Legal

Texas Judge's Probation Condition Is Definitely Not Pro-Baby

MayorBob.

Posted to Legal on Thu Sep 18, 2008 at 06:47:07 AM EST (promoted by port1080). RSS.

By all accounts, Felicia Salazar failed a critical test of being a mother - protecting your children from harm.  The Travis County, Texas woman admitted she didn't intervene while the father of her 19-month-old daughter brutally beat the child.  Never in trouble with the law before, she cut a deal with the court that got her probation rather than prison time.  But, should the judge in the case be able add that Salazar can have no children during her probation?  That's the question troubling some who think the judge overstepped his bounds.

Salazar's daughter suffered broken bones and other injuries during an attack which earned the father, Roberto Alvarado, a 15 year stretch in state prison.  As for Ms. Salazar, she was charged with failure to provide protection and medical care for her daughter.  She won't have that daughter to put at risk anymore; the girl was placed in foster care where she is reportedly "thriving."  The 20-year-old Salazar was informed her sentence would involve community service, psychological counseling, and an order that she not bring anymore children into the world for the duration of her probation.  When Judge Charlie Baird was asked about the unusual sentence he responded, "when you look her background, the circumstances of this case, a reasonable condition of her probation was that she not conceive or bear any children."  Besides, neither Salazar nor her lawyer objected to it.

That's not necessarily true, according to Salazar's attorney, Kent Anshutz.  Anshutz says his client is "concerned" about the order and he's mulling their options.  He is not questioning Baird's "sentiments" in the case, he just questions how enforceable such an order could be.  According to Baird, Texas law allows wide latitude to judges in tagging on conditions of probation.  Law professor Douglas Laycock, who used to teach at the University of Texas, said Baird's order is "probably not constitutional":

"The state rarely tries to stop people from becoming parents, so there has not been much occasion to litigate that.  But undoubtedly there is a constitutional right to have children ... and I doubt that one conviction for injury to a child is enough to forfeit that right."
This is a point with which Keith Hampton, second vice president of the Texas Criminal Defense Lawyers Association, agrees.  He says that while, "it may be a good thing that this defendant heard someone in authority tell them `We don't think you should have any more kids'" it probably doesn't stand a chance of holding up on appeals.  However, Laycock did point to a Wisconsin case of a man in arrears on his child support who was ordered by a court not to father any more children.  That decision was upheld.  Baird scoffs at the notion that his order is onerous, "if I put her in prison for 10 years, she could not conceive or bear children."  While Baird says he has never issued an order like this one, he seems to have a history of crafting unconventional sentences which tend to irk prosecutors more often than defense lawyers.

Tags: edited by Port1080, written by MayorBob, crime, probation, condition of probation, unconstitutional, Texas, child abuse (all tags)

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Re: Texas Judge's Probation Condition

skeptic.

Thu Sep 18, 2008 at 12:24:55 PM EST

none

If the judge were really determined to prevent this woman from bearing another child during her probation period, there are a number of surgical procedures which could ensure this - some are more reversible than others.  But doubtlessly that would be considered too draconian.  But even though this woman could still have a child if she so desired, it would then be possible to penalize her if she does.  So, what happens if (not that I would wish such a thing upon her) she were to be raped, and became pregnant against her will?  She would wind up violating the court order through no fault of her own.  It would be a very ambiguous legal situation.  And of course, she could always CLAIM to have been raped, even if she had actually become pregnant by means of consensual sex.  It is also medically possible (although rare) for women to reproduce asexually - an ovum can be fertilized by a polar body, which (for those of you who forget) is a by-product of ovogenesis.  So a number of biological complications are at least possible.

2

^ 1

Re: Texas Judge's Probation Condition

skeptic.

Fri Sep 19, 2008 at 09:40:20 AM EST

5.00 (funny, brilliant)

That's right, I am going to reply to my own comment.  I had an additional thought on the matter.  Suppose that this woman becomes pregnant, in violation of the judge's order.  If he finds out about the pregnancy in time, he could order an abortion.  Then, the still-living fetus could be sacrificed in a Satanic ritual, to summon the ghost of Richard Nixon, who would then be available to work on John McCain's election campaign.

3

Okay, I'll Do A Bit Of Trolling Here.

MayorBob.

Sat Sep 20, 2008 at 09:11:45 AM EST

none

What if the person in question was named Juan Salazar, instead of Felicia.  Supposing he had custody of his kids and was in an abusive relationship with his wife/girlfriend/significant other.  Supposing she outweighed him by 50 pounds and had a nasty, aggressive nature to her.  Supposing she began beating one of the children to the point that she broke bones, caused contusions, etc?  Supposing Juan could only bring himself to hovering in the corner while the mayhem occurred because he remembered how she nearly beat him to death a couple of times and the police and the hospital all sneered at him because men don't get beaten by their women?

So the girlfriend/wife/whatever goes to jail for 15 years (a doubtful proposition because everyone knows women get treated more leniently than men for the same crime) and Juan is left to hear the judge's sentence (because he realizes he really didn't protect his child).  If the judge says, ten years probation and you can't father any children during that time, is everyone on board with that sentence?  Wouldn't a condition like that be even harder for the court to enforce?  I mean it's not like fathers are necessarily there when their babies are born, much less around them while they're growing up, right?  You say, let the mother have it and raise it.  But, given Juan's past history of choosing lousy life partners, who's to say the state should automatically let the mother keep the kid?  Perhaps, without a stabilizing factor like a mate in the house, she might snap, especially during that period of time when she's susceptible to post partum whatever.

Lastly, and addressing the case at hand, why did the judge just put the condition she couldn't have any children of her own?  Why didn't he go for a broader proscription, like she'll not be allowed to be in company of children under a certain age for the next ten years.  She's already demonstrated she didn't have enough inner stuff to protect her own, why should she be able to babysit or work in a day care or public school?

Illegitimi non carborundum.

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