Volume XXIV
Issue
1
Date
2022

The Law of Motherhood in the Gender-Dependent Application of Criminal Responsibility for Failing to Protect Children

by Deborah Anthony

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.  

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