aRCRD (last visited Mar. 11, 2011).

11. Id.

12. Margaret Kaiser, http://www.margaretkaiser.com/Home.html visited Mar. 11, 2011).

(last

John MarshallLaw Journal

290

[Vol. IV

LEGISLATIVE GENEALOGY

The first reading of House Bill 428 took place February 17, 2009, and the Speaker of the House assigned the Bill to the House Judiciary Committee." The second reading of the Bill House Bill 428 was occurred on February 18, 2009.14 withdrawn from the House Judiciary Committee and recommitted to the Committee on Children and Youth at the request of Representative Kaiser." She felt the transfer was necessary due to the large number of bills already committed to the House Judiciary Committee.16 The Bill did not receive further action during the 2009 legislative session."

Representative Kaiser has expressed plans to reintroduce the Bill if the process cannot be implemented within the Department of Human Resources."

Prepared by: Stacie Chapman

13. H.B. 428 Status Sheet, supra note 3.

14.

Id.

15.

16.

17.

18.

Id.; Kaiser Interview, supra note 4.

Kaiser Interview, supra note 4.

H.B. 428 Status Sheet, supra note 3.

Kaiser Interview, supranote 4.

SENATE BILL 1421: FAMILY VIOLENCE; INCREASES TO FAMILY VIOLENCE BATTERY PENALTIES, CREATION OF THE GEORGIA FAMILY VIOLENCE OFFENDER REGISTRY

Creating O.C.G.A. §§ 19-13-70 to -73; and Amending O.C.G.A.

§ 16-5-23.1

First Signature: Senator Seth Harp (29th) Co-Sponsors: Senator Renee Unterman (45th), Senator Doug Stoner (6th), and Senator David Adelman (42nd) Summary: Senate Bill 142 seeks to amend Code Section 16-523.1 of the Official Code of Georgia Annotated, to amend Chapter 13 of Title 19 of the Official Code of Georgia Annotated, and to create the Georgia Family Violence Offender Registry.2 Status: Senate Read and Referred on February 12, 20093 TEXT OF SENATE BILL

142

§1.

Code Section 16-5-23.1 of the Official Code of Georgia Annotated, relating to battery, is amended by revising subsection (f) as follows: "(f) If the offense of battery is committed between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household, then such offense shall constitute the offense of family violence battery and shall be punished as follows:

1. S.B. 142, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009), available at http://www.legis.state.ga.us/legis/2009_10/pdf/sbl42.pdf.

2. Id. 3. Ga. Gen. Assem., S.B. 142 (Apr. 10, 2011), http://www.legis.state.ga.us/legis/2009_10/sum/sbl42.htm [hereinafter S.B. 142 Status Sheet].

292

John MarshallLaw Journal

[Vol. IV

(1) Upon a first conviction of family violence battery, the defendant shall be guilty of and-punished-e a misdemeanor of a high and aggravated nature and shall be punished by incarceration for not less than six months nor more than one year or by a fine of not less than $500.00 nor more than $2,500.00 or both; and (2) Upon a second or subsequent conviction of family violence battery against the same or another victim, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than ene two nor more than five years. In no event shall this subsection be applicable to reasonable corporal punishment administered by parent to child."

ยง 2.

Chapter 13 of Title 19 of the Official Code of Georgia Annotated, relating to family violence, is amended by adding a new article to read as follows: "ARTICLE 5 19-13-70.

As used in this article, the term: (1) 'Court' means judges in the classes of courts identified in Title 15 and any other person while acting as such a iudge pursuant to designation as otherwise authorized by law.

(2) 'Family violence' means the occurrence of one or more of the following acts between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household: (A) Any felony: or (B) Commission of offenses of battery, simple battery, simple assault. assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass. The term 'family violence' shall not be deemed to include reasonable discipline administered by a parent to a child in the form of corporal punishment, restraint, or detention.

No. 1]

Senate Bill 142

293

(3) 'Law enforcement officer' means any agent or officer of this state or a political subdivision or municipality thereof who, as a full-time or part-time employee, is vested either expressly by law or by virtue of public employment or service with authority to enforce the criminal or traffic laws and whose duties include the preservation of public order, the protection of life and property, or the prevention, detection, or investigation of crime.

Such term also includes: state or local officer, sheriff, deputy sheriff, dispatcher, 9-1-1 operator, police officer, prosecuting attorney, member of the State Board of Pardons and Paroles, a hearing officer and parole officer of the State Board of Pardons and Paroles, and a probation officer of the Department of Corrections.

(4) 'Prosecuting attorney' means each attorney elected to represent a judicial circuit in this state and any assistant or deputy district attorney or solicitor in each judicial circuit in this state.

(5) 'Registry' means the Georgia Family Violence Offender Registry.

19-13-71. (a) The Georgia Family Violence Offender Registry shall be created to serve as a searchable data base of persons convicted of an act of family violence in this state. The registry shall be maintained on an Internet website available to the public at all times. (b) The registry shall be maintained by the Georgia Crime Information Center. The Georgia Commission on Family Violence may consult with the Georgia Crime Information Center regarding the effectiveness of the registry and in creating and maintaining the registry. (c) The registry shall include the name and photograph of each person convicted of an act of family violence, the offense for which he or she was convicted, and the punishment ordered. Such information shall remain current in the registry for four years after the completion of the offender's sentence.

19-13-72. (a) The clerk of the sentencing court shall electronically transmit a copy of the sentence, with a photograph of the offender, to the registry as

294

John MarshallLaw Journal

[Vol. IV

expeditiously as possible but no later than one week after the sentence is imposed. (b) The Georgia Crime Information Center shall ensure that any conviction information is entered in the registry within 24 hours of receipt of such information from the clerk of court. The inability to enter information for all data fields in the registry shall not delay the entry of available information.

19-13-73. (a) The state and any local or state law enforcement officer, court official, or official of the registry shall be held harmless for any delay or failure to file conviction information, to transmit information relating to convictions, or to enter such information in the registry. (b) The state and any local or state law enforcement officer, court official, or official of the registry shall be held harmless for acting in reliance upon information registered in the registry or information received for the purpose of entry in the registry." ยง3.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE Senator Seth Harp, of the 29th district, introduced Senate Bill 142 to prescribe for more severe penalties for crimes relating to family violence.4 The Bill changes the classification of crimes that are currently misdemeanors to high misdemeanors, a change that increases the minimum incarceration period for a first offender to six months.' Senate Bill 142 also sets a minimum fine of $500 and a maximum fine of $2500 for firsttime offenders.6 Additionally, the Bill creates the "Georgia Family Violence Offender Registry" and provides the general 4. Telephone Interview with Sen. Seth Harp, S. Dist. 29 (Oct. 6, 2010) [hereinafter Harp Interview].

5. S.B. 142 Status Sheet, supra note 3.

6. Id.

No. 1]

Senate Bill 142

295

public with a database of persons convicted of family violence crimes.'

The Registry would contain the name and a photograph of persons convicted of family violence crimes, along with their specific offense and punishment, for a period of four years.' The Registry would be maintained by the Georgia Crime Information Center.'

As a practitioner of family law, Senator Harp feels that there is, in Georgia, definite motivation to "go after" incidences of family violence. 0 Accordingly, Senator Harp feels Senate Bill 142 could be an effective vehicle to pursue this end." While the Bill has bipartisan support in both the Georgia Senate and House of Representatives, Senator Harp notes that because the Bill would essentially increase the amount of people in Georgia's jails and prisons, it faces a somewhat "uphill" battle in getting passed.12 This has forced him, and the supporters of Senate Bill 142, to take a harder look at the balance of increased fines against the cost of implementing a new structure of statutory minimums in terms of jail time." Further, Senator Harp knows that creating the Georgia Family Violence Offender Registry would likely bring along additional costs, costs that could make it difficult for the Bill to pass.14 LEGISLATIVE GENEALOGY Senate Bill 142 was first read in the Senate on February 12,

2009, and was referred to committee." Senator Harp plans to re-introduce the Bill if it does not pass in the next session."

Prepared by: Thomas 1 Lyman

7. Ga. S.B. 142.

8. Id. 9. Id. 10. Harp Interview, supra note 4.

S1i. Id. 12. Id. 13. Id. 14. Id. 15. S.B. 142 Status Sheet, supra note 3.

16. Harp Interview, supra note 4.

SENATE

BILL 1691: ETHICAL TREATMENT

OF

HUMAN

EMBRYOS

Amending O.C.G.A. Chapter 7 of Title 9 First Signature: Senator Ralph Hudgens (47th) Co-Sponsors: Senator Tommie Williams (19th), Senator Chip Rogers (21st), Senator Don Thomas (54th), and Senator David Shafer (48th) Summary: Senate Bill 169 seeks to add a new article to Chapter 7 of Title 9 that prohibits the knowing or intentional creation of in vitro embryos by any means other than the fertilization of a human egg by human sperm.2 It also seeks to establish that the creation of an in vitro human embryo cannot be for the purpose of research.' In addition, it sets parameters for health care providers and facilities that make it illegal to buy or sell gametes or in vitro human embryos, provides for identification procedures for the embryo, and establishes that the in vitro embryo is the property of no one person or entity.4 Minimum qualifications are also established for medical facilities and doctors who provide reproductive services.

Finally, Senate Bill 169 seeks to set caps on the maximum number of in vitro embryos that can be transferred to a female's uterus depending on whether she is older or younger than forty years of age, the egg belongs to her, or another woman's egg was used, or an embryo was adopted.6 Status: House Second Readers on March 18, 20091 1. S.B. 169, 150th Gen. Assem. 1st Reg. Sess. (Ga. 2009), available at http://www.legis.ga.gov/Legislation/20092010/89683.pdf.

2. Id. 3. Id. 4. Id. 5. Id.

6. Id. 7. Ga.

Gen.

Assem.,

S.B.

169

(Ga.

2009),

298

John MarshallLaw Journal TEXT OF SENATE

[Vol. IV

BILL 169

ยง 1.

Chapter 7 of Title 19 of the Official Code of Georgia Annotated, related to the parent and child relationship generally, is amended by adding a new article to read as follows: "ARTICLE 4 19-7-60.

For purposes of this article, the term: (1) 'Donor' means an individual from whose body gametes were obtained, or an individual from whose body cells or tissues were obtained for the purpose of creating gametes or human embryos, whether for valuable consideration or not.

(2) 'Gamete' means an eg (oocte) or sperm.

(3) 'Human embryo' means an organism with a human or predominantly human genetic constitution from the single-celled stage to approximately eight weeks development that is derived by fertilization (in vitro or in utero), parthenogenesis, cloning (somatic cell nuclear transfer), or any other means from one or more human gametes or human diploid cells.

(4) 'In vitro' means outside the human body.

(5) 'In vitro fertilization' means the formation of a human embryo outside the human body by union of human egg(s) with human sperm.

(6) 'In vitro human embryo' means a human embryo created outside the human body.

(7) 'Transfer' means the placement of a human embryo into the body of a woman.

http://www.legis.state.ga.us/legis/2009_10/sum/sbl69.htm 169 Status Sheet].

[hereinafter S.B.

No. 1]

Senate Bill 169

299

(8) 'Valuable consideration' means financial gain or advantage, including cash, in-kind payments, reimbursement for any costs incurred in connection with the removal, processing, disposal, preservation, quality control, storage, transfer, or donation of human gametes, including lost wages of the donor, as well as any other consideration.

19-7-61. (a) It shall be unlawful for any person or entity to intentionally or knowingly create or attempt to create an in vitro human embryo by any means other than fertilization of a human egg by a human sperm. (b) The creation of an in vitro human embryo shall be solely for the purpose of initiating a human pregnancy by means of transfer to the uterus of a human female for the treatment of human infertility. No person or entity shall intentionally or knowingly transfer or attempt to transfer an embryo into a human uterus that is not the product of fertilization of a human egg by a human sperm.

19-7-62.

No person or entity shall give or receive valuable consideration, offer to give or receive valuable consideration, or advertise for the giving or receiving of valuable consideration for the provision of gametes or in vitro human embrvos. This Code section shall not apply to regulate or prohibit the procurement of gametes for the treatment of infertility being experienced by the patient from whom the gametes are being derived.

19-7-63.

The in vitro human embrvo shall be given an identification by the facility for use within the medical facility. Records shall be maintained that identify the donors associated with the in vitro human embryo, and the confidentiality of such records shall be maintained as required by law.

19-7-64. (a) A living in vitro human embrvo is a biological human being who is not the property of any person or entity. The fertility physician and the medical facility that emnlovs the nhvsician owe a high duty of care to the livine in

300

John MarshallLaw Journal

[Vol. IV

vitro human embryo. Any contractual provision identifying the living in vitro embryo as the property of any party shall be null and void. The in vitro human embryo shall not be intentionally destroyed for any purpose by any person or entity or through the actions of such person or entity. (b) An in vitro human embryo that fails to show any sign of life over a 36 hour period outside a state of crvopreservation shall be considered no longer living.

19-7-65.

Only medical facilities meeting the standards of the American Society for Reproductive Medicine and the American College of Obstetricians and Gynecologists shall cause the fertilization of an in vitro human embryo. A person who engages in the creation of in vitro human embryos shall be qualified as a medical doctor licensed to practice medicine in this state and shall possess specialized training and skill in artificial reproductive technology in conformity with the standards established by the American Society for Reproductive Medicine or the American College of Obstetricians and Gynecologists.

19-7-66.

In the interest of reducing the risk of complications for both the mother and the transferred in vitro human embryos, including the risk of preterm birth associated with higher-order multiple gestations, a person or entity performing in vitro fertilization shall limit the number of in vitro human embryos created in a single cycle to the number to be transferred in that cycle in accord with Code Section 19-7-67.

19-7-67. (a) Where a woman under age 40 is to receive treatment using her own eggs or embryos created using her own eggs, whether fresh or previously cryopreserved, at the time of transfer no person or entity shall transfer more than two embryos in any treatment cycle, regardless of the procedure used.

No. 1]

Senate Bill 169

301

(b) Where a woman age 40 or over is to receive treatment using her own eggs or embryos created using her own eggs, whether fresh or previously cryopreserved, at the time of transfer no person or entity shall transfer more than three embryos in any treatment cycle, regardless of the procedure used. (c) Where a woman is to receive treatment using donated eggs or adopted embryos, no person or entity shall transfer more than two donated eggs or two adopted embryos in any treatment cycle, regardless of the woman's age at the time of transfer and regardless of the procedure used.

19-7-68.

In disputes arising between any parties regarding the in vitro human embryo, the judicial standard for resolving such disputes shall be the best interest of the in vitro human embryo.

19-7-69.

All facilities providing assisted reproductive technologies shall, at least 24 hours prior to obtaining a signed contract for services, provide patients with informed consent as required by law and obtain a signed disclosure form before services commence. In addition to medical risks and information on outcome and success rates, the informed consent materials shall state in plain language the parental rights and duties of the donors, as well as their legal rights and duties regarding the disposition of in vitro human embryos that were not transferred due to either of the fertility patient's death, divorce, abandonment, or dispute over the custody of the in vitro human embryo.

19-7-70.

Nothing in this article shall be construed to affect conduct relating to abortion as provided in Chapter 12 of Title 16: provided, however, that nothing in this article shall be construed or implied to recognize any independent right to abortion under the laws of this state.

19-7-71.

Notwithstanding any other provision of this article to the contrary, nothing in this article shall be construed to create or recognize any independent right to

302

John MarshallLaw Journal

[Vol. IV

engage in the practice of in vitro fertilization or to create in vitro human embryos by any means.

19-7-72. (a) Any person or entity that violates any provision of this article and derives a pecuniary gain from such violation shall be fined not less than $500.00 nor more than $1,000.00. (b) Any violation of this article shall constitute unprofessional conduct pursuant to Code Section 43-34-37 and shall result in sanctions increasing in severity from censure to temporary suspension of license to permanent revocation of license. (c) Any violation of this article may be the basis for denying an application for, denying an application for the renewal of, or revoking any license, permit, certificate, or any other form of permission required to practice or engage in a trade, occupation, or profession. (d) Any violation of this article by an individual in the employ and under the auspices of a licensed health care facility to which the management of said facility consents, knows, or should know may be the basis for denying an application for, denying an application for the renewal of, temporarily suspending, or permanently revoking any operational license, permit, certificate, or any other form of permission required to operate a medical or health care facility."

ยง 2.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. ยง3.

All laws and parts of laws in conflict with this Act are repealed.

No. 1]

Senate Bill 169

303

FIRST SIGNATURE'S RATIONALE

Senator Ralph Hudgens, of the 47th district, introduced Senate Bill 169 at the request of Georgia Right to Life who authored the legislation.

The organization recognized that Georgia did not have any legislation relating to the proper uses of in vitro human embryos or limiting human embryos to a human egg and a human sperm. 9 In the absence of legislation regarding the biological makeup of the in vitro embryo, a local public university was able to combine human DNA and pig DNA to create a pig embryo.' 0 The absence of current legislation also has made it possible for deceased or living individuals to be cloned." By establishing parameters 2 around what genetic makeup an in vitro human embryo consists of and how that embryo is to be treated, it was hoped that the sanctity of human life would be protected."

