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Straight Out of a Weird Law School Hypo:

ABC News reports:

[I]dentical Missouri [Raymon and Richard Miller] twins say they were unknowingly having sex with the same woman. And according to the woman's testimony, she had sex with each man on the same day. Within hours of each other.

When the woman in question, Holly Marie Adams, got pregnant, she named Raymon the father, but he contested and demanded a paternity test, bringing his own brother Richard to court.

But a paternity test in this case could not help. The test showed that both brothers have over a 99.9 percent probability of being the daddy — and neither one wants to pay the child support....

[Judge Fred] Copeland, however, notes that as the judge in the case, he does not have to depend solely on DNA evidence and can rule based on the testimony of Adams as well — who believes she can nail down the date of conception to a night spent with Raymon....

Sounds like a case for the DES market-share liability theory. No, not really, just a little law geek humor here.

Thanks to Daniel Schmutter for the pointer.

rlb:
Loose women have been around for a lot longer than DNA tests. This case might be frustrating to us today, but it's nothing new.
5.21.2007 6:58pm
Nathan_M (mail):
Loose women? Because her behaviour was so much worse than the brothers'. Thank goodness for double standards.
5.21.2007 7:03pm
Ted Frank (www):
Sounds more like Summers v. Tice than DES (and your DES link is broken).
5.21.2007 7:10pm
rlb:
Usually the woman knows that she's sleeping with more than one man. The men know much less frequently-- like in this case. I guess you didn't read the article, eh?
5.21.2007 7:13pm
JB:
How does she know which one she was sleeping with, if they're identical?
5.21.2007 7:15pm
Guest101:
Nathan M,

The ABC article indicates that the brothers say they were "unknowingly" both having sex with Ms. Adams. The same certainly can't be said for Ms. Adams herself (unless it's a hilarious case of mistaken identity of Shakespearean proportions). So, to the extent that "loose" behavior is morally suspect (a subjective question on which I take no position), it isn't really the case that a double standard is being applied here by those who judge the mother's behavior more harshly than the brothers'.
5.21.2007 7:15pm
CheckEnclosed (mail):
Heather has two Daddies? If the trier of fact disbelieves Ms. Adams, might she be unable to muster a preponderance of evidence as to either of the brothers?
5.21.2007 7:15pm
Vinnie (mail):
I was taught that if you play you may pay. Both played, both pay.
5.21.2007 7:23pm
Seamus (mail):
Actually, when I first read an article about this case, the market-share liability theory and Summers v. Tice were the first things that popped into my mind. It seems reasonable that each brother should be on the hook for at least one-half of the child's support. (Visitation rights should be given to whichever brother admits paternity and assumes the obligation to pay 100% of the child's support.)
5.21.2007 7:28pm
Nathan_M (mail):
From the ABC News article:


Asked if it is true that he did at one time formally date Adams, Richard Miller told ABC News, "Well, if you call that dating." Raymon confirms that he never dated Adams in any sense, but that they were "messing around."


Right, nothing for the morality police to criticize here.

From rlb:


Usually the woman knows that she's sleeping with more than one man. The men know much less frequently-- like in this case. I guess you didn't read the article, eh?


Well, yeah. But the same things true for men (albeit without the practical implications for a paternity test). See, that's the double standard. A woman casually sleeps with a man, so you call her loose. The two men do exactly the same thing, so you say nothing about them.
5.21.2007 7:32pm
WHOI Jacket:
Ok, EV, how would you grade this answer on a hypotheical test case basis?
5.21.2007 7:36pm
Anonymo the Anonymous:
It seems reasonable that each brother should be on the hook for at least one-half of the child's support.

But this strategy gives us, for certain, two outcomes we know to be unjust:
1) The responsible man pays only half of what he owes.
2) An innocent man is being held liable for something he did not cause. The fact that his DNA is identical to the guilty man's doesn't change this. If a murderer's blood evidence matched two identical twins, we wouldn't imprison both of them for half the otherwise-applicable sentence.
5.21.2007 7:44pm
rlb:
Nathan_M: What a bunch of bull. I didn't say anything about the men because it wasn't relevant to the legal issue or the facts of the case.

Isn't there a better way to grind that ax? Maybe you could go hunting for folks who aren't appending "or she" to their hes.
5.21.2007 7:50pm
Nathan_M (mail):
Sorry rlb, not being a family law practitioner I didn't realize "loose" was a term of art, so I didn't realize you were sticking to the legal issue.
5.21.2007 7:52pm
Bird Hunter (mail):
Summers v. Tice is inapposite as the defendants in that case both shot it in the air.
5.21.2007 8:03pm
Bill Sommerfeld (www):
Actually, there is an (extremely improbable) circumstance where both twins could simultaneously be the father: if the the child is a genetic chimera.

