Sterilization: A "Remedy for the Malady
Journalof ContemporaryHealth Law and Policy [Vol.
Sterilization: A "Remedy for the Malady " of Child Abuse?
Colleen M. Coyle 0 1
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1 Colleen M. Coyle, Sterilization: A "Remedy for the Malady" of Child Abuse? , 5 J. Contemp. Health L. & Pol'y 245 (1989). Available at:
James T. Williams was pronounced dead at Richland Memorial Hospital,
November 19, 1985 at the tender age of twelve weeks.' A subsequent
autopsy confirmed that the infant had been starved to death.2 Eight months
later, the child's mother, Debra Ann Williams, was charged with the murder
of her son, and pled guilty to a charge of involuntary manslaughter.3
Child abuse and neglect cases ordinarily do not command much attention.
However, Ms. Williams managed to make headlines.4 Her guilty plea was
the result of a bargaining process between the district attorney and the
state's attorney. Plea bargaining is a well accepted and necessary part of the
criminal justice system.5 Ms. Williams received considerable media
attention because she accepted sterilization as a term of her plea.6 The state's
attorney did not consider sterilization a punishment, but rather a "remedy
for the malady. She seem[ed] to only want to hurt her own children. With
this operation, she can't have any more to hurt."7
This Comment discusses the inadequacies of our child welfare system at a
time when mandatory reporting laws have heightened public awareness of
the problem and sparked public concern. It discusses child abuse as an
illness and considers therapeutic approaches to the problem that, when
available, have proven successful. It considers the present inadequacies of our
child welfare system; the prosecutorial use of the plea bargain to encourage
sterilization of abusive parents as a means of preventing child abuse; and the
possibility of legislation mandating sterilization of recurrent and serious
child abuse offenders. The Comment concludes that the plea bargain
situation is being used to circumvent constitutional challenges that sterilization
legislation would surely face.
Ms. Williams is used as an example of one of many abusive parents who
may have been helped had society given her its attention and been willing to
invest in her rehabilitation. Her case exemplifies a system that is not
functioning and demonstrates how, through the use of the plea bargaining
process, sterilization of abusive parents has become an alternative "remedy to
the malady" of child abuse which is not subject to constitutional challenge.
Newspaper headlines expose in graphic detail brutal beatings, intentional
starvation and various psychological and sexual abuses of children which are
offensive to every civilized individual's sense of human decency. Yet despite
society's revulsion with the maltreatment of children, federal, state and local
officials, prior to the 1960's had demonstrated a reluctance to actively 8
interfere in private family life.9
It was not until the 1960's that the state actively intervened in family life
by requiring professionals to report suspected cases of child abuse to local
authorities.'o Present laws require police, medical, educational and social
8. While most states had laws against child abuse beginning in the 1920's, these laws
were largely attributable to the juvenile court's inquiries into the problems of child abuse and
neglect. Public and private welfare agencies had emerged by the 1930's, but the effectiveness of
these agencies was daunted by a lack of adequate means of detection. Besharov,Child
Protection: Past Progress,PresentProblems and FutureDirections, 17 FAM. L.Q. 151, 152 (Summer
9. The state's reluctance to interfere in family life may be attributable to a line of family
privacy cases beginning in the 1920's wherein the Supreme Court specifically recognized the
right of parents to determine the upbringing of their children. See, e.g., Meyer v. Nebraska,
262 U.S. 390 (1923) (recognizing the fundamental right of every parent to determine the
education and upbringing of his children, the Court struck down a Nebraska statute prohibiting
the instruction of foreign languages in schools); Peirce v. Society of Sisters, 268 U.S. 510, 535
(1925) ("The child is not a mere creature of the State; those who nurture him and direct his
destiny have the right coupled with the high duty, to recognize and prepare him for additional
10. See Besharov, supra note 8, at 154.
service professionals to report all suspected cases of child abuse.'" "Abuse"
includes physical and sexual assault, physical neglect and psychological
abuse.' 2 These reporting statutes have been successful.' 3 It is estimated that
approximately 1,727,000 cases are reported annually.14 The rising statistics
evidence an increased public awareness of the problem and a growing public
concern. Unfortunately, these reports and passive concern do not always
guarantee the safety of the child.
It is estimated that approximately twenty-five percent of all child deaths
resulting from abuse or neglect involve children whose situation had already
been reported to a child protection agency.' 5 Child deaths due to
administrative inadequacies are a significant problem today.' 6 Children initially
removed from their homes because of physical abuse are often prematurely
returned home and subsequently killed by their abusive care taker.' 7
Violation of routine procedures of case review prior to returning the child home,
11. See, e.g., D.C. CODE ANN. § 2-161 to 166 (1973); S.C. CODE ANN. §§ 20-302.1 to
302.4 (Supp. 1973).
12. See Besharov, The Legal Aspects of Reporting Known and Suspected Cases of Child
Abuse and Neglect, 23 VILL. L. REV. 458, 473 (1977-78).
13. See Besharov, supra note 8, at 154.
14. NATIONAL CENTER ON CHILD ABUSE AND NEGLECT, AN INFORMED APPROACH TO
A SHARED CONCERN at 3 (DHHS 1986). It is also estimated that in 1986, 25.2 children per
1,000 children nationwide experienced some form of abuse or neglect. NATIONAL CENTER
FOR CHILD ABUSE AND NEGLECT: STUDY OF THE INCIDENCE AND PREVALENCE OF CHILD
ABUSE AND NEGLECT at vi (DHHS 1987).
15. Besharov, supra note 8, at 162.
16. For a specific case study of five children whose deaths were attributable to the
inadequacies of the social service system, see Hollander, HomicidesofAbused ChildrenPrematurely
Returned Home, 30 FOR. ScI. INT'L 85 (1986), where the author takes the position that, but
for administrative flaws, these children would be alive today.
