I normally blog on the law every other Tuesday, and just did so this past Tuesday. But then the Britney Spears conservatorship decision came down and set the world on fire. I think an important aspect of that decision got completely missed, it interested me, so let’s call this a bonus issue.
Yesterday, a Los Angeles Superior Court denied Britney Spears’ motion to remove her father as her financial conservator. Her case is truly a sad one, and it has generated international interest that implicates a lot of troubling issues, among them: institutional sexism, the rights of the mentally ill, and a woman’s reproductive freedom.
The bizarre and lurid tale of a talentless, leeching father who exploits his wildly talented and successful child echoes another tragic figure, Michael Jackson, who truly was exploited by his father to the point that it ultimately destroyed him. This dark narrative is made even more troubling in this case, because it involves a father accused of exploiting his adult daughter who, at nearly forty years old, complains that she wants to take advantage of the limited time she has left to have another child, but is compelled against her wishes by her tyrannical father and an unsympathetic court to maintain an IUD indefinitely.
Accusations are everywhere that a paternalistic judicial system treats women differently than men — why is there no conservatorship for Charlie Sheen or Johnny Depp? Or that it ignores Britney’s individual autonomy, that it controls her sexual and reproductive rights, and vampirically drains away her money because she dared to climb her way to the top of the entertainment world. Many even accuse Britney’s father and the court (apparently in earnest, and not intended as a sly nod to her song) of enslaving her.
Okay. But has anyone actually asked Britney Spears what she wants?
First thing’s first. There are a lot of accusations out there that may or may not be true. But although they certainly have not been proven, they are assumed by many to be a fact. During her testimony, Britney did claim that she wants to remove an IUD so she can have more children, but her father will not allow it. While there may be valid questions about a diagnosed schizophrenic’s ability to parent, I would agree that if this is true, from a public policy standpoint, it smacks of eugenics and should be an anathema in 21st century America.
However, Jamie Spears has flatly denied all of this, and it wouldn’t be the first time something gets rapidly accepted on the internet as gospel truth and later turns out to be false. It is worth pointing out that Jamie Spears’ role is as a financial conservator, not a personal one. As such, he should not have any judicially-derived authority whatsoever into her reproductive decisions. Without more information, and in order to avoid walking into a minefield, I will leave it at that.
Second, and relatedly, there are a lot of misconceptions about what a conservatorship (the term of art used in California; in Louisiana it is an “interdiction,” and in most states a “guardianship”) actually is. There are different, non-mutually exclusive types: in some cases, a conservator (or guardian) is appointed to protect the person. In others, the conservator is appointed to manage the person’s finances, and make financial decisions for him or her. This is what Jamie Spears does: he manages Britney’s career, he handles her money, he runs the business; so to speak. One aspect of this role that has enraged a lot of people is that he can prevent her from managing her own money and affairs.
She’s an adult, right? A talented, hugely successful woman. So what’s up with that?
Well, in order to contract, one must have capacity: the ability to know what the contract represents, and the rational intention to enter into the agreement, even if it turns out to be a bad choice. If you or I sign a contract, and later realize we made a huge mistake, there may be ways out of it. But claiming we lacked the capacity to even make the agreement in the first place just isn’t going to work.
However, children lack capacity, and cannot contract. The same goes for adults who are subject to a conservatorship. Stated simply, they have already been proven not to know what they are doing, so someone has been appointed to do it for them. There are very good reasons for keeping the subject of the conservatorship on the sidelines in managing their business affairs. The conservatorship probably exists in the first place because they are easily manipulated by bad actors, so someone must be entrusted to protect them from themselves. The classic example is a person who acquired a vast fortune in life, but through disease or simply due to ageing, he eventually lost his ability to manage it. Poor decision making and unscrupulous charlatans can never be far behind to strip away what is left, so the law allows a loved one or other interested party to intervene, petition the court, and prove the sad reality that the person can no longer function and needs protection from himself and others.
Such is the case with Ms. Spears. She has already been proven to the court, and in fact she seems to have agreed, that she cannot manage her own financial matters. So if Britney signed a contract to become the new, featured spokesperson for the SlapChop, her father could — and no doubt would — sue successfully to invalidate the contract solely on the ground that Britney lacks the capacity to sign her own agreements.
Finally, and most importantly, Britney did not ask the court to end her conservatorship.
“What?” You may ask. “Then what the heck are all these people yelling ‘Free Britney’ for?” That, unfortunately, is a subject for a sociologist, not an attorney. But it is true.
Britney did not contest the conservatorship back in 2008 after her sad and very public psychological breakdown. Since then, there has been a more or less constant stream of hearings to modify it, narrow it, broaden it, and change management. But not to end it. If Britney wanted to throw off the metaphorical chains of her conservatorship, she could request it tomorrow. As of this writing, she has never made that request, at least not formally. As such, the court literally cannot “Free Britney.” It should go without saying, but courts do not simply rule on issues that haven’t been alleged, proven, or even so much as requested. It would be absurd to expect the court to do so, and yet here we are, with an entire nation, perhaps the world, demanding this poor judge’s head on a pike for not doing just that.
There was a reason this conservatorship started. At the time it was established, Brithey Spears was in a downward spiral. Pictures of her, with a roughly shaven head and in a frantic rage, plastered tabloids around the world. Many predicted her career was over, or that she would soon be dead.
Since the conservatorship was established, she has released four albums, gone on many successful tours, had a TV stint on the X-Factor, and enjoyed a long and highly lucrative run in Las Vegas. Perhaps that means she is better, a new person, who no longer needs a conservatorship that started when she was temporarily in a very bad place a long time ago. On the other hand, there could be real and perhaps devastating consequences if it ended. It is telling that she has not made a formal demand to end it in the thirteen-odd years it has been in effect. But mob mentality is not compatible with nuance, and it seems no one has considered that maybe she knows the status quo is, more or less, actually what is best for her.
This is a hot button topic because it touches on so many valid and poignant issues about male hierarchy, the law, and personal autonomy; especially for a woman who has been the focus of public attention since she was a child. The show South Park really hit the mark not in their portrayal of Britney, but in their portrayal of society as a death cult that builds up, then ritualistically sacrifices and cannibalizes troubled starlets like her.
Therein, I think, lies the real irony of the #FreeBritney movement: no one has bothered to find out what she wants. Perhaps she hasn’t asked to end the conservatorship because she understands on some level that doing so may destroy her. But we have collectively already made that decision for her, whether she wants it or not.