Given the money making phenomenon that multiple children from a single birth has caused,14 the Bill also contains language that is aimed at protecting women and children from a profit motive by limiting how many embryos can be placed into a

8. Telephone Interview with Sen. Ralph Hudgens, S. Dist. 47 (Oct. 12, 2010).

9. Telephone Interview with Dan Becker, Ga. Right to Life (Nov. 3, 2010) [hereinafter Becker Interview].

10. Lee Shearer, UGA Unveils Stem Cell Discovery, ATHENS BANNERHERALD, May 5, 2010, http://onlineathens.com/stories/050510/uga_633598321.shtml ("To produce the stem cells, the researchers inserted a sequence of six human genes into pig bone marrow cells, which developed into pluripotent stem cells.").

11. Becker Interview, supra note 9.

12. Ga. S.B. 169. For example, the in vitro human embryo can only consist of a human egg and a human sperm; the creation of the in vitro human embryo is for the sole purpose of "initiating a human pregnancy;" "[n]o person or entity shall give or receive valuable consideration, offer to give or receive valuable consideration, or advertise for the giving or receiving of valuable consideration for the provision of in vitro human embryos;" the number of in vitro embryos that can be transferred to the woman's womb is limited based on her age. Id. 13. Becker Interview, supra note 9.

14. For example, Nadya Suleman and Kate Gosselin's multiple children who receive media attention.

304

John MarshallLaw Journal

[Vol. IV

uterus."

By limiting the number of embryos that can be transferred, the embryos that are implanted have a better chance at success, and the mother's health during the pregnancy is protected. 16 LEGISLATIVE GENEALOGY The first reading of Senate Bill 169 occurred on February 18, 2009. At that time, it was referred to the Senate Health and Human Services Committee.17 The Committee offered a Substitute which added a definition for induced Pluripotent Stem Cells'" ("iPS cells"), added an additional purpose of the creation of an in vitro human embryo to include cryopreservation for future treatment, and deleted § 19-7-65 through § 19-7-67 and § 19-7-69 through § 19-7-71.'9 The Senate Committee favorably reported its Substitute on March 9, 2009.20 There was then a second reading on March 10, 2009, and a third reading on March 12, 2009.21 Senator Hudgens offered two amendments on the floor, one of which was withdrawn. 22 The second floor amendment struck all sections 23 with the exception of § 19-7-60, §19-7-61 and § 19-7-67 (which became § 19-7-62).24 Senate Bill 169 as amended passed the Senate with 34 yeas and 22 nays. The Bill crossed over to the 15. Becker Interview, supra note 9.

16. Id. 17. S.B. 169 Status Sheet, supra note 7.

18. Ga. S.B. 169 ("'Induced Pluripotent Stem Cells (iPS cells)' means human cell reprogramming, other than a gamete, by the addition of human genes plus or minus chemicals.").

19. Id. Among the deleted sections were provisions that set standards for medical facilities and medical doctors performing embryo transfers as well as limited the number of embryos that could be transferred to a woman's womb based on the age of the individual and whether or not the embryo contained her own egg or the egg of a donee. Id 20. S.B. 169 Status Sheet, supra note 7.

21. Id. 22. Id. 23. S.B. 169, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2009) (S. Floor Amend.

2) available at http://www.legis.ga.gov/Legislation/20092010/93101.pdf.

24. Id. 25. S.B. 169 Status Sheet, supra note 7.

No. 1]

Senate Bill 169

305

House and was first read on March 17, 2009, with a second reading on March 18, 2009.26 Since that time, the Bill has received no further action and has not currently been reintroduced into the 2011 session.

Prepared by: Audrey D. Holliday

26. Id.

SENATE

BILL 2921: COURTS; JUVENILE PROCEEDINGS Amending O.C.G.A. Title 15

First Signature: Senator Bill Hamrick (30th) Co-Sponsors: Senator Seth Harp (29th), Senator Robert Brown (26th), Senator Ronald Ramsey, Sr. (43rd), Senator Emanuel Jones (10th), and Senator Renee Unterman (45th) Summary: Senate Bill 292 seeks to revise and modernize Title 15 of the Official Code of Georgia Annotated containing juvenile court provisions. These provisions govern children and their families in cases of abuse and neglect, violations of the criminal law by children, and other circumstances requiring court intervention. Senate Bill 292 further provides for an appeal procedure when the Division of Family and Children Services of the Department of Human Resources fails to provide aftercare and transitional services to certain children.2 Status: Read and referred on April 4, 20093 TEXT OF SENATE BILL

2924

To amend Title 15 of the Official Code of Georgia Annotated, relating to courts, so as to substantially revise, supersede, and modernize provisions relating to juvenile proceedings; to provide for purpose statements; to provide 1. S.B. 292, 150th Gen. Assem. 1st Reg. Sess. (Ga. 2009), available at http://www.legis.ga.gov/Legislation/en-US/display.aspx?Legislation=28750 (last visited Mar. 10, 2011).

2. Id.

10, 2011), S.B. 292 (Apr. 3. Ga. Gen. Assem., [hereinafter S.B. http://wwwl.legis.ga.gov/legis/2009_10/sum/sb292.htm 292 Status Sheet].

4. The full text of Senate Bill 292 is over 238 pages in length and cannot be replicated in this Journal. The First Reader's Summary is presented above, and the full text is available at http://www.legis.ga.gov/Legislation/en-US/display.aspx?Legislation=28750.

308

John MarshallLaw Journal

[Vol. IV

for definitions; to provide for general provisions; to provide for juvenile court administration; to provide for deprivation proceedings; to provide for venue; to provide for taking children into care; to provide for preliminary protective hearings; to provide for petitions alleging deprivation; to provide for summons and service; to provide for preadjudication procedures; to provide for adjudication; to provide for predisposition social study; to provide for family reunification determinations; to provide for disposition of deprived children; to provide for permanency plan hearings for deprived children; to provide for permanent guardianship; to provide for termination of parental rights; to provide for petitions to terminate parental rights and summons; to provide for hearings on such petitions; to provide for grounds for terminating parental rights; to provide for disposition of children whose parental rights have been terminated; to provide for independent living services; to provide for children in need of services; to provide for informal procedures for children in need of services; to provide for formal court proceedings for children in need of services; to provide for preadjudication custody and release of children in need of services; to provide for a petition seeking an adjudication that a child is in need of services and summons; to provide for adjudication, disposition, and reviews; to provide for a permanency plan for children in need of services; to provide for mental health issues; to provide for delinquency; to provide for custody and release of a child; to provide for intake or arraignment; to provide for informal adjustment; to provide for a petition alleging delinquency and summons; to provide for preadjudication procedures for delinquency proceedings; to provide for transfers to superior court; to provide for adjudication of delinquency; to provide for predisposition investigation; to provide for disposition hearings for delinquent children; to provide for permanency plans for delinquent children; to provide for traffic offenses; to provide for competency in delinquency cases; to provide for parental notification of abortions; to provide for access to hearings and records; to provide for emancipation of minors; to provide for the Office of the Child Advocate for the Protection of Children; to amend Article 1 of Chapter 5 of Title 49 of the Official Code of Georgia Annotated, relating to children and youth services so as to provide for an appeal procedure when the Division of Family and Children Services of the Department of Human Resources fails to provide aftercare and transitional services to certain children;

No. 1]

Senate Bill 292

309

to provide for the Department of Human Resources to provide for performance measures for an independent living skills program; to amend the Official Code of Georgia Annotated so as to conform provisions to the new Chapter 11 of Title 15 and correct cross-references; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.

FIRST SIGNATURE'S RATIONALE Senate Bill 292, also known as the Child Protection and Public Safety Act ("CPPSA"), aims to reorganize the Georgia Juvenile Code to ensure the enactment of "a justice system that Georgians want for their children."' By way of Senate Bill 292, Senator Bill Hamrick hopes "to change the focus [of Georgia's juvenile law] and take a child centered approach rather than a punishment centered approach" to juvenile offenders. 6 "Realizing that juveniles respond better to a therapeutic approach," Senate Bill 292 "changes the current focus of juvenile sanctions and obtains better outcomes for children."' It is designed to get juveniles "headed in the right direction while saving money on the back end."' The purpose of Georgia's juvenile system is to "change the direction of a child's life, not to put them behind bars."9 "Under the current Georgia Code, provisions relating to abuse and neglect ("deprivation") are intermingled with provisions relating to children who have violated the criminal law ("delinquency")."10 In addition, the juvenile code has never 5. Julia Neighbors, Project Manager, JUSTGeorgia, Fred Gray Social Justice Seminar, Atlanta's John Marshall Law School (Nov. 12, 2010) (video available in Atlanta's John Marshall Law School Library) [hereinafter Seminar].

6. Interview with Sen. Bill Hamrick, S. Dist. 30, in Atlanta, Ga. (Feb. 25, 2011) (on file with the John Marshall Law Journal) [hereinafter Hamrick Interview].

7. Id. 8. Id.

9. Id. 10. BARTON CHILD LAW AND POLICY CLINIC, SUMMARY OF SENATE BILL

292: THE CHILD PROTECTION AND PUBLIC SAFETY ACT 1 (2009), available

at

3 10

John MarshallLaw Journal

[Vol. IV

undergone a full review until now, but rather has been the subject of piecemeal amendments over the last several decades." Senate Bill 292 establishes a new organizational structure, divided into twelve new Articles, completely separating the provisions relating to deprivation and delinquency.12 Separating these provisions allows readers of the law to clearly delineate which provisions regulate deprivation cases as opposed to delinquency cases." Ultimately, this will "provide better outcomes to children" because juvenile judges and practitioners will be able to navigate and apply the law efficiently and effectively.' 4 The legislative intent behind the CPPSA aims to accomplish many different goals, which include: enhancing public safety, helping abused and neglected children transition from foster care to adulthood successfully, prohibiting juvenile jails and prisons for children who have not committed a crime, promoting accountability in juvenile court proceedings, and protecting millions of dollars in federal funding by ensuring compliance with federal laws." In effectuating this intent, the CPPSA seeks to promote rehabilitation of children through therapeutic community-based programs, rather than penal sanctions and incarceration.' 6 The CPPSA was brought to Senator Hamrick and his cosponsors by JUSTGeorgia and the Young Lawyers Division ("YLD") of the Georgia Bar." The Bill was drafted to mirror the Proposed Model Code ("PMC"), which was developed by the YLD at the request of Judge Robin Nash of DeKalb County http://childwelfare.net/activities/legislative2009/SB292SumnaryDetailed.pdf [hereinafter S.B. 292 SUMMARY].

11. Interview with Julia Neighbors, Project Manager, JUSTGeorgia, in Atlanta, Ga. (Oct. 26, 2010) (on file with the John Marshall Law Journal) [hereinafter Neighbors Interview 1].

12. S.B. 292 SUMMARY at 1, supranote 10.

13. Interview with Julia Neighbors, Project Manager, JUSTGeorgia, in Atlanta, Ga. (Mar. 1, 2010) (on file with the John Marshall Law Journal) [hereinafter Neighbors Interview 2].

14. Id.

15. S.B. 292 SuMMARY at 1, supra note 10. See, e.g., Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (relating to abused, neglected, and other at-risk children).

16. Seminar, supranote 5.

17. Neighbors Interview 1, supranote 11.

No. 1]

Senate Bill 292

3 11

due to the dissatisfaction regarding the application of juvenile law in Georgia courts."

Statistics collected in 2008 showed that nearly seventy-five percent of children held in Georgia's juvenile jails were incarcerated for non-violent offenses, totaling over 17,000 children.19 Of these non-violent child offenders, twelve percent were incarcerated for status offenses such as truancy, running away from home, incorrigibility, unruly behavior, possession of alcohol, and violation of probation. 2 0 Twenty-six percent of these non-violent children offenders were incarcerated for technical violations such as failure to comply with a condition of probation or aftercare.2 1 Furthermore, statistics suggest that some current practices allowed by the juvenile code may increase juvenile crime in Georgia by confining these children to institutions with serious offenders, exposing the children to additional delinquent behavior.2 2 While incarceration, boot camps, and scared straight programs actually increase recidivism rates among children, community-based programs actually decrease juvenile crime.23 Multi-systematic therapy reduces juvenile recidivism by thirtyone percent, aggression replacement therapy by eighteen percent, adolescent diversion projects by twenty-seven percent, and functional family therapy by twenty-five percent.24 These statistics suggest a trend showing the increased effectiveness of therapeutic approaches to sanctioning and the ineffectiveness of penal sanctions.

A debated provision of the CPPSA relates to a child's right to an attorney.25 Under the CPPSA, all "deprived" children will be "parties" to a suit and have a non-waivable right to legal counsel.26 Lack of state funding for legal representation is Moreover, causing doubt among opponents of the Bill. regarding "delinquent" children's right to an attorney, the 18. Id. 19. Id.

20. Id. 2 1. Id. 22. Id. 23. Id. 24. Id. 25. Seminar, supra note 5.

26. Id.

312

John MarshallLaw Journal

[Vol. IV

proposed model of representation is "client directed," rather than a "best interest" 27 model, which gives the child, not the child's parents, sole discretion when retaining or waiving legal counsel.2 8 The decision being in the hands of the child, rather than the parents, is highly controversial because of a prevailing view that children lack the capacity to make an informed decision about their own legal representation.2 9 Moreover, the largest setback to the passage of the CPPSA is a lack of funding.30 Based upon data and estimates provided by the Department of Human Services, the fiscal impact of the Bill is approximately $7.4 million, which is comprised of approximately $1.0 million in one-time costs and $6.4 million in ongoing, annual costs." However, the projected long-term savings under the CPPSA are substantial.32 Placing children in secure juvenile facilities, or independent living programs, rather than adult facilities, can save $3 for every $1 spent by Georgia taxpayers." Currently, Georgians spend $200 per child, per Furthermore, community-based day, for incarceration. 34 treatment, as opposed to the current incarceration treatment, can save up to $13 for every $1 dollar spent, reducing recidivism rates by a projected eighteen percent."

A "topic of concern" with the implementation of the CPPSA calls for more representation of juveniles within the public These costs are not included in the defender system.3 6 27. A "best interest" model aims to make a parent the ultimate authority to retain or waive legal counsel for a minor in his or her custody, while a "client directed" model leaves the decision in the hands of the child. Id. 28. Id. 29. Id. 30. Hamrick Interview, supra note 6.

31. Letter from the Department of Audits and Accounts to Bill Hamrick, Senate Judiciary Comm. Chairman (Feb. 16, 2011), available at [hereinafter http://www.legis.ga.gov/Legislation/20112012/111308.pdf Letter].

32. The Juvenile Code Re-Write: Hearing on S.B. 127 Before the S. Comm. on the Judiciary, 151st Gen. Assem., Ist Reg. Sess. (2011) (statement of Kirsten L. Widner, Dir. of Policy & Advocacy, Barton Child Law & Policy Clinic) [hereinafter Hearing].

33. Id. 34. Id.

35. Id. The current juvenile recidivism rate in Georgia is fifty percent. Id. 36. Seminar, supra note 5.

No. 1]

Senate Bill 292

3 13

Department of Audits and Accounts projection because the Department of Juvenile Justice and the Public Defender's Office were "unable" to provide estimates for the audit.37 Furthermore, the Prosecuting Attorney's Council "support[s] the revision conceptually; it's more precise, organized, and in better control of juvenile proceedings, but whether Georgian's are willing to financially support it is another question."" There is a dispute between County and State governments regarding who will bear the costs of legal representation for children under the CPPSA. 9 Counties currently offering legal representation are paying out of pocket, causing concern among future participating counties due to a lack of revenue on the county level to support the implementation of the CPPSA financially.40 CPPSA supporters firmly believe the initial costs of implementation will be mitigated by the passage of the Act itself.4 1 "The best thing for [at-risk children] is to never have contact with the system." 4 2 If juvenile offenders are rehabilitated before reaching adulthood, recidivism rates will ultimately drop, saving Georgia taxpayers millions of dollars in inmate costs, prosecution costs, and court costs.4 3 The CPPSA will help Georgia law perform its duty to rehabilitate youth and "change the direction of their [lives]."" As a result, these savings "can ultimately re-direct money from jails to

education." 45 LEGISLATIVE GENEALOGY

The CPPSA was read and referred to the Senate Judiciary Committee on the last day of the session, April 4, 2009.46 Between the 2010 and 2011 legislative sessions, several 37. Letter, supra note 31.

38. Hearing, supra note 32 (statement of Kermit McManus, Chair of Prosecuting Attorney's Council).

39. Seminar, supra note 5.

40. Id. 4 1. Id. 42. Hamrick Interview, supra note 6.

43. Seminar, supra note 5.

44. Hamrick Interview, supra note 6.

45. Id. 46. Ga. S.B. 292.

314

John MarshallLaw Journal

[Vol. IV

stakeholder meetings and public hearings were held to discuss and debate the rewrite. 47 There have been major substantive changes made in Articles One through Five, which resulted from these off-session hearings and meetings. 48 During the offsession, ten public hearings were held. 4 9 The first hearing consisted of an overview of the CPPSA's process, while the subsequent nine hearings covered each Article, line by line, and highlighted all the substantive changes. 0 As of February 28, 2011, Articles One through Seven have been discussed." The revised Bill was reintroduced on February 22, 2011, and is now listed as Senate Bill 127.52 Prepared by: Matthew Nestrud

47. Neighbors Interview 2, supra note 13.

48. Id. 49. Id. 50. Id. 5 1. Id.

52. Id.

151ST GEORGIA GENERAL ASSEMBLY 2010 LEGISLATIVE SESSION

HOUSE BILL 8841: CHILD MOLESTATION; AGGRAVATED CHILD MOLESTATION

Amending O.C.G.A. ยง 16-6-4

First Signature: Representative Kevin Levitas (82nd) Co-Sponsors: Representative John Lunsford (110th), Representative Matt Ramsey (72nd), Representative Timothy Bearden (68th), Representative Mike Glanton (76th), and Representative Doug Collins (27th) Summary: House Bill 884 amends Code Section 16-6-4 of the Official Code of Georgia Annotated, relating to child molestation and aggravated child molestation, so as to change the definition of aggravated child molestation.2 Status: House Second Readers on January 13, 20103 TEXT OF HOUSE BILL

884

ยง 1.

