Evolution, Child Abuse and the Constitution

OF THE UNITED STATES 1995 64 tbl.77 (1996). Census Data MARLBOROUGHMACROX.DOC 6/25/03 5:10 PM EVOLUTION AND CHILD ABUSE 735 the court will rarely inquire beyond a rational basis test. If a statute is neutral on its face, a court will inquire further only when a clear pattern emerges that can only be explained as indicates that ninety-two percent of children living with stepparents reside with a biological mother and a male stepparent. Id. Here a stepparent is defined in the traditional sense of an unrelated person married to the child’s parent. Id. Considering that the mandatory autopsy statute would affect only children under two years old, the percentage of stepfathers in households with children of nursing age may be much higher than households with older children. See Daly & Wilson, Nepotistic Discrimination, supra note 9, at 289. While the anonymous data collection does not discriminate based on sex at all, implementation of the Proposed Child Fatality Review Team Statute and (to a lesser extent) the Proposed Risk Assessment Statute may disproportionately affect males more than females. 193 See McClesky v. Kemp, 481 U.S. 279 (1987). In McClesky, the plaintiff argued that his death sentence violated the Equal Protection Clause because the death sentence is more often imposed on black defendants convicted of killing white victims than on white defendants convicted of killing black victims. Id. The Court refused to apply strict scrutiny and held that “a defendant alleging an equal protection violation has the burden of proving purposeful discrimination” in his particular case. Id. at 291-92. Goldberg presents McClesky as an example of yet another failure of statistical evidence. Goldberg, supra note 9, at 258. The case is a better example of how disparate impact of a protected class is insufficient to trigger heightened scrutiny and how the Court will defer to the legislature in most cases when heightened scrutiny is inapplicable. See McClesky, 481 U.S. 279. For the rare instances where higher scrutiny is involved, compare Washington v. Davis, 426 U.S. 229 (1976) (refusing to apply strict scrutiny to determine if a police exam was racially discriminatory because more blacks than whites passed), with Yick Wo v. Hopkins, 118 U.S. 356 (1886) (striking down a law requiring laundry permits for wooden laundries when all but one white applicant was granted a permit and all 200 Chinese applicants were denied), and Gomillion v. Lightfoot, 364 U.S. 339, at 340 (1960) (striking down a racial gerrymandering scheme that changed the boundaries of a city “from a square to an uncouth twenty-eight sided figure” that excluded 395 of the 400 black citizens from the city without excluding a single white person). The latter two examples are instances of de facto discrimination and represent “the rare cases in which a statistical pattern of discriminatory impact demonstrated a constitutional violation.” McClesky, 481 U.S. at 294. In these cases, statistical proof must present a “stark” pattern in order to overcome the standard rule of deference to legislative decisions. Id. at 293. MARLBOROUGHMACROX.DOC 6/25/03 5:10 PM 736 JOURNAL OF LAW AND POLICY discriminatory intent against the protected class. Stepparents would not be distinguished by the fact that they may be male but because of the increased risk of abuse that their presence presents to their infant stepchildren. 3. Rational Basis Scrutiny and Everything Else One broad group of cases that are conspicuously absent from Goldberg’s analysis are the vast majority of opinions construing legislative decisions based on statistical evidence that do not substantially interfere with a fundamental liberty interest or disaffect a suspect class. In such cases, courts will apply a “rational basis test” and generally uphold a law in deference to the legislature. Under this test, a law will be upheld if it bears a rational relationship to a legitimate government interest, 194 See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) (upholding administrative decision refusing a zoning reclassification request that had a racially discriminatory impact and holding that a racially motivated purpose must also be behind the law). 195 See DALY & WILSON, HOMICIDE, supra note 27, at 88. In fact, some of the strongest advocates for better recognition of this fact come from fathers’ rights organizations. See Fathers for Life, Child Abuse and Neglect Data at the National Clearinghouse, Health Canada, at http://fatherless.net/Sodhi/ cancan1.htm (last visited Mar. 12, 2003). Fathers for Life contends that the National Clearinghouse on Family Violence (in Canada) presents distorted and inaccurate information to promote their political agenda, ignoring the greater risk of children in stepparent families. Id. By combining statistics for biological male parents and substitute male parents, the National Clearinghouse reports a greater overall percentage of abuse perpetrated by male parents. Id. See also, Dads Against the Divorce Industry, The Human Carnage of Fatherlessness, at http://www.dadi.org/carnage.htm. (last visited Mar. 12, 2003). 196 See Goldberg, supra note 9. Although these cases would more accurately represent “the constitutional hurdles . . . statistical evidence must overcome,” those hurdles are easily surmounted. Id at 258-59. 197 Id. “[L]egislatures are presumed to have acted within their constitutional power, despite the fact that in practice the law results in some inequality.” McGowan v. Maryland, 366 U.S. 420 (1961) (upholding the constitutionality of Maryland’s Sunday Blue Laws under rational basis

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