Apparently sometimes two separately fertilized zygotes fuse at a very early stage, and develop into a single individual with two sets of DNA - things start off as in fraternal twins (two eggs, two sperm cells) but only one individual develops.

This phenomenon was discovered in humans when a woman "failed" her part in a paternity test; she was a chimera, and the egg she contributed to her child came from one zygote, while the tissue sampled as part of the paternity test came from the other.
5.21.2007 8:06pm
theobromophile (www):
One is not technically "innocent," unless he used birth control and his brother did not: here is merely lucky.

Child support is calculated on the basis of the income of the father, not on any set dollar amount of the child. It doesn't make sense to pay "half of the child support," unless it is simply "half of what the father would normally pay." Did the mother name the wealthier twin to pay child support?
5.21.2007 8:19pm
Anonymo the Anonymous:
One is not technically "innocent," unless he used birth control and his brother did not: here is merely lucky.

Yeah, (unless the kid is the aforementioned chimera) "technically" one is. One man fathered the child; another did not. When two men who are not identical twins have simultaneous sexual relationships with one woman and she becomes pregnant, we don't consider one of them "lucky" but also morally responsible. The problem here is not that the twins are both responsible, but simply that we cannot tell which is which.
5.21.2007 8:26pm
luispedro (mail) (www):
"The test showed that both brothers have over a 99.9 percent probability of being the daddy"

The statistics are just wrong then, aren't there? They cannot both have 99.9% chance of being the parent.
5.21.2007 8:30pm
Anonymo the Anonymous:
The statistics are just wrong then, aren't there? They cannot both have 99.9% chance of being the parent.

I assume what was meant to be conveyed is that there is a 99.9 percent probability that a person with (the genetic code common to both twins) fathered the child. Or, only a 0.1 percent probability that the father was neither of the twins.
5.21.2007 8:34pm
Hattio (mail):
Nathan M states


A woman casually sleeps with a man, so you call her loose. The two men do exactly the same thing, so you say nothing about them.


But you're mis-stating the problem. The woman didn't casually sleep with a man, she casually slept with (at least) two men. We only know the brothers slept with one woman (and we only know one of them was doing so casually, as the other one apparently considered himself to be dating her).
Not that I'm saying the whole "casual sex is immoral" is necessarily right. Just that if you accept that premise, there's certainly a non-sexist reason to assume she is somewhat worse than the brothers (who are by no means saints).
5.21.2007 8:50pm
theobromophile (www):
The problem here is not that the twins are both responsible, but simply that we cannot tell which is which.

In some ways, we don't care which one is responsible as both have performed the action which would make them responsible (much like two people firing shots into the air). (In fact, it's entirely possible that the twin who is not a father would have been a father but for his twin - i.e. that if the mother had only slept with him, he would be responsible for conception. Trying to be euphemistic here.) So we don't mind as much if the end up both being legally liable for the harm done.
5.21.2007 8:51pm
Dilan Esper (mail) (www):
Is King Solomon available to judge this case?
5.21.2007 9:26pm
Anonymo the Anonymous:
In some ways, we don't care which one is responsible as both have performed the action which would make them responsible (much like two people firing shots into the air).

What I'm saying is that you could say that about any case where two men have a simultaneous sexual relationship with the same woman who them becomes pregnant. But in those cases that don't involve identical twins, we don't treat them both as though they were the father, even though they both could be. We figure out which one was the father and assign all responsibilities, like child support, and right, like visitation, to that man. We treat one man as responsible and one man as not responsible for the child's creation, because that is in fact the state of affairs.

Why should one of these men, whose sperm did not in fact fertilize the egg that became this child, be treated as though he did simply because he has the misfortune of sharing his DNA with the man whose sperm did create this child? Are you arguing that in all paternity cases where more than one man had unprotected sex with the mother during the time period when science tells us the child may have been conceived, not just in those involving identical twin potential fathers, we should assign equal shares of responsibility to each potential father, regardless of who is biologically responsible for creating the child?
5.21.2007 9:36pm
Nathan_M (mail):

But you're mis-stating the problem. The woman didn't casually sleep with a man, she casually slept with (at least) two men. We only know the brothers slept with one woman (and we only know one of them was doing so casually, as the other one apparently considered himself to be dating her).


If I thought that was the distinction being drawn I wouldn't have said anything. I doubt there's any significant number of people who would call someone loose if she had casual sex with two people a day, but not one.

