Murder by Child Abuse-who's Responsible After State v. Jackson?

• Jurisdiction: Washington,United States
• Citation: Vol. 24 No. 01
• Publication year: 2000

SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 2FALL 2000

NOTE

Murder by Child Abuse-Who's Responsible After State v. Jackson?

Christine A. Martin(fn*)

I. Introduction

Three-year-old Breighonna Moore was severely abused and eventually murdered by her foster parents, Michael and Laurinda Jackson.(fn1) Breighonna died from a bilateral subdural hematoma.(fn2) Aside from the fatal head injury, she had bruises on both her ears, near her right eye, on her buttocks, on both her arms, on the lower quadrant of her abdomen, and on the left side of her crotch.(fn3) Breighonna also had a vaginal injury, lacerations and abrasions inside her mouth, and hemorrhages on both arms, her left thigh, and her scalp.(fn4) This horrific image is just one example of the suffering many children experience daily.

In 1997, an estimated 984,000 children were victims of maltreatment.(fn5) Furthermore, 1,196 children died as a result of this maltreatment.(fn6) Of the alarming number of children suffering maltreatment, 75.4% of the perpetrators were the victim's parents.(fn7) While the number of children maltreated is horrifying, even more shocking is the number of innocent children who have died at the hands of their abuser, often their own parent.

In Washington alone, approximately 23,303 children were victims of maltreatment in 1997; nine children died from maltreatment.(fn8) Of the 19,966 perpetrators of maltreatment reported in Washington, 15,824 were the child's parents and 542 were the child's foster parents.(fn9)

In many of these situations, the nonabusive parent is aware that the other parent is abusing the child or foster child. For various reasons, the nonabusive, or passive, parent does not stop the abuse. Most of the time, the passive parent is not held responsible for the death of a child caused by child abuse. "When a child dies from abuse at the hands of another, there is only a remote chance that a passive parent will face any charges at all."(fn10) This situation is intolerable. Because of the unique helplessness of children, anyone who is aware of abuse, especially a parent or foster parent, should be held responsible for that abuse.

While there are several arguments against holding a passive parent responsible, they do not weigh heavily enough when a child's life is at stake. One excuse for not holding a passive parent responsible is that it will disrupt any remaining shred of family harmony and will precipitate the dissolution of the family unit.(fn11) Another argument is that holding passive parents responsible would have a disproportionate effect on women.(fn12) Finally, it has been suggested that a child may be better off with a single, nonabusive parent than in a foster home.(fn13) While valid, none of these arguments, whether examined separately or taken together, are sufficient.

None of these reasons can justify declining to prevent or report the abuse of a child. "There is ... no logical or legal reason for failing to charge all parents, guardians, or caretakers with murder when they know of the abuse yet fail to protect their children."(fn14) "Children need protection. They cannot protect themselves."(fn15) The most important reason to hold passive parents responsible is to provide this protection.

Another important reason to hold passive parents responsible for the death of their child is to further the purposes of Washington's criminal laws. Under Washington law, one of the general purposes of the provisions governing the definitions of offenses is to "forbid and prevent conduct that inflicts or threatens substantial harm to individual or public interests."(fn16) The Model Penal Code also states that one of the general purposes of the provisions governing sentencing and treatment of offenders is "to prevent the commission of offenses."(fn17) Not holding a passive parent responsible for the death of his or her child frustrates these purposes because a passive parent's conduct of not protecting a child from abuse "inflicts or threatens substantial harm" to that child and does not prevent the death of the child.(fn18) These purposes are also furthered by holding a passive parent accountable for his or her inaction, even though the passive parent has a history of violence.(fn19) A passive parent would feel more compelled to remove his or her child from an abusive situation if he or she could be charged with a felony.(fn20) Unfortunately, when a child dies from abuse, there is presently only a remote chance that the passive parent will be held accountable.(fn21)

Currently, under Washington law, a passive parent is not legally responsible for the death of his or her child from abuse. State v. Jackson(fn22) is a horrific illustration of the gaps in Washington's law regarding the issue of who is responsible for the death of a child by abuse. Because passive parents should be held responsible for the death of their child from abuse, and because Washington's current laws are inadequate, Washington's legislature should create a special statute that would hold both abusive and passive parents culpable for the death of a child resulting from abuse.(fn23) Section II of this Note will discuss State v. Jackson, including an analysis of both the majority and dissenting opinions. Section III will demonstrate that Washington's current laws are inadequate to hold passive parents responsible for the death of their child. Finally, Section IV will describe several proposals that would help fill the gaps of Washington's law.

