Why Penny and Robbie Risked Pregnancy, Part 1
Why Penny and Robbie Risked Pregnancy, Part 2
Robbie's View of Penny as His Potential Wife
"Going Steady" versus "Going Slumming"
Robbie Gould's Denial of Paternity
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Penny had become pregnant in late June. By mid-August she figured from her nausea and missed menstrual period that she was pregnant. (It's possible but unlikely that she already had gone to a medical specialist and confirmed her pregnancy with a hemagglutination assay test, which became available in 1960.)
During the time when both Penny and Robbie knew about her pregnancy but before Penny received the abortion money, there must have been some thought that Penny might give birth. If a child was born and if Penny did not give it up for adoption, then Penny surely would have sued Robbie for child support.
Although the movie Dirty Dancing does not address the possibility of a childbirth and of a paternity lawsuit, that possibility surely was a consideration between Penny and Robbie early in the movie.
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In this article here, I will summarize a scholarly article titled Trial of a Paternity Case, written by a Wisconsin state judge, Marvin C. Holz, and published in 1967. Although the Wisconsin paternity laws in Wisconsin in 1967 were not exactly the same as the New York laws in 1964 (when Penny would have given birth), presume that the article is a good basis for thinking about how paternity proceedings between Penny and Robbie would have been conducted.
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| The singer Ray Charles lost in a widely-reported paternity trial in 1964 |
Penny could bring Robbie to trial simply by providing proof of the baby's birth and by asserting that the father was Robbie. The baby's birth and Penny's assertion constituted a prima facie case. Robbie would not be able to prevent a court trial from taking place.
As Robbie's situation is presented in the movie, he had two potential defenses:
1) Robbie might deny that he ever had sexual intercourse with Penny. He might admit that they petted but deny that he ever ejaculated in her presence and certainly never placed his penis near her vagina. No matter whether the child's blood type made his own paternity a scientific possibility, the biological father must be some other man with a compatible blood type. Furthermore, Robbie might claim he still was a virgin, saving himself for marriage, whereas Penny apparently had been sexually promiscuous for a long time.
or
2) If the baby was born outside of March 1964, Robbie might admit that he had sexual intercourse with Penny, but only during June 1963. He certainly could prove that he and Penny had not known each other before they met at their summer jobs at the resort hotel in early June. He might also have been able to prove when they broke up. Penny herself might specify the breakup date, and other employees who knew Robbie and Penny might be able to confirm the approximate date of the breakup. If the baby's birth date did not match the period of Robbie's sexual intercourse with Penny, then the biological father probably was another man.
or
3) If the baby was born in a wrong month, Robbie also might combine the arguments: 1) he never had sexual intercourse with Penny and 2) he was romantically involved with Penny only during June 1963.
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Robbie could also hope that court-ordered blood tests might exonerate him. During the 1960s, blood tests could not prove that he was the biological father but might prove that he was not the father. By mid-August 1963, Robbie suspected that he was not the only man who had had sexual intercourse with Penny during June and July. Therefore, Robbie had some reason to figure that Penny had become pregnant with another man. If so, the the child's blood type eventually might exonerate Robbie.
Even if the child was born in March 1964 and even if Penny convinced the court that she and Robbie had had sexual intercourse in June 1963, the blood tests might exonerate Robbie scientifically.
Of course, the movie audience believes absolutely that Penny had sexual intercourse only with Robbie. However, Robbie himself believed that she had sexual intercourse with others. Robbie's own belief was the basis for his own calculations about what might happen in a paternity investigation and trial. In Robbie's own mind, he had a considerable chance of being exonerated.
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Penny too engaged in some calculations and risks in regard to a paternity trial. Because the legal proceedings might drag on for many months -- for even longer than a year -- she basically missed her option of giving the baby up for adoption. By suing Robbie instead of giving the baby up for adoption immediately after birth, she essentially was committing herself to bonding emotionally with the baby.
Also, if the paternity trial ended in Robbie's favor, Penny's reputation would be spoiled. Such a verdict would indicate that Penny was a lying, promiscuous, gold-digger.
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Because blood tests did not prove paternity in the 1960s, such tests were only partial evidence. If the tests proved that Robbie merely might be the biological father, then the judge or jury would have to base its verdict largely on other evidence.
