Gale Encyclopedia Of American Law 3Rd Edition Volume 5 P37 doc

husband’s exclusive privilege to obtain sexual
services from his wife. The basis of recovery is
the public policy in favor of preserving marriage
and the family.
ALIENATION OF AFFECTION
is another seldom-prosecuted action. In this
type of action, a husband must prove that
another man won his wife away from him,
thereby depriving him of love, comfort, and
companionship.
Because of the theories that gave rise to such
causes of action, very few jurisdictions recognize
lawsuits based on
HEART BALM ACTS. Yet, even
today,
TORT LAW retains some special rules for
husbands and wives when an outsider causes
injury to the marital or family relationship.
Consortium is the marital relationship between
two people that encompasses their mutual right
to support, cooperation, and companionship.
An action for loss of consortium is based on the
inconvenience of having a debilitated spouse.
Husbands and wives have won suits for
damages for injuries to their spouse precipitated
by such things as
MEDICAL MALPRACTICE, autom o-
bile accidents,
FALSE IMPRISONMENT, and WRONGFUL
DEATH
.

Under common law, a husband was held
responsible for any crimes committed by his
wife against a third party. Although a wife had
responsibility for crimes she committed, there
was a legal presumption that her husband
compelled her to perform any act she under-
took when he was present. Today, husbands and
wives are equally liable for their own criminal
actions.
Privileged Communication
The law of evidence includes a privilege extended
to a married couple so that neither a husband
nor a wife can be compelled to testify against a
spouse. This rule was designed to protect
intrafamily relations and privacy. In addition, it
was meant to promote communication between
husbands and wives by making revelations
between them strictly confidential.
In 1980 the U.S. Supreme Court, in Trammel
v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L.
Ed. 2d 186, held that husbands and wives were
permitted to testify against one another volun-
tarily in a federal criminal prosecution. Many
states now allow a spouse to testify against a
husband or wife, but with the caveat that the
testimony is subject to the accused spouse’s
consent. Other states view the spouse of an
accused person as an ordinary witness who
can be forced to testify against the accused
person.

Domestic Abuse
It was once presumed that a husband should
have the right to exert physical control over his
wife, if only to protect himself from liability for
his wife’s actions. Therefore, common law
permitted a husband to discipline his wife
physically. Interspousal tort immunity made it
impossible for a wife to succeed in an action
against her husband. It was rare for a w ife to
accuse her husband of a crime, and a wife was
forbidden to testify against her husband. In the
early twenty-first century, a wife is almost always
permitted to testify against a husband who has
been accused of causing intentional injury to her
or their child. With interspousal tort immunity
all but abrogated in most jurisdictions, husbands
and wives can now recover in suits against one
another under the theories of
FRAUDULENT
MISREPRESENTATION
, BATTERY, intentional infliction
of emotional distress, and
NEGLIGENCE.
The common law right of a husband to
discipline his wife, combined with interspousal
tort immunity, prevented incidents of domestic
abuse from becoming public. In addition,
victims of domestic abuse often did not reveal
the extent of their injuries for fear of reprisals.
Little legal relief was ava ilable, as courts were

hesitant to interfere in the marital relationship.
With the
ABROGATION of interspousal tort
immunity, the U.S. public has become aware
of domestic abuse as a nationwide issue.
In some cases, victims of domestic abuse
who have i njured or killed their spouse as a
means of
SELF-DEFENSE against violence an d abuse
have been acquitted o f criminal charges. The
battered-spous e syndrome is a defense these
men and women have asserted. The syndrome is
a subcategory of post-traumatic stress disorder.
Experts seek to explain why some spouses
remain in abusive relationships and others
finally use violence to break o ut of such
relationships. Because battere d women are
typically economically dependent on their
husband, they hesitate to seek help until the
violence escalates to the point where they
believe the only way to free themselves is to kill
their abuser.
In 2009 the Supreme Court affirmed the
application of the 1996 Lautenberg Amendment
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
348 HUSBAND AND WIFE
to the GUN CONTROL Act of 1968 (which prohibits
gun ownership by anyone convicted of a
MISDEMEANOR crime of DOMESTIC VIOLENCE,18U.
S.C. 922(g)(9)), to cover anyone convicted of