17. A number of states have declared that a state's child abuse prevention statute creates a
special relationship between the child welfare agency and the class of abused and neglected
children whose identity has been reported to a child abuse agency. Under this rationale,
several courts have concluded that the state may be held liable for negligence in performance of
the duties owed to such children. See, e.g., Turner v. District of Columbia, 56 U.S.L.W. 22
) (state could be sued for the starvation death of a six month old child where a report of
suspected abuse was filed one month before the child's death and social worker who twice
could not gain access to the apartment and once knocked on the apartment door and heard
loud music, made no special effort to gain entry to the home and did nothing further in the
case); Mammo v. State, 138 Ariz. 528, 675 P.2d 1347 (1983) (wrongful death action brought
against the state alleging negligence where social service agency, after receiving a report that a
child was in danger, allowed the mother to cancel a hearing regarding the child's custody
because the mother had planned a vacation. No vacation was ever scheduled and the child was
beaten to death. No attempt had been made to see the child prior to cancellation of the
hearing and the only contact the agency had with the family was by telephone.); People v.
Beruman, 638 P.2d 789 (Colo. 1982) (child welfare agency held liable for the death of a seven
year old, prematurely returned home, whose parents, while still in treatment, beat her to
death). But see DeShaney v. Winnebago County Department of Social Services, 57 U.S.L.W.
4218, 4221 (Feb. 1989) (state social service agency's failure to provide child with adequate
inadequate or no psychotherapy for the parents and excessive caseloads
tribute to the deaths of these children.
James T. Williams' death may well have been the result of an inadequate
social service system. 9 Ms. Williams had twice before been convicted of
abusing her infant children.2" Neither of these convictions were followed up
by any kind of counseling for the mother, although this was indeed
recommended by the state hospital psychologist.2 The Department of Social
Services never became involved with her personally. Had they done so, the
parent-child relationship could have been monitored and quite possibly, the
child would be alive today.22
Experts generally agree that four factors are frequently found among
parents who abuse their children: 1) aberrant childhood nurture of the parent;
2) early attachment problems between the mother and child; 3) aggressive
tendencies in relationships; and 4) high levels of stress.23 Each one of these
factors was present in Ms. Williams' life. She was abandoned at an early age
by her mother, who had physically beaten her with fists and broom
handles.24 She was the victim of frequent sexual assault by her step-father. 25
Her husband beat her and deserted her for substantial periods of time.26 In
short, she was a low income mother, frequently subject to abuse, who was
suffering the stress inherent in a failing marriage: a casebook example of a
protection against father's violence did not violate substantive Due Process under the
fourteenth amendment and did not give rise to damages under 42 U.S.C. § 1983).
18. Hollander, supra note 16, at 87.
19. Counsel for Ms. Williams argued that both she and her son were victims in this case.
He alleged that both were injured by a failure of our system. See Indictment, supra note 1, at
20. In 1978, Ms. Williams pled guilty to an involuntary manslaughter charge in the
suffocation death of her new born daughter. In 1981, she was imprisoned for one year on charges
of aggravated assault against her four month old son. Feely, supra note 4. Ms. Williams
voluntarily terminated her parental rights in this child. Indictment, supra note 1, at 9.
21. Indictment, supra note 1, at 14 (hospital psychologist recommended long term
therapy commencing immediately).
22. But see McKenna, A CaseStudy of ChildAbuse: A FormerProsecutor's View, 12 AM.
CRiM. L. REV. 165 (1974) (expressing the view that children's lives could be spared more often
if the law contained a more equal balance of responsibility between the Department of Social
Services, the police and the State's Attorney's Office). See infra note 121 for a criticism of this
23. See Wald & Cohen, Preventing ChildAbuse- What Will it Take?, 20 FAM. L.Q. 281,
4 (Summer 1986
24. Indictment, supra note 1, at 7.
26. Id. at 11.
woman likely to abuse her children.27
Several commentators have advanced the theory that a mother's inability
to develop a bond with her child increases the likelihood that she will abuse
the child.2" Ms. Williams' failure to bond with her children should have
been obvious in light of her two prior convictions for child abuse. Had this
failure been recognized, efforts could have been made to decrease the
potential for bonding failure in the future. Prevention strategies such as "rooming
in," (a procedure whereby the hospital encourages immediate and
continuous contact between mother and child from the moment of birth), have met
with great success in preventing bonding failure.2 9 Studies indicate that
"low-income mothers who have more early contact show more affectionate
behavior toward the child in the weeks after birth."3 Of course, whether
this procedure could have saved James Williams is speculative and many
critics of this theory would deny its effectiveness. 3'
It is interesting to note, however, that Ms. Williams claimed that she did
try to feed the child but he showed no interest in eating.32 Dr. Emery, a
pathologist at Children's Hospital, Sheffield, U.K.,3 3 espouses a theory that
parents can be-consciously caring for a child, but the failure to develop
natural mother-child communication, (i.e. "a mother's response to nonverbal
messages" generally termed bonding), causes the child to be
"unstimulated."34 The lack of stimulation can give rise to a potentially dangerous
situation for the child:
This passive reaction allows the child to be less demanding for
meals, have longer and longer intervals between meals, and eat less
and less. Such a child does not stimulate the parents to produce
food and when food is given, does not show enjoyment and so the
parents do not have much emotional satisfaction from feeding the
child. This can produce a progressive cycle of fall off in bonding
27. Ms. Williams' attorney argued that her history of abuse "reads like a textbook." Id. at
28. The bonding theory is well accepted in medical science. See, e.g., Cheung, Maternal
Filicidein Hong Kong, 26 MED. Sci. & LAW 185 (1986); Emery, The Depraved and Starved
Child, 18 MED. SC. & LAW 138 (1978).