II. State v. Jackson-An Unfortunate Example

A. Summary of the Case

In November of 1992, Michael and Laurinda Jackson became the foster parents of two-year old Breighonna Moore; shortly thereafter they received another foster child, an infant boy.(fn24) In the early morning hours of March 12, 1993, Michael Jackson, accompanied by Breighonna and the Jackson's other foster child, dropped his wife off at work.(fn25) He returned home with the children and spent the morning at home and at the park.(fn26) Around noon that day, Michael Jackson drove Breighonna to the emergency room at Valley Medical Center in Renton, Washington and told the emergency medical technician that his "daughter" had been "swinging on a swing and had fallen and hit her head, and she wasn't breathing very well."(fn27)

Breighonna was immediately examined by Dr. Edward Bigler.(fn28 ) After this exam, Dr. Bigler concluded that Breighonna was in critical condition as a result of a "very serious injury" to the brain.(fn29) When questioned by Dr. Bigler and other staff about how Breighonna suffered these injuries, Michael Jackson replied that Breighonna was swinging in the park, he turned his back for a moment, and when "he turned around [he] found [Breighonna] lying unconscious below the swing."(fn30) Dr. Bigler concluded that Breighonna's injuries were not consistent with Michael Jackson's story; therefore, he asked the hospital's emergency intervention team to contact Children's Protective Services.(fn31)

Breighonna's serious condition required her to be transferred to Harborview Hospital in Seattle.(fn32) Before Breighonna was transferred, Dr. Bigler informed personnel at Harborview that there was a possibility of child abuse.(fn33) At Harborview, Dr. Valerie Newman examined Breighonna, who was still unconscious and unresponsive.(fn34) Dr. Newman consulted with several other staff physicians and the consensus was that surgical intervention would be futile and Breighonna was going to die.(fn35) Around midnight, Dr. Newman met with the Jacksons and told them that she did not expect Breighonna to live through the morning.(fn36) Dr. Newman then inquired how Breighonna had suffered her injuries.(fn37) Michael Jackson reiterated the story he told Dr. Bigler, but added that "a few days prior or possibly a week prior [Breighonna] had been getting a hair cut and had bumped her head on the sink" at the salon.(fn38)

Breighonna died on March 13, 1993, and an autopsy was performed by Dr. Michael Dobersen.(fn39) The autopsy revealed that Breighonna's death was caused by "a bilateral subdural hematoma resulting from a blunt impact."(fn40) Because of the severity of the injuries(fn41) and the fact that the injuries were inconsistent with Michael Jackson's explanation, Dr. Dobersen classified Breighonna's death as a homicide.(fn42)

The next day, Michael Jackson gave a statement to Detective Mullinax of the King County Police.(fn43) In this statement, Michael Jackson repeated the story of Breighonna falling off a swing, but his statement slightly varied from the statement given to various medical personnel.(fn44) He also described the incident where Breighonna bumped her head on a sink at the hair salon.(fn45)

On that same day, Detective Hatch of the King County Police took a statement from Laurinda Jackson.(fn46) She confirmed her husband's story of Breighonna hitting her head on the salon sink.(fn47) She also admitted to Detective Hatch that she had spanked Breighonna several times because Breighonna was having problems with her toilet training.(fn48) Michael Jackson, in a later interview with Detective Mullinax, also admitted, "he had once spanked" Breighonna.(fn49)

Michael and Laurinda Jackson were charged(fn50) with second degree felony murder,(fn51) based on the predicate felonies of second degree assault(fn52) and first-degree criminal mistreatment.(fn53) During the...