Code Section 16-6-4 of the Official Code of Georgia Annotated, relating to child molestation and aggravated child molestation, is amended by revising subsection (c) as follows: 1. H.B. 884, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2010), available at http://www.legis.ga.gov/Legislation/20092010/97289.pdf.

2. Id. 3. Id.

316

John MarshallLaw Journal

[Vol. IV

"(c) A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act; (1) Physically injures the child; (2) Involves an act of sodomy; or (3) Is committed with force." ยง2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Representative Kevin Levitas, of the 82nd district, introduced House Bill 884 in response to his review of the current criminal code concerning aggravated child molestation.4 "I felt that any forcible act of child molestation should be treated as a felony.

[T]he crime of rape involves a carnal act with a female 'forcibly and against her will.'

It makes sense to treat child molestation

in a similar manner."' Representative Levitas crafted the Bill to allow for a legal showing of force to elevate an act of child molestation to aggravated child molestation-a felony--even where other distinguishing elements are not present.6 Because a child cannot provide legal consent for any act that would constitute child molestation, the Bill's addition of a showing of force as a third possible element would not require a showing that the act was committed against the victim's will.'

Representative Levitas' constituents have shown strong support for the Bill at town hall meetings. 9 However, 4. E-mail from Rep. Kevin Levitas, H. Dist. 82, to Chris Weissinger, Staff Member, John Marshall Law Journal (Sept. 30, 2010, 2:31 p.m. EST) (on file with the John Marshall Law Journal) [hereinafter Levitas E-mail].

5. Id. 6. Ga. H.B. 884, supra note 1.

7. Mangrum v. State, 681 S.E.2d 130, 137 (Ga. 2009).

8. Levitas E-mail, supra note 4.

9. Id.

No. 1]

House Bill 884

3 17

Representative Levitas said that the Bill has met resistance from the Georgia Association of Criminal Defense Attorneys, and former DeKalb County District Attorney Gwen Keyes-Fleming expressed some reservations regarding how prosecutions based upon this additional element would proceed under the amended Code Section.'o Representative Levitas will not reintroduce the Bill because he did not run for re-election in 2010." However, he believes the issue is important to his constituents, and he hopes that one of the Bill's co-sponsors will choose to reintroduce the Bill during the next legislative session. 12 LEGISLATIVE GENEALOGY

The first reading of House Bill 884 took place on January 12, 2010, and the second reading took place on January 13, 2010.11 The Bill was assigned to the House Judiciary Non-Civil Committee.14 The Committee subsequently took no action regarding the Bill.

Prepared by: Chris Weissinger

10. Id.

S1i.Id. 12. Id.

13. Ga. H.B. 884, supranote 1.

14. Id. 15. Id.

HOUSE BILL 8971: SEXUAL OFFENSES; ASSAULT AGAINST PERSONS IN CUSTODY

Amending O.C.G.A. ยง 16-6-5.1 First Signature: Representative Doug Collins (27th) Co-Sponsors: Representative Mark Hamilton (23rd), Representative Michael Harden (28th), Representative Kevin Levitas (28th), Representative Matt Ramsey (72nd), and Representative Mark Williams (178th) Summary: House Bill 840 seeks to amend Chapter 6 of Title 16 of the Official Code of Georgia Annotated regarding sexual offenses against certain persons in custody, certain patients, and certain persons subject to the authority of a supervisor or disciplinarian. The Bill prohibits a consent defense to sexual offenses on certain persons and provides that certain offenses not be merged with others.2 Status: The language of House Bill 897 was added to House Bill 571, which was enacted into law as Act 389 on May 20, 2010.3

1. H.B. 897, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2010), available at http://wwwl.legis.ga.gov/legis/2009_10/pdf/hb897.pdf.

2011), 12, (Feb. H.B. 897 Assem., Gen. 2. Ga. http://wwwl.legis.ga.gov/legis/2009_10/sum/hb897.htm [hereinafter H.B. 897 Status Sheet].

3. Ga. Gen. Assem., H.B. 571 (Feb. 16, 2011), available at http://wwwl.1egis.ga.gov/legis/2009_10/sum/hb571.htm [hereinafter H.B. 571 Status Sheet].

320

John MarshallLaw Journal TEXT OF HOUSE BILL

[Vol. IV

897

ยง 1.

Chapter 6 of Title 16 of the Official Code of Georgia Annotated, relating to sexual offenses, is amended by revising Code Section 16-6-5.1, relating to sexual assault against persons in custody, as follows: "16-6-5.1. (a) As used in this Code section, the term: (1) 'Actor' means a person accused of sexual assault.

(2) 'Intimate parts' means the genital area, groin, inner thighs, buttocks, or breasts of a person.

(3) 'Psychotherapy' means the professional treatment or counseling of a mental or emotional illness, symptom, or condition.

(4) 'Sexual contact' means any contact between the actor and a person not married to the actor involving the intimate parts of either person for the purpose of sexual gratification of the actor.

(5) 'School' means any educational program or institution instructing children at any level, pre-kinderearten through twelfth grade, or the equivalent thereof if grade divisions are not used. (b) A probation or parole officer or other custodian Or Supef-'iSfr Of OtheF person refefred to in this Code section eeof~its sexual assauilt when her she engages in sexual eontaet with another persoft who is a proebationer or parolce under: the supervision of said probation or paroele o ffr- or who is 4. the euistedy of law or who is enroelled in a sehool Or who is detained in or is patient in a hospita or: other: institution and sueh actor: has supefvisory-or disciplinary authority over such other person. A persen convicted of sexual assault shall be ptnishcd by impriseoffnt for net less then ten ner met than 30 years; provyided, however:, that any person convictcd of the offenset sexual assauilt under thiS subsection of a child tndcr the age of 14 years shl be punished by imprisonmet for not less than 25 nor mere than 50 years.

An person convicted under this subsection of the offense of sexual assault

No. 1]

House Bill 897

321

shall, in addition, be subject to the sentencing and punishfent previsions ot Cede Section 17 10 6.2. (e)(1) A proeo i sexual assault when such person has super.'isor' or Sexual disciplinary authoflt' over another person anid such pero enae contact with tha other pcrson who is:(A) In the cuistody of law; or (B3) Detained in or is a patienit in a hospital or other institation.

(2) A person eofffits sexual assauilt when, as an aetual or puwoed~ practitioner of psychother-apy, he or she engages in sexual eontaet with another person who the aetor knew or should have known is the subjeet ot thc actor's aemual or puwoneied treamcnt or counseling, or, if the treatmenft or counaseling relationship was used to facilitate sexual contact berxcen the aetor anid said person.

(3) Consent of thc victim shall noet he a defense to a poeuinnder this sobseetien, (4) A person convicted of sexual assault under this subsection shall be punished by impfisonmcnt for not less than ten nor moere than 30 years; provided, however, that any person convicted of the offcnse of sexual assault under this subsection of a child under the age of 11 years shall be punished by impflsonment for not less than 25 nor more than 50 years. Any person convicted under this subsection of the offense of sexual assault shall, in addition, be subject to the sentencing and ptwishment provisions of Code Section 17 10 6.2. (d) A person who is an employee, agent, Or volunteer at any faeilit' licensed or reqird to be licensed under Code Section 31 7 3, relating to long tcnn care facilities, or Code Section 31 7 12, relating to personal care homes, or who is required to be licensed pufsuant to Code Section 31 7 151 or 31 7 173, rcelatfig to home health care and hospics comits sexual assault when suceh perso engages i sexual contact with another person who has been admiued to or is reeiving serviees fromn such facilit', person, or: entity. A person convicted of sexual assault pursuant to this subsectiont shall be punished by impdisonmnt for not less than ten nor more than 30 years, or fine of net moere than $5,000.00, or both. Any violaion of this subsection

322

John MarshallLaw Journal

[Vol. IV

shall eenstitute a separate effcnse. Any pese enietcd underti s~bseetien ef the offense of se~ual assault shall, in addition, be subeet to the senteneing ad punishment provisions ef Code Seetien 17 10 6.2. A person who has supervisory or disciplinary authority over another individual commits sexual assault when that person: (1) Is a teacher, principal, assistant principal, or other administrator of any school and engages in sexual contact with such other individual who the actor knew or should have known is enrolled at the same school; (2) Is an employee or agent of any probation or parole office and engages in sexual contact with such other individual who the actor knew or should have known is a probationer or parolee under the supervision of the same probation or parole office; (3) Is an employee or agent of a law enforcement agency and engages in sexual contact with such other individual who the actor knew or should have known is being detained by or is in the custody of any law enforcement agency: (4) Is an employee or agent of a hospital and engages in sexual contact with such other individual who the actor knew or should have known is a patient or is being detained in the same hospital; or (5) Is an employee or agent of a correctional facility. juvenile detention facility, facility providing services to a person with a disability, as such term is defined in Code Section 37-1-1, or a facility providing child welfare and youth services, as such term is defined in Code Section 49-5-3, who engages in sexual contact with such other individual who the actor knew or should have known is in the custody of such facility. (c) A person who is an actual or purported practitioner of psychotherapy commits sexual assault when he or she engages in sexual contact with another individual who the actor knew or should have known is the subject of the actor's actual or purported treatment or counseling or the actor uses the treatment or counseling relationship to facilitate sexual contact between the actor and such individual. (d) A person who is an employee, agent, or volunteer at any facility licensed or required to be licensed under Code Section 31-7-3 or 31-7-12 or who is

No. 1]

House Bill 897

required to be licensed pursuant commits sexual assault when he another individual who the actor admitted to or is receiving services

323

to Code Section 31-7-151 or 31-7-173 or she engages in sexual contact with knew or should have known had been from such facility or the actor.

(e) Consent of the victim shall not be a defense to a prosecution under this Code section. (f) A person convicted of sexual assault shall be punished by imprisonment for not less than one nor more than 25 years or by a fine, or both: provided, however, that: (1) Except as provided in paragraph (2) of this subsection, any person convicted of the offense of sexual assault of a child under the age of 16 years shall be punished by imprisonment for not less than 25 nor more than 50 years and shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2- and (2) If at the time of the offense the victim of the offense is at least 14 years of age but less than 16 years of age and the actor is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2."

ยง 2.

This act shall become effective upon its approval by the Governor or upon its becoming law without such approval. ยง3.

All laws and parts of laws in conflict with this Act are repealed.

324

John MarshallLaw Journal

[Vol. IV

FIRST SIGNATURE'S RATIONALE

In July 2009, the Georgia Supreme Court published its opinion in Chase v. State.4 In Chase, a female teacher developed a sexual relationship with a sixteen-year-old female high school student and was charged with sexual assault of a person enrolled in school.' The Georgia Supreme Court strictly construed the statute so that the sixteen-year-old's consent barred criminal liability for sexual assault, and thus, the teacher was not convicted.6 The Chase opinion stated that the General Assembly drew a line distinguishing between sexual behavior that is criminal and sexual activity that is not subject to criminal sanctions. The Georgia Supreme Court dismissed the teacher's conviction because the Court interpreted the plain meaning of O.C.G.A. ยง 16-6-5.1 to permit a consent defense when a sixteen-year-old engages in sexual contact with a teacher who has disciplinary authority over them.8 The Court explained, [t]he plain language of the statute does not in any way indicate that the General Assembly intended to remove consent as a defense to a charge of violating subsection (b).

The General Assembly knows full well how to eliminate the consent defense when it wishes to do so. Indeed, the General Assembly eliminated consent as a defense to three crimes in the very next subsection of O.C.G.A. ยง 16-6-5.1.9 Representative Collins commented on the opinion.

The Court's decision in Chase had stopped all criminal prosecution in this area. If we didn't change this scenario then a freshman in high school could have sex with their teacher all throughout high school and there would be no repercussions from a criminal standpoint. The General 4. 681 S.E.2d 116 (Ga. 2009).

5. Id. 6. Id. In Georgia, the age of consent is sixteen. Phagan v. State, 486 S.E.2d 876, 879 (Ga. 1997). Accordingly, when Chase was decided, it was not a crime to have sexual contact with a willing sixteen-year-old in Georgia.

See id.

7. Chase, 681 S.E.2d at 118.

8. Id. at 119.

9. Id.

No. 1]

House Bill 897

325

Assembly knew exactly what it had to do. We were thankful for the Court in playing its role, and we were ready to play our role by amending the law.'o The case was decided out of Representative Collins' District, and as such, Representative Collins felt compelled to change the law to better serve his constituents." Representative Collins wanted to write a bill that would strictly forbid the type of relationship upheld in Chase.12 Opposition to House Bill 897 came from conservative members of the House who were afraid the Bill was more restrictive than necessary." The main concern was defining the age at which the teacher-student relationship became inappropriate. 4 The Georgia House of Representatives did not intend to bar a teacher-student romance on the graduate or postgraduate level.'" Accordingly, Representative Collins was open to amending the Bill to reflect these concerns, and, after deciding on terms that were agreeable, the Bill passed under the auspices of House Bill 571. 6 LEGISLATIVE GENEALOGY

The Bill was pre-filed in the House on December 17, 2009."

The first reading occurred on January 13, 2010, and the second reading occurred on January 14, 2010.1' The House Committee

10. Telephone Interview with Rep. Doug Collins, H. Dist. 27 (Oct. 18, 2010) [hereinafter Collins Interview].

11. Michael Mears, Associate Dean for Academic Affairs at Atlanta's John Marshall Law School, encouraged Representative Collins to keep a watchful eye on the decision. Id 12. Id. Although House Bill 897 encompasses many types of relationships including prison guard and prisoner, it is the teacher-student relationship which most motivated Representative Collins to amend the law.

Id. 13. Id. 14. Id. 15. Id.

16. H.B. 571 Status Sheet, supra note 3.

17. H.B. 897 Status Sheet, supra note 2.

18. Id.

326

John MarshallLaw Journal

[Vol. IV

favorably reported the Bill on February 2, 2010, by Substitute."

The Bill was withdrawn from the House General Calendar and recommitted by the Rules Committee to the Judiciary Non-Civil Committee on February 10, 2010.20 The House Committee favorably reported the Bill on February 18, 2010.21 The Bill was withdrawn from the House general calendar and recommitted by the Rules Committee to Judiciary Non-Civil Committee on March 16, 2010.22 The House Committee favorably reported the Bill on March 22, 2010.23 The language of the Bill was added to House Bill 57 1,24 which passed into law

May 20, 2010.25 Prepared by: Ashley Gholamhosseini

19. Id. 20. Id. 21. Id. 22. Id. 23. H.B. 897 Status Sheet, supra note 2.

24. H.B. 571 Status Sheet, supra note 3.

25. Id. House Bill 571 changed the classification of sexual offenders, the sexual offender registration process, and restrictions on sexual offenders' residences, workplaces, and activities. Id.

HOUSE

BILL 10851: REUNIFICATION

OF FAMILY; ADDITIONAL

CASE PLAN AND PERMANENCY REQUIREMENTS

Amending O.C.G.A. ยง 15-11-58 First Signature: Representative Katie Dempsey (13th) Co-Sponsors: Representative Judy Manning (32nd), Representative Allen Peake (137th), Representative Edward Lindsey (54th), Representative Mary Oliver (83rd), and Representative Alisha Morgan (39th) Summary: House Bill 1085 concerns the Division of Family and Children Services of the Department of Human Services.

The Bill adds several requirements pertaining to plans for children in custody.

Status: Enacted into law as Act 469 on May 27, 20102 TEXT OF HOUSE BILL

1085

ยง 1.

Code Section 15-11-58 of the Official Code of Georgia Annotated, relating to reasonable efforts regarding reunification of family, is amended by revising subsection (c) as follows: "(c) If the report contains a plan for reunification services, such plan if adopted by the court shall be in effect until modification by the court. The plan shall address each reason requiring removal and shall contain at least the following:

1. H.B. 1085, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2010), available at http://www.legis.ga.gov/legis/2009_10/pdf/hbl085.pdf.

2010), (Oct. 13, 1085 Assem., H.B. Gen. 2. Ga. http://www.legis.ga.gov/legis/2009-10/sum/hbl085.htm [hereinafter H.B. 1085 Status Sheet].

