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6 J. Fam. L. 94 (1966)
Voluntary Sterilization as a Crime: Applicability of Assault and Battery and of Mayhem

handle is hein.journals/branlaj6 and id is 98 raw text is: Voluntary Sterilization as a Crime:
Applicability of Assault and Battery
and of Mayhem
The status of voluntary sexual sterilization under the
criminal laws of the states is generally felt to be unclear.'
This is surprising, in view of the fact that the estimated num-
ber of Americans sterilized is about 1,500,000, with the figure
presently increasing about 100,000 each year.' Because of the
high incidence of voluntary sterilization, it would be profitable
to review its status under the criminal law and to suggest posi-
tions for courts and legislatures toward it.'
As a preliminary matter, certain characteristics of sexual
sterilization must be kept in mind.4 For one thing, steriliza-
tAssociate Professor of Law, University of North Dakota. B.A., University
of Texas; LL.B., University of Texas; LL.M. candidate, 1966, New York Uni-
1. Miller and Dean, Liability of Physicians for Sterilization Operations,
16 A.B.A.J. 158 (1930); Smith, Liability in the Practice of Surgery, 14 Rocky
Mont. L. Rev. 233, 277 (1942); Williams, The Sanctity of Life and the Criminal
Law 102-110 (1957); Donelly, Review of The Sanctity of Life and the Crimi-
nal Law, 67 Yale L.J. 753, 757 (1958); Donnelly and Ferber, The Legal and
Medical Aspects of Vasectomy, 81 J. of Urology 259 (1959.); Hughes, Two
Views on Consent in the Criminal Law, 26 Modern L. Rev. 233, 237 (1963);
Wolf, Legal and Psychiatric Aspects of Voluntary Sterilization 3 J. Family Law
103, 118-123 (1963); and Elective Sterilization, 113 U. Pa. L. Rev. 415 (1965).
2. Time, Jan. 15, 1965, p. 43; and Greenhill, World Trends with Thera-
peutic Abortion and Sterilization, 7 Clinical Obstetrics and Gynecology 37, 40
3. There would appear to be no problem with the status of involuntary
sterilization under the criminal laws, because there being no consent, either
assault and battery or mayhem would be applicable.
However, there are some problems arising out of possible tort liability for
voluntary sterilizations, which in general parallel those found in the criminal
law. On the other hand, additional problems are present with tort liability.
For example, some states allow consent to tort liability, but not as to criminal
liability. Thus, while consent to sterilization might not be a good defense to
criminal liability, it might preclude tort liability. Moreover, tort liability may
be predicated upon the failure to obtain the consent of the spouse, whereas
under criminal law such consent would not seem necessary as a defense. Lastly,
negligence is a factor in tort cases, while it would generally be immaterial in
criminal law if it fell short of reckless conduct.
4. For a general description of sterilization, see Guttmacher, Sterilization,
The Nation, Apr. 6, 1964, p. 344.

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