When Father Equals Convict

For every good reason, no one wants to think about people like Robert Torres and David Oakley making children. Torres, a 20-year-old Texan, was sentenced in 1999 for having sex with a 13-year-old girl. This year, at a parole-violation hearing, he admitted impregnating two other teens. (“I make mistakes,” he said.) Wisconsinite Oakley, 34, has a 15-year rap sheet that includes theft and witness intimidation. In the meantime, he has sired nine children (one of whom he abused) by four women.

But there is a difference between being offended by someone’s procreating and making it an offense. In April, Texas District Judge J. Manuel Banales ordered Torres not to have sex with anyone, minor or adult, until he married–or “you will go to prison for life.” He expressed a fear that Torres would be a deadbeat dad. The Wisconsin Supreme Court was marginally more lenient with Oakley last week, merely sustaining a lower-court ruling that would jail him for eight years if he fathered another child without proving he could support his entire brood.

Laws against deadbeat parents have toughened, but scofflaws still owe $11 billion a year, and anger at chronic offenders is growing. Oakley owes $25,000, despite civil citations and garnishments. The Wisconsin court’s four-person majority (all male) focused on his behavior. Wrote Justice William Bablitch: “It is overwhelmingly obvious that any child he fathers will be doomed to a future of neglect, abuse or worse.”

It was the court’s three women who dissented, focusing on larger, reproductive issues. Justice Ann Walsh Bradley regretted that “for the first time in our state’s history,” the court had “allowed the birth of a child to carry criminal sanctions.” In fact, the U.S. Supreme Court declared procreation a basic human right in 1942. It reaffirmed it in 1978 by overturning a Wisconsin law forbidding child-support-delinquent citizens to marry if they could not show that their children could be kept off welfare. Similarly, activists like the A.C.L.U.’s Catherine Weiss say Oakley’s sentence “runs dangerously close to having a financial test for parenthood.” Such fears are not utterly unfounded. Between 1907 and 1964, tens of thousands of people deemed “genetically inferior”–including many poor people, minorities and petty criminals–were sterilized by law in some 30 states. Justice Bradley wrote that her court “places the woman in an untenable position: Have an abortion or be responsible for Oakley going to prison.”

Prosecutor Jim FitzGerald finds such speculation “inflammatory” and not relevant to the court’s goals regarding Oakley. He says the order by Banales is too narrowly drafted to be of much use to other prosecutors and is, in any case, a weapon against intentional dereliction, not a “financial litmus test” for parenthood. “What it really means,” he says, is “if you have a kid, you have to pay support to your best ability and not just blow it off.”

Perhaps. But even if accepted at face value, the Wisconsin and Texas rulings raise vexing issues about enforcement and privacy. Wisconsin is anticipating possible paternity tests on Oakley’s girlfriends’ future children. Torres is being polygraphed regularly on his love life. That’s a chat most public servants would probably rather avoid.

–By David Van Biema. Reported by Marc Hequet/St. Paul, Julie Rawe/ New York and Cathy Booth Thomas/Dallas