any violent misdemeanor committed against a
family member or domestic partner. United
States v. Hayes No. 07-608, 129 S.Ct. 1079, 172
L.Ed.2d 816 (2009).
DEFENDANT Haye s had
argued that the amendment only applied to
convictions under specific laws proscribing
domestic violence, not general laws proscribing
violence that just happened to be committed
against family members. Also in 2009, the
White House announced the appointment of a
White House Advisor on Violence Against
Women, Lynn Rosenthal, a former executive
director of the New Mexico Coalition Against
Domestic Violence.
Same-Sex Marriage
In the 1980s and early 1990s, lawsuits were
initiated to expand the traditional husband-
and-wife relationship, and the rights and
privileges that relationship conveys, to partners
of the same sex. In a landmark case, Baehr v.
Lewin, 74 Haw. 645, 852 P.2d 44 (1993), the
Hawaii Supreme Court, although rejecting the
idea that the Hawaii Constitution gives same-
sex couples a
FUNDAMENTAL RIGHT to marriage,
held that Hawaii’s marriage statute (Haw. Rev.
Stat. § 572-1) discriminates on the basis of sex
by barring people of the same sex from
marrying. As a result, such statutes are

subject to
STRICT SCRUTINY . However, in 1998
Hawaiian voters overwhelmingly approved a
CONSTITUTIONAL AMENDMENT that, while not
banning same-sex marriage, gave the legis lature
the power to restrict marriages to opposite-sex
couples.
In 1996, la rgely in response to Baehr,
Congress passed the Defense of Marriage Act
(110 Stat. § 2419), which defines marriage as “a
legal union between one man and one woman
as husband and wife.” The term spouse is
defined as a “person of the opposite sex who
is a husband or a wife.” In effect, the Defense of
Marriage Act states that the federal government
does not acknowledge same-sex marriages.
In 2001, however, Vermont became the first
state to enac t a law recognizing “civil unions”
between same-sex couples (23 V.S.A. § 1201 et
seq. [2000]). The 2000 law came in response to a
1999 Vermont Supreme Court ruling (Baker v.
Vermont, 170 Vt. 194, 744 A.2d 864 [1999]),
which found that the benefits and protections
guaranteed by the Vermont Constitution for
opposite-sex couples extend to same-sex cou-
ples. Benefits and protections include access to a
spouse’s medical, life, and disability insurance;
hospital visitation, and other medical decision-
making privileges; spousal support; and the
ability to inherit property from a deceased

spouse without a will.
In October 2008 the Supreme Court of
Connecticut ruled that denying same-sex cou-
ples the same rights, responsibilities, and
designation of being “married” violated the
equal protection clause of the state’s constitu-
tion. Kerrigan v. Commissioner of Public Health,
SC 17716. Weeks later, in November 2008,
the state began to issue marriage licenses to
same-sex couples. Connecticut thus became the
third state ever to issue marriage licenses to
same-sex couples, following Massachusetts
(2004) and California (2008). The California
Supreme Court had ruled just five months
earlier, in May 2008. In re Marriage Cases, No.
S147999, 183 P.3d 384. However, subsequent to
California’s court decision, California voters
reversed the ruling through Proposition 8, a
ballot initiative in the November 2008 elections
that would amend California’s constitution.
California’s reversal left only two states permit-
ting same-sex marriages until the Iowa Supreme
Court, on April 3, 2009, legalized gay marriages
by also ruling that Iowa restrictions violated the
state’s constitution. This ruling again brought
the total to three states upholding such
marriages. These three states were followed
by Vermont, which also upholds same-sex
marriages.
FURTHER READINGS