* The testimony of Penny and Robbie.
* The testimony of other people about Penny's and Robbie's relationship.
* Physical evidence, such as love letters, photographs and engraved jewelry.
Robbie might win if he testified eloquently, confidently and coherently whereas Penny testified inarticulately, hesitantly and confusedly. If Penny contradicted herself, misspoke, became hysterical and seemed to evade questions, the jury simply might believe her less.
Robbie might hire a more experienced and skilled lawyer whose questioning would put Penny in a bad light.
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Now from the 1967 article "Trial of a Paternity Case", I will quote a series of passages that might apply to Penny and Robbie. I will assume that the baby was born in March 1964. (I will not include the article's discussions of premature birth.)
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The complainant [Penny] has the burden of proving [paternity] by a clear and satisfactory preponderance of the evidence. ....In other words, Penny would have to convince at least five members of a six-member jury that there was a clear and satisfactory preponderance of evidence that Robbie had caused the pregnancy.
The trial shall be by jury or the court [the judge]. ...
Because the procedure is civil, the five-sixths verdict rule applies [to a jury trial]. ...
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The judge may, in his discretion, exclude the public from attendance at such trials.Penny's lawyer absolutely would be allowed to ask Robbie whether he had engaged in sexual intercourse.
If the mother [Penny] dies, becomes insane, or cannot be found within the jurisdiction, or fails to continue to prosecute after the proceeding has been commenced the child shall be substituted as the complainant and the case shall be prosecuted by the district attorney. The testimony of the mother [Penny] at the preliminary may be read in evidence insofar as it is competent, relevant, and material. The court may proceed to judgment without the presence of the defendant [Robbie] if he fails to appear after proper notice.
Both parties [Penny and Robbie] are competent to testify.
Upon cross examination the defendant [Robbie] may be asked if he had sexual intercourse with the complainant [Penny] during the conceptive period [June 1963] even though no questions were asked by his counsel upon direct examination with respect to this matter. ... The question was permitted upon the theory that the right of cross examination of a party as distinguished from a witness is not to be restricted to the narrow limits of direct examination, and a wide scope of inquiry related to the matter at issue is to be allowed.
The question concerning the right of the defendant [Robbie] to refuse to answer questions is another matter. It has been held ... that the trial judge in a paternity suit has the right, if not the duty, to instruct a witness [Robbie or some other witness testifying in Robbie's defense] of his right to refuse to answer upon the grounds that his answer may tend to incriminate him. The privilege may be invoked in civil proceedings as well as criminal, but the testimony which is proscribed must relate to criminal liability rather than civil. It must be asserted personally. ... He should not be compelled to answer unless it is reasonably clear that his answer cannot tend to incriminate him. The answer alone need not be sufficient to support a conviction but need only be a link in the chain of evidence to be protected. ...
However, Robbie (or other witnesses testifying in his defense) would be able to refuse to answer some questions on the grounds that his answers might incriminate him in relation to a criminal law.
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Under the present law designating paternity proceedings as civil in nature ... [there is] the presumption as to the time of conception ...If Penny gave birth in March 1964, then the court would presume that she became pregnant at about the end of June 1963. No further proof was necessary that she conceived in June.
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There is no presumption that sexual intercourse occurred because there was mere opportunity. As a matter of fact, evidence of mere opportunity for intercourse standing alone is not very convincing evidence. Similarly, there is no presumption that the complainant [Penny] has told the truth. ....In other words, Penny could bring Robbie to trial merely by providing the basic information about the birth and by asserting that Robbie was the father. She would not have to provide further evidence of paternity until the trial was taking place.
A prima facie case is established by proof of the birth out-of-wedlock, date of birth [in March 1964], weight at birth, an accusation that the defendant had sexual relations with the complainant during the conceptive period [June 1963], and the denial of the complainant [Penny] that she had sexual relations with any other man during the conceptive period [June 1963]. The complainant [Penny] is permitted to state who the father of her child is. Such is treated as a statement of fact and not opinion.
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After the complainant [Penny] has proven a prima facie case, the trial becomes a battle of corroborating circumstantial evidence and the credibility of the witnesses. Counsel for the complainant [Penny] must seek to introduce evidence which will corroborate her testimony of the act by the defendant [Robbie] and of her [Penny's] credibility.Evidence of a sexual relationship between Penny and Robbie might include behaviors such as "sneaking around" or "going steady".