328

John MarshallLaw Journal

[Vol. IV

(1) The purpose for which the child was placed in foster care, including a statement of the reasons why the child cannot be adequately protected at home and the harm which may occur if the child remains in the home, and shall also include a description of the services offered and the services provided to prevent removal of the child from the home; (2) A discussion of how the plan is designed to achieve a placement in a safe setting that is the least restrictive, most family-like, and most appropriate setting available and in close proximity to the home of the parents, consistent with the best interests and special needs of the child; (3) A clear description of the specific actions to be taken by the parents and the specific services to be provided by the Division of Family and Children Services of the Department of Human Services or other appropriate agencies in order to bring about the identified changes that must be made in order for the child to be safely returned home; provided, however, that all services and actions required of the parents which are not directly related to the circumstances necessitating separation cannot be made conditions of the return of the child without further court review; (4) Specific time frames in which the goals of the plan are to be accomplished to fulfill the purpose of the reunification plan; (5) The person within the Division of Family and Children Services of the Department of Human Services or other agency who is directly responsible for ensuring that the plan is implemented; and (6) Consideration of the advisability of a reasonable visitation schedule which allows the parents to maintain meaningful contact with their children through personal visits, telephone calls, and letters; (7) A statement that reasonable efforts have been made and a requirement that reasonable efforts shall be made for so long as the child remains in the custody of the department: (A) To place siblings removed from their home in the same foster care, kinship. guardianship, or adoptive placement, unless the Division of Family and Children Services documents that such a joint placement would be contrary to the safety or well-being of any of the siblings: and

No. 1]

House Bill 1085

329

(B) In the case of siblings removed from their home who are not so jointly placed, for frequent visitation or other ongoing interaction between the siblings, unless the Division of Family and Children Services documents that such frequent visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings: (8) Provisions ensuring the educational stability of the child while in foster care, including: (A) An assurance that the placement of the child in foster care takes into account the appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement; (B) An assurance that the state agency has coordinated with appropriate local educational agencies to ensure that the child remains in the school in which the child is enrolled at the time of placement: or (C) If remaining in such school is not in the best interests of the child, an assurance by the Division of Family and Children Services that such division and the local educational agencies have cooperated to assure the immediate and appropriate enrollment in a new school, with all of the educational records of the child provided to such new school; and (9) A requirement that the Division of Family and Children Services of the Department of Human Services case manager and staff, and, as appropriate, other representatives of the child, provide the child with assistance and support in developing a transition plan that is personalized at the direction of the child; includes specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and work force supports and employment services: and is as detailed as the child may elect in the 90 day period immediately prior to the date on which the child will attain 18 years of age."

ยง 2.

Said Code section is further amended by revising subsection (f) as follows: "(f) When a recommendation is made that reunification services are not appropriate and should not be allowed, the report shall address each reason requiring removal and shall contain at least the following:

330

John MarshallLaw Journal

[Vol. IV

(1) The purpose for which the child was placed in foster care, including a statement of the reasons why the child cannot be adequately and safely protected at home and the harm which may occur if the child remains in the home, and a description of the services offered and the services provided to prevent removal of the child from the home; afnd (2) A clear statement describing all of the reasons supporting a finding that reasonable efforts to reunify a child with the child's family will be detrimental to the child, and that reunification services therefore need not be provided, including specific findings as to whether any of the grounds for terminating parental rights exist, as set forth in subsection (b) of Code Section 15-11-94 or paragraph (4) of subsection (a) of this Code sectiow and (3) The statements, provisions, and requirements found in paragraphs (7) and (8) of subsection (c) of this Code section."

ยง 3.

Said Code section is further amended by revising paragraph (7) of subsection (o) as follows: "(7) A supplemental order of the court adopting the permanency plan iust shall be entered within 30 days after the court has determined that reunification efforts will not be made by the Division of Family and Children Services of the Department of Human Services, if applicable, or within 12 months after the child is considered to have entered foster care, whichever is first, and at least every 12 months thereafter while the child is in foster care, unless the court finds good cause why such order cannot be entered by that time. The supplemental order shall include a requirement that the Division of Family and Children Services of the Department of Human Services case manager and staff, and, as appropriate, other representatives of the child, provide the child with assistance and support in developing a transition plan that is personalized at the direction of the child; includes specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and work force supports and employment services; and is as detailed as the child may elect in the 90 day period immediately prior to the date on which the child will attain 18 years of age."

ยง 4.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

No. 1]

House Bill 1085

331

ยง5.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Representative Katie Dempsey recognized Georgia needed legislation to comply with the Federal Fostering Connections to Success and Increasing Adoption Act of 2008, which is tied to eighty million dollars in federal funding.3 She felt honored to introduce House Bill 1085 because it cost Georgia nothing.4 However, the Bill provides foster children with a life plan as they leave the system upon adulthood, enabling them to become viable citizens that can succeed in life.s The plan focuses on three main principles: keeping siblings together, allowing visitation with parents, and ensuring educational stability by keeping children in the same school system and quickly transferring their records. Representative Dempsey believes that Georgia needs to do even more in the area of foster care.7 One area of need she identifies is greater financial stability of families to encourage private adoptions.!

The Division of Family and Children Services approached Representative Dempsey about sponsoring House Bill 1085, and the agency worked diligently on the legislation.' Statewide agencies and non-profits came together to help pass the Bill, displaying a partnership of people who care about children in Georgia. 0 Representative Dempsey acknowledged that preparation was an important factor in the passage of the Bill."

3. Telephone Interview with Rep. Katie Dempsey, H. Dist. 13 (Oct. 27, 2010) [hereinafter Dempsey Interview].

4. Id. 5. Id.; see Ga. H.B. 1085 (requiring a transitional plan for foster children before they reach age eighteen).

6. General Assembly Video Archive: House Session Part II (Georgia Public Broadcasting internet broadcast Mar. 10, 2010), http://mediaml.gpb.org/galleg/2010/ga-leg-house_031010_PM.wmv.

7. Dempsey Interview, supra note 3.

8. Id. 9. Id. 10. Id. 11. Id.

332

John MarshallLaw Journal

[Vol. IV

She had many one-on-one conversations with committee members and other people with concerns in an effort to prevent and rectify any misunderstandings from the beginning.12 LEGISLATIVE GENEALOGY

House Bill 1085 was read for the first time on February 4, 2010 and for the second time on February 5, 2010.13 On February 16, 2010, the House Children and Youth Committee favorably reported.14 On March 10, 2010, the Bill was read for a third time. 5 Representative Dempsey presented the Bill during the session. 16 She noted that the juvenile court has oversight of this issue and that she has received many letters from the Juvenile Court in support of this Bill." Representative Dempsey stressed that the Bill is important because there were 17,287 children in the Georgia foster care system in 2009.18 After she finished her presentation, the House voted on the Bill.

On March 10, 2010, the House passed the Bill with 150 yeas and 3 nays.' 9 On March 11, 2010, the Senate read and referred House Bill 1085 for the first time.20 On April 1, 2010, the Senate Committee favorably reported.2 ' On April 12, 2010, the Senate read the Bill for the second time.22 The Bill was read for the third time on April 20, 2010.23 Senator Don Thomas presented the Bill during the session.24 He stated that the Bill concerns 12. Id. 13. H.B. 1085 Status Sheet, supranote 2.

14. Id. 15. Id. 16. General Assembly Video Archive: House Session Part II (Georgia Public Broadcasting internet broadcast Mar. 10, 2010), http://mediaml.gpb.org/ga/leg/2010/ga-leg-house_031010_PM.wmv.

17. Id. 18. Id. 19. H.B. 1085 Status Sheet, supranote 2.

20. Id. 21. Id. 22. Id. 23. Id. 24. General Assembly Video Archive: Senate Session Part II (Georgia Public Broadcasting internet broadcast Apr. 20, 2010),

No. 1]

House Bill 1085

333

foster care compliance and is tied to eighty million dollars in federal revenue funds annually.2 5 The Senator also stressed that the Bill will help move more children from foster care to a safe, permanent home.2 6 On April 20, 2010, House Bill 1085 passed in the Senate with 47 yeas and 0 nays.27 On May 3, 2010, the General Assembly sent House Bill 1085 to Governor Sonny Perdue for his signature, which he signed into law on May 27, 2010.28 The Bill, labeled Act 469, became effective on May 27, 2010.29 When the Governor signed the Bill, Representative Dempsey commented, "I am so pleased that the Governor signed this important piece of legislation into law today that supports foster children throughout our state[.]"so She also added, "[t]his law will help children as they enter the foster care system, grow into adulthood within the system, and give them the tools needed to become productive adults as they turn [eighteen] and exit the system."'

Prepared By: Jennifer Murray

http://mediaml.gpb.org/ga/leg/2010/ga-leg-senate_042010_PM.wmv.

25. Id. 26. Id. 27. H.B. 1085 Status Sheet, supra note 2.

28. Id. 29. Id. 30. Representative Katie Dempsey's Legislation to Improve Georgia's Foster Care System Signed into Law, ROME NEWSWIRE, May 27, 2010, http://romenewswire.com/2010/05/27/rep-katie-dempseyE2%80%99slegislation-to-improve-georgia%E2%80%99s-foster-care-system-signedinto-law/.

3 1. Id.

HOUSE

BILL 1433': DOMESTIC RELATIONS; INTERNATIONAL MARRIAGE BROKERS; PROVIDE REGULATION Creating O.C.G.A §§ 19-16-1 to -4

First Signature: Representative Stephanie Benfield (85th) Co-Sponsors: Representative Alan Representative Karla Drenner (86th)

Powell

(29th)

and

Summary: House Bill 1433 creates a law that provides for regulation of international marriage brokers or international matchmaking organizations, requires that certain information be collected and provided to persons using such brokerage or matchmaking services, and provides for a cause of action.2 Status: House Second Readers on March 22, 20103 TEXT OF HOUSE BILL 1433

§ 1.

The General Assembly finds that international marriage broker[age] is a growing industry in Georgia whereby foreign nationals are introduced to Georgia citizens for the purpose of facilitating dating and marriage. The General Assembly further finds that this state has an interest in ensuring that minors are not brought into the United States by international marriage brokers. The General Assembly further finds that this state has an interest in providing foreign nationals with information regarding the criminal and marital history of a prospective spouse, the illegality of domestic violence in the United States, and the resources available in Georgia to victims of family violence, sexual assault, and human trafficking.

1. H.B. 1433, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2010) available at http://www.legis.ga.gov/legis/2009_10/pdf/hbl433.pdf.

2. Id. 3. Ga. Gen. Assem., H.B. 1433 (Nov. 20, 2010), [hereinafter H.B. http://www.legis.ga.gov/legis/2009_10/sum/hbl433.htm 1433 Status Sheet].

336

John MarshallLaw Journal

[Vol. IV

ยง 2.

Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, is amended by adding a new chapter to read as follows: "CHAPTER 16 19-16-1.

As used in this chapter, the term: (1) 'Client' means a Georgia resident, including a lawful permanent resident of the United States, who contracts with an international marriage broker for its services.

(2) 'Criminal history information' means: (A) Any court ordered restriction on physical contact with another person, including any temporary or permanent restraining order or civil protection rder (B) Complete criminal history record information maintained by the Georgia Crime Information Center based on the fingerprints voluntarily provided or the consent of the client in accordance with Code Section 35-3-34; (C) A complete transcript of a background check conducted by the Federal Bureau of Investigation based upon a submission of fingerprint impressions; (D) A complete transcript of a search for the client on any publicly available criminal or civil registry, including, but not limited to, the state sexual offender registry maintained by the Georgia Bureau of Investigation; (E) Any disciplinary actions imposed by a military tribunal; and (F) Any court ordered requirement or voluntary agreement that the client attend a family violence intervention program, anger management program, or other similar program.

(3) 'International marriage broker' means an international marriage broker or international matchmaking organization which is a corporation, partnership,

No. 1]

House Bill 1433

337

sole proprietorship, or other legal entity, whether or not organized under the laws of the United States or any state, that does business in the United States and for profit offers to clients dating, matrimonial, or matchmaking services, or social referrals involving citizens of a foreign country or countries who are not residing in the United States, by: (A) An exchange of names, telephone numbers, addresses, or statistics: (B) Selection of photographs: or (C) A social environment provided by such broker in a country other than the United States.

The term shall not include a traditional matchmaking organization of a religious nature that otherwise operates in compliance with the laws of the countries of the recruits of such organization and the laws of the United States, any organization that does not charge a fee to anY party for the service provided, or an entity that provides dating services if the entity's principal business does not provide international dating services between United States citizens or United States residents and foreign nationals and the entity charges comparable rates and offers comparable services to all individuals it serves regardless of the individual's gender or country of citizenship.

(4) 'Marital history information' means: (A) Current marital status; (B) An accounting of previous marital relationships, how many and how the previous marriages were terminated and the date of such of termination; and (C) Whether the client has previously sponsored a person from a foreign country to whom the client has been eneaged or married.

(5) 'Personal contact information' means, but shall not be limited to, the recruit's name, address, telephone number, and e-mail address.

(6) 'Recruit' means a person who is 18 years of age or older, not a citizen or resident of Georgia or of the United States, and who is recruited by an

338

John MarshallLaw Journal

[Vol. IV

international marriage broker for the purpose of providing matrimonial services.

19-16-2. (a) Each international marriage broker shall: (1) Obtain the client's criminal history information: (2) Require the client to provide the client's criminal history information, in writing and signed by the client under penalty of perjury (3) Require the client to provide the client's marital history information, in writing and signed by the client under penalty of perjury: (4) Pay the costs incurred to obtain a certified translation of the client's criminal history information and marital history information into the recruit's native language; (5) Disseminate all of the client's criminal history information and marital information received to the recruit not later than the thirtieth day after receipt of such information and prior to referring any personal contact information of the recruit to the client or providing further services to the recruit or to the

client; (6) Not provide any individual or entity, including, but not limited to, a client with the personal contact information, photograph, or general information about the background or interests of any recruit or any individual under the age of 18; (7) Provide the recruit with information in his or her native language that explains: (A) The client's responses to questions regarding the client's criminal history information and marital history information may not be accurate: (B) The fiancde visa application process and marriage-based immigration

status (C) The illegality of domestic violence in the United States:

No. 1]

House Bill 1433

339

(D) The assistance available to victims of family violence, sexual assault, and human traffickin2 in this state: (E) The availability of protective orders, free legal advice, immigration resources, shelters, and the state-wide 24 hour domestic violence hotline- and (F) The rights of victims of domestic violence, sexual assault, and human trafficking in this state including, but not limited to, the right to petition for residence independent of and without the knowledge, consent, or cooperation of the spouse: and (8) Obtain the written consent of the recruit to provide the recruit's personal contact information to a client and maintain records reflecting such consent. (b) The information provided pursuant to paragraphs (1), (2), and (3) of subsection (a) of this Code section shall have been obtained by the international marriage broker within six months of the date the international marriage broker provides such information to the recruit, and if more than six months have elapsed since obtaining such information, the international marriage broker shall obtain updated information on and from the client.

19-16-3.

The State Commission on Family Violence shall issue materials which include the information required by this Code section and each international marriage broker shall provide such materials to the recruit.

19-16-4.

Any person who suffers damages as a result of an international marriage broker's actions or inaction in violation of this chapter has a cause of action against such international marriage broker for damages and for any other relief a court of competent jurisdiction deems apropriate, including, but not limited to, compensatory and punitive damages and recovery of litigation expenses and reasonable attorney's fees." ยง 3.

All laws and parts of laws in conflict with this Act are repealed.

340

John MarshallLaw Journal

[Vol. IV

FIRST SIGNATURE'S RATIONALE

Representative Stephanie Benefield introduced House Bill 1433 in response to the relatively weak protection that the current law in Georgia provides to women entering the state as part of an international marriage. Representative Benefield became aware of the problems with Georgia law after reading a report conducted by the Women's Center for Policy Studies.s The study showed that Georgia scored6 among the lowest of all states for its laws protecting women who are part of an international marriage.' Particularly, the study indicated that Georgia had no laws to protect women who are part of a marriage that is facilitated by international marriage brokers.'

Additionally, Representative Benefield learned that Georgia has one of the world's largest internet-based companies that broker women to be brides in the United States.9 Another factor that helped Representative Benefield realize Georgia Law was not adequately protecting these women was the story of Katrina Sheridan. 0 Sheridan was a woman who came to the United States from the former Soviet Union and 4. Telephone Interview with Rep. Stephanie Benefield, H. Dist. 85. (Oct. 5, 2010) [hereinafter Benefield Interview].

5. Id. 6. CTR. FOR WOMEN POLICY STUDIES, REPORT CARD ON STATE ACTION TO COMBAT

INTERNATIONAL TRAFFICKING,

3-4 (2007),

available at

http://www.centerwomenpolicy.org/documents/ReportCardonStateActiontoC ombatlntemationalTrafficking.pdf. The study analyzed each state law in terms of its responsiveness to the model legislative provisions for the five types of laws discussed in the Center's 2005 Resource Guide for State Legislators. Id A point value was assigned for each provision, from 0 [did not address] to 4 [addressed fully]. Id. The point values were then averaged to determine the final numerical grade. Id The numerical grade was then translated into a corresponding letter grade. Id. 7. Id. at 7, 26-27. The study assessed each state's laws that regulate international marriage based on whether the law mandates the dissemination of criminal and marital history of the prospective American client to women from other countries, in their own language; whether the law mandates dissemination of basic United States civil and legal rights information to women from other countries, in their own language; and whether the law provides civil penalties for violations of the statute. Id. at 3-4.