Chriss, Margaret J. 1993. “Troubling Degrees of Authority:
The Continuing Pursuit of Unequal Marital Roles.”
Law & Inequality Journal 12 (December).
Hartog, Hendrik. 2000. Man and Wife in America: A History.
Cambridge, Mass.: Harvard University Press.
Keane, Thomas M. 1995. “Aloha, Marriage? Constitutional
and Choice of Law Arguments for Recognition
of Same-Sex Marriages.” Stanford Law Review 47
(February).
Krause, Harry D. and David D. Meyer. 2007. Family Law in
a Nutshell. 5th ed. St. Paul, Minn.: West Group.
Nickles, Don. 1996. “Defense of Marriage Act.” Congressio-
nal Record 142.
“Same-Sex Marriages and Civil Unions: On Meaning, Free
Exercise, and Constitutional Guarantees.” 2002. Loyola
Law Journal 33.
“Vermont Legislature Legalizes Same-Sex Marriage.” 2009.
The Washington Post, April 7.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
HUSBAND AND WIFE 349
Waggoner, Lawrence W. 1994. “Marital Property Rights in
Transition.” Missouri Law Review 59 (winter).
Wanamaker, Laura H. 1994. “Waite v. Waite: The Florida
Supreme Court Abrogates the Doctrine of Interspousal
Immunity.” Mercer Law Review 45 (winter).
CROSS REFERENCES
Cohabitation; Domestic Violence; Family Law; Gay and
Lesbian Rights
HYPOTHECATE
To pledge property as security or collateral for a

debt. Generally, there is no physical transfer of the
pledged property to the lender, nor is the lender
given title to the property, though he or she has the
right to sell the pledged property in the case of
default.
HYPOTHESIS
An assumption or theory.
During a criminal trial, a hypothesis is a
theory set forth by either the prosecution or the
defense for the purpose of explaining the facts
in evidence. It also serves to set up a ground for
an inference of guilt or innocence, or a showing
of the most probable motive for a criminal
offense.
HYPOTHETICAL QUESTION
A mixture of assumed or established facts and
circumstances, developed in the form of a coherent
and specific situation, which is presented to an
expert witness at a trial to elicit his or her opinion.
When a hypothetical question is posed, it
includes all the facts in evidence needed to form
an opinion and, based on the assumption that
the facts are true, the witness is asked whether
he or she can arrive at an opinion, and if so, to
state it.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
350 HYPOTHECATE
IBID.
An abbreviation of the Latin ibidem, meaning “in
the same place; in the same book; on the same

page.”
ICC
See INTERSTATE COMMERCE COMMISSION.
IDEM
Latin, “the same.” Typically abbreviated “id.,” it
is used in lega l and scholarly bibliographic
citations to indicate a previously cited reference.
IDENTITY THEFT
Identity theft is the assumption of a person’s
identity in order, for instance, to obtain credit; to
obtain credit cards from banks and retailers; to
steal money from existing accounts; to rent
apartments or storage units; to apply for loans;
or to establish accounts using another’s name.
An identity thief can steal thous ands of
dollars in a victim’s name without the victim
even knowing about it for months or years.
Identity thieves are able to accomplish their
crimes by doing things such as opening a new
credit card account with a false address, or using
the victim’s name, date of birth, and
SOCIAL
SECURITY
number. When the thief uses the credit
card and does not pay the resulting bills, the
delinquent account is reported on the victim’s
credit report.
As increasing numbers of businesses and
consumers rely on the
INTERNET and other forms

of electronic communication to conduct trans-
actions, so too is illegal activity using the very
same media on the rise.
FRAUDULENT schemes
conducted via the Internet are generally difficult
to trace and to prosecute, and they cost
individuals and businesses millions of dollars
each year.
The Internet has facilitated identify theft,
but stolen wallets, mail, and physical documents
account for a large percentage of stolen
information. However, the use of “phishing”
by online criminals has proved to be an effective
way of stealing personal information. The
criminal seeks credit card numbers, passwords,
and other information by posing as a trusted
entity, such as a financial institution, in e-mails
and text messages sent to potential victims. The
person is directed through a hyperlink to a Web
site that appears to be authentic. If the person
provides sensitive information through this
Web site, the criminal can gain access to bank
and credit accounts. In response, banks and
credit card companies have provided more
security to customers that try to ensure that
the customer will not be tricked.
Identify theft is also facilitated by the illegal
acquisition of databases held by financial
institutions, credit reporting services, and
I