Mere opportunity for sexual intercourse between the parties [Penny and Robbie] is not very convincing evidence standing alone because situations in which there is opportunity embrace many innocent situations and relationships. ...
In a paternity case the fact of the birth of the child establishes the act of intercourse, but the identity of the father remains the elusive issue. Because the parties are rarely surprised in the act, the fact must be proven by circumstantial evidence. ... Proof of disposition between the parties [Penny and Robbie] existing prior to the alleged act, combined with proof that the parties have been together in equivocal circumstances such as would lead the guarded discretion of a reasonable and just man under the circumstances to the conclusion of commission of the act by the defendant, justifies the inference that the act took place at the time of the opportunity. ...
Some of the more obvious circumstances of disposition to commit the act are a showing of unwarrantable predilection for the other person, clandestine correspondence, secret meetings, courtship, promises of marriage or engagement, and passionate declarations. ... Evidence of visiting, socializing, and agreement to marry by the parties [Penny and Robbie] although not within the conceptive period [June 1963] but at a time not remote [e.g. May or July] has been held to be material. ...
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Frequently statements made by the defendant [Robbie] when he was confronted by the complainant [Penny] with the fact of her pregnancy are incriminatory. Evidence of efforts by the defendant [Robbie] to induce the complainant to take medication to precipitate a miscarriage or to have an abortion is admissible, although it may be weak or inconclusive. Offers of marriage are probative of a recognition of responsibility for the complainant's [Penny's] condition. Promises of engagement, courtship, or letters of endearment or devotion are similarly corroborative of an intimate relationship. ...Evidence of a sexual relationship might include Robbie's statements or his silence.
Silence on the part of a person [Robbie] when the statement or assertion of another is made in his presence under circumstances which would naturally provoke a response or dissent if untrue may be tantamount to an admission of the truth of the statement. Thus it has been held in a paternity case that silence and refusal to talk when an innocent person would ordinarily be vehement in his denial is conduct inconsistent with one falsely accused of such a serious charge. Of course, the person against whom the admission is claimed must have heard and understood the charge."
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The declarations of the complainant [Penny] to third parties [e.g. Johnny Castle or Billy Kostecki] not in the presence of the defendant [Robbie] are inadmissible as self-serving statements. ... Proof of such out-of-court declarations may be made [only] to rebut testimony of the defendant [Robbie] that the complainant [Penny] never accused the defendant [the man] to anyone.Johnny and Billy would not be allowed to testify that Penny told them that Robbie made her pregnant unless the conversation took place in Robbie's presence.
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Attempts by the parties [Penny and Robbie] to clean up their story to make it more socially acceptable may mislead or confuse the trier [the court] as to where fiction ends and truth begins. A six-year study conducted with the use of the lie detector ... concluded that 93% of the parties in paternity actions tested subsequent to trial lied in court in some respect concerning their testimony in reference to the sexual relations.In general, there is a lot of lying in paternity cases -- not only to win, but also to maintain decent reputations.
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Other than in blood testing, the use of heritable traits to determine paternity is presently largely limited to racial and unusual physical traits. Although individual traits as hair color, eye color, body build, head shape, and facial features are determined by heredity, so many other genetic and environmental factors are involved that resemblance of such traits in father and child is an unreliable means of determining parentage.Penny would not be able to argue that the baby looks like Robbie.
Proof of general resemblance is of limited practical significance, because most cases are tried during the child's infancy while there has not been sufficient physical development to enable the layman to discern likeness or dissimilitude except possibly in reference to race. Paternity trials are usually required to be held while the child is quite young because of the operation of the statute of limitations.
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The courts continue to reject testimony of the results of lie detector tests because they have not yet attained scientific acceptance as a reliable and accurate means of ascertaining the truth. Other objections are: the trier, particularly juries, might place too great a weight upon the examiner's interpretations of the results; such evidence violates the hearsay rule and usurps the function of the jury; and mandatory tests violate due process and the right against self-incrimination.The article adds that the courts likewise do not use "truth serums", hypnosis and other odd and unreliable methods.