I do like the "she was having casual sex with him, but he wasn't having casual sex with her argument" though. It's inherently so implausible, but no one can prove it's wrong.
5.21.2007 9:43pm
Hattio (mail):
Nathan M,
I'm sorry, but if one person thinks their in a committed relationship, and the other is screwing everythign of the preferred gender that they can, we generally consider the first person must have ignored signs, and is therefore foolish, and the second person is immoral, if not for having multiple sexual partners, then for fooling one of them about the state of the relationship. Again, I'm not saying that's what's going on here. But I think jumping to the sexism conclusion on the part of other commenters is more unwarranted than jumping to the "loose woman" conclusion by the commenters.
5.21.2007 9:47pm
RMCACE (mail):
I am with Ted Frank on this. use Summers v. Tice, split the liability. Just like Summers v. Tice, give the Defendants the option of an affirmative defense. In both Summers and this case, the Defendant should be allowed to show that he was "shooting blanks."
5.21.2007 9:50pm
Blue (mail):

"I want to go to the Supreme Court," Raymon told ABC News. "If they can't prove it's me then they should throw it out of court." And as for the child support, he said, "The state should eat it."


Truly a shining example of masculinity.
5.21.2007 9:55pm
Nathan_M (mail):
Hattio, there's nothing in the article that suggests any of them were dating. (Raymond says they were just messing around, and Richard implies he wouldn't call his relationship dating.) But if they were, "loose" isn't the right word to describe someone who's cheating on their partner.

But anyway, I think it would be the same double standard to criticize the morality of a woman who cheats on her partner, but not a man who sleeps with his brother's girfriend.
5.21.2007 10:03pm
theobromophile (www):
When you can't determine which one is at fault, it's reasonable to split the liability. Here, they both did something that would have put them "at fault" - i.e. it's not like one twin slept with her and one is a virgin. Since we can't determine who is at fault, you can do Summers v. Tice and split the liability.

I still think that she's going after the wealthier twin for child support, but that's just me. :)
5.21.2007 10:23pm
rlb:
I chose the description "loose women" because it's somewhat archaic, to reinforce my point that not long ago it was impossible to tell with any certainty who the father was-- because DNA testing did not exist. Therefore, far from being a "weird law school hypo," this was a somewhat common problem before 99.9% certainty was the norm. That's it.
5.21.2007 10:28pm
DeezRightWingNutz:
Nathan_M,

Does your grating personality repel even the "loosest" of women?

Anyway, determining maternity is a fairly straight forward exercise. Determining paternity (when the woman has slept with more than one man) can be more difficult. Since women sleeping with more than one man predates DNA tests, rlb was pointing out that determining paternity is the absence of definitive DNA results isn't a novel problem. The "looseness" of the man never really comes into play when trying to establish parentage.

Anyway, I'd really like to hear your thoughts on the Madonna-whore dichotomy, the glass ceiling, and how the male-controlled fashion industry is undermining the self-esteem of American girls.

Oh, and if it makes you feel better, even though your mother slept around (A LOT), I wouldn't call her "loose." That broad had a snapp...
5.21.2007 10:36pm
Truth Seeker:
See, that's the double standard. A woman casually sleeps with a man, so you call her loose. The two men do exactly the same thing, so you say nothing about them.

No, Nathan you got it wrong, She was sleeping with 2 men. They were sleeping with 1 woman. TWO does not equal ONE.
Sleeping with one = normal.
Sleeping with two = loose.
5.21.2007 11:01pm
rlb:
Here's a link to the slip opinion. I couldn't find a PDF because of the court's awful website.

The facts as detailed in the opinion are different than those presented in the news story (shock, surprise).

Appellant emphasizes a portion of Mother's testimony that he seems to contend required the trial court to find that Mother had sexual intercourse with both Appellant and Richard on August 8, 2003. She had testified that she went to the rodeo in Sikeston, Missouri, on the evening of August 8, 2003, and later went to Appellant's home in Wardell, Missouri, where they had sex. During cross-examination by Appellant, Mother said she went to the rodeo alone, and that Richard was at the rodeo with a friend. She was then asked, "Did you sleep with him while in Sikeston for the rodeo?" to which she answered "yes, ma'am." She then said she went to Appellant's home where they had sex later that night or early the next morning.

In both his points on appeal, Appellant impliedly accepts August 8, 2003, as the date of conception and argues that the above evidence demonstrates that both brothers had sex with Mother on that date.....