351
government units. By exploiting security
breaches, computer hackers have been able to
gain access to credit information, social security
numbers, and other details that allow them to
drain bank accounts and run up large credit
card and phone bills. For example, more than
100 U.S. military officers were involved in a case
of identity the ft. Defendants in the case illegally
acquired the names and social security numbers
of the military personnel from a web site, then
used the Internet to apply for credit cards issued
by a Delaware bank. In another case of identity
theft and
FRAUD,aDEFENDANT stole personal
information from the web site of a federal
agency, and then used the information to make
applications for an online auto loan through a
Florida bank. In 2006 the theft of a laptop
computer from a Department of Veterans Affairs
(VA) employee set off a national panic as 19
million veterans and current military personnel
discovered that their birthdates and social
security numbers were at peril. Fortunately, the
laptop was recovered, and the FBI concluded
that no data had been accessed. However, the VA
paid millions for credit insurance to protect the
credit of veterans.
In October 1998 Congress passed the Iden-
tity Theft and Assumption Deterrence Act of

1998 (Identity Theft Act) 18 U.S.C. § 1028 to
address the problem of identity theft. Specifi-
cally, the Act amended 18 U.S.C. § 1028 to
make it a federal crime when anyone: knowingly
transfers or uses, without lawful authority, a
means of identification of another person with
the intent to commit, or to aid or abet, any
unlawful activity that constitutes a violation of
federal law, or that constitutes a felony under
any applicable state or local law. Violations of
the act are investigated by federal investigative
agencies such as the U.S.
SECRET SERVICE, the FBI,
and the U.S. Postal Inspection Service and are
prosecuted by the
DEPARTMENT OF JUSTICE.
The
FEDERAL TRADE COMMISSION (FTC) is the
federal clearinghouse for complaints by victims
of identity theft. Although the FTC does not
have the authority to bring criminal cases, it
assists victims of identity theft by providing
them with information to help them to resolve
the financial and other problems that can result
from identity theft. The FTC also may refer
victim complaints to other appropriate govern-
ment agencies and private organizations for
further action. It has an identity theft section
on its Web site: www.ftc.gov. In 2008, the FTC
disclosed that 26 percent of complaints it

received involved identity theft.
Consumers can protect themselves from
this type of crime by protecting information
such as credit card and social security numbers
and by shredding mailed offers to obtain credit.
They also can check their credit reports for
unknown accounts. In the event of identity
theft, an alert can be placed on a
CREDIT BUREAU
that notifies consumers of potential fraudulent
activity. Consumers who are victims can also
write a statement that will appear on their credit
reports explaining the criminal activ ity. Most
banks and major credit card companies have
fraud departments with staff who are trained to
address these situations, but often the consumer
feels that the onus is on him or her to prove lack
of wrongdoing, and many victims report
frustration at having their credit and lives
destroyed by identity theft. A number of states
have taken action to make identity theft a state
crime. Consumers can also purchase insurance
to protect them from financial respon sibility for
identity theft, but most credit card companies
do not charge customers for fraudulent charges.
Identity Theft, by Type, in 2007
Percentage of victims
Type of theft
Credit card fraud
Phone or utilities fraud

Bank fraud
Employment-
related fraud
Government documents
or benefits fraud
Loan fraud
Other
23%
18%
13%
14%
11%
5%
25%
SOURCE: Federal Trade Commission, Consumer Fraud and Identity Theft
Complaint Data, January–December 2007, Februar
y
13, 2008.
The total number of identity theft victims was 258,427. Approximately 16% of victims reported
experiencing more than one type of identity theft.
0 5 10 15 20 25
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE, A
PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
352 IDENTITY THEFT

FURTHER READINGS
Collins, Judith M. 2006 Investigating Identity Theft: A Guide
for Businesses, Law Enforcement, and Victims. New York:
Wiley.
Cullen, Terri. 2007 The Wall Street Journal Complete Identity
Theft Guidebook.New York: Three Rivers Press.
Stickley, Jim. 2008The Truth about Identity Theft. Upper
Saddle River, New Jersey: FT Press.
I.E.
An abbreviation for the Latin id est, “ that is to
say, meaning.”
ILLEGAL ALIENS AND IMMIGRATION
See ALIENS.
ILLEGITIMACY
The condition before the law, or the social status,
of a child whose parents were not married to each
other at the time of his or her birth.
The term nonmarital child is also used
interchangeably with illegitimate child.
English common law placed harsh penalties
on an illegitimate child, denying the child
inheritance and property rights. Modern law
has given the nonmarital child more rights but
still differentiates between the marital and
nonmarital status. In addition, a rising level of
out-of-wedlock births in the United States has
drawn the attention of politicians and policy
makers.
Common Law and Illegitimacy
A child was considered to be ille gitimate at