8. Id.

9. Benefield Interview, supra note 4.

10. Id.

No. 1]

House Bill 1433

341

married a Georgia man." The marriage was facilitated by an international marriage broker. 2 Shortly after the marriage, the man kept her a virtual prisoner, forbidding her to keep her own set of house keys, and taking away her visa, passport, and birth certificate. 3 Later, he also took away her cell phone and cut all the phone lines in the house.14 He flew into violent rages, on one occasion beating Sheridan and dragging her around the house by her legs." After several similar incidences, Sheridan told him that she wanted to go back to Russia.'6 In retaliation, the husband stabbed himself and then accused her of doing it to get her thrown in jail. 7 Later, Katrina managed to make it to a women's shelter, but Sheridan stalked her relentlessly and tried to get her detained and deported.'8 When police went to arrest the man for aggravated stalking, they discovered he was in Russia looking for a new bride. 9 Months later, when an officer went to arrest Sheridan for another stalking-related crime, he shot the officer.20 Representative Benefield stressed that "there is federal law protection against some of these international marriages, but there are no state law protections." 2 1 House Bill 1433 was introduced in an effort to give state prosecutors some authority to prosecute these companies if they put women into abusive situations.2 2

Modeled after federal law and model provisions for state antitrafficking laws provided by the Center for Women's Policy Studies, 23 the Bill seeks to require that women are given basic 11. Id.; Jane Hansen, From Russia, for Love, ATLANTA J.-CONST., Dec. 5

2004, at Al. 12. Hansen, supra note 11.

13. Id. 14. Id. 15. Id. 16. Jane Hansen, From Russia, for Love: A Stalking, a Shooting, and a Surprise Ending, ATLANTA J.-CONST., Dec. 6 2004, at Al. 17. Id. 18. Id. 19. Id. 20. Id. 21. Benefield Interview, supra note 4.

22. Id. 23. Id. See International Marriage Broker Regulation Act, 8 U.S.C. ยง

342

John MarshallLaw Journal

[Vol. IV

information about the men they are paired with before the women come to this country. For instance, the Bill requires the men to disclose their criminal past, any history of domestic violence, and if they have previously been married. In addition, the Bill provides the women with access to resources such as domestic violence shelters.24 The Bill also provides a civil cause of action against an international marriage broker in violation of the law. This allows any person who suffers damages as a result of an international marriage broker's violation of law a right to seek recovery in court.25 LEGISLATIVE GENEALOGY

The first reading of House Bill 1433 took place on March 18, 2010.26 The second reading of the Bill occurred on March 22, 2010.27 House Bill 1433 was assigned to the House Judiciary Committee, but the Bill has received no attention since.28 Prepared by: Trent Refel

1375(a) (2010); CTR. FOR WOMEN POLICY STUDIES, RESOURCE GUIDE FOR STATE LEGISLATORS MODEL PROVISIONS FOR STATE ANTI-TRAFFICKING at available (2005), LAWS http://www.centerwomenpolicy.org/pdfs/TraffickingResourceGuide.pdf.

24. Benefield Interview, supranote 4.

25. H.B. 1433 Status Sheet, supra note 3.

26. Id. 27. Id. 28. Id.

SENATE BILL 304': OFFENSES; MANDATE A MINIMUM AGE FOR THE PROSECUTION OF THE OFFENSES OF PROSTITUTION

Creating§ 16-6-26 andAmending O.C.G.A. § 16-6-9, § 16-616, § 19-7-5, § 19-15-1, and§ 49-5-40 First Signature: Senator Renee Unterman (45th) Co-Sponsors: Senator Jack Murphy (27th) Summary: Senate Bill 304 seeks to amend Chapter 6 of Title 16 of the Official Code of Georgia Annotated, relating to the sexual offenses of prostitution and masturbation for hire, so as to mandate a minimum age of sixteen for the prosecution of individuals engaged in the offenses.2 The Bill creates a new Code section and amends Chapters 7 and 15 of Title 19 and Chapter 49 of Title 5 of the Official Code of Georgia Annotated relating to the definition of child abuse to aid in the prosecution of individuals accused of engaging in the act of prostitution or masturbation for hire, regardless of the State's inability to prosecute the child prostitute.

Status: Senate Read and Referred on January 12, 20104 TEXT OF SENATE

BILL 304

§ 1.

Chapter 6 of Title 16 of the Official Code of Georgia Annotated, relating to sexual offenses, is amended by revising Code Section 16-6-9, relating to prostitution, as follows: 1. S.B. 304, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2010), available at http://www.legis.ga.gov/Legislation/20092010/97245.pdf.

2. Id. 3. Id. 2010), (Apr. 29, S.B. 304, Assem., Gen. 4. Ga. http://www.legis.ga.gov/Legislation/en-US/History.aspx?Legislation=28975 [hereinafter S.B. 304 Status Sheet].

344

John MarshallLaw Journal

[Vol. IV

"16-6-9.

A person who is 16 years of age or older commits the offense of prostitution when he or she performs or offers or consents to perform a sexual act, including but not limited to sexual intercourse or sodomy, for money or other items of value."

ยง 2.

Said chapter is further amended by revising subsection (a) of Code Section 16-6-16, relating to masturbation for hire, as follows: "(a) A person who is 16 years of age or older, including a masseur or masseuse, commits the offense of masturbation for hire when he or she erotically stimulates the genital organs of another, whether resulting in orgasm or not, by manual or other bodily contact exclusive of sexual intercourse or by instrumental manipulation for money or the substantial equivalent thereof. ยง3.

Said chapter is further amended by adding a new Code section to read as follows: "16-6-26.

The inability to prosecute any person involved in an alleged act of prostitution shall not bar prosecution of any other charged with a violation of this chapter nor serve as a defense to such crime."

ยง 4.

Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, is amended by revising paragraph (4) of subsection (b) of Code Section 19-7-5, relating to reporting of child abuse as follows: "(4) 'Sexual exploitation' means conduct by any person who allows, permits, encourages, or requires that child to engage in:

No. 1]

Senate Bill 304

345

(A) Prostitution, as defined in Code Section 16-6-9, notwithstanding the age of the child or the inability to prosecute the child for such offense; or (B) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, as defined in Code Section 16-12-100." ยง5.

Said title is further amended by revising paragraph (12) of Code Section 1951-1, relating to definitions relative to child abuse, as follows: "(12) 'Sexual exploitation' means conduct by any person who allows, permits, encourages, or requires that child to engage in: (A) Prostitution, as defined in Code Section 16-6-9, notwithstanding the age of the child or the inability to prosecute the child for such offense; or (B) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, as defined in Code Section 16-12-100." ยง 6.

Title 49 of the Official Code of Georgia Annotated, relating to social services, is amended by revising paragraph (6) of subsection (a) of Code Section 49-5-40, relating to definitions relative to child abuse and deprivation records, as follows: "(6) 'Sexual exploitation' means conduct by any person who allows, permits, encourages, or requires that child to engage in: (A) Prostitution, as defined in Code Section 16-6-9., notwithstanding the age of the child or the inability to prosecute the child for such offense; or (B) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, as defined in Code Section 16-12-100." ยง7.

All laws and parts of laws in conflict with this Act are repealed.

John MarshallLaw Journal

346

[Vol. IV

FIRST SIGNATURE'S RATIONALE

Senate Bill 304 is Senator Renee Unterman's response to the growing concern about the commercial sexual exploitation of minors in Georgia. After discovering that "as many as 200 to 300 young [children] are commercially sexually exploited each month in Georgia,"' Senator Unterman felt that now was the time to act and, therefore, introduced Senate Bill 304 with the belief that "a child less than sixteen years old is a victim, not a criminal."' As introduced, Senate Bill 304 attempts to do just that, treat "[a] person who is 16 years of age or older"' as a criminal, while removing culpability for individuals unable to consent to the underlying sexual activity.' If an individual is unable to consent to the underlying sexual activity inherent in the crime of prostitution or masturbation for hire, the state's prosecutors should be unable to file criminal charges against the individual.1o

The development of Senate Bill 304 began when Dr. Scott Weimer, the senior pastor of North Avenue Presbyterian Church in Atlanta, Georgia, approached Senator Unterman about the need for legislation that addresses child prostitution." After a 2005 report identified North Avenue as an established area for "juvenile prostitution-related activities,"l 2 Dr. Weimer spoke 5. Interview with Sen. Renee Unterman, S. Dist. 45, in Atlanta, Ga. (Sept.

29, 2010) [hereinafter Unterman Interview].

6. SENATE RESEARCH OFFICE, FINAL REPORT OF THE COMMERCIAL SEXUAL EXPLOITATION OF MINORS JOINT STUDY COMMISSION, 3 (2008),

at available http://www.legis.state.ga.us/legis/2009_10/senate/publications/sro/committee reports/2008/Final%2OReport%20of/o20the%20Commercial%2OSexual%2 OExploitation%20of/o20Minors%20Joint%20Study%20Committee.pdf. The report indicated "[o]n a typical weekend night, more girls, 129, are commercially sexually exploited in Georgia than the number killed in car accidents, 58, in an entire year." Id. 7. Unterman Interview, supra note 5.

8. Ga. S.B. 304.

9. O.C.G.A. ยง 16-6-3(a) (West 2010).

10. Unterman Interview, supra note 5.

11. Id.; Georgia State Senate, Sen. Renee Unterman Introduces Child 1, 2010), (Feb. Bill, YouTUBE Protection Exploitation http://www.youtube.com/watch?v-c9QTvAswFFO. 12. ATLANTA

WOMEN'S

AGENDA,

HIDDEN

IN

PLAIN

VIEW

THE

No. 1]

Senate Bill 304

347

with his congregation to determine possible remedies for the issue." The alarm initiated by the report awoke the faith-based community to support legislation to extinguish the flame engulfing children exploited for financial gain in Georgia's sex industry. 14 In response to the issue of child prostitution coming to the forefront of public awareness, Senator Unterman began working with various groups on the Bill."

Opponents to the Bill did not object to Senator Unterman's Rather, the main "victims not criminals" philosophy.' 6 objection to Senate Bill 304, as introduced, was that the proposed changes to the Code would result in the legalization of child prostitution.' 7 By removing culpability for individuals under the age of sixteen engaging in prostitution or masturbation for hire, the Bill, as introduced, "ties the hands of the police" from arresting the child prostitute, thereby legalizing Because the average age of children child prostitution." engaged in prostitution is fourteen-and-one-half-years-old,19 COMMERCIAL SEXUAL EXPLOITATION OF GIRLs IN ATLANTA, 22 (2008),

at available http://www.atlantaga.gov/client resources/mayorsoffice/womensagenda/hidd eninplainview.pdf.

13. Interview with Dr. Scott Weimer, Senior Pastor, North Avenue Presbyterian Church, in Atlanta, Ga. (Oct. 27, 2010).

14. Id.

15. Unterman Interview, supra note 5. The groups included Street Grace, A Future. Not a Past, We Urge You, Junior League of Georgia, and Atlanta's Women Foundation. Id. 16. Hearing on S.B. 304 Before the S. Comm. on the Judiciary, 150th Gen. Assem., 2d Reg. Sess. (2010) (statement of Tanya Ditty, State Dir., at available Ga.), of Am. for Women Concerned http://www.cwfa.org/images/content/CWATestimony_SB304.pdf [hereinafter Ditty Testimony] ("All of us who struggle to help these children agree on the need to 'do something.' Unfortunately, what has been proposed is not an effective way to stop the problem.").

17. Id. ("The original language of S.B. 304 would have decriminalized prostitution for minors under the age of 16 years. Citizens across the state of Georgia were outraged at the possible change in the law and voiced their concerns to state legislators through phone calls and e-mails.").

18. Id. 19. BARTON CHILD LAW & POLICY CLINIC, COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN IN GEORGIA, 6 (2008), available at

http://childwelfare.net/activities/legislative2008/CSEC20080131 .pdf visited Apr. 10, 2011).

(last

348

John MarshallLaw Journal

[Vol. IV

Senate Bill 304, as introduced, fuels the fire the proponents sought to extinguish.20 Moreover, the effects of decriminalization raised concern that the Bill would increase the commercial sexual exploitation of children deemed legal to be exploited by making child prostitution or masturbation for hire acceptable.2 In addition, a concern was expressed regarding a child prostitute "acting as an independent entrepreneur"2 2 by carving out an exception for the minors deemed legal to sell their sexual services, such as "middle-class girls trading sex for money[,] drugs[,] and other luxury goods."23 Due to the immediate objections and controversial effects of the Bill, Senator Unterman proposed a substitute to Senate Bill 304 after the original version was referred to the Senate Judiciary Committee.24 The Substitute attempted to redefine the sexual exploitation of juvenile prostitution and masturbation for hire as status offenses.25 By supplementing the definition of a "delinquent act" 26 and an "unruly child,"2 the Substitute addressed the individual child engaged in prostitution or masturbation for hire, as opposed to all children engaged in the activities.28 In addition, the system of care proposed by the Substitute sought to create the services needed to rehabilitate 20. Letter from Dale Austin, Leg. Liaison, Concerned Women for Am., to Members of the Senate Judiciary Committee, (Jan. 20, 2010), available at http://www.cwfa.org/images/content/OpenLetterDecriminalization.pdf.

21. Id. ("Decriminalization of minors sends the message that the community accepts children in prostitution-it normalizes it.").

22. Hearing on S.B. 304 Before the S. Comm. on the Judiciary, 150th Gen. Assem., 2d Reg. Sess. (2010) (statement of Kaffie McCullough, Campaign Dir., A Future.

Not A Past), available at http://www.rccatl.org/tiki-download file.php?fileld=258.

23. Ditty Testimony, supra note 16.

24. S.B. 304, 150th Gen. Assem., 2d. Reg. Sess. (Ga. 2010) (proposed comm. substitute) [hereinafter Ga. S.B. 304 Substitute] (on file with the John Marshall Law Journal); Telephone Interview with Sen. Renee Unterman, S. Dist. 45 (Jan. 14, 2011) [hereinafter Unterman Phone Interview].

25. Ga. S.B. 304 Substitute; Memorandum from Thomas L. Williams, Asst. Dist. Attorney, Flint Judicial Circuit to Sen. Preston Smith, Chairman of the Senate Judiciary Comm. (Mar. 16, 2010) (on file with the John Marshall Law Journal).

26. O.C.G.A. ยง 15-11-2(6) (West 2010).

27. O.C.G.A. ยง 15-11-2(12) (West 2010).

28. S.B. 304 Substitute.

No. 1]

Senate Bill 304

349

children extracted from Georgia's commercial sex industry.2 9 By treating the children as victims and placing them into a system of care, the child prostitute is treated as an unruly child,3 0 as opposed to being punished as a criminal.3' Despite the success of similar bills in other states, 32 the proposed Substitute to Senate Bill 304, like its predecessor, was not met with open arms, even though the Substitute was never formally introduced.33 Objections centered on the Substitute's attempt to analogize the action of a child engaged in prostitution with conduct that labels a child unruly or qualifies as a delinquent act.34 Moreover, Senator Unterman's attempt to copy similar legislation in other states resulted in conflicts with other sections of the Code.

As a result of the controversial debate among the General Assembly and private citizens, coupled with the Bill's introduction during an election year, Senator Unterman declined to exert additional efforts in the 2010 legislative session to reinstate the Bill or the proposed Substitute. 36 However, Senator Unterman has been in the midst of determining the 29. Id.

30. In 2000, the federal government enacted the "Victims of Tracking and Violence Protection Act." 22 U.S.C. ยง 7101 (West 2010). The Act provides federal funding to states providing assistance to any "victim of severe forms of trafficking in persons[.]" 22 U.S.C. ยง 7105 (West 2010). An individual is a "victim of trafficking" when "a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age . . . ." 22 U.S.C.

ยง 7102(8)(A), (14)

(West 2010). Thus, by defining the child engaged in prostitution or masturbation for hire as an "unruly child" that "[i]s a victim of sexual exploitation," the Substitute to Senate Bill 304 enables Georgia to apply for federal funds to assist with funding the rehabilitative services provided by the state. Ga. S.B. 304 Substitute.

31. S.B. 304 Substitute.

32. Overview of State Legislative Policy to Address the Commercial Sexual Exploitation of Children-State "Safe Harbor" Laws, POLARIS PROJECT,

http://www.polarisproject.org/storage/documents/policydocuments/model% 20laws/model%20safe%20harbor/ 2Olaw%20overview%20final-1.pdf (last visited Apr. 10, 2011).

33. Ditty Testimony, supra note 16.

34. Id. 35. Unterman Interview, supra note 5.

36. Id.

350

John MarshallLaw Journal

[Vol. IV

appropriate course of action for reintroducing the premise of Senate Bill 304 in the 2011 legislative session.3 7 In keeping with her commitment, Senator Unterman introduced, and the Senate adopted, Senate Resolution 768 acknowledging "February 1, 2011, as End the Commercial Sexual Exploitation of Children Day." 9 HOUSE BILL 20040: CRIMES AND OFFENSES; HUMAN TRACKING; CHANGE COMPENSATION

After Senator Unterman "pulled the sword" in the fight against the commercial sexual exploitation of children in Georgia, 41 Representative Edward Lindsey, of the 54th district, introduced House Bill 200 to "provide a pathway out to those victims of human trafficking involved in prostitution."4 2 Representative Lindsey has commended Senator Unterman for her efforts to fight the blight the commercial sex industry has upon the state and believes the time has come to once and for all extinguish the flame engulfing Georgia's children.4 3 In addition to increasing the penalties for individuals engaged in human trafficking and providing for the forfeiture of all materials used to aid in human trafficking,4 House Bill 200 provides an affirmative defense for individuals accused of committing a "sexual crime." 45 The affirmative defense is narrowly tailored to prevent a broad exclusion for all individuals younger than sixteen years old engaged in 37. Unterman Phone Interview, supra note 24.

38. S.R. 76, 15 1st Gen. Assem., 1st Reg, Sess. (Ga. 2011) (enacted), available at http://www.legis.ga.gov/Legislation/20112012/108736.pdf.

39. Id. 40. H.B. 200, 151th Gen. Assem., 1st Reg. Sess. (Ga. 2011) (committee at available substitute), http://www.legis.ga.gov/Legislation/20112012/111698.pdf.