Appellant's reliance on Mother's answer to the one question referred to above as requiring the conclusion that Richard and Appellant both had sex with Mother on August 8, 2003, is misplaced because it ignores the entirety of Mother's other testimony. As indicated earlier, at other points in her testimony, Mother said that she had a full menstrual period beginning July 25, 2003; she said that on August 8, 2003, she had sex with Appellant, but not Richard; she had sex with Richard a week and half or two weeks after she had sex with Appellant on August 8, 2003; she had morning sickness, believed she was pregnant, and made a doctor's appointment to test for pregnancy between August 18 and 20, 2003, before she had sex with Richard on August 22 or 23, 2003; Appellant did not use a condom when he had sex with Mother on August 8, 2003, but Richard did use one when he had sex with her on August 22 or 23, 2003; and a urine test administered by her doctor on August 26, 2003, not only showed she was pregnant, but also demonstrated that she had been pregnant at least two weeks.
Sounds like they got their man.
5.21.2007 11:09pm
Latinist:
Hey, I saw this come up on "Maury." They used a lie detector.

So at least someone in this country is providing an effective system of justice.
5.21.2007 11:26pm
Sean O'Hara (mail) (www):

How does she know which one she was sleeping with, if they're identical?


Real twins aren't like Fred and George Weasley. I've known several pairs, and after a couple weeks you learn to distinguish them -- differences in personality, ways of walking, subtle physical differences like skin tone or freckles. Usually it's nothing you can describe, but it is noticeable.
5.22.2007 12:30am
ReaderY:
As the North Carolina Court of Appeals once noted, "The law of the child is not the law of the market." Children do not necessarily come into the world by contract, or fairly, and the law of the child is about what is best for the child, not about what was agreed to or what is fair. Life is often unfair. Sometimes the best possible law for a society has to reflect that.
5.22.2007 12:30am
Dave Wangen (mail):
Frankly, I'm surprised the mother isn't seeking child support from both. "DNA testing proves this man is 99.9% likely to be the father of my child!"
5.22.2007 3:49am
NickM (mail) (www):
This sounds like a good case for triple parenting.

Nick
5.22.2007 5:58am
Pete Freans (mail):
As Frank Costanza would say on Seinfeld, "That's perverse!"
5.22.2007 9:03am
JeffW:
The real point is to get a kid someone in a father position ($ is a minor part of this). Really it should be whichever man can be best convinced that he is the father. If nobody can be so convinced, it would be better not to have anyone.
5.22.2007 9:18am
Larry2:

It seems reasonable that each brother should be on the hook for at least one-half of the child's support.

But this strategy gives us, for certain, two outcomes we know to be unjust:
1) The responsible man pays only half of what he owes.
2) An innocent man is being held liable for something he did not cause. The fact that his DNA is identical to the guilty man's doesn't change this. If a murderer's blood evidence matched two identical twins, we wouldn't imprison both of them for half the otherwise-applicable sentence.



Good analysis Anonymo. But it seems the child support laws aren't always concerned with justice. Their primary aim is to get money from someone. For those people who will argue this point, just look at the many cases in which the guy finds out a year or more after the birth that he is not actually the father (through a DNA test) and goes to the court to stop his child support payments,and is told no; once he started paying, even as a result of fraud, he has assumed the obligation to do so until the child turns 18, or 21.
5.22.2007 11:03am
Houston Lawyer:
I say make neither man pay. It was her behavior that led to the confusion.

Either that or give custody of the child to one of the twins and make her pay child support.
5.22.2007 12:28pm
ShelbytheIntern (mail) (www):
What a pair of low lifes! Niether one wants to pay child support - yet they're fine with sleeping with the chick, who obviously has a few screws loose herself. Of all the times they hooked up, I find it hard to believe that one of their names never came up... hey richard! "I'm Raymond!"
Weird.

Curious? Check out Christopher Ruddy
5.22.2007 3:27pm
Deoxy (mail):
Larry2 is exactly correct about child support laws and "justice" (the two never met).

And yes, Nathan_M, get off your ridiculous high-horse - utterly NO sexism is required to call her "loose" while not doing so to the guys, as has been explained multiple times already on this thread.

If a guy was sleeping with identical twin women (without either of them knowing about it), the same could be said of him. It is indeed possible that the same word might not be used, but the moral judgement would be the same.
5.22.2007 3:43pm
kd5yov - bryan:
So what would happen if this was not about a child, but about a murder and both of them had the same odds of being the DNA match? Would both be convicted?? That is double jeopardy there... Who has the better of the two of sperm count, maybe one of them isn't able to have kids, and the other one is!! Maybe this is where they need to look to see who might be the true father.
5.22.2007 4:24pm