In part because of a serious and unresolved drug problem, Mr. Kline was physically abusive to both his wife and infant daughter on a chronic basis. One child had already been permanently removed from the home of the defendant and his wife when they had another baby.
The violence escalated until one day, in February 1995, the newborn baby was hospitalized due to bruises and a broken leg caused by Mr. Klines' violent reaction to her crying.
He was convicted of criminal mistreatment and sentenced to 36 months' probation. He subsequently violated probation and at the revocation hearing, the Judge maintained Kline on probation but imposed the additional condition under appeal. He ordered Mr. Kline not to father any more children until successful completion of drug treatment and an anger management program.
On appeal, the defendant asserted that this probation condition impermissibly "infringes his fundamental right to procreate." In his argument, he conceded that there are circumstances under which the state would have a compelling interest to warrant such an infringement. However, in those instances, the Court must narrowly tailor the order to achieve the state's legitimate goals, with a minimum intrusion on defendant's rights. He asserted that the trial court performed no such "less restrictive means analysis".
Holding: The imposition of the probation condition was affirmed. The Court agreed that a fundamental right was involved and that this required the prosecution to establish the existence of a compelling state interest. The Court parted with Mr. Kline, however, on the point that the order was not "narrowly tailored." The Court noted that the trial court did so limit the intrusion on defendant's constitutional right to procreation. It had considered the defendant's background, lack of previous compliance and the danger he posed. The order that resulted was not a permanent termination but only one that would last until he provided evidence of completion of treatment.
What Kline Means
Under specific conditions, in Oregon, restricting procreation is not unconstitutional.
 | Sherry Colb, J.D. Professor Rutgers University |
Professor Sherry Colb comments: The Oregon court's holding in Kline is as interesting for what it does not do as for what it does. The court holds that a probation condition requiring a convicted child abuser to refrain temporarily from fathering children does not violate his constitutional rights. The court bases its decision on both the limited duration of the restriction and the close connection between the restriction and the crimes that Kline committed. What makes this decision noteworthy is that almost every other appellate court in which similar probation conditions were challenged has sided with the defendant, declaring the conditions unconstitutional. Why?
The most important case striking down limits on procreation was decided by the United States Supreme Court in Skinner v. Oklahoma, 316 U.S. 535 (1942). The Court held that a man found guilty of theft under a recidivist statute could not be punished with sterilization without running afoul of constitutional equal protection guarantees. This holding rested on a rejection of the eugenic rationale. Implicit in a law that called for the sterilization of some but not other classes of repeat offenders. Indeed, the particular class of criminals selected for sterilization consisted of poor individuals. Unlike a prison sentence, such a sterilization policy thus raised serious equal protection concerns by seeking systematically and by force to improve the fitness of the gene pool.
Unlike theft, child abuse is arguably related to procreation. One might, no doubt, come up with more effective ways of protecting children from abuse than by limiting an abuser's reproductive frequency. Nonetheless, the attempt to prevent child abuse by delaying a convict's reproduction until he has gained control over his violent impulses is surely comprehensible without resort to eugenic rationales. Rather than an attempt to alter the gene pool, the probation condition in Kline plainly represents an effort to alter the likely home environment in which the probationer's future offspring will grow up. The condition therefore does not implicate the issues raised by the Oklahoma sterilization statute.
There is another important constitutional issue raised by Kline. Although courts have routinely (and perhaps inappropriately) invalidated procreation conditions on probation, almost no courts have invalidated prison sentences. Prison is a punishment that temporarily or permanently deprives people of their freedom from incarceration. Like the right to procreate, the individual's right to be free from physical confinement is a fundamental one. Moreover, a person serving a prison sentence not only loses his freedom of movement but will also generally have little opportunity to procreate. Thus, it would seem that a prison sentence would in almost every case divest a person of the right to procreate along with the right to be free from confinement. Apart from a systemic objection to eugenics, policies like that evident in the Oklahoma sterilization case, the judicial preference for prison sentences over procreation probation conditions does not seem to rest on a solid-foundation.
Am I therefore saying that Mr. Kline should be immune from incarceration for injuring his daughter? Certainly not. Child abuse is a serious enough offense to justify the deprivation of an offender's liberty. Other convicts, however, who have committed relatively trivial or innocuous offenses, might benefit from the sort of close scrutiny of the need to impose confinement that state courts routinely give to the imposition of procreation probation conditions.
Perhaps we should reconsider the presumption that a violation of any criminal law automatically justifies confinement, but that the government must make an especially persuasive showing to justify alternatives to prison, including probation conditions that implicate-however briefly the right to procreate.
| Fred Rosenthal, Ph.D. Psychiatrist |
Dr. Fred Rosenthal comments: Kline illustrates a curious tendency to impose penalties for unstated symbolic reasons very different from those expressed at sentencing. Such a sentence may actually represent a more punitive rationale targeted at the psychological supports of the abuser's personality. Procreation is often accepted uncritically as a part of the human condition. When this aspect of life is prohibited it may be experienced as if a basic human quality has been lost. This in turn can cause a loss of self-esteem and a sense that a person is considered less human, especially in a male where it may also be felt as a loss of masculine power. While this reaction may seem paradoxical for someone who brutalized children, the basic, almost instinctive nature of this aspect of life takes it beyond the usual feelings about being criticized for destructive behavior.
On the other hand, being barred from procreation could have a different impact on a child abuser than it would have on someone who can relate to children in a more positive manner. Child physical abuse certainly implies an intense feeling of anger toward the victims but these feelings are frequently not conscious. In fact, the behavior is often denied or attempts are made to explain or justify any resulting injuries. Although the urge to procreate is extremely strong in many people, there are also those, both men and women, for whom this is not a vital need.
An order barring procreation is psychologically powerful for several reasons. By indicating that there is something drastically wrong with this individual, such an order attacks the abuser's denial system-that his behavior is not particularly out of the ordinary. The abuser cannot be considered as a "normally" functioning adult if he is denied the right to activities that can be engaged in by everyone else. Moreover, if the abuser is male, as in this case, the prohibition can be experienced as an attack on his masculinity.
The judge framed Mr. Kline's probation term as an attempt to prevent him from replacing the children removed by the Court, with other potential victims. If this restriction were indeed designed to that end, clearly there would be a long delay before a child became available if procreation did occur. And for Kline, the restriction is only temporary. Therefore what is the real purpose of this prohibition? The restriction on procreation, rather than addressing the abuser's problems, could be considered more of a punitive response. Does it therefore truly serve any useful purpose in dealing with child abuse?