41. Interview with Rep. Edward Lindsey, H. Dist. 54, in Atlanta, Ga. (Mar. 1, 2011).

42. Id. 43. Id. 44. E-mail from Brian Walker, Aide, Office of the Majority Whip, to Thomas Rainey, Staff Member, John Marshall Law Journal (Feb. 28, 2011, 01:01 p.m. EST) (on file with the John Marshall Law Journal) [hereinafter Walker E-mail].

45. Ga. H.B. 200.

No. 1]

Senate Bill 304

351

prostitution or masturbation for hire, addressing an objection to Senate Bill 304.46 Instead of "decriminalizing" child prostitution, House Bill 200 embodies the "victims not criminals" philosophy of the proposed Substitute to Senate Bill 304 by providing rehabilitative services to victims extracted from Georgia's commercial sex industry. 47 LEGISLATIVE GENEALOGY

The first reading of Senate Bill 304 and its referral to the Senate Judiciary Committee occurred on January 12, 2010.48 On March 8, 2010, the Senate Judiciary Committee Chairman, Senator Preston Smith, of the 52nd district, opened the floor for testimony regarding Senate Bill 304.49 After a considerable amount of discussion in the Committee, prompted by proponents and opponents of the Bill,50 the Senate Judiciary Committee decided to retain Senate Bill 304 for further study, and the Bill was placed on the Committee's agenda for March 22, 2010.51 Senator Unterman planned to introduce the proposed Substitute to Senate Bill 304 to the Judiciary Committee on 46. Walker E-mail, supra note 44; Ditty Testimony, supranote 16.

47. Ga. H.B. 200.

48. S.B. 304 Status Sheet, supra note 4.

49. Senate Judiciary Committee Meeting Minutes, 150th Gen. Assem., 2d Reg. Sess., at 17 (Ga. Mar. 22, 2010), available at http://www.legis.state.ga.us/legis/20091 0/senate/publications/1 Ominutes/Ju diciary.pdf [hereinafter JudiciaryMinutes].

50. Id. The Committee received testimony in support of the Bill from Kaffie MCullough, A Future Not a Past; Brent Wilson, Angela's House; Cherul Deluca-Johnson, Street Grace; Pamela Perkins, Interfaith Children's Movement; Dalia Raine, Fulton County District Attorney; Shondeana Morris, Fulton County District Attorney; Ellyn Jeager, Mental Health America; Marjorie Girt, Interfaith Children's Movement; Mary Boyert, Archdiocese of Atlanta; Mary Frances Bowley, Wellspring Living; Wendell Phillips, Presbyterian of Greater Atlanta; Stephanie Days, Georgia Women for A Change; Julianna McConnell, Georgia Commission on Women. Id. Testimony in opposition of the Bill included Tanya Ditty, Concerned Women for America; Anne Perry, Eagle Forum; Sue Ella Deadwyler, Eagle Forum; Paul McDonald, citizen; Senator Pam Glanton, citizen; Judy Craft, Georgia Christian Alliance. Id. at 18.

51. Id.

352

John MarshallLaw Journal

[Vol. IV

March 22, 2010.52 However, the Committee's Chairman was unable to call the meeting to order on this day due to only three Senators being present and the Committee's rules regarding a quorum requiring the presence of six Senators." Senate Bill 304 received no more attention and died after failing to pass the Senate before crossover day on March 26, 2010.54 HOUSE BILL 200

The first reading of House Bill 200 occurred on February 9, 2011, and the second reading occurred on February 10, 2011.11 The Bill was then referred to the House Committee on Judiciary Non-Civil for further consideration.5 6 The House Committee on Judiciary Non-Civil offered a Substitute that amended some terms." The Substitute reorganized the language presented in the original Bill and extended the definition of "coercion" to include "[p]roviding a controlled substance ... for the purpose of compelling such person to engage in labor or sexual servitude against his or her will."" In addition, the Substitute barred the admission of evidence relating to the "sexual history" of the individual accused of prostitution. 9 The major difference between House Bill 200, as introduced, and the Substitute is the Substitute clarified and extended the affirmative defense proposed by the original version of House 52. Unterman Interview, supra note 5.

53. Id.; Judiciary Minutes, supra note 49, at 24. Senators present at the March 22, 2010 Judiciary Committee Meeting included Senator Smith (52nd), Chairman; Senator Seabaugh, (28th), Ex-Officio; and Senator Wiles (37th). Id. 54. S.B. 304 Status Sheet, supranote 4.

55. Ga. Gen. Assem., H.B. 200 (Apr. 10, 2011), http://www.legis.ga.gov/Legislation/en-US/History.aspx?Legislation=32503 [hereinafter H.B. 200 Status Sheet].

56. Id. 57. Id. 58. Compare H.B. 200, 151th Gen. Assem, 1st Reg. Sess. (Ga. 2011) (as introduced), available at http://www.1egis.ga.gov/Legislation/20112012/109410.pdf, with H.B. 200, 150th Gen. Assem., 1st Reg. Sess. (Ga. 2011) (committee substitute), available at www.http://www.legis.ga.gov/Legislation/20112012/111097.pdf.

59. Id.

No. 1]

Senate Bill 304

353

Bill 200.60 Section Three of the Substitute provides the various affirmative defenses available based on the status of the accused, as defined by categories in the Bill.6' Moreover, the Substitute removes the defense of the inability to "consent for sexual activity" due to age and "the accused's lack of knowledge of the age" of the other individual engaging in the underlying sexual activity.6 2 The House Committee on Judiciary Non-Civil favorably reported on the Substitute on February 24, 2011.63 The third reading occurred on March 2, 2011.1 At that time, the House adopted the Committee Substitute to House Bill 200 by a vote of 168 to 1.65 Senator Unterman carried House Bill 200 in the Senate.66 The Senate read and referred the Bill to the Committee on Health and Human Services on March 3, 201 1.67 On March 22, 2011, the Committee heard testimony regarding House Bill 200.6 Thereafter, the Committee favorably reported on the Bill, 69 and on the following day, it was read for a second time before the Senate.7 0 On March 29, 2011, the third reading of House Bill 200 occurred, and the Senate unanimously passed it

60. Id. 6 1. Id. 62. Id.

63. H.B. 200 Status Sheet, supra note 55; see also April Hunt, Sex Trafficking Bill Passes House, ATLANTA J.-CONsT., Mar. 2, 2011, available at http://www.aje.com/news/georiga-politics-elections/sex-trafficking-billpasses-858231.html. "The lone dissenter, Rep. Bobby Franklin . . . objected only because of constitutional questions about how many features the bill contained. He said he did not oppose the bill's goals." Id. 64. H.B. 200 Status Sheet, supra note 55.

65. Id. 66. Id. 67. Id. The Chairman of the Health and Human Services Committee is Senator Renee Unterman. Id. 68. Senate Health & Human Services Meeting Minutes, 151th Gen. 1st Reg. Sess. (Ga. Mar. 22, 2011), available at Assem., http://www.senate.ga.gov/committees/Documents/Health03-22.pdf.

69. H.B. 200 Status Sheet, supra note 55; see also Georgia HB 200 Passed Out of the Senate Committee!, A FuTURE. NOT A PAST BLOG (Mar. 22, 2011, 1:30 p.m.), http://blog.juvenilejusticefund.org/georgia-hb-200.

70. H.B. 200 Status Sheet, supranote 55.

354

John MarshallLaw Journal

[Vol. IV

by a vote of 54 to 0." The Bill is now awaiting Governor Nathan Deal's approval, and upon his signature, Senator Unterman's original goal set forth in Senate Bill 304 will become Georgia law.n Prepared by: Thomas 0. Rainey, IV

7 1. Id.

72. Id.; Christopher Quinn, Senate Backs Tougher Sex Trafficking Bill, at available 28, 2011, Mar. J.-CONST., http://www.ajc.com/news/georgia-politics-elections/senate-backs-toughersex-889903.html.

ATLANTA

SENATE BIL 4711: ADOPTION; REQUIRE HOME STUDY BY EVALUATOR PRIOR TO PLACEMENT OF A CHILD

Amending O.C.G.A. § 19-8-1, § 19-8-5, §§ 19-8-13 to -14, § 198-26 First Signature: Senator Seth Harp (29th) Co-Sponsors: Senator Bill Hamrick (30th), Senator Judson Hill (32nd), and Senator Ronald Ramsey, Sr. (43rd) Summary: Senate Bill 471 seeks to amend Chapter 8 of Title 19 of the Official Code of Georgia Annotated to require preplacement home studies, conducted by a licensed evaluator, for all prospective adoptive families prior to the placement of a child.2 The Bill provides additional definitions, amends provisions relating to the requisite proceedings for the termination of parental rights, and supplements the document used for the surrender of parental rights in relation to an adoption.

Status: Senate Read and Referred on March 10, 20104 TEXT OF SENATE

BILL 471

§ 1.

Chapter 8 of Title 19 of the Official Code of Georgia Annotated, relating to adoption, is amended by revising Code Section 19-8-1, relating to definitions, by adding three new paragraphs to read as follows:

1. S.B. 471, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2010), available at http://www.legis.ga.gov/Legislation/20092010/101201.pdf.

2. Id. 3. Id. 4. Ga. Gen Assem., S.B. 471, (Apr. 29, 2010), http://www.legis.ga.gov/Legislation/en-US/History.aspx?Legislation=30401 [hereinafter S.B. 471 Status Sheet].

356

John MarshallLaw Journal

[Vol. IV

"(4.1) 'Evaluator' means the person or agency that conducts a home study.

An evaluator shall be a licensed child-placing agency, the department, or a licensed professional with at least two years of adoption related professional experience, including a licensed clinical social worker, licensed master social worker, licensed marriage and family therapist, or licensed professional counselor."

(5.1) 'Home study' means an evaluation by an evaluator of the petitioner's home environment for the purpose of determining the suitability of the environment as a prospective adoptive home for a child. Such evaluation shall consider the petitioner's physical health, emotional maturity, financial circumstances, family, and social background and shall conform to the guidelines established by the department's Office of Residential Child Care.

(5.2) 'Home study report' means the written report generated as a result of the home study."

ยง 2.

Said chapter is further amended by revising subsection (a) of Code Section 19-8-5, relating to surrender or termination of parental or guardian's rights where a child is to be adopted by a third party, as follows: "(a) Except as otherwise authorized in this chapter, a child who has any living parent or guardian may be adopted by a third party who is neither the stepparent nor relative of that child, as described in subsection (a) of Code Sections 19-8-6 and 19-8-7, only if each such living parent and each such guardian has voluntarily and in writing surrendered all of his or her rights to the such child to that third persen pary for the purpose of enabling that persea third party to adopt the such child. Except as provided in subsection (m) of this Code section, no child shall be placed with a third party for purposes of adoption unless prior to the date of placement a home study shall have been completed, and the home study report recommends placement in such third party's home."

ยง 3.

Said chapter is further amended by adding new subsections to Code Section 19-8-5, relating to surrender or termination of parental or guardian's rights where a child is to be adopted by a third party, to read as follows:

No. 1]

Senate Bill 471

357

"(m) If the home study for a third-party adoption or for an adoption involving a preadoptive family having guardianship of a child who is to be adopted has not occurred prior to the date of placement, then the third party shall, within 30 days of the filing of the petition for adoption, file a petition with the court seeking an order authorizing placement of such child prior to the completion of the home study. Such petition shall identify the evaluator that the petitioner has selected to perform the home study. A copy of each surrender as provided in subsection (a) of this Code section shall be filed as an exhibit to the petition filed pursuant to this subsection. (n) The court may grant the petition for placement prior to the completion of a home study if the court finds by a preponderance of the evidence that such placement is in the best interest of the child. (o) If the court grants the petition for placement prior to the completion of a home study and authorizes placement of a child prior to the completion of the home study, then: (1) Such child shall be permitted to remain in the home of the third party with whom the parent or guardian placed such child pending further order of the court(2) A copy of the order authorizing placement of such child prior to the completion of the home study shall be delivered to the department and the evaluator selected to perform the home study by the clerk of the court within 15 days of the date of the entry of such order; (3) The home study, if not already in process, shall be initiated by the evaluator selected by the petitioner within ten days of such evaluator's receipt of the court's order: (4) Once initiated, the home study shall be completed within 60 days of initiation, and the evaluator shall cause a copy of the home study report to be filed with the court and shall provide a copy of such report to the petitioner and (5) A copy of the court order authorizing the placement of such child pursuant to this Code section shall be included with the petition for adoption that is filed with the court.

358

John MarshallLaw Journal

[Vol. IV

(p) If the court denies the petition for placement prior to the completion of a home study and the petitioner decides not to pursue the adoption of the child and dismisses the action with preiudice, then the court shall commit the child to the custody of the birth parent, a child-placing agency, or the department as specified in the written surrender as provided in subsection (c) of Code Section 19-8-26. or, in the absence of a provision in the written surrender regarding the disposition of the child, in the event the petitioner does not successfully complete the adoption of the child, the court shall commit the child to the custody of a child-placing agency willing to accept the child for placement for adoption or to the department for placement for adoption. (q) If the court denies the petition for placement prior to the completion of a home study and within ten days of the entry of such order the petitioner files a notice with the court indicating that the petitioner desires to pursue the adoption of the child, then the court shall order that: (1) The evaluator selected by the petitioner to perform the home study shall initiate the home study within ten days of such agency's receipt of the court's order: (2) The evaluator shall file the home study report and shall provide a copy of each such report to the petitioner (3) The evaluator shall complete the home study within 60 days of initiation unless good cause is shown why a longer period for completion of the home study is needed; and (4) The clerk of the court shall serve the department and the evaluator selected to perform the home study with a copy of the order requiring the home study to be conducted within 15 days of the date of the entry of such order. (r) If the evaluator's home study report does not recommend placement of the child for adoption with the petitioner, then the court shall within 30 days of receipt of the home study report hold a hearing to determine whether the court should either permit the placement to continue and permit the petitioner to file a petition for adoption of the child or remove the child from the petitioner's home and commit the child to the custody of the birth parent, an evaluator, or the department as specified in the written surrender as provided in subsection (c) of Code Section 19-8-26, or, in the absence of a provision in the written surrender regarding the disposition of the child, in

No. 1]

Senate Bill 471

359

the event the petitioner does not successfully complete the adoption of the child, the court shall commit the child to the custody of an evaluator willing to accept the child for placement for adoption or to the department for placement for adoption. (s) If the court denies the petition for placement prior to the completion of a home study, the petitioner may appeal the ruling as provided by law. If the petitioner files an appeal, the court shall appoint a guardian ad litem for the child who shall represent the best interest of such child."

ยง 4.

Said chapter is further amended by revising paragraph (3) of subsection (a) of Code Section 19-8-13, relating to the filing and content of the petition, as follows: "(3) Where the adoption is pursuant to subsection (a) of Code Section 19-85, the following shall be provided or attached or its absence explained when the petition is filed: (A) The written voluntary surrender of each parent or guardian specified in subsection (e) of Code Section 19-8-5; (B) The written acknowledgment of surrender specified in subsection (f) of Code Section 19-8-5; (C) The affidavits specified in subsections (g) and (h) of Code Section 19-85; (D) Allegations of compliance with Code Section 19-8-12; (E) Allegations of compliance with Chapter 4 of Title 39, relating to the Interstate Compact on the Placement of Children; (F) The accounting required by the-previsiens-ef subsection (c) of this Code section; (G) Copies of appropriate certificates or forms verifying allegations contained in the petition as to guardianship of the child to be adeptcd,,ught the marriage of each petitioner, the divorce or death of each parent of the

360

John MarshallLaw Journal

[Vol. IV

child seught to be adepte , and compliance with Chapter 4 of Title 39, relating to the Interstate Compact on the Placement of Children; and (H) A completed form containing background information regarding the child to be adopted, as required by the adoption unit of the department and (I) A copy of the home study report or a copy of the order issued permitting the child to remain in the petitioner's home pending the completion of the home study." ยง5.

Said chapter is further amended by revising subsections (f), (g), and (h) of Code Section 19-8-14, relating to timing of adoption hearing, required records, and filing, as follows: "(f) The court in the child's best interest may grant such expedited hearings or continuances as may be necessary for completion of applicable notice requirements, investigations, a home study, and home study reports or for other good cause shown. (g) Copies of the petition; and all documents filed in connection therewith, including, but not limited to, the order on the petition for placement prior to the completion of a home study filed pursuant to subsection (m) of Code Section 19-8-5, the order fixing the date upon which the petition shall be considered, and all exhibits, surrenders, or certificates required by this chapter, shall be forwarded by the clerk to the department within 15 days after the date of the filing of the petition for adoption. (h) Copies of the petition, the order fixing the date upon which the petition shall be considered, and all exhibits, surrenders, or certificates required-by this-ehapter filed in support of the petition shall be forwarded by the clerk to the ehild plaeing agency or other agent appointed by the eouip pursuant to the provisions of Code Section 19 8 16 evaluator that conducted the home study within 15 days after the date of the filing of the petition for adoption; together with a request that a report and in;estigatien be made as required-by

No. 1]

Senate Bill 471

361

ยง 6.