common law if the parents were not married to
each other at the time of the child’s birth even
though the parents were marr ied later.
There was a common-law presumption that
a child born of a married woman was legitimate.
This presumption was rebuttable, however, upon
proof that her husband either was physically
incapable of impregnating her or was absent at
the time of conception. In addition, a child born
of a
MARRIAGE for which an annulment was
granted was considered illegitimate, because an
annulled marriage is void retroactively from its
beginning. Furthermore, if a man married a
second time while still legally married to his first
wife, a child born of the bigamous marriage was
illegitimate.
At common law an illegitimate child was a
fillius nullius (child of no one) and had no
parental inheritance rights. This deprivation was
based in part on societal and religious beliefs
concerning the sanctity of the marital relation-
ship, as well as the legal principles that property
rights were determined by blood relationships.
The legal rights and duties of a person born of
married parents could be ascertained more
accurately than those of a child with an
unknown or disputed father. Public policy in
favor of ma intaining solid family relationships
contributed significantly to the preference for a

legitimate child.
Modern Law
The harsher aspects of the common law dealing
with an illegitimate child have been eliminated,
primarily through the application of the
EQUAL
PROTECTION
Clause of the FOURTEENTH AMENDMENT
to the U.S. Constitution. In Levy v. Louisiana,
391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 436
(1968), the Supreme Court ruled that a state
statute (La. Civ. Code Ann. Art. 2315) that
barred illegitimate children from recovering
damages for the
WRONGFUL DEATH of their mother,
but allowed legitimate children to recover in
similar circumstances, was invalid because it
denied illegitimate children equal protection of
the law.
The Supreme Court also enhanced the right
of an illegitimate child to inherit property.
Whereas most states had given legitimate and
illegitimate children the same right to inherit
Births to Unmarried Women as Percentage of
All Births, 1980 to 2006
5
10
15
20
25

30
35
40
45
50
Percent
38.5
33.2
32.2
28.0
22.0
18.4
0
SOURCE: U.S. Department of Health and Human
Services, Centers for Disease Control and Prevention,
National Center for Health Statistics, National Vital
Statistics Reports, vol. 57, no. 7, January 2009.
1980 1985 1990 1995 2000 2006
Year
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE, A
PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
ILLEGITIMACY 353
property from the mother and her family, a
number of states did not allow an illegitimate

child to inherit property from the father in the
absence of a specific provision in the father’s
will. In Trimble v. Gordo n, 430 U.S. 762, 97 S.
Ct. 1459, 52 L. Ed. 2d 31 (1977), the Supreme
Court ruled such provisions in an Illinois
statute invalid.
A majority of states now subscribe to the
theory that a child born of any union that has
the characteristics of a formal marriage rela-
tionship is entitled to legitimate status. This
theory includes children born of marriages that
fail owing to legal technicalities as well as
children of void or voidable marriages.
Some states still recognize the validity of
COMMON-LAW MARRIAGE, which takes place when
a man and woman cohabit for an extensive
period, and hold themselves out to the public as
being hus band and wife even though they were
never formally married. In such states children
born of such arrangements are considered
legitimate. Common-law marriages were a
convenient mechanism in the nineteenth cen-
tury for establishing property rights and legiti-
mating children. Frontier society accepted the
economic necessity for permitting such mar-
riages because it was difficult for people on the
frontier to obtain a formal marriage license;
without common-law marriages, many children
would have been declared illegitimate.
Legal Presumption of Legitimacy

The presumption of legitimacy is a strong legal
presumption because public policy favors legiti-
macy to preserve stable family groupings. This
presumption can be rebutted only if it can be
clearly establi shed that the child in question is
illegitimate. A child born to a married couple is
presumed to be their legitimate offspring in the
absence of a clear demonstration that the
husband could not possibly be the fath er.
Legitimation is the process whereby the
status of a child is changed from illegitimate to
legitimate. Some statutes provide that a child
becomes legitimated upon an open acknowl-
edgment of paternity by the alleged father. In
some states an oral admission is sufficient, but
in other states a written statement is required. A
majority of states prescribe that an acknowledg-
ment must be coupled with an act in order for
the child to be declared legitimate. An adequate
act in some states is the marriage of the child’s
natural parents. Once a child has been deter-
mined to be legitimate, he or she is entitled to
the same rights and protections as any individ-
ual whose legitimacy has never been questioned.
Paternity Actions
A PATERNITY SUIT,orAFFILIATION PROCEEDING, may
be brought against a father by an unmarried
mother. This
CIVIL ACTION is intended not to
legitimate the child but to obtain support for