29. Wald & Cohen, supra note 23, at 287 n.21.
30. Id. at 290.
31. "There is no evidence indicating that for most mothers early contact is a necessary
condition for adequate bonding." Id. (citing Goldberg, Parent-InfantBonding:Another Look,
54 CHILD DEVELOPMENT 1355 (1983)).
32. Indictment, supra note 1, at 12.
33. Dr. Emery, MD, FRC PATH, of the Department of Pathology, Children's Hospital,
Sheffield, UK. See Emery, supra note 28, at 138.
34. Emery, supra note 28, at 138. No evidence was presented at Ms. Williams' hearing to
indicate that the child had been physically beaten, unkempt or unclean. This suggests that
perhaps Ms. Williams was consciously caring for the child.
and stimulation.3 5
Dr. Emery suggests that an unstimulated child may even refuse food all
together.36 When this occurs, "extra mothering" is required.37 In a situation
where the mother has proven incapable of developing an attachment to the
child this may not be possible, and the end result could be death.38
Thus, the Judge in Ms. Williams' case may have been operating under
false assumptions when he stated: "You don't starve a child in a moment.
You starve somebody day by day, hour by hour in a mean, premeditated and
malicious killing. And that's what you did. You just literally starved this
child to death slowly, slowly inflicting pain and suffering on that child.",39 It
is quite possible that Ms. Williams did not sadistically premeditate the
starvation of her infant son. The death could be attributable to her inability to
bond with the child and to society's inability to recognize and cope with this
Perinatal support programs, providing high-risk parents like Ms. Williams
with support services for years following chiidbirth might have prevented
the child's death.' Perinatal support programs consist of frequent home
visits by professional persons who work with the mother in facilitating child
care. 4 ' Studies indicate that regular visits by a registered nurse before
delivery and for two years after birth worked effectively as only four percent of
those studied later abused their children.4 2
Because professional services are costly, many states have begun programs
that provide the same services rendered by lay persons.4 3 Non-professionals
befriend parents who have injured or who are likely to injure their own
children. While lay-therapists do not replace professional services, they can
limit the need for professional contact" and serve as a means of alleviating
the problem of overburdened child welfare workers. The effectiveness of this
35. Id. at 139.
36. Id. at 140.
38. See id.
39. Indictment, supra note 1, at 17.
40. See Wald & Cohen, supra note 23, at 291.
41. See id.
42. See id. at 292.
43. Fraser, A PragmaticAlternative to CurrentLegislative Approaches to Child Abuse, 12
AM. CRIM. L. REV. 103, 122 (1974). Lay therapists provide love and interest in the parent,
suggesting a model for a good parent-child relationship. Id. at 123. This approach may have
helped Ms. Williams who, as a victim of child abuse herself, did not have a role model to
follow in rearing her own children. Furthermore, her personal history suggests she is alienated,
lacks emotional support, and craves affection and understanding. Indictment, supra note 1, at
8-9. Perhaps if Ms. Williams had someone to rely on in times of emotional crisis, her aberrant
behavior could have been modified.
44. Fraser, supra note 43, at 123.
type of program is impressive. During a four year period one group reported
that not one child was seriously reinjured.4 5
Parents Anonymous is another therapeutic approach to the problem of
child abuse.4 6 Through direct education, and professional guidance, abusive
parents are encouraged to share their experiences and frustrations while
being encouraged to recognize their problems, understand their causes and
learn to control their illness.4 7
While any one of these approaches may have proven successful in the
Williams case, no such steps were ever taken. After her conviction for
aggravated assault for beating her four-month-old child with a spoon,48 Ms.
Williams underwent a series of psychological tests which indicated that she
had been sexually abused as a child. 49 Long-term therapy commencing
immediately was recommended.5 0 It was not received. Instead, Ms. Williams
spent a year in prison repenting for her anti-social behavior.5 1 Our criminal
justice system is theoretically a rehabilitative system, but this type of
response is more similar to Kant's retributive theory of punishment:
Judicial punishment can never be used merely as a means to
promote some other good for the criminal himself or for civil society,
but instead it must in all cases be imposed on him only on the
ground that he has committed a crime.... He must first be found
deserving of punishment before any consideration is given to the
utility of this punishment for himself or for his fellow citizens. The
law concerning punishment is a categorical imperative, and woe to
him who rummages around in the winding paths of a theory of
happiness looking for some advantage to be gained by releasing the
criminal from punishment or by reducing the amount of it.52
Again it appears that instead of addressing Ms. Williams' problems, society
has found it appropriate to punish her for them. In thirty years, Ms.
Williams will be free to return to society.5 3 She will again be free to drift
through life without society ever recognizing her problems or addressing
Society has demanded that something be done about child abuse. In Ms.
45. Id. (citing Alexander, Helpfor the Battered Childand His Family, in OLDER
AMERICANS IN ACTION at 22 (Apr. 1973)).
46. Parents Anonymous is a self help group which operates in a manner substantially
similar to Alcoholics Anonymous. Fraser, supra note 43, at 123.
48. Indictment, supra note 1, at 9.
49. Id. at 14.
51. Feely, supra note 4.
52. I. KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE 100 (J. Ladd trans. 1965).
53. Indictment, supra note 1, at 17.
Williams' case, the prosecution, through the use of a plea bargain, has
accomplished two seemingly imperative objectives: 1) society has been
appeased because a heinous criminal is behind bars; and 2) by rendering her
incapable of bearing children, one small step toward the elimination of child
abuse has been taken.