Said chapter is further amended by revising subsection (c) of Code Section 19-8-26, relating to how surrender of parental rights executed, how and when surrender may be withdrawn, and forms, as follows: "(c) The surrender of rights by a parent or guardian pursuant to paragraph (1) of subsection (e) of Code Section 19-8-5 shall conform substantially to the following form: SURRENDER OF RIGHTS FINAL RELEASE FOR ADOPTION NOTICE TO PARENT OR GUARDIAN: This is an important legal document and by signing it you are surrendering all of your right, title, and claim to the child identified herein- so as to facilitate the child's placement for adoption. You are to receive a copy of this document and as explained below have the right to withdraw your surrender within ten days from the date you sign it.

I, the undersigned, being solicitous that my (male) (female) child, born (insert name of child), on (insert birthdate of child), should receive the benefits and advantages of a good home, to the end that (she) (he) may be fitted for the requirements of life, consent to this surrender.

I, the undersigned, (insert relationship to child) of the aforesaid child, do hereby surrender the child to (insert name, surname not required, of each person to whom surrender is made), PROVIDED that each such person is named as petitioner in a petition for adoption of the child filed in accordance with Article 1 of Chapter 8 of Title 19 of the Official Code of Georgia Annotated within 60 days from the date hereof. Furthermore, I promise not to interfere in the management of the child in any respect whatever; and, in consideration of the benefits guaranteed by (insert name, surname not required, of each person to whom surrender is made) in thus providing for the child, I do relinquish all right, title, and claim to the child herein named, it being my wish, intent, and purpose to relinquish absolutely all parental control over the child.

362

John MarshallLaw Journal

[Vol. IV

It is also my wish, intent, and purpose that if each such person is not named as petitioner in a petition for adoption as provided for above within the 60 day period, other than for excusable neglect, or, if said petition for adoption is filed within 60 days but the adoption action is dismissed with prejudice or otherwise concluded without an order declaring the child to be the adopted child of each such person, then I do hereby surrender the child as follows: (Mark one of the following as chosen) I wish the child returned to me, and I expressly acknowledge that this provision applies only to the limited circumstance that the child is not adopted by the person or persons designated herein and further that this provision does not impair the validity, absolute finality, or totality of this surrender under any circumstance other than the failure of the designated person or persons to adopt the child and that no other provision of this surrender impairs the validity, absolute finality, or totality of this surrender once the revocation period has elapsed; or I surrender the child to (insert name of designated licensed child-

placing agency), a licensed child placing ageney evaluator, for placement for adoption; or I surrender the child to the Department of Human Services, as provided by subsection (k) of Code Section 19-8-5, for placement for adoption; and (insert name of designated licensed child-placing agency) or the Department of Human Services may petition the superior court for custody of the child in accordance with the terms of this surrender.

Furthermore, I hereby agree that the child is to be adopted either by each person named above or by any other such person as may be chosen by the (insert name of designated licensed child-placing agency) or the Department of Human Services and I do expressly waive any other notice or service in any of the legal proceedings for the adoption of the child.

Furthermore, I understand that under Georgia law, unless each person named above secures in a timely manner approval of the court for this placement, a current home study is required to be completed on the home of each person named above prior to the placement of a child with the persons named above, and such home study must recommend placement of a child with the persons named above.

No. 1]

363

Senate Bill 471

Furthermore, I understand that under Georgia law, an agent appointed by the court is required to conduct an investigation and render a report to the court in connection with the legal proceeding for the legal adoption of the child, and I hereby agree to cooperate fully with such agent in the conduct of this investigation.

Furthermore, I hereby certify that I have received a copy of this document and that I understand I may only withdraw this surrender by giving written notice, delivered in person or mailed by registered mail or statutory overnight delivery, to (insert name and address of agent of each person to whom surrender is made) within ten days from the date hereof; that the ten days shall be counted consecutively beginning with the day immediately following the date hereof; provided, however, that if the tenth day falls on a Saturday, Sunday, or legal holiday, then the last day on which the surrender may be withdrawn shall be the next day that is not a Saturday, Sunday, or legal holiday; and I understand that it may NOT be withdrawn thereafter.

Furthermore, I hereby certify that I have not been subjected to any duress or undue pressure in the execution of this surrender document and do so freely and voluntarily.

Witness my hand and seal this

day of_,

.

(SEAL) (Parent or guardian)

Unofficial witness Sworn to and subscribed before me this

day of

Notary public (SEAL) My commission expires

."

ยง7.

This Act shall become effective on July 1, 2010, and shall apply to all petitions for adoption filed on or after that date.

364

John MarshallLaw Journal

[Vol. IV

ยง8.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE Senator Seth Harp, of the 29th district, introduced Senate Bill 471 to ensure all children adopted in Georgia are cared, loved, and supported.' Senator Harp has indicated that as a practicing attorney in the area of adoption, he "has seen the dark side of this process first hand."6 To prevent these evils, Senate Bill 471 was presented to require a home study, by a licensed evaluator, prior to the placement of a child, in all independent, nonrelative, non-stepparent adoption proceedings occurring within the state of Georgia.'

Senate Bill 471 seeks to eliminate the inconsistent prescreening requirements between adoption services provided by the State or a licensed agency and those facilitated by private attorneys.8 The proposed amendments of Senate Bill 471 are the current standards for all state and agency adoptions.9 The Bill seeks to extend the present requirements to prospective parents working with a private attorney. 0 Despite various practitioners in the latter group adhering to the proposed standards, pre-placement home studies promote protective

5. Telephone Interview with Sen. Seth Harp, S. Dist. 29 (Oct. 7, 2010) [hereinafter Harp Interview].

6. Id. 7. Id. 8. Telephone Interview with Jamie Lord, Dir. Gov't Affairs, Ga. Family Council; Lobbyist, Ga. Assoc. of Licensed Adoption Agencies (Nov. 9, 2010) [hereinafter Lord Interview].

9. Id. Individuals using agency adoptions know they want to adopt a child, but they do not have a specific child in mind. Id. 10. Id. Attorney-facilitated adoptions are often utilized by individuals wishing to adopt the child of an expectant mother or by birthmothers wishing to control the placement of their child. Telephone Interview with James B. Outman, Esq., (Dec. 2, 2010) [hereinafter Outman Interview]. Presently, an individual must undergo a post-placement court ordered investigation to finalize the adoption that includes only a report and a criminal history investigation for all adult members of the household. Id.

No. 1]1

Senate Bill 471

365

permanent placement by requiring consistent evaluations in all adoptions."

The advantages of a home study prior to placing a child in an adoptive home not only benefit the child but help educate the adopting party.' 2 In cases where the child has been removed from a previously harmful environment or the child has special needs, the pre-placement home study enables the evaluator to determine the proper placement for the individual child."

Moreover, the evaluator is able to determine the extent of contact the child should be afforded with siblings or birth relatives after placement. 14 The prospective parent is benefited from the pre-placement home study by exposure to any unanswered questions regarding what to expect and how to deal with common issues surrounding the placement of an adopted child." Thus, a pre-placement home study ensures the child is placed in a home that is safe and healthy at the outset of the adoption process.16 The home study requirement for prospective families is not a pass-fail test as construed by the Bill's opponents." Rather, the Bill requires an in depth home study to help aid the court in determining safe and proper placement for the child.' 8 The information contained in the report is derived from several visits to the prospective home, interviews with all adult members residing in the home, and background checks on all household members interviewed. '9 The licensed evaluator then submits the

11. Outman Interview, supra note 10; Harp Interview, supra note 5.

12. E-mail from Jamie Lord, Dir. Gov't Affairs, Ga. Family Council; Lobbyist, Ga. Assoc. of Licensed Adoption Agencies, to Thomas Rainey, Staff Member, John Marshall Law Journal (Oct. 26, 2010, 12:01 p.m. EST) (on file with the John Marshall Law Journal) [hereinafter Lord E-mail].

13. CHILD WELFARE INFORMATION GATEWAY, THE BASICS OF ADOPTION at available (2006), ASSESSMENT PRACTICE-CHILD

http://www.childwelfare.gov/pubs/f basicsbulletin/f basicsbulletin3.cfn.

14. Id. 15. Lord E-mail, supranote 12.

16. Id. 17. E-mail from James B. Outman, Esq., to Thomas Rainey, Staff Member, John Marshall Law Journal (Mar. 9, 2011, 09:50 a.m. EST) (on file with the John Marshall Law Journal) [hereinafter Outman E-mail].

18. Lord Interview, supra note 8.

19. Id.

366

John MarshallLaw Journal

[Vol. IV

findings of the home study to the court to determine safe and proper placement of the child.2 0 The contemplated draw backs of Senate Bill 471 stem from the fear that prospective parents, familiar with the child or mother-to-be, will be denied custodial rights.2 1 In addition, private attorneys have expressed concerns that the home study requirement imposes regulatory mandates and additional costs, including funds that could go toward the child's well-being, that unnecessarily impede the adoption process.2 2 Amidst statistics failing to support the remedies proposed by Senate Bill 471, opponents to the Bill regard additional State intervention in the private adoption process as the placement of unnecessary barriers. 23 Furthermore, with the absence of an in loco

20. Id. 21. Harp Interview, supra note 5.

While conceding the material drawback of a potential denial of custodial rights, Sen. Harp asserts that the Bill contains specific exceptions to address and limit these fears. Id.; see Ga. S.B. 471 ยง 2(m)-(s).

22. Outman E-mail, supra note 17. Current home study fees range from a few hundred to a few thousand dollars, although these figures do not include application fees or additional expenditures incurred during the application and evaluation process. Id.; compare A ADOPTION ADVOCATES OF GEORGIA, INC., http://www.adoptionadvocatesofga.org/default.html (providing adoption home study fee of $900), with CRADLE OF LOVE ADOPTION COUNSELING

&

SERVICES,

http://www.cradleoflove.org/services/#sDomesticHomeStudies (providing adoption home study fee of $1800). However, the Internal Revenue Service provides an adoption credit for "qualified adoption expenses[.]" 26 U.S.C. ยง 36C (2010) (providing one-time, non-refundable tax credit not exceeding $13,170.00). While the tax credit assists in offsetting the financial burden associated with the adoption process, the tax credit is only available after the adoption is finalized; therefore, the tax credit does not grant the adopting party the additional funds needed to offset the costs of the adoption proceedings during the process. Outman E-mail, supra note 17.

23. Outman Interview, supra note 10. Proponents of Senate Bill 471 concede there is a dearth of statistical data supporting the benefits associated with a pre-placement home study. Lord Interview, supra note 8 (identifying one deficiency: a lack of judicial documentation that distinguishes agency and attorney adoptions). Opponents to the pre-placement home study requirement maintain the position that absent statistical evidence, the current adoption process, although not inherently flawless, promotes and protects the best interest of the child. Outman Interview, supra note 10 ("The current system is not broken and does not need to be fixed").

No. 1]

Senate Bill 471

367

parentis2 4 role in private adoption proceedings, the current postplacement court ordered investigation and reporting requirements provide the requisite structure and safeguards to promote the best interest of a child adopted in private, nonrelative, non-stepparent adoptions facilitated under an agency adoption.2 5 The 2010 legislative session concluded Senator Harp's tenure in the General Assembly, and Senator David Shafer, of the 48th district, introduced Senate Bill 17226 to further Senator Harp's desire to ensure all children adopted in Georgia are cared, loved, and supported.2 7 As an adoptee himself, Senator Shafer was encouraged by proponents to introduce the current legislation that embodies the original premise of Senate Bill 471.28

24. In re M.A.F., 334 S.E.2d 668, 671 (Ga. 1985) ("When duty and control is lost or alienated to a third person by any of the means recognized by law, then such third person stands in loco parentis to the child, and parental power remains in the third person until the child reaches majority, unless of course the third party loses or forfeits the right to custody or becomes unfit for retaining custody.") (citations and quotations omitted).

25. Outman E-mail, supra note 17.

The agency pre-placement homes study model is based upon the fact that agency is in a [sic] loco parentis role to the child because the birth parent surrenders their parental rights to the agency and the agency picks the adoptive parents for the child. As such the agency must protect itself with the pre-placement study to avoid liability for an imprudent placement should the child subsequently be injured or the adoption disrupt [sic]. In the case of a birth parent making a private, non-[relative], non-stepparent adoption plan for their own child, the parent is making their own decision and is free to make whatever inquiry they wish in arriving at their decision as to with whom they will place their child, and the parent does not need the state telling them what they must require.

Id. 26. S.B. 172, 151th Gen. Assem., 1st Reg. Sess. (Ga. 2011), available at http://www.legis.ga.gov/Legislation/20112012/111394.pdf.

27. Compare S.B. 471, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2010), available at http://www.legis.ga.gov/Legislation/20092010/101201.pdf, with S.B. 172, 151st Gen. Assem., 1st Reg. Sess. (Ga. 2011), available at http://www.legis.ga.gov/Legislation/20112012/111394.pdf; Harp Interview, supra note 5.

28. Interview with Shaun Adams, Gov't Affairs Specialist, Ga. Family Council, in Atlanta, Ga. (Mar. 2, 2011) [hereinafter Adams Interview].

368

John MarshallLaw Journal

[Vol. IV

LEGISLATIVE GENEALOGY

Senate Bill 471 was first read and referred to the Senate Judiciary Committee on March 10, 2010.29 The Bill was placed on the Committee's agenda for March 22, 2010.30 However, Senate Bill 471 was neither heard nor voted on this day due to the Committee's Chairman being unable to call the meeting to order as a result of an absent quorum of the Committee.3 1 The Bill received no more attention and died after failing to pass the Senate before crossover day on March 26, 2010.32 On March 1, 2011, Senate Bill 172 was first read and referred to the Senate Judiciary Committee. The Committee scheduled the Bill for consideration and heard testimony regarding the Bill on March 2, 201 1.3 During the March 2, 2011 Committee meeting, Senator Shafer offered a Substitute Bill amending various terms. The changes between the original Bill and the Substitute Bill were minimal, but included an expansion of the definition of "evaluator" and the removal of a filing requirement.3 6 The expansion of the "evaluator" definition was a response to the needs of courts located in counties where the mandated evaluator is not available, and the expanded definition grants the court the ability "to appoint a guardian ad litem or

29. S.B. 471 Status Sheet, supra note 4.

30. Senate Judiciary Committee Meeting Minutes, 150th Gen. Assem., 2d Reg. Sess., at 24 (Ga. Mar. 22, 2010), available at http://www.legis.state.ga.us/legis/2009_10/senate/publications/10minutes/Ju diciary.pdf.

31. Id. at 2 ("Quorum of the committee shall be six (6) members.").

32. S.B. 471 Status Sheet, supra note 4.

33. Ga. Gen. Assem., S.B. 172 (Apr. 10, 2011), http:www.legis.ga.gov/legislation/en-US/History.aspx?Legislation=33225 [hereinafter S.B. 172 Status Sheet].

34. Senate Judiciary Committee Meeting Minutes, 151st Gen. Assem., 1st 2011), available at (Ga. Mar. 2, Reg. Sess. http://www.senate.ga.gov/committees/Documents/20 11 Agenda80.pdf.

35. S.B. 172 Status Sheet, supra note 33.

36. Compare S.B. 172, 151st Gen. Assem., 1st Reg. Sess. (Ga. 2011) (as introduced), available at http://www.legis.ga.gov/Legislation/20112012/111394.pdf, with S.B. 172, 151st Gen. Assem., 1st Reg. Sess. (Ga. 2011) (committee substitute), availableat http://www.legis.ga.gov/Legislation/20112012/112703.pdf.

No. 1]

Senate Bill 471

369

court appointed special advocate to conduct the home study.""

After hearing testimony from supporters and opponents of Senate Bill 172, the committee referred the Bill to a subcommittee for further consideration.38 The Senate Judiciary Committee then heard additional testimony on the Bill on March 9, 2011.39 Thereafter, the Senate Judiciary Committee adopted the language of the Substitute Bill and favorably reported on March 10, 201 1.40 On March 11, 2011, the Senate read Senate Bill 172 for a second time.4 1 The third reading of the Bill occurred on March 16, 201 1.42 At that time, Senator Shafer proposed a floor amendment.4 3 The amendment altered Section One of the Bill's definition for a "home study" to add the word "adoption" after the word "for."" The Senate adopted the Substitute Bill with the floor amendment on March 16, 201 1,4 and on the same day, the Senate passed Senate Bill 172 by a vote of 52 to 2.46 The House first read Senate Bill 172 on March 21, 2011.47 A second reading of the Bill occurred on March 22, 2011.48 Thereafter, the House referred Senate Bill 172 to the House The Judiciary Committee for further consideration. 4 9 Committee favorably reported on the Bill on March 30, 2011.o 37. Adams Interview, supra note 28; compare Ga. S.B. 172 (as

introduced), with Ga. S.B. 172 (committee substitute).

38. Adams Interview, supra note 28.

39. Senate Judiciary Committee Meeting Minutes, 151st Gen. Assem., 1st at available 2011), 9, Mar. (Ga. Sess.

Reg. http://www.senate.ga.gov/committees/Documents/201 1JudyO3-09.pdf.

40. S.B. 172 Status Sheet, supranote 33.

41. Id. 42. Id. 43. S.B. 172, 151st Gen. Assem., 1st Reg. Sess. (Ga. 2011) (floor at available amendment), http://www.legis.ga.gov/Legislation/20112012/113534.pdf.

44. Id. 45. S.B. 172, 151st Gen. Assem., 1st Reg. Sess. (Ga. 2011) (as passed at available Senate), http://www.legis.ga.gov/Legislation/20112012/113584.pdf.