the child and often to obtain the payment of
bills incident to the pregnancy. Ordinarily, the
mother starts the civil lawsuit, but some states
allow public authorities to bring a paternity
action for the mother if she refuses to do so. If
the mother is on welfare, a paternity action is a
vehicle for the local government agency to
obtain financial assistance from the father.
A paternity action must start within the time
prescribed by the
STATUTE OF LIMITATIONS,orthe
mother’s right to establish the putative father’s
paternity and corresponding support obligation
will be lost. The evidence needed to establish
paternity includes the testimony of the mother,
blood and DNA tests, and in some states
photographs from which to determine similar
facial characteristics of the alleged father and the
child.
Legal Rights of Fathers
Whether a father acknowledges paternity or is
adjudged to be the father in a paternity action,
he has more custody rights today than at
common law. At common law fathers were
assumed to have little concern for the well-
being of their illegitim ate offspring. Historically,
in most jurisdictions, if a child was illegitimate,
the child could be adopted with only the
consent of his or her natural mother.
This assumption, as embodied in a New

York statute (N.Y. Domestic Relations Law §
111), was challenged in Caban v. Mohammed,
441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297
(1979). The key issue was whether the consent
of an unwed biological father had to be
obtained before an adoption could be finalized.
The Supreme Court ruled that a law depriving
all unwed fathers of the right to decide against
adoption, whether or not they actually took care
of the children in question, was unconstitution-
al and a form of
SEX DISCRIMINATION.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
354 ILLEGITIMACY
Artificial Insemination
Legitimacy issues have arisen when a child is
conceived by
ARTIFICIAL INSEMINATION. This process
involves impregnating a woman, without sexual
intercourse, with the semen of a donor who
might be her husband or another party. Some
states adhere to traditional views and consider
any child conceived in this manner to be
illegitimate, regardless of whether the husband
gave his consent to the procedure. Other courts
declare that a child is legitimate if the husband
consented. A child is most likely considered
illegitimate when the mother was unmarried
and was artificially inseminated by an unknown
donor, and remains unmarried. In most cases of

artificial insemination, the father has donated
semen anonymously, and his identity is not
known.
Current Trends
The rate of illegitimate births in the United
States has risen sharply since the early 1970s. In
the 1940s fewer than five percent of the total
births were out of wedlock. By the early 2000s,
according to statistics compiled by the Center
for Hea lth Statistics at the U.S.
HEALTH AND
HUMAN SERVICES DEPARTMENT
, births to unmarried
mothers accounted for nearly one-third of all
U.S. births.
FURTHER READINGS
Roberts, Patricia G. 1998. “Adopted and Nonmarital
Children—Exploring the 1990 Uniform Probate Code’s
Intestacy and Class Gift Provisions.” Real Property,
Probate and Trust Journal 32 (winter).
Sigle-Rushton, Wendy, and Sara McLanahan. 2002. “The
Living Arrangements of New Unmarried Mothers.”
Demography (August). Available online at http://www
.northwestern.edu/ipr/jcpr/workingpapers/wpfiles/
siglerushton_mclanahan.pdf; website home page: http://
www.northwestern.edu (accessed July 31, 2009).
Terry-Humen, Elizabeth, Jennifer Manlove, and Kristen A.
Moore. 2001. “Births outside of Marriage: Perceptions
vs. Reality.” Child Trends Research Brief (April).
Available online at />Child_Trends-2001_04_01_RB_BirthsMarriage.pdf;