A natural reaction to a woman who starves her child to death and watches
as he slowly degenerates into a lifeless mass, is to demand that the mother be
subject to the harshest punishment. Fortunately, in the past the approach to
child abuse has been based upon a belief that it is a social and psychological
problem that deserves therapeutic and non-punitive responses. However, as
the therapeutic mechanisms break down or prove inadequate, and society's
demand for the amelioration of this social ill becomes stronger, while
program funding decreases, there may be a shift in emphasis from concern for
the individual to a concern for the children en masse. This shift in priority
may be reflected in the methods of abuse prevention selected.
STERILIZATION AS A TERM OF A PLEA
In a plea bargaining situation, the defendant waives various constitutional
rights in exchange for sentencing concessions." The rights waived generally
include the right to a jury trial," the right to call witnesses, 56 and the right
against self incrimination.5 7 The prosecution is relieved of the burden of
proving every element of the crime beyond a reasonable doubt.5 8 A
defendant's waiver of constitutional rights is considered voluhtary if the waiver is
knowingly and intelligently made.59 According to legal standards of
voluntariness, Ms. Williams voluntarily sacrificed her ability to bear children in
hope of leniency. 6° Any concern, as to whether conditioning the acceptance
of a plea for a lesser offense upon a defendant's submission to tubal ligation 6 1
is involuntary and, therefore, constitutionally infirm, has been set to rest by
There have been many challenges to the constitutionality of conditioning
acceptance of a defendant's guilty plea to lesser charges upon the defendant's
submission to sterilization. In Briley v. California6,2 the defendant was
convicted of child molestation and given a suspended sentence provided he
consent to castration.6 3 Years later, he challenged that the terms of this plea
deprived him of his right to procreate in violation of the Fourth, Fifth,
Seventh, Eighth and Fourteenth Amendments to the United States
Constitution.' The Ninth Circuit, after recognizing the necessity of plea agreements
in the criminal process, held the claim invalid unless the defendant could
show he was fraudulently induced to consent to the surgery. 65 Briley
demonstrates that the acceptance of a plea bargain could constitutionally be
conditioned upon the defendant's consent to sterilization, provided the ultimate
decision to forego a more severe penalty in exchange for sterilization is made
voluntarily by the defendant.6 6
The same rationale was applied in People v Blankenship,67 where the
California Court of Appeals affirmed a trial judge's decision to suspend
execution of appellant's sentence provided the appellant, who was convicted of
statutory rape, submit to sterilization. 68 The court reasoned that appellant
was not compelled by the condition which the court imposed as he was
permitted to elect between acceptance of the condition or acceptance of the
penalty imposed by law for the offense. 69
The Briley and Blankenship decisions impliedly authorize a court to
condition the acceptance of a plea and a defendant's lesser sentence on the
defendant's "voluntary" submission to sterilization. Not all courts, however,
sanction this approach. In Smith v. Superior Court,7 ° co-defendants,
convicted of child abuse challenged the trial courts conditioning of a lesser
sentence upon the defendants' submission to sterilization. The Supreme Court
of Arizona suggested that, while a judge could consider a defendant's
voluntary sterilization in child abuse cases in reducing the defendant's sentence,71
the court could not require sterilization absent specific statutory authority. 72
The Smith decision did not preclude the prosecutor from encouraging a
defendant to bargain away his/her reproductive rights before sentencing. It
merely precluded the judge from mandating sterilization of a defendant
absent statutory authority. This does not afford much comfort for those who
advocate a therapeutic approach to eliminating child abuse considering the
history of sterilization legislation in the United States and the possibility of
its revival in the criminal context.
III. STERILIZATION LEGISLATION: ITS HISTORY AND
POTENTIAL FOR REBIRTH
A fundamental premise of a democratic society is that governments will
be responsive to public opinion. The validity of this premise has never been
more clearly demonstrated than in the Eugenic movement that swept the
United States in the early twentieth century.7 3 Eugenicists proposed that
most social ills were attributable to genetic defects, and recommended
sterilization of the socially inadequate as a method of improving the human
race. 7' A tenuous scientific theory 7" coupled with economic and social
unrest resulted in legislation requiring sterilization of a vast category of
"socially inept" persons.76 At its peak, this theory found approval in the
Supreme Court. In Buck v. Bell,77 the Court expressed the belief that: "It is
better for all the world, if instead of waiting to execute degenerate offspring
for crime, or let them starve for their imbecility, society can prevent those
manifestly unfit from continuing their kind .... Three generations of
imbeciles are enough."
While compulsory sterilization laws have been seriously challenged on
scientific and social policy grounds,78 these laws have not been completely
eliminated. Several states still justify compulsory sterilization laws on the
basis of the state's police power.7 9 A number of states ground these laws in
the state's parens patriae authority.8 0 Present sterilization laws have been
applied almost exclusively to mentally incompetent persons.- In its
consideration of whether or not to authorize compulsory sterilization of an
incompetent individual, some more enlightened courts have refused to consider the
state's interest in protecting society from genetically defective children who
will impose a financial burden on the state, and instead base their decision to
terminate an individual's reproductive capacity on their determination that
sterilization is in the best interest of the individual. 8 1 Whether these
decisions and laws are couched in terms of the best interest of the individual or
in terms of eugenics, the fact remains that the state retains the power to
determine who should reproduce.
The existence of statutes authorizing sterilization, present acceptance of
sterilization as a means of birth control,82 new scientific studies linking
criminal and violent behavior to genetic transmission8 3 and society's impatience
with the present failures of the child welfare system may provide the impetus
for legislation requiring sterilization of abusive parents in serious cases. The
seeds of the eugenic movement have already been planted in our legislative
and judicial bodies and careful drafting could possibly allow such a statute
to withstand constitutional challenge.
