Courtesy versus the courtroom

Everyone's talking about the current potboiler over the Duke lacrosse players accused of rape, and the conflicting stories of the strippers who were there. Columnist Kathleen Parker has a recent article in which she describes the peculiar and somewhat hypocritical public response to the scandal. Is it "boys will be boys"? Blame the victim? Make her a martyr? A cause celebre? (Certainly a celebrity.) A feminist icon?

What's going on here?

The whole thing reminds me of an incident that happened a few years ago, when I was a law professor in Detroit. There was a scandal in Grosse Pointe (the tony suburb east of the city) in which several senior high school boys hosted parties for the incoming crop of freshman girls, at which alcohol (and, some alleged, hidden drugs) were served. Of course, the girls got hammered and sexually assaulted.

Apparently, this had been a local ritual at this high school for some time. And earlier groups of girls had said nothing. But this time, one of the girls told her parents. And the proverbial Shinola hit the fan.

As sad as the event itself was, the public's reaction was what startled and disturbed me. As soon as the authorities found out about it, investigations began. And arrests. And then, the recriminations. One of the boys, Daniel Granger, had already been accepted to the University of Michigan for college. (Ironically, he was a high school lacrosse player.) UM revoked the acceptance pending the outcome of the criminal prosecution.

As sad as the event itself was, the public's reaction was what startled and disturbed me. As soon as the authorities found out about it, investigations began. And arrests. And then, the recriminations. One of the boys, Daniel Granger, had already been accepted to the University of Michigan for college. (Ironically, he was a high school lacrosse player.) UM revoked the acceptance pending the outcome of the criminal prosecution. (Granger was convicted in the criminal trial and lost a subsequent civil suit as well.)

Everyone was up in arms. People were furious. At the girls. For telling.

And when I say furious, I mean that the girls' parents reported being screamed at by other students' parents. Things along the lines of How dare you ruin these boys' lives? They watched as grown-ups drove through their yards and threw trash and dog feces. They received hate mail and anonymous phone threatening phone calls.

In the face of this public onslaught, at least one of the girls switched schools. Another family decided that it wasn't worth subjecting their children to it, and moved out of town.

I was horrified. And apparently I was not alone. I remember reading an editorial written by a local woman who summed up the community's attitude well: What were the girls thinking? What did they think was going to happen when they went to a party with senior guys, no chaperones, alcohol and drugs?

Yes, the girls were stupid, this writer admitted. But being stupid is not a crime.

That, for me, was it in a nutshell. The girls were unsupervised, out too late on a weekend night. And underage. The boys were older - all 18 and 19. That transforms the incident from a matter of juvenile stupidity to a crime, like it or not.

Did the local community care about that rarified distinction? Not much. And that, my friends, is the difference between law and life. Conduct can still be criminal. But the criminal code will protect neither girls nor boys in a society in which courteous behavior and sexual restraint are not instilled by parents and reinforced by the other institutions that adults control. Like schools. Movies. Music. Literature. You get the idea. (In fact, speaking as an attorney, I routinely complain that we no longer wish to instill courtesy, and instead, want the legal system to penalize discourteous conduct. But that's a column for another day.)

It also demonstrates - sadly - the way that we, as a culture, have deceived ourselves, removed societal sanctions necessary to protect our children and, unwittingly therefore, left them to twist in the wind.

For good or for ill, society's attitude about male sexuality seems to be "boys will be boys." And even with today's modern feminist sensibilities (or, indeed, because of them), the responsibility for deflecting or protecting against predatory male sexuality falls to young women. Who get mixed messages on the matter, to say the least (dress like a whore! flaunt your body! be as promiscuous as you want! sue for sexual assault!)

I personally deplore this attitude and, as the mother of a boy, I don't intend to raise him that way. But that means instilling my son with a firm and dutiful conscience, as opposed to a sense of entitlement; with the obligation to act like a gentleman instead of the license to be a cad; with respect for the human body (his, and others'); and with the understanding that sexuality is intimate conduct that belongs between husband and wife, as opposed to recreation fueled by bravado, alcohol and testosterone.

If we throw up our hands and let society tell our daughters it's "cool" to dress like strippers and our sons that it's ok to pay them to take off their clothes and parade naked in front of them, we can't be surprised when, instead of being courtly, they end up in court.

Wrongful choice, wrongful death, wrongheaded reasoning

Kathleen Parker wrote last week about a groundbreaking case in Illinois. According to news reports in the Chicago Sun-Times, a woman named Michelle Williams has sued John Manchester for wrongful death for the abortion she had after a car accident she was in for which Manchester was at fault. According to Williams, her doctors explained that her fractured pelvis required surgery. The choices they offered her were all unpleasant: abort her child and have the surgery to avoid potential risks to the child from x-rays, surgery or drugs, wait until later in the pregnancy for the surgery - but this might mean needing to rebreak her bones, which might not then heal properly, or have the surgery and hope for the best for the pregnancy. Ms. Williams chose to abort, and then sued. Although the parties settled on the matter of her personal injuries, Mr. Manchester is claiming that he is not responsible for the abortion, as that was Ms. Williams' choice (there's that word again) and not the direct consequence of the accident itself (apparently, Ms. Williams' unborn child was not injured in the accident).