website home page: (accessed
July 31, 2009).
Robert L. Johnson’s Son? The Rights
of Illegitimate Heirs
R
B
obert L. Johnson is an important figure in blues
music. Though he recorded only 29 songs
before his death in 1938, at age 27, Johnson’ssongs,
voice, and guitar playin g have influenced many
great musicians, including Muddy Waters, Keith
Richards, and Eri c Clapton. The Mississippi blues-
man’s recordings became a comme rcial success in
the late 1960s, and by 1990 his collected works were
released on co mpact discs.
Johnson married twice. Both wives died before
he did and left no children. In 1974 Johnson’shalf-
sister, Carrie Thompso n, sold the copyrights of his
songs and photographs, ass erting that she was
entitled to hi s estate. Upon he r death in 1983, her
half-sister Annye Anderson inheri ted her purported
rights to Johnson’swork.
When Anderson finally probated Johnson’s
estate in 1991, Claud L. Johnson filed a claim
stating that he was the illegi timate son of Johnson
and the sole heir of the bluesman. Claud Johnson
produced a Mississippi birth certi ficate from 1931
that lists R. L. Johnson as his father.
But for the U.S. Supreme Court’s ruling in
Trimble v. Gordon, 430U.S.762,97S.Ct.1459,52

L. Ed. 2d 31 (1977), Claud Joh nson co uld not have
made his cl aim. Until Tri mble Mississippi prohibited
illegitimate children from inheriting from their father.
Anderson argued that Claud Johnson’s claim
should be dismissed bec ause he had waited too
long to file i t. A county court agreed with Anderson,
but the Miss issippi Supreme Court reversed the
lower court’s decision, ruling that the intent of state
law was to give the s ame rights to illegitimate as to
legitimate children (In re Estate of Johnson, 1996 WL
138615 [Miss.]). The supreme court sent the case back
to the co unty court, wh ich is to determine whether
Claud Johnson is the son of Robert Johnson. If so, he
is entitled to Robert Johnson’s estate.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ILLEGITIMACY 355
CROSS REFERENCES
Child Custody; Child Support; DNA Evidence; Family Law;
Parent and Child.
ILLICIT
Not permitted or allowed; prohibited; unlawful; as
an illicit trade; illicit interco urse.
ILLUSORY PROMISE
A statement that appears to assure a perfo rmance
and form a contrac t but, when scrutinized, leaves
to the speaker the choice of performance or
nonperformance, which means that the speaker
does not legally bind himself or herself to act.
When the provisions of the purported
promise render the performance of the person

who makes the promise optional or completely
within his or her discretion, pleasure, and
control, nothing absolute is promised; and the
promise is said to be illusory. For example, a
court decided that a promise contained in an
agreement between a railroad and an iron
producer whereby the railroad promised to
purchase as much iron as its board of directors
might order was illusory and did not form a
contract.
IMMATERIAL
Not essential or necessary; not i mportant or
pertinent; not decisive; of no substantial conse-
quence; without weight; of no material significance.
IMMEDIATE CAUSE
The final act in a series of provocations leading to
a particular result or event, directly producing
such result without the interv ention of any further
provocation.
For example, if an individual who was
driving while intoxicated crashed his or her
car and was killed, the immediate cause of death
was the crash. The
PROXIMATE CAUSE, however,
was the individual’s state of intoxication.
IMMIGRATION
The entrance into a country of foreigners for
purposes of perman ent residence. The correlative
term
EMIGRATION denotes the act of such persons in

leaving their former country.
CROSS REFERENCE
Aliens.
IMMIGRATION AND NATURALIZATION
See ALIENS.
IMMINENT
Impending; menacingly close at hand; threatening.
Imminent peril, for example, is danger that
is certain, imm ediate, and impending, such as
the type an individual might be in as a result of
a serious illness or accident. The chance of the
individual dying would be highly probable in
such situation, as opposed to remote or con-
tingent. For a gift causa mortis (Latin for “in
anticipation of death”) to be effective, the donor
must be in imminent peril and must die as a
result of it.
IMMUNITY
Exemption from performing duties that the law
generally requires other citizens to perform, or
from a penalty or burden that the law generally
places upon other citizens.
Sovereign Immunity
SOVEREIGN IMMUNITY prevents a soverei gn state or
person from being subjected to suit without its
consent.
The doctrine of sovereign immunity stands
for the principle that a nation is immune from
suit in the courts of another country. It was
first recognized by U.S. courts in the case of