The ConstitutionalChallenge 1.
Cruel and Unusual Punishment
Whether sterilization of abusive parents would be constitutionally
defective as imposing cruel and unusual punishment is not quite clear. The
Supreme Court, in Skinner v. Oklahoma ex rel Williamson,8" bypassed the
opportunity to determine whether sterilization of a habitual criminal would
be cruel and unusual punishment. Lower court attempts to tackle the issue
have resulted in a series of conflicting opinions.
In Mickle v. Henrichs8," the Nevada District Court issued an order
restraining the sterilization by vasectomy 86 of a convicted rapist. The court
concluded that despite the fact that the operation could be performed with a
minimal amount of discomfort to the defendant, it nevertheless was cruel
and unusual in that it was "degrading and humiliating" punishment which is
a "brand of infamy."'87 In Davis v. Berry,8 8 a state statute, requiring a
vasectomy to be performed on all criminals twice convicted of a felony, was held
invalid by an Iowa Federal District Court as inflicting cruel and unusual
punishment. 9 Again, the court stressed that physical suffering is not the
only test of cruelty and stressed the humiliation and degradation that would
always follow the defendant. In the early part of the century some courts
had been willing to look beyond physical pain in interpreting the eighth
amendment and considered the mental suffering which would result from
such a punishment.
Other courts, however, have interpreted the amendment literally and
require a showing of physical pain or a punishment that substantially exceeds
the crime. In State v. Feilen,90 the court affirmed an order for a vasectomy
to be performed upon a defendant convicted of statutory rape. In doing so,
the court noted the relative simplicity of the surgical procedure, the absence
of pain and the heinous nature of the defendant's crime.9 More recently, in
People v. Gauntlett,92 the defendant, convicted of criminal sexual conduct
with his fourteen year-old stepdaughter, challenged his sentence of
"castration by chemical means,"9 3 as inflicting cruel and unusual punishment. The
court refused to reach the constitutional arguments raised by the defendant
and instead disposed of the claim, finding the penalty inappropriate in light
of the experimental nature of the drug, the side effects and practical
problems involving access to treatment.9 4 The court's refusal to discuss the
constitutional issues presented may later be interpreted as sanctioning
sterilization by medically acceptable means.
Whether compulsory sterilization would be considered cruel and unusual
punishment in the case of abusive parents is not made clear by case law
precedent. Strong arguments, however, can be made that the reasons
supporting cases like Michel v. Henrichs and Davis v. Berry are no longer true.
Cases decided in the earlier part of this century considered the physical and
psychological suffering associated with sterilization. Today sterilization is
one of the most frequently chosen methods of birth control.9 5 The
procedures available are medically safe, painless and rarely involve any adverse
psychological effects.96 Sterilization as a method of family planning is
federally funded,97 socially acceptable, and involves little stigmatization or
physical effects. Thus, it is unlikely that a contemporary court would find the
arguments previously made regarding a defendant's humiliation and
93. Id. at 739, 352 N.W.2d at 314 (referring to the requirement that as a condition of
probation, defendant take Depro Provera, a drug which suppresses the male sex drive).
94. Id. at 741, 352 N.W.2d at 316.
95. Isaacs, Reproductive Rights - 1983:An InternationalSurvey, 14 COLUM. HUM. RTS.
L. REV. 311, 328 (1983) (estimating that 90-100 million couples worldwide prefer sterilization
as a means of birth control). See also CURRENT OBSTETRICS, supra note 61, at 827
("Sterilization is a permanent method of contraception that is being chosen by increasing numbers of
men and women." Approximately one million Americans choose sterilization every year).
96. CURRENT OBSTETRICS, supra note 61, at 828.
97. Title XIX of the Social Security Act provides for reimbursement of sterilization
operations. See 42 U.S.C.A. §§ 1936(a)13(B),(C), 1936(d)(4)(A),(C) (Supp. 1988). These
provisions require state Medicaid plans to offer family planning services to desirous individuals.
Title XX of the Social Security Act authorizes matching federal funds for family planning
services rendered. See 42 U.S.C.A. § 1397(a)(1) (1982).
98. An argument that may, however, be persuasive to the court, is that sterilization is
contrary to a defendant's religious beliefs. While no court has addressed this issue in a
criminal context, several courts have considered it in terms of a hospital's right to refuse to permit
sterilization procedures to be conducted in its facilities. See, e.g., Watkins v. Mercy Medical
Center, 364 F.Supp. 799 (D. Idaho 1973) (medical center has a right to adhere to its own
religious beliefs and cannot be forced to make facilities available for services repugnant to that
belief). See also Swanson v. St. John's Lutheran Hospital, 182 Mont. 439, 597 P.2d 702 (1979)
(hospital liable for wrongful discharge of nurse-anesthetist who refused to assist in sterilization
operation where such procedures were repugnant to her religious beliefs). But see Hathaway v.
Worchester City Hospital, 475 F.2d 701 (1st Cir. 1973) (publicly funded hospital cannot
prohibit performance of consensual sterilization where no other procedures of equal risk are
Alternatively, a sterilization statute could survive an eighth amendment
challenge if the statute were based on a eugenic rather than a punitive
rationale. The idea of using sterilization as a method of preventing the
continuance of child abuse rather than as a punitive measure was expressed by the
prosecutor in Ms. Williams' case. "I do not consider sterilization a
punishment, I consider it a remedy for the malady." 99
The cyclical nature of child abuse is well documented. Those who were
abused as children are more likely to abuse their own children. I "' The
intergenerational cycle of child abuse has been attributed to environmental
forces. Basically, if the child grows up being abused, he learns that this is
the proper method of child rearing and in the future will likely invoke the
same methodology."'0 Recent studies of criminal and violent behavior
suggest that such behavior may be attributable to a personality disorder that is
genetically transmitted.'0 2 The familiar nature/nurture controversy seems
to be settling into a compromise with scientists recognizing that genetic as
well as environmental factors contribute to deviant behavior.0 3 Whether
the intergenerational nature of child abuse is due solely to environmental
factors, to heredity or to a combination of both is still open for debate.