46. S.B. 172 Status Sheet, supranote 33.

47. Id. 48. Id. 49. Id. 50. Id.

370

John MarshallLaw Journal

[Vol. IV

However, on the same day, Senate Bill 172 was withdrawn from the general calendar and the Bill was recommitted to the House Judiciary Committee for further review.5 1 Then on April 11, 2011, the House Committee once again favorably reported on Senate Bill 172 and on April 12, 2011, the third reading before the House occurred.5 2 The same day, the House passed Senate Bill 172 by a vote of 167 to 3.53 After Senate Bill 172 passed the House, the Bill was then presented to the Senate for final approval of the House On April 14, 2011, the Senate Committee Substitutes.5 unanimously agreed to the House Substitute by a vote of 47 to 0.55 Thereafter, on April 14, 2011 Senate Bill 172 passed the House by a vote of 90 to 63 and is headed to Governor Nathan 56 Deal for final approval.

Prepared by: Thomas 0. Rainey, IV

51. Id. 52. S.B. 172 Status Sheet, supra note 33.

53. Id. 54. Id. 55. Id. 56. Id.

SENATE BILL 5291: CRIMES AND OFFENSES; SPECIFY CERTAIN ACTS THAT CONSTITUTE CRIMINAL ABORTION

Amending O.C.G.A. ยง 16-12-140 First Signature: Senator Chip Pearson (51st) Co-Sponsors: Senator Don Thomas (54th), Senator Renee Unterman (45th), Senator Chip Rogers (21st), Senator Tommie Williams (19th), and Senator David Shafer (48th) Summary: Senate Bill 529 seeks to amend Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, so as to specify certain acts that constitute criminal abortion as well as to provide for criminal punishment and civil remedies for victims of criminal abortions. Senate Bill 529 also seeks to provide for witness testimony and evidence, to provide for notification of certain investigations, and to prohibit certain circumstances under which an abortion may be performed.

Additionally, this Bill aims to amend O.C.G.A. ยง 16-12-140 to provide for definitions, to revise terms to include certain conduct relating to criminal abortion, and to repeal conflicting laws.2 Status: House Judiciary Non-Civil Committee favorably reported on April 21, 20103

1. S.B. 529, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2010), available at http://www.legis.ga.gov/Legislation/20092010/103647.pdf.

2. Ga. Gen. Assem., S.B. 529 (Apr. 21, 2010), http://www.legis.ga.gov/Legislation/en-US/History.aspx?Legislation=30882 [hereinafter S.B. 529 Status Sheet].

3. Id.

372

John MarshallLaw Journal TEXT OF SENATE BILL

[Vol. IV

529

ยง 1.

Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, is amended by revising subsection (b) of Code Section 16-12-140, relating to criminal abortion, and adding new subsections to read as follows: "(b) A person commits the offense of criminal abortion when that person performs an abortion: (1) With actual knowledge that the pregnant woman is seeking the abortion as a result of unlawful coercion; (2) With the intent to prevent an unborn child from being born based upon the race, color, or gender of the unborn child or the race or color of either parent of that unborn child; (3) With the actual knowledge that the pregnant woman is seeking the abortion with the intent to prevent an unborn child from being born based upon the race, color, or gender of the unborn child or the race or color of either parent of that unborn child; or (4) In violation of any of the following: Code Section 15-11-112, subsection (b) or (c) of Code Section 16-12-141, Code Section 31-9A-3, or Code Section 31-9A-5. (c) A person convicted of the offense of criminal abortion shall be punished by imprisonment for not less than one nor more than ten years: provided, however, that a person convicted of a violation of paragraph (4) of subsection (b) of this Code section shall be guilty of a misdemeanor. (d) Notwithstanding the actual knowledge of the physician performing the abortion, any physician performing an abortion who personally confirms by direct inquiry that such abortion is not being sought with the intent to prevent an unborn child from being born based upon unlawful coercion or the race, color, or sender of the unborn child or the race or color of either parent of that unborn child and obtains written certification of such facts from the woman seekinn such abortion shall not be criminally responsible for any violation of paragraphs (1) and (3) of subsection (b) of this Code section.

No. 1]

Senate Bill 529

373

(e) Any woman upon whom an abortion is performed in violation of this Code section may recover in a civil action from the person who engaged in such violation all damages available to her under Georgia law for any torts. (f) The right to recover for the death of an unborn child resulting from a violation of this Code section shall be as provided for in Code Sections 51-44 and 19-7-1, with all references to 'child' therein deemed to include 'unborn child.' (g) Any woman upon whom an abortion is performed shall not be held

criminally responsible or civilly liable as a result of such abortion for any violation of this Code section or for solicitation or for conspiracy to violate this Code section. (h) The testimony of a witness, or the ability to introduce evidence, shall not be limited or impaired by virtue of any document the witness signed in connection with this Code section. (i) Immediate notification of any criminal investigation initiated pursuant to this Code section shall be made to the Georgia Composite Medical Board. (i) This Code section shall be subject to all applicable laws governing the confidentiality of a patient's personal medical information. (k) As used in this Code Section, the term: (1) 'Unborn child' means a member of the species Homo sapiens at any stage of development who is carried in the womb.

(2) 'Unlawful coercion' means to compel another person by committing, attempting to commit, or threatening to commit any violation of local, state, or federal law or any tort." ยง2.

Said title is further amended by revising subsection (a) of Code Section 1612-141, relating to when abortion is legal and the filing of certificate of abortion by performing physician, as follows:

374

John MarshallLaw Journal

[Vol. IV

"(a) Nothing in this article shall be construed to prohibit an abortion performed by a physician duly licensed to practice medicine and surgery pursuant to Chapter 34 of Title 43, based upon his or her best clinical judgment that an abortion is necessary, except that subsection (b) of Code Section 16-12-140 is a prohibition on the circumstances under which an abortion may be performed which shall apply to both duly licensed physicians and laypersons, and Code Section 16-12-144 is a prohibition of a particular abortion method which shall apply to both duly licensed physicians and laypersons. The exceptions set forth in this subsection shall not apply to an abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself." ยง3.

Said title is further amended by revising subparagraph (A) of paragraph (9) of Code Section 16-14-3, relating to definitions related to racketeer influenced and corrupt organizations, by striking the "or" at the end of division (xxxix), by striking the period and inserting a semicolon at the end of division (xxxx), and by adding a new divisions to read as follows: "(xxxxi) Code Section 16-12-140, relating to criminal abortion."

ยง 4.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to conduct on and after that date.

ยง 5.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE Senate Bill 529 seeks to "address the issues of coerced abortions and abortions performed because of the race, gender or color of a child."4 The Bill also provides for the enforcement 4. Catherine Davis, Georgia Senate Passes SB 529, Coercion and PrenatalNon-Discrimination Ban, GRTL's E-NEWS (Mar. 26, 2010, 3:18

No. 1]

Senate Bill 529

375

of existing law regarding the Woman's Right to Know and gives women who have been coerced into having an abortion the opportunity to bring suit against abortionists who violate Georgia law.'

The language of Senate Bill 529 was initially introduced by Representative Barry Loudermilk, of the 52nd district, in the Georgia House of Representatives as House Bill 1155,6 but the Bill failed to pass. As a result, Georgia Right to Life ("GRTL") approached Senator Chip Pearson, of the 51st district, to introduce a companion bill in the Georgia Senate.' Senator Pearson stated that he believes legalizing abortion has been one of the "fundamental reasons why our country has declined" in the years since Roe v. Wade.' He agreed to sponsor this particular Bill because he has "always supported the Right to Life effort."9 According to the Centers for Disease Control and Prevention, of the thirty-nine states that report, Georgia has lead the nation in abortions in the African American community."o While African Americans make up thirty percent of the population, they have accounted for a disproportionate fifty-nine percent of the nation's abortions." In 2008, according to the Georgia Division of Health, 18,901 abortions were performed on African American women.12 The Director of Minority Outreach at GRTL, Catherine Davis, said that Senate Bill 529 seeks to PM), http://georgialife.wordpress.com/2010/03/26/georgia-senate-passes-sb529-coercion-and-prenatal-non-discrimination-ban/.

5. Id. 6. House Bill 1155 was introduced in the Georgia House of Representatives on February 10, 2010 where it immediately went to the Judiciary Non-Civil Committee. Ga. Gen. Assem. H.B. 1155 (Mar. 11, http://www.legis.ga.gov/Legislation/en2010), While the Committee favorably US/History.aspx?Legislation=29849. reported on March 11, 2010, the Bill was ultimately withdrawn and recommitted to Judiciary Non-Civil by the Rules Committee on March 11, 2010. Id. 7. Telephone Interview with Sen. Chip Pearson, S. Dist. 51 (Jan. 20, 2011) [hereinafter Pearson Interview].

8. Id.; see Roe v. Wade, 410 U.S. 113 (1973).

9. Pearson Interview, supra note 7.

10. Davis, supra note 4.

11. Id. 12. Id.

376

John MarshallLaw Journal

[Vol. IV

protect these women and their children from making decisions they did not want to make. 3 Daniel Becker, President of GRTL, said the Bill was introduced to protect women and children from unethical and illegal abortions by enforcing existing clinical regulations and current laws and was intended to replace present anti-abortion legislation that he asserts is largely misguided. 4 GRTL's goal was for the Bill to become model legislation for other states.' GRTL believes that, while Senate Bill 529 was ultimately not voted into law in Georgia, other states have adopted and successfully enacted similar legislation.'6 The language of the Bill raised legal concerns among some members of the House.17 While the House did not vote on Senate Bill 529 before the end of the session, Georgia House Speaker David Ralston, of the 7th district, tried to push through a new version of the Bill that attempted to erase criminal penalties for doctors.'" His version of the Bill also attempted to alter "the language which provides a traditional version of coercion."" Opponents of the Bill, including some minority and pro-choice groups, believe that African American women turn to abortion more often than other races not because of coercion, but as a result of "poverty, lack of education, inability to purchase or access contraceptives and sexual violence in the community." 20 These groups believe that the language of the 13. Id. 14. Telephone Interview with Daniel Becker, President, Georgia Right to Life (Jan. 5, 2011) [hereinafter Becker Interview].

15. Id 16. Id. 17. Patrick Davis, Georgia's GOP is Working Hard to Pass SB-529, but Will It Bring ForthA Challenge to Roe v. Wade?, ExAMINER.COM (Apr. 28, 2011, 4:25 PM), http://www.examiner.com/political-buzz-in-macon/georgias-gop-is-working-hard-to-pass-sb-529-but-will-it-bring-forth-a-challenge-toroe-v-wade.

18. Id. 19. Ga. S.B. 529 ยง 1(k)(2) (as passed by Senate) (defining "unlawful coercion" as compelling another person by "committing, attempting to commit, or threatening to commit any violation of local, state, or federal law or any tort.").

20. Ewa Kochanska, Georgia Senate Passes Abortion Race and Gender Restrictions Bill, EXAMINER.COM (Mar. 29, 2010, 1:09 AM), http://www.examiner.com/political-buzz-in-atlanta/georgia-senate-passes-

No. 1]1

Senate Bill 529

377

Bill would prohibit African American women from accessing an abortion on their own volition because of the criminal and tort liability it would impose on physicians who perform abortions and would increase the number of medical malpractice lawsuits in Georgia.2 1 However, proponents of the Bill, including Senator Pearson, believe that the Bill's opponents were more focused on the constitutional issue of equal protection and creating legislation that would "treat life with the respect that it is due" since the "most helpless and innocent are the ones at risk" in these situations.2 2 Senator Pearson was willing to strip the provision that would subject physicians who perform abortions to criminal and tort liability in order to pass the remainder of the Bill. 23 However, some groups wanted nothing less than the verbiage of the Bill that would impose criminal and tort penalties on those who perform coerced abortions.2 4 Once the Bill went to Committee, it was largely out of Senator Pearson's control.25 Representative Stacey Abrams stated that the Bill "poorly defines the criminal act, fails to meet basic constitutional grounds of equal protection and relies on spurious empirical data to establish the necessity of such legislation."2 6 The groups that opposed the Bill ultimately prevailed in preventing the Bill from becoming law. 27 While Senator Pearson did not run for reelection, and thus will not be sponsoring similar legislation in the current legislative session, he has attributed much of Senate Bill 529's failure to simply running out of time. 28 He expects to see the language of the Bill resurface in future legislative sessions either in its entirety or broken into multiple pieces of legislation, as he believes that it is easier to move controversial legislation through in segments.29

abortion-race-and-gender-restrictions-bill.

21. Id. 22. Pearson Interview, supra note 7.

2 3. Id. 24. Id.

25.

26.

27.

28.

29.

Id. Kochanska, supra note 20.

See Becker Interview, supranote 14.

Pearson Interview, supranote 7.

Id.

378

John MarshallLaw Journal

[Vol. IV

LEGISLATIE GENEALOGY

Senate Bill 529 was first introduced and read on March 18, 2010,30 after which the Bill was referred to the Senate The Committee discussion Committee on Special Judiciary. resulted in a more specific definition of "unborn child"32 and the renumbering of paragraphs. The Committee passed Senate Bill 529 with a vote of 5 yeas and 1 nay and favorably reported on March 22, 2010.33 Much of the Committee discussion consisted of testimony from advocates on both sides of the abortion debate and was emotionally charged because of the divisiveness of the controversial subject matter.3 4 The Committee Substitute clarified the criminal sanctions and monetary fines to be imposed in the event that a person is The convicted of violating the revised Code section."

Substitute added that the person who performs a coerced abortion must have "actual" knowledge of the unlawful coercion or "actual" knowledge that the woman seeking the abortion intended to prevent the child from being born based upon the race, color, or gender of the unborn child or the race or color of either parent of that unborn child. 6 Additionally, the Committee Substitute provided that a woman who is a victim by virtue of violation of the new Code section would be able to recover in a civil action from the person who violated the new law, whether that person be a physician or a layperson." This 30. Ga. S., 150th Gen. Assem., 2d Reg. Sess., at 11 (2010), [hereinafter http://wwwl.legis.ga.gov/legis/2009_10/senate/joumal.htm Senate Journal].

31. S.B. 529 Status Sheet, supra note 2.

32. The Committee definition of "unborn child" was "a member of the species Homo sapiens at any stage of development who is carried in the womb." S.B. 529, 150th Gen. Assem., 2d Reg. Sess. (Ga. 2010) (committee http://www.legis.ga.gov/Legislation/enat available substitute), US/displaydoc.aspx?doc=/Legislation/20092010/103079.pdf.

33. S. Spec. Judiciary Comm. Meeting Minutes, S.B. 529, 150th Gen. Assem., 2d Reg. Sess., at 16-17 (Ga. Mar. 22, 2010), available at http://www.senate.ga.gov/committees/enUS/Committee.aspx?Committee=84&Session=20.

34. Pearson Interview, supra note 7.

35. Ga. S.B. 529 (committee substitute).

36. Id. 37. Id.

No. 1]

Senate Bill 529

379

provision would make available to a victimized woman all damages available to her under Georgia law for any tort.38 The Bill was read for a second time in the Senate on March 24, 2010.31 Three floor amendments were proposed, but two failed to be adopted and one was not germane. 4 0 The third reading of the Bill occurred on March 26, 2010, and on the same day was passed in the Senate by a vote of 33 yeas and 14

nays.41 Senate Bill 529 then moved to the Georgia House of Representatives, where it was presented for the first reading on March 30, 2010.42 On March 31, 2010, the Bill was read in the House for the second time. 43 The Bill was then referred to the House Committee on Judiciary Non-Civil, where substantial debate occurred and a Substitute was drafted. Most notably, the Committee Substitute defined "facility" for the purposes of this Bill,4 4 added a provision requiring a sign to be posted in all abortion facilities informing patients that a woman's choice to have an abortion must be made freely and voluntarily without any coercion, and added a provision that the physician performing the abortion must obtain a signed consent form from each female patient stating that she has made her decision Much of the freely, voluntarily, and without coercion.45 controversy that occurred in Committee surrounded the removal of language, approved by the Senate, regarding gender or race selection.46 However, the Committee asserted that only issues 38. Id. 39. S.B. 529 Status Sheet, supra note 2.

40. Senate Journal, supra note 30, at 229.

41. Id. at 95.

42. Ga. H., 150th Gen. Assem., 2d Reg. Sess., at 20 (2010), http://www.legis.state.ga.us/legis/2009_10/house/clerk/10joumal.html [hereinafter House Journal].

43. Id. at 4.

44. The committee substitute clarified that "facility" referred to abortion facilities that are licensed by the Department of Community Health in Georgia. GeneralAssembly Video Archive: H. Judiciary Non-Civil Comm.

Meeting (Georgia Public Broadcasting internet broadcast Apr. 19, 2010), at available http://media.1egis.ga.gov/hav/09_10/2010/committees/judi/judi04211 OEDIT ED.wmv.

45. Id. 46. Id.

John MarshallLaw Journal

380

[Vol. IV

of coercion were addressed in the Substitute because too many Constitutional and privacy concerns were raised by the Bill as it passed the Senate.47 Ultimately, the Committee voted 10 yeas to 8 nays to pass the Bill and reported favorably on April 21, 2010.48

Senate Bill 529 died in the House as a result of not being called up for a floor debate before the end of the legislative session.4 9 However, GRTL and Senator Pearson expect the Bill to be reintroduced in its entirety or in several portions in the 2011 legislative session. 0 Prepared by: Emily L. Brady

47.

48.

49.

50.

Id. House Journal, supra,note 42, at 1125.

S.B. 529 Status Sheet, supra note 2.

Becker Interview, supra note 14; Pearson Interview, supra note 7.