Justin Bieber and Child Support

Submitted by Guest Blogger:  Joseph N. Schneiderman

Much has been in the news lately about teen phenomenon Justin Bieber purportedly fathering a child as a result of an illicit sexual encounter in the bathroom of the Staples Center. There have also been revelations that Mariah Yeater, the putative mother, is apparently perpetrating a scam. We are still waiting on the results of the DNA test.
Yet a question persists. Justin Bieber is not of the age of majority and Mariah Yeater is 20 years old. The crime of statutory rape has apparently occurred (see Cal. Penal Code §261.5-criminalizing sexual encounters between an adult and “a minor who is not more than three years older or three years younger than the perpetrator” as a misdemeanor.) California’s courts have likewise interpreted Section 261.5 as criminalizing all minor-on-minor sex as a misdemeanor, see Matter of T.A.J., 62 Cal. App. 4th 1350 [1st Dist. 1998]).

So how can Justin Bieber be compelled to pay child support?

Let’s begin with history. Statutory rape laws were justified at common law because a woman and her ovaries were considered property. By having sex with an underage woman outside of marriage, the man “defiled” that property for the woman’s putative husband. Statutory rape laws were and are a strict liability crime, e.g. the State does not have to prove that the adult acted with a reckless or intentional guilty mind. The act of statutory rape and impregnating a young woman was, apparently, an inherent moral wrong. (Statutory rape laws are one of only a few felonies that lack mens rea – as a comparison, felony murder is a strict liability crime because you engage in a moral forfeiture by killing in the course of committing a felony.) As such, mistake of age is generally not a defense to statutory rape. (cf. People v. Hernandez, 393 P.2d 673, Cal. 1964).

In the 20th and 21st centuries, statutory rape laws have been justified to prevent and deter teenage pregnancy. In 1981, the U.S. Supreme Court held (in a case from California, no less) that that rationale justified gender-specific statutory rape laws (e.g. where only men could be the perpetrators) as constitutional, see Michael M. v. Superior Court (450 U.S. 464, 1981). A renewed interest in statutory rape laws occurred with the Welfare Reform movement of the 1990’s and many states tightened enforcement out of concern for burgeoning rolls of welfare from teenage mothers. Although most states have gender-neutral laws, six jurisdictions still retain gender specific laws on the books. Most notoriously, the Idaho Supreme Court has followed Michael M. as recently as 2007.
Courts have also generally held that a man is strictly liable for his sperm, see e.g. Pamela P. v. Frank S, 59 N.Y. 2d 1 (1984). In other words, it does not matter if the woman deceived him about her use of birth control or if the woman deliberately recovered the otherwise disposed of sperm after the sexual encounter and inseminated herself. If a man shares his sperm with a woman and a child is born, the man’s on the hook for child support. This same rationale extends to underage men. At least eleven jurisdictions (including California, see County of San Louis Obispo v. Nathaniel J., 50 Cal. App. 4th 842 [2d Dist. 1996]) have held that although the woman may or may not have committed “statutory rape” in her sexual encounter with the underage man, the man remains liable to pay the woman child support. The children are, ostensibly, innocent victims of the illegal sexual encounter.
Had Justin Beiber failed to use contraception in the apparent encounter in Staples Center bathroom, he is caught in a web of “outmoded sexual stereotypes.” (Michael M., 450 U.S. at 496, BRENNAN, J., dissenting). Concededly, teenage women are at a far greater physical risk from teenage pregnancy-indeed, teenage women face risks to their very lives at an especially vulnerable time from pregnancy. But certain harms attendant to teenage pregnancy are universal and know no gender distinction: lost economic opportunity, mental trauma, burgeoning welfare rolls, social stigma, and years of supporting an undesired child are co-equally real regardless of if the victim of teenage pregnancy is a young woman or a young man. Given that statutory rape laws are strict liability offenses and malum in se, it seems that there is at least as much of an inherent moral wrong in an adult woman subjecting a minor male who has no resources to support a child that he did not desire as there is to an adult male impregnating a minor female and subjecting her to the physical consequences of pregnancy. To suggest otherwise takes us back to the retrograde notion of ovaries as property.

Concededly, Justin Bieber swims in money and did apparently invite the fan to the purported illicit encounter. But, his fan is an adult. If statutory rape laws mean what they say and are part of a criminal justice system based on deterrence and retribution, Mariah Yeater should have known better than to make Justin Bieber assume the risk of her becoming pregnant; Ignorancia legis neminem excusat, especially not her. Given California law as it presently exists, notwithstanding the constitutional right to procreate, the Los Angeles District Attorney should consider prosecuting both of them. Criminal punishment is, indeed, harsh, but, the law of California proscribes all minor-minor sex. The California Legislature and/or the California Supreme Court should provide clearer guidance on “what the law is” so that such harsh results, like teenage pregnancy, are avoided.