Studies linking criminal behavior to genetic characteristics of the individual have
not been conclusively proven. However, it is important to bear in mind that
eugenic sterilization statutes were based on similarly inadequate and
inconclusive studies. The possibility that these studies could become the basis of
sterilization legislation does not seem so outrageous when understood in
light of the rising incidence of child abuse, an increasing inability of the
present system to control the situation and a lack of funding to secure more
Due Process of Law and the Right to Privacy' °4
In Skinner v. Oklahoma,'0 5 the Supreme Court, in striking down
Oklahoma's Habitual Criminal Sterilization Act on equal protection
grounds, recognized marriage and procreation as "fundamental to the
existence and survival of the race."' 6 In recognizing a right to marry and raise
children, Skinner provided a basis upon which the Court later developed and
expanded these rights to include the right to choose sterilization as a means
of birth control,'0 7 the right to terminate pregnancy,10 8 and the right to use
contraception.'o 9 All of these rights have been protected under the umbrella
right to privacy. The Court has made it clear, however, that these rights are
The Court will permit interference with these fundamental rights where
the state can show a compelling interest in denying the free exercise of
individual rights," 0 and the unavailability or ineffectiveness of less drastic
alternatives to protect that interest."' Jefferson v. Griffin Spalding County Hosp.
Auth. 12 exemplifies the degree to which the state can interfere with an
individual's procreative choice. In Jefferson, the court ordered that a caesarean
section be performed on a woman whose religious convictions opposed such
an operation.' '3 The court found that the state's interest in protecting the
unborn fetus was more compelling than the mother's exercise of her religious
and personal beliefs." 4 Thus, while one has a fundamental right to bear
children, the court will not hesitate to infringe upon that right where the
state can show a compelling interest.
The state has a legitimate interest in the health and welfare of its
citizens. 1 5 This interest becomes compelling in reproductive privacy cases,
when life is endangered. If the state has an interest in protecting the unborn,
its interest in protecting living children must be equally compelling. The
states have expressed their interest in the welfare of children by creating
child welfare agencies and by requiring individuals to report cases of child
abuse and neglect. The extremely costly1 16 state programs have proven
unsuccessful. While parents undergo psychological treatment for their
illnesses, the children must be temporarily removed from the parent's custody,
but there is nowhere for them to go." 7 If the theory that personality
disorders contributing to child abuse are genetically transmitted should prove
well founded, current counselling efforts would be worthless. To some,
compulsory sterilization of the recurrent offender is the only solution to a
problem that demands immediate attention.' 18 We may reach a point where the
state could justify circumscribing the individual's fundamental right to bear
children in order to benefit the whole. At least a few lawmakers believe that
the time has come for drastic measures to be taken in an effort to protect
innocent children. 1' 9 However, at present, and hopefully in the future, the
constitution will provide "limits on the extent to which a legislatively
represented majority may conduct biological experiments at the expense of the
dignity and personality and natural powers of a minority - even those who
have been guilty of what the majority defines as a crime. '' z This isnot to
say that the possibility of sterilizing abusive parents has been foreclosed.
Despite the lack of legislative authority, prosecutors, through plea
negotiations, have avoided the constitutional challenge by encouraging the willing
child abuse defendant to bargain away his/her reproductive rights. Thus,
the prosecutor, in the plea situation plays the role of judge, jury and
legislator in determining whether sterilization of abusive parents is an appropriate
"remedy for the malady" of child abuse.121
115. See Roe v. Wade, 410 U.S. 113 (1973).
116. See N.Y. Times, March 5, 1987, at A17, col. 1 (budget for child abuse prevention
increased by $ 37.7 million between 1981-85).
117. Even the Supreme Court recognizes that foster homes are often more harmful to the
childrenthan the homes from which they are removed. See, e.g., Smith v. Organization of
Foster Families for Equality & Reform, 431 U.S. 816 (1977).
118. Mill argued that the government should only suppress individual freedom when it is
used to harm others. J.S. MILL, ON LIBERTY 77 (1859). Apparently there are some who
believe the time to suppress individual freedom has come. See, e.g., Bangor Daily News,
January 6-7, 1979, at 34 (bill introduced in Maine legislature authorizing castration in cases of child
abuse); L.A. Daily J., July 6, 1981, at 1, col. 4 (Judge calls for sterilization of defendants in
child abuse cases).
120. Skinner, 316 U.S. at 546 (Jackson, J., concurring).
121. For the view of a former prosecutor concerning rehabilitation of child abusers, see
McKenna, supra note 22. McKenna advocates giving discretion to the prosecutor to
Federal, state and local governments in the 1960's took the initial step in
recognizing child abuse as a major problem in our society. In requiring the
populace to report known and suspected cases of child abuse to the
authorities, the government impliedly committed itself to finding a solution to the
problem. Initially, perhaps the government did not anticipate the magnitude
of cases that would be reported. Perhaps the financial and administrative
burden of the child welfare system was not foreseen. But we have had over
twenty years in which to perfect the system. The initial commitment to
alleviating the problem seems to have waned. Agencies are inundated with
cases and short on financial and professional resources. Liability in the
courts for their administrative inadequacies, further deplete an already
insufficient budget. Meanwhile, the population is exposed to newspaper stories
which detail the frightful situations in which some children live and die.