The Schooner Exchange v. M’Faddon, 11 U.S.
(7 Cranch) 116, 3 L. Ed. 287 (1812). At first,
courts espoused a theory that provided absolute
immunity from the jurisdiction of a U.S. court
for any act by a foreign state. But beginning in
the early 1900s, courts relied on the political
branches of government to define the breadth
and limits of sovereign immunity.
In 1952 the U.S.
STATE DEPARTMENT reacted to
an increasing number of commercial transac-
tions between the United States and foreign
nations by recognizing foreign immunity only
in noncommercial or public acts, and not in
commercial or private acts. However, it was
easily influenced by foreign diplomats who
requested absolute sovereign immunity, and
the application of sovereign immunity became
inconsistent, uncertain, and often unfair.
Complaints about inconsistencies led to the
passage of the Foreign Sovereign Immunities
Act of 1976 (28 U.S.C.A. §§ 1 note, 1330, 1332,
1391, 1441, 1602–1611). By that act, Congress
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
356 ILLICIT
codified the theory of sovereign immunity,
listing exceptions for certa in types of acts
such as commercial acts, and granted the
exclusive power to decide sovereign immunity
issues to the courts, rather than to the State

Department.
Indian tribes have been granted sovereign
immunity status by the United States, and
therefore they generally cannot be sued without
the consent of either Congress or the tribe. This
immunity is justified by two consid erations:
First, historically, with more limited resources
and tax bases than other governments, Indian
tribes generally are more vulnerable in lawsuits
than are other governments. Second, granting
sovereign nation status to tribes is in keeping
with the federal policy of self-determination for
Indians.
Indian tribes are immune from suit whether
they are acting in a governmental or a
proprietary capacity, and immunity is not
limited to acts conducted within a reser vation.
However, individual members of a tribe do not
receive immunity for their acts; only the tribe
itself is immune as a sovereign nation.
Governmental Tort Immunity
Sovereign immunity may also apply to federal,
state, and local governments within the United
States, protecting these governments from being
sued without their consent. The idea behind
domestic sovereign immunity—also called gov-
ernmental tort immunity—is to prevent money
judgments against the government, as such
judgments would have to be paid with
taxpayers’ dollars. As an example, a private

citizen who is injured by another private citizen
who runs a red light generally may sue the other
driver for
NEGLIGENCE. But under a strict
sovereign immunity doctrine, a private citizen
who is injured by a city employee driving a city
bus has no
CAUSE OF ACTION against the city
unless the city, by ordinance, specifically allows
such a suit.
Governmental tort immunity is codified at
the federal level by the
FEDERAL TORT CLAIMS ACT
(28 U.S.C.A. § 1291 [1946]), and most states
and local governments have similar statutes.
Courts and legislatures in many states have
greatly restricted, and in some cases have
abolished, the doctrine of governmental tort
immunity.
Official Immunity
The doctrine of sovereign immunity has its
roots in the law of feudal England and is based
on the tenet that the ruler can do no wrong.
Public policy grounds for granting immunity
from civil lawsuits to judges and officials in the
Executive Branch of government survive even
today. Sometimes known as official immunity,
the doctrine was first supported by the U.S.
Supreme Court in the 1871 case of Bradley v.
Fisher, 80 U.S. 335, 20 L. Ed. 646. In Bradley, an

attorney attempted to sue a judge because the
judge had disbarred him. The Court held that
the judge was absolutely immune from the civil
suit because the suit had arisen from his judicial
acts. The Court recognized the need to protect
judicial independence and noted that malicious
or imp roper actions by a judge could be
remedied by impeachment rather than by
litigation.
Twenty-five years later, in Spalding v. Vilas,
161 U.S. 483, 16 S. Ct. 631, 40 L. Ed. 780
(1896), the Court expanded the doctrine to
include officers of the federal Executive Branch.
In Spalding, an attorney brought a defamation
suit against the U.S. postmaster general, who
had circulated a letter that criticized the
attorney’s motives in representing local post-
masters in a salary dispute. At that time, the
postmaster general was a member of the
president’s cabinet. The Court determined that
the proper administration of public affairs by
the Executive Branch would be seriously
Air Force analyst
A. Ernest Fitzgerald
sued President Nixon
for firing him after
Fitzgerald disclosed
to Congress huge cost
overruns in the
Defense Department.

The Supreme Court
held that the president
is immune from civil
lawsuits arising from
official acts performed
while in office.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
IMMUNITY 357