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The defendant [Robbie] must resort to circumstantial evidence which suggests his own innocence or the guilt of someone else. Basicly, this falls into two principal categories.As I understand this last paragraph, Robbie could win by convincing the jury merely that some other man had sexual intercourse with Penny during June 1963 -- even if the jury believed that Robbie too did so.
* The first concerns proof of intercourse with another man during the conceptive period [June 1963].
* The second involves admissions of the complainant [Penny] tending to exonerate the defendant [Robbie] or which implicate someone else.
Admissions have the twofold function of impeaching the testimony of the complainant [Penny] and constituting affirmative evidence for the defendant [Robbie].
Proof of intercourse with another man during the conceptive period [June 1963] entitles the defendant [Robbie] to an instruction [to the jury from the judge] that a finding of not guilty must be returned if the jury believes that the complainant [Penny] had such intercourse at or about the time of the alleged conception. This is due to the doubt concerning which act of intercourse resulted in pregnancy. ....
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The reputation of the complainant [Penny] for chastity is not admissible. Hence, defendant's [Robbie's] counsel cannot inquire of the complainant [Penny] whether she ever had intercourse with others, whether she has other children, or when she had her first act of sexual intercourse; unless the court is satisfied that such may have relevancy because it will be linked with other evidence indicating the complicity of the defendant [Penny].Robbie cannot argue merely that Penny socialized with other men. He has to provide significant indications that she had sexual relations with them.
Direct proof of the act of intercourse by the complainant [Penny] and a particular man is rare; hence association with men other than the defendant [Robbie] under suspicious circumstances affording an opportunity for sexual intercourse usually is the best evidence that the defendant [Robbie] can hope to produce. ....
The courts are inclined to permit the defendant [Robbie] to show mere association with other men as preliminary to and upon the assumption that there will follow a showing of circumstances reasonably imputing sexual intercourse. Unless there is a good faith effort to do this, the courts can and will shut off that line of testimony. ...
In order to be admissible an association with another man or men must be at improper or suspicious times and under circumstances from which intercourse could be readily inferred. Mere opportunity for intercourse is not very convincing, and something further than an innocent relation or association between young people must be shown. ....
There is an exception to the general rule which permits proof of illicit acts with other men outside of the conceptive period [June 1963] to be introduced. If it can be shown that such intimacies and opportunities continued after the child was begotten, evidence of an illicit relationship prior to the conception period is admissible. Similarly, evidence of a prior illicit relationship is admissible if it can be linked with a suspicious current relationship so as to imply a resumption of the former relationship. The admissibility rests in the court's discretionary determination of relevancy. ....
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Admissions of the complainant [Penny] which tend to implicate another man and thus exonerate the defendant can be by word, act, or silence. Again, such evidence is usually circumstantial. It can be produced by the defendant [Robbie] affirmatively.Both Penny and Robbie have to be careful about what they say at any time.
A promise to marry on the part of the defendant [Robbie] while the complainant [Penny] is pregnant has been held to corroborate other testimony implicating the defendant [Robbie]. Conversely, engagement or marriage to another man during pregnancy or shortly after the birth of the child would appear to be relevant to the complicity of that man and at least call for explanation.
A more frequent circumstantial admission occurs when the complainant causes the birth certificate to indicate the father is "unknown," uses the first name of her husband or of a boy friend [e.g. Johnny] with whom she has had opporttnity for sexual relationship during the conceptive period, or when it appears from the certificate that the father's name has been changed or altered. ...
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The complainant [Penny] may be required to produce culpatory letters in her possession from another man. ...Robbie could demand to see Penny's written correspondence with, for example, Johnny.
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Because the only persons who can speak from actual personal knowledge as to the factum probandum are the parties [Penny and Robbie], the court fully recognize that determinations of paternity cases stand or fall upon the credibility of the parties. The judge's or jury's task to pass upon the relative weight and credibility of the parties' testimony is peculiarly difficult and important,The jury will decide whether it believes Penny or Robbie. It will be her word against his.
The usual considerations of interest, demeanor upon the witness stand, opportunity for observation and knowledge of the matters and things given in evidence by them, bias or prejudice of witnesses, clearness or lack of clearness of recollections, and inherent reasonableness or improbability of the testimony are to be weighed by the trier, as well as all other facts which, by the experience of mankind, tend to support or discredit the testimony of witnesses.