Society is demanding that something be done, while the government is
making substantial cuts in its social welfare budget. When Pandora's box is
opened, and the government shies away from the commitment it made over
twenty years ago to protect our children and to help those parents who find
it necessary to abuse them, through therapeutic and non-punitive measures,
people demand other avenues of relief.
As the situation worsens, particularly in light of our current fiscal crisis,
the possibility of finding relief in sterilization legislation becomes less and
less remote. Such legislation would and should face serious constitutional
challenge. In the meantime, abusive parents are encouraged, through plea
arrangements and sentencing concessions to submit to "voluntary"
sterilization. Given the choice of submitting to a relatively safe surgical procedure
or taking the risk of being able to convince a jury of parents that one did not
intend to starve the child or beat him or burn him with cigarettes, most
rational individuals would choose sterilization. But such a choice, by no
stretch of the imagination can be considered truly voluntary in lay-persons
"Voluntary" sterilization under these circumstances is a punitive measure,
mine whether an offender should be criminally prosecuted or referred to social service
agencies. Among the factors to be considered in making this determination, McKenna includes:
treatment facilities available; financial resources available for such treatment; character of the
beatings; and previous treatment of the offenders. Id. at 175. This approach, however, is
necessarily discriminatory. In assessing the financial resources available for such treatment,
the prosecutor in a state that has limited funds available for treatment programs would be
likely to recommend conviction, whereas, the prosecutor in a state with a well funded program
would recommend treatment. Moreover, this approach may discriminate against the poor, as
wealthier offenders are more likely to be able to afford their own treatment.
regardless of how one who advocates it chooses to describe it. Sterilization is
not a remedy for the malady of child abuse. Child abuse, like alcoholism or
drug addiction is a disease and should be treated as such. Sterilization does
not cure the deeply rooted psychological problems of people like Debra
Williams, who were themselves physically, sexually and psychologically abused
as children: psychotherapy does. Ms. Williams is not only an aggressor, she
is a victim. She and others similarly situated could be helped if the
government would renew and strengthen its commitment to finding (and funding) a
workable cure for the disease instead of merely treating its symptoms.
1. South Carolina v. Williams, Indictment No. 86 - 187 July 7 , 1986 at 2, 4 . (hereinafter Indictment). Although the Williams case is more than two years old at the time of this publication, sterilization of abusive parents is by no means an anomaly . See, e.g., Der Showitz, Birth Controlas a Penaltyfor Child Abuse , L.A. Times , June 4, 1988 , at 8, col. 3 (18 year old mother of two children sentenced to a life of using birth control after leaving her two sons in a sweltering apartment for two days); Plan to Sterilize Woman Debated , N.Y. Times , Sept. 25 , 1988 , at 35, col. 1 ; and Woman Sterilized in Hope of Leniency in Child's Death , N.Y. Times , Oct. 8 , 1988 , at 7, col. 6 (both articles discuss Melody Baldwin, age 29, who gave her son a fatal dose of prescription drugs. The prosecutor dropped murdercharges pending against her after she was sterilized and pled guilty to the charge of "neglect of a dependent." The Judge proposed the "unorthodox solution to the troubles in her life" and commented: "she is a person who no longer needs to have any children." If she becomes a mother again, "the possibility is there for the same thing to happen."). This Comment is in agreement with Richard Waples, Legal Director of the Indiana Civil Liberties Union, that the judiciary in these cases is "authorizing decision[s] on reproductive capacity that [are] dangerously close to eugenics." N.Y . Times, Oct. 8 , 1988 , at 7, col. 6.
2. Indictment, supra note 1, at 4.
3. Id. at 2.
4. Feely , Woman Accepts Sterilizationas Term of Plea, NAT'L L.J. , Aug . 18 , 1986 , at 61.
5. See Miller v. Barilla , 549 F.2d 648 , 649 n. 3 ( 9th Cir . 1977 ) (recognizing plea bargaining as an "integral part of the judicial process" ).
6. Feely, supra note 4.
54. See Thundershield v. Solem , 565 F.2d 1018 , 1021 (8th Cir.) cert. denied, 435 U.S. 954 ( 1978 ). See also FED . R. CRIM. P. 11 .
55. Thundershield , 565 F.2d at 1021.
56. Id .
57. Id .
58. Id . at 1024 (citing Boykin v . Alabama , 395 U.S. 238 , 242 n. 4 ( 1969 )).
59. Johnson v. Zerbst , 304 U.S. 458 , 464 ( 1938 ); Brady v. U.S. 397 U.S. 742 , 756 - 57 ( 1970 ).
60. At Ms. Williams' hearing, the prosecutor explained that her consent to sterilization was influential in his acceptance of her plea . Indictment, supra note 1 , at 5.
61. Since the first tubal ligation was performed in 1823, over 200 techniques have emerged. For a description of some of the more common ones, see CURRENT OBSTETRICS & GYNECOLOGICAL DIAGNOSIS & TREATMENT 827 (M. Pernoll & R. Benson eds. 1987 ) [hereinafter CURRENT OBSTETRICS] .
72. Id . at 70 , 725 P.2d at 1104.
73. The eugenic movement in the United States was influenced by the theories of Sir Thomas Galton, Mendel's laws of heredity and the development of a simple surgical procedure to accomplish sterilization. Social reformers advocated a belief that social inadequacy, mental deficiency, and criminal behavior were genetically transmitted . See Cynkar , Buck v. Bell, Felt Necessities v. Fundamental Values , 81 COLUM. L. REV. 1418 , 1420 - 21 ( 1981 ) for a good historical account of the eugenic movement in the United States .
