The law disproportionately criminalizes women for failing to protect their children from abuse at the hands of their male partners. It is comparatively rare that men are held legally accountable for not shielding their children from abuse perpetrated by their women partners. Since 1960, there have been 108 published appellate cases in which parents were convicted of child abuse or homicide based on failure to act. Eighty-seven of the defendants were mothers; eleven were fathers; and in ten additional cases, the defendants were either the spouse or live-in partner of the abusive parent.
While this may be a relatively small number, the cases tell us a great deal about the unfair and unrealistic expectations the law places on mothers. It also speaks to the law's indifference to structural factors, such as poverty, inadequate child care and social isolation, which are common in cases of child abuse and domestic violence, and profoundly affect a mother's ability to protect her child.
The earliest reported prosecution of child abuse by omission, Palmer v. State, goes back to 1960. The case exemplifies the ways in which mothers are seen as uniquely responsible for a child's well-being. It also shows how social factors are ignored in favor of vilifying and convicting a mother.
Barbara Ann Palmer became pregnant at 15. After a brief marriage to the baby's father, she returned to live with her parents. Shortly afterward, she began a relationship with a man five years her senior and relocated to another state with him. Tragedy struck one month later when her daughter was beaten to death by her boyfriend.
Palmer was charged with and convicted of involuntary manslaughter. The Maryland Court of Appeals upheld Palmer's conviction, finding both that Palmer had been criminally negligent and that her failure to act was the actual and proximate cause of her child's death. Despite determining that her boyfriend's actions were the "direct and immediate" cause of the child's death, the court found that his violence did not constitute an "intervening efficient cause" sufficient to extinguish Palmer's responsibility for her child's death.
Following Palmer, in the '70s and '80s, prosecutions for homicide and child abuse based on a parent's failure to act spiked. As the number of mothers prosecuted when the actual abuser was the mother's husband or boyfriend began to rise, an unmistakable pattern of class and race bias also emerged: Women of color are disproportionately represented among mothers prosecuted for child abuse by omission.
Intimate partner violence and child abuse frequently overlap. In his 2014 study of criminal prosecution of parents who had failed to act to protect a child from a partner's abuse, journalist Alex Campbell found that in 40 percent of the cases in which the mother or girlfriend was the passive parent, there was significant evidence of intimate partner violence along with child abuse; I found roughly the same percentage in my study of published criminal cases. Mothers in this situation face daunting odds when trying to leave their abusers. At the same time that women fear physical harm, including death, from abusive male partners, many are dependent financially on them. Mothers may also rely on their partners to provide child care while they work low-wage jobs. With the threadbare social services offered to mothers in the United States, few resources exist to help poor single mothers and their children safely transition into healthier environments.
The 2010 case of Miranda Kuykendall sadly illustrates how these factors can converge to keep a woman and her children in jeopardy. Kuykendall worked the night shift at a health care facility and left her children, one nearly four and the other nearly two years old, with her boyfriend, Chris Elliott. Kuykendall was the victim of domestic violence from Elliott; she was also aware that Elliott was abusing her children. However, she continued to work the night shift because she needed "to save money so she could leave ... [Elliott] and get her children away from him before [the youngest child] ... ended up dead." Unfortunately, her plan was unsuccessful, and Elliott killed her son. Kuykendall was convicted of two counts of child abuse based on Elliott's violent abuse of her children.
It is frequently difficult for women who are the victims of intimate partner violence to convince law enforcement and judges that their abuse is real and that they are in need of protection; many mothers can feel trapped in an abusive situation. According to Maryland's Gender Bias in the Courts: Report of the Special Joint Committee on Gender Bias in the Courts (1989), one judge expressed an outlook that is all too common when ruling on the case of a woman who sought an order of protection from her partner's abuse:
I don't believe anything that you're saying.... The reason I don't believe it is because I don't believe that anything like that could happen to me. If I was you and someone had threatened me with a gun, there is no way that I would continue to stay with them. There is no way that I could take that level of abuse from them. Therefore, since I would not let that happen to me, I can't believe that it happened to you.
While we might like to believe that when we enter a courtroom, we leave our biases -- conscious and unconscious -- behind, this disproportionate prosecution of women shows otherwise. Judges, jurors and prosecutors carry with them all of the same biases and preconceptions that operate in the society at large. When determining guilt, the "reasonable person" standard is invoked; jurors and judges must gauge if the defendant behaved in the manner of this hypothetical reasonable person. In theory, this may seem like a fair measure, but in practice, when judges and jurors apply it to mothers, they are likely to construe the "reasonable mother" as someone with near superhuman powers to protect her children and to transcend her circumstances, no matter how dire. This version of "the reasonable mother" is expected to have the ability to foresee and forestall all potential harmful acts of her partner, despite her challenging social and economic circumstances.
To see this in action consider the case of Ginger McLaughlin that took place in 1978. McLaughlin was the mother of three young children. She was charged and convicted of criminal child neglect after she ran an errand for about 45 minutes; while she was gone, her husband beat and killed their two-month-old infant. The prosecutor proceeded on the theory that because McLaughlin knew her husband had a violent temper and had assaulted the two older children eight months previously, it was foreseeable that her husband would brutalize their newborn while she was at the store, and therefore she was negligent, falling below the standard of a reasonable person. Fortunately, the Oregon Court of Appeals reversed her conviction for insufficient evidence.
That mothers should display attributes of extraordinary care and selflessness is a consistent theme in in the comments made by legal decision makers. Jurors who insist that a mother "should have protected that baby with everything she had," prosecutors who assert that a mother's obligation is to "lay her life ... on the line for her child" and judges who impose heavy sentences to condemn a mother who "abandoned or abdicated" her duty are all employing a heightened standard to evaluate accused mothers, one that is more rigorous than the law demands. One judge went so far as to assert that when one parent is the abuser and the other parent either knows or should have known of that abuse, the non-abusing parent has an even higher duty to act, because the child has no other advocate.
As multiple writers, including Katie Roiphe in In Praise of Messy Lives and Carol Sanger in her 1989 Survey of Books Relating to the Law have noted, there is also a strong tendency among jurors, judges and prosecutors to believe that single mothers in particular are highly sexualized beings, whose actions must be closely scrutinized for evidence that sexual desire trumped their maternal instincts. In a Rhode Island case, State v. Cacchiotti, the court was explicit: "The jury could well have found ... that [the mother's] lust for [her batterer] completely overcame her sense of duty to her child."
Finally, the "fundamental attribution error" also drives this heightened criminalization of mothers. This is the subconscious coping mechanism that helps us make sense of disturbing and tragic events. As law professor Carol Anderson explains, in order to continue to believe in a world that is just, in which "good things happen to 'good' people and bad things happen to 'bad' people," we engage in "defensive attribution." When a tragic event occurs, the natural human tendency is to explain it by attributing it to the flawed character or choices of the victim, rather than the situation in which the victim found himself. In other words, we blame the victim. When the fundamental attribution error collides with racial stereotypes and idealized notions of motherhood, the result is that mothers are likely to be blamed for the behavior of others, which is beyond their control.
More than ever, American mothers are expected to single-handedly protect and nurture their children. Blaming them for the crimes of their partners and for being unable to surmount the overwhelming social and economic forces arrayed against them is not only unjust but also does nothing to make children safer. If our goal is to make child abuse an ugly relic, it is time we stop expecting mothers to be superheroes and start demanding the social conditions that will allow every child to thrive.
Author: Linda C. Fentima