The Law of Motherhood in the Gender-Dependent Application of Criminal Responsibility for Failing to Protect Children
When a child is injured or killed by an adult in the home, a marked gender division appears in the application of criminal responsibility against the non abusing parent. States regularly use accomplice liability/accountability theory or statutes criminalizing the failure to protect one’s children against mothers for the harm perpetrated by her male partner, but men almost never face charges when the roles are reversed. Although the statutory or common law upon which such prosecutions are based is gender-neutral, the application of the principles is decidedly not.
This Article analyzes and critiques current cultural and legal expectations of mothers that place upon them an increased responsibility for the safety of their children. It analyzes the ways in which the “reasonable person” standard morphs into a “reasonable mother” standard that is implicitly more stringent and punitive than expectations of a “reasonable father.” This places dispropor
tionate burdens and punishments on mothers, twists the legal concepts of fore seeability, intent, and parental duty while making them contingent upon the parent’s gender, and holds mothers and fathers to disparate standards of care. When the theory is applied against mothers, the standard requirement of crimi nal intent is sometimes stretched beyond recognition. The absence of overt gen der distinctions in the law disguises the fact that the operation of the criminal justice system is deeply informed by and in service to stereotyped social demands of women while it masquerades as a system of neutral, evenhanded justice.