74. The Eugenicists were not the originators of this idea. Plato, in his Republic, advocated planned breeding methods to insure that a genetically superior class would serve as the Guardian class . PLATO'S REPUBLIC BOOK I (Gilbert P . Rose ed. 1983 ). This idea also served as the basis of Hitler's elimination of whole classes of people during WW II.
75. Matoush , EugenicSterilization-A ScientificAnalysis , 46 DEN. L. J. 631 , 646 ( 1969 ).
76. The socially inadequate included: the feebleminded, the insane, the blind, the epileptic, the dependant, the homeless, orphans and paupers . Id. at 632.
77. 274 U.S. 200 , 207 ( 1927 ).
78. See generally Matoush, supra note 75; Ferster, Eliminatingthe Unfit: Is Sterilization the Answer? 27 OHIO ST. L .J. 591 ( 1966 ).
79. See Miss . CODE. ANN. § 41 - 45 -1 ( Supp . 1987 ) ; N.C. GEN . STAT. § 35 - 36 ( 1984 ); W. VA. CODE § 27 - 16 - 1 ( 1986 ) for examples of statutes justifying compulsory sterilization laws under the police power .
80. See , e.g., VA . CODE ANN. § 54 - 325 .10 to . 12 ( 1982 ).
81. See , e.g., In re Grady , 85 N.J. 235 , 262 n. 8 , 426 A .2d 467 , 481 n. 8 ( 1981 ); In re Guardianship of Hayes, 93 Wash. 2d 228 , 237 , 608 P.2d 635 , 640 ( 1980 ), (citedin Scott, Sterilization ofMentally RetardedPersons:ReproductiveRights andFamily Privacy, 1986 DUKE L .J. 806 , 812).
82. Sterilization as a method of birth control is accepted by the court . In Oil, Chemical and Atomic Workers International Union v. American Cyanamid Company, 741 F. 2d 444 (D.C. Cir . 1984 ), an employer's threat to women workers that they would lose their jobs if they did not have themselves sterilized, was implicitly sanctioned by the court. Judge Bork, rejecting the employees' challenge under the Occupational Safety and Health Act of 1970 , 29 U.S.C. § 654 stated: "The women involved were put to a most unhappy choice. But no statute redresses all grievances and we must decide according to law." 741 F.2d at 450. The decision suggests that there is no remedy for one compelled to submit to sterilization unless that remedy can be found in a statute.
83. See Van Dusen, Mednick , Gabrielle & Hutchings, Social Class and Crime in Adoption Cohorts, 74 J. CRIM . L. & CRIMINOLOGY 249 ( 1983 ). Based on test groups of adopted children who where removed from the custody of their natural parents, the authors conclude that criminal and violent behavior is genetically transmitted rather than environmentally induced. 1 .
99. Feely , supra note 4.
100. The cyclical nature of child abuse is widely recognized . See, e.g., Main & Goldwyn, PredictingRejection of Her Infant From Mother's Representationof Her Own Experience: Implications For the Abused-Abusing IntergenerationalCycle, 8 CHILD ABUSE & NEG. 203 ( 1984 ); Wald & Cohen, supra note 23.
101. Main & Goldwyn, supra note 100, at 16.
102. See 2 Mednick & Volavka, Biology & Crime, CRIME & JUSTICE: AN ANNUAL REVIEW OF RESEARCH 85 ( 1980 ) (a child who has been adopted at birth but has had no contact with his natural father is likely to become criminal if his biological father is criminal); see generally Mungas, An EmpiricalAnalysis of Scientific Syndromes of Violent Behavior, 171 J. NERV . EN. Dis . 354 ( 1983 ) ; Weller, Medical Concepts in Psychology and Violence, 26 MED . Sc. & LAW 131 ( 1986 ).
103. See Gabrielli & Mednick, Urban Environment, Genetics and Crime , 22 CRIMINOLOGY 645 ( 1984 ) (recognizing that gene-environment interaction is pertinent to the development of human behavior); Van Dusen , Mednick , Gabrielli & Hutchings, Social Class and Crime in an Adoption Cohort , 74 J. CRIM . L. & CRIMINOLOGY . 249 ( 1983 ) (social class has both genetic and experiential components which predispose class members to criminal involvement).
104. This Comment does not consider procedural due process or equal protection arguments against sterilization as it assumes that a statute could be drawn with requisite procedural safeguards and without discriminating against an invidious class of persons. For a constitutional analysis of eugenic sterilization statutes as they relate to the mentally ill, which discusses these two issues , see Note, Eugenic Sterilization Statutes: A Constitutional Reevaluation , 14 J. FAM . L. 280 ( 1975 ).
105. 316 U.S. 535 ( 1942 ).
106. Id . at 541.
107. Ponter v. Ponter , 135 N.J. Super . 50 , 342 A.2d 574 ( 1975 ).
108. Roe v. Wade , 410 U.S. 113 ( 1973 ).
109. Eisenstadt v. Baird , 405 U.S. 438 ( 1972 ).
110. Roe v. Wade , 410 U.S. 113 , 163 - 65 ( 1973 ) (a state cannot control a woman's right to terminate her pregnancy until it can express a compelling interest in the health of the mother or the life of the unborn ).
111. Shelton v. Tucker , 364 U.S. 479 , 488 ( 1960 ) ("the breath 6f legislative abridgement must be viewed in light of less drastic means for achieving the same purpose" ).
112. 247 Ga. 86 , 274 S.E.2d 457 ( 1981 ).
113. Id . at 89 , 274 S.E.2d at 459 -60.
114. Id . at 89 , 274 S.E.2d at 460.