The trial court judge dismissed Ms. Williams' claim, and she is appealing. As this is a case of first impression in Illinois, the appellate court's decision will be interesting to observe.

In her article, Parker seemed stunned that the judge threw out Ms. Williams' claim for wrongful death. But it would seem that she doesn't understand the law. A lot of other folks don't either, so let me try to explain things here as I see them.

I grieve for Ms. Williams. But I am afraid that I agree with the judge. (At least the result - I haven't read the opinion, so it's not clear to me what her reasoning was.) And for two important reasons: one, the pressure she received from the doctor was very possibly misplaced. And two, a decision to the contrary would be bad law and bad precedent.

I say this because I have heard of case after case in which doctors - legitimately terrified of being sued for any possible outcome - "warn" patients about every possible outcome, no matter how implausible or unlikely. When a doctor says, "It's possible your unborn child has already been damaged by x-rays," you can hear the wheels turning a mile away.

I heard similar warnings with both of my recent pregnancies - as an "older" mother in my 40s - and I can't even count the number of people I know personally who were "warned" by their doctor of possible bad outcomes for their unborn children -- (the pressure to abort under those circumstances is enormous -after all, doesn't the doctor know best??) -- and who (like me) have gone on to have perfectly healthy babies.

Like a lot of others, I am incensed at the way litigation has warped the medical - and particularly obstetrical - profession to the extent that you are literally encouraged more strongly to abort your baby than to have it. And I am speaking here as an attorney! What makes me sickest about this whole story is the fact that there was probably nothing wrong with this woman's child, and that there was at least some chance that her child would have come through her surgeries unscathed. My own sister had to have major ovarian surgery in very early pregnancy, and her child was fine.

But turning again to the issues that Kathleen Parker writes about. To my way of thinking - as an attorney AND as a mother - it's one thing to be warned of the risks of surgery necessary to repair broken bones and other incidents of a bad car accident, have the surgery (a perfectly logical and moral choice under the circumstances), and lose the baby.

Under those circumstances, if she sues the driver of the other vehicle, she has every legal right to collect from him for the death of her child. As to Kathleen Parker's comment that it seems "equally cruel" to burden poor Mr. Manchester with the death of the other driver's unborn child, we have an expression in the law for that: "You take the plaintiff as you find him [or her]."

In other words, it is his misfortune if he hits a car with a pregnant woman in it, and she miscarries as a direct result of the accident, or of the surgery necessary to save her life or repair her broken body.

But it is another thing altogether for this woman to say, "Well, I'm not going to take the chance that I lose the child in surgery, or that the x-rays, medication or surgery might damage my child, still so small in the fetal stage of development. So I am going to terminate the child myself." That is NOT an inevitable consequence of Mr. Manchester's negligent driving. It is what we call in the law an "intervening cause."

None of this is to suggest that Ms. Williams should be "punished" for being "selfish." She was well within her legal and moral rights by even the strictest interpretation to receive medical care for her injuries. But frankly, how is the legal rationale different if Ms. Williams' baby had been born, had been in the car with her when she was hit by Mr. Manchester, and so severely injured that the doctors warned her her baby might not survive the surgery they were recommending for it? Would we allow her - or her surgeon - to simply smother the infant with a pillow as a preemptive measure and then sue the other driver for wrongful death?

I know that some attorneys reading this will disagree with me. And so will many others, both pro-choice and pro-life. Strongly. Pro-choicers will resent the above argument that I use, and say, "but a first trimester fetus is not the same as a born infant." Ok, fine. Then why should Ms. Williams be allowed to collect for its wrongful death? Pro-lifers will agree with me that an unborn child is entitled to at least some of the same legal protections as a born one, and that the loss of one is just as painful as the loss of the other. So they won't appreciate my argument that under these circumstances Ms. Williams should not be able to recover from the other driver for the loss of her baby.

To both camps, I say that for the judge in the Williams case to have decided otherwise would have set a terrible precedent - encouraging people to abort and thus convert what should have been a straightforward personal injury case into a wrongful death case for reasons having to do more with a choice by the mother than negligent conduct by the defendant. That is a bad result. Even if it does tell the world that unborn children are - or were - human beings of inestimable value.

Sandra Day O'Connor once said famously that the legal framework of Roe v. Wade was "on a collision course with itself." Ms. Williams, her unborn child, and Mr. Manchester are all victims of just that sort of collision.