When the case is tried to a jury, it is within the exclusive province of the jury to determine the credibility of the evidence introduced. According to familiar rules the resolution of conflicting evidence and the credibility of witnesses is for the jury to determine. It is not the duty of the jury to count the witnesses but to weigh the testimony of each.
Hence, it is competent for the jury to believe the testimony of the complainant [Penny] as against the defendant [Robbie] and his witnesses. ....
The mere fact that there be contradictions or uncertainties as to the details of minor matters in the testimony of the parties does not preclude the jury from believing or disbelieving a party's testimony concerning the central fact of intercourse, nor is it fatal that the complainant [Penny] is not absolutely certain in her testimony as to when pregnancy occurred if there had been repeated acts of intercourse between the parties.
It has been held not to be error to permit the complainant [Penny] to correct her testimony as to the date of intercourse after hearing the testimony on the part of the defense ...
Material prior inconsistent statements made .in the preliminary examination may be offered to challenge complainant's [Penny's] credibility, but she has the right to offer evidence to explain prior inconsistent statements.
Considerable doubt may be cast upon a complainant's testimony when she repeatedly and positively, but erroneously, fixes a significant date from which she determines the time of other material events. ....
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If a defendant is guilty of having sexual relations with the complainant, but is not the father, he should be punished by other means than by being named the father. ....Penny cannot argue that Robbie comes from a rich family and so can easily afford to pay child support.
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The credibility of a party or witness may be impeached by evidence that his reputation for truth and general character is bad. Furthermore, the impeaching witness may be asked whether, upon such general reputation, lie would believe the party sought to be impeached upon oath. Evidence of only general reputation for truth and veracity or character is admissible as distinguished from particular acts of immorality or wrongdoing which might reflect upon the integrity of the witness. Once the general reputation of the witness for truth and veracity or character is attacked, the witness may offer proof that his general reputation is good.Robbie can provide witnesses who testify that Penny was generally dishonest and unreliable. However, Robbie cannot argue that Penny was generally sexually active and even promiscuous.
The prosecutrix's [Penny's] reputation for chastity is inadmissable. It is said that the complainant's [Penny's] character for chastity is already impeached by the fact that she is a complainant in a paternity action. If character is meant to imply general reputation this is, of course, not true because all it proves is her want of chastity in one instance. The true reason is that the want of chastity is not material to the witness's character for truth and veracity.
Reputation, of course, is evidence of the net expression of a multitude of personal opinions of the witness's disposition for a particular quality. Because the issue in a paternity case is the paternity of the child in question, evidence of unchasteness by way of general reputation or specific acts is not admissible, unless it bears a definite relationship to the probability of sexual intercourse during the conceptive period. The rule is otherwise in rape, seduction, or assault where the issues are different. ...
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The extent to which the court should allow testimony of the details of act of intercourse presents some problems of delicacy. .... Evidence of the intimate and lurid details regarding sex play and acts of intercourse is "highly dubious, palpably of interest only to the morbidly curious, but otherwise not material. The trial judge has the task of deciding when such evidence no longer serves the pursuit of determining credibility. ...
The lawyers cannot pry excessively into the details of the sexual activity between Penny and Robbie.-----
Testimony insinuating that the defendant was rich or evidence of his financial condition is inadmissible. Hence arguments calculated to thrust the burden of support on defendant because of his ability to pay regardless of his responsibility are improper.Again, Penny cannot argue that Robbie should pay child support because he can afford it.
Argument which tells the jury that the state will be compelled to support the child if the defendant is not required to do so and that the jurors as taxpayers would suffer is improper. ....
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Two important matters which every lawyer must consider when confronted with a paternity trial have not been discussed in this article, because they are outside its scope.========
* First, he must plan the intelligent use of his client's right to a preliminary examination of the complainant.
* Second, the possibility of a reasonable settlement must always be weighed carefully. If a settlement is possible, it is essential that both counsel and client understand the exclusive statutory procedure and restrictions placed upon such agreements, the fact that such may be entered without an admission of paternity upon the part of the defendant, and the consequences in case of default
My next articles in this series will be titled
Lisa's Loss of Hope About Robbie
Penny's and Robbie's Prospects in a Reconciliation.
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