Jennifer M. Collins: My thanks go to Laura Appleman, Adam Charnes, Maxine Eichner, Carissa Hessick, Clare Huntington, Kay Levine, Dan Markel, Melissa Murray, Wendy Parker, Tracy Thomas, Ron Wright, and all the participants at a junior faculty workshop held at the University of Miami School of Law and a faculty workshop at the Wake Forest School of Law for their helpful and insightful comments. I would also like to thank Will Woodlee, Britt Harlow, and Marcia Baker for invaluable research assistance.
In 2002, approximately sixty-five percent of all murder victims under the age of thirteen were killed by a family member.3 Yet these crimes are not ordinarily the ones that capture public attention; instead, we reserve our greatest outrage for those relatively rare cases where a child is murdered or sexually molested by a sexual-predator stranger.4 As a result, we have a tremendous mismatch between perception and reality: we think we are tough on crimes committed against children by passing statutes like Megan's Law, but in practice, we are overlooking the reality that children face the most danger from family members rather than from strangers. As one reporter for the Washington Post recently wrote,
People think child homicide is big news, like Adam Walsh or JonBenet Ramsey[,] . . . but they're wrong. Six or seven infants, toddlers or children under the age of 10 are killed by adults in the District [of Columbia] each year, about 1,500 across the country. Most of them, if they make the news at all, are dispatched with paragraphs as short as their lives.5
Equally troubling, these cases often do not result in a perpetrator being held accountable by the criminal justice system, particularly when that perpetrator is a parent.6 Page 134
This Article argues that one reason we do not pay sufficient attention to the reality of violence against children in this country, that we struggle with holding some parents accountable for the harm they do to their children, is because of our tendency to romanticize the parent-child relationship. This romanticization phenomenon has several core components. First, we continue to believe that love, not law, is sufficient to protect our children, even in situations where love is clearly not enough. In other words, we engage in denial; we want to believe that parents will do the right thing by their children without the intervention of the criminal justice system. As a result, we tend to focus on therapeutic approaches to address violence committed against children, without grappling sufficiently with difficult questions about whether the criminal justice system can also play an appropriate role. In contrast, reformers working in the spousal-abuse area have been far more willing to consider utilizing a criminal approach. The second component is minimization: when violence does occur, we tend to downplay it. This phenomenon is reflected both in statutes that treat intrafamilial and extrafamilial offenders differently and in the difficulties prosecutors face in securing criminal convictions against parents.
Although in recent years scholars have done important work in thinking about the appropriate contours of the parent-child relationship in the context of family law,7 scholars have not engaged in as comprehensive a project in the field of criminal law.8 This void is particularly surprising in light of the tremendous power of the criminal law to shape our moral judgments and value systems. This Article is an attempt to begin a conversation about the way children who have been victimized by their parents are treated by the criminal justice system. I suggest that even though we are obsessed with our children, that obsession has not translated into criminal justice policies that adequately protect them. Parental offenders are systematically treated better by the criminal justice system than are extrafamilial offenders, and we need to grapple with whether that preferential treatment is appropriate. I suggest that in many instances it is Page 135 not, and I therefore propose some principles that I hope provide some guidance for the future formulation of criminal justice policy.
The work that has been done in this area has tended to focus on ways in which women's victimization of their children may stem from their own victimization by a patriarchal system that particularly punishes women who fail to conform to the societal conception of the "good mother."9 These are important insights to be sure, but I would argue they only begin the inquiry into the contours of the parent-child relationship within the realm of criminal law, rather than definitively answer it. At a minimum, for example, surely the fact that a woman is the victim of domestic violence should be taken into account when deciding what sentencing options are appropriate. But what about the child abuse cases where domestic violence is not involved? One author, for example, has argued that domestic violence and child abuse overlap in forty to sixty percent of cases.10 While profoundly troubling, that statistic also suggests that domestic violence is not present in forty to sixty percent of cases where children are abused. This Article suggests that we need to do some hard thinking about parental rights and responsibilities in those cases as well.
The Article unfolds in five Parts. Part I describes the romanticization phenomenon, drawing on sources both from law and from popular culture to demonstrate how we idealize the parent-child bond. As a result, we have come to believe that we can ordinarily rely upon the strength of that bond, without messy interference from the criminal justice system, to protect our children from harm. In other words, the belief that love, not law, is sufficient to protect our children permeates our approach to family violence.
Part II gives concrete examples of the adverse consequences of this phenomenon and demonstrates how this phenomenon has harmed children. I have chosen in this Part to focus on the most serious crimes that parents can commit against their children: the crimes of murder and rape. These crimes are the focus of the Article because the conduct at issue without question can be characterized as criminal; indeed, these crimes receive our greatest wrath outside the realm of the family. Unfortunately, the romanticization phenomenon affects the criminal justice system's treatment of even these most serious of crimes. This Part also includes a discussion of the parental discipline defense, both because defendants often raise that issue in child homicide cases and because I believe that our continued willingness to endorse the use of corporal punishment against children is contributing to the larger problems discussed in this Article. Page 136
Part III addresses some of the objections raised to using the criminal justice system more vigorously to protect children from parental violence. For example, perhaps parental offenders simply are less dangerous than stranger offenders. Other objections include the idea that we do not need the incentives of the criminal law to protect children because the fear of losing a child is incentive enough to induce appropriate parental behavior, or that parents who have lost a child are suffering enough and the infliction of additional punishment through the criminal justice system is simply gratuitous and cruel. This Part also grapples with the very real harms that greater use of the criminal justice system could potentially create, such as disruption of families or a disproportionate impact on families of color.
Part IV sets forth some principles that hopefully can better guide policymakers and practitioners in the future as they grapple with how best to protect our children from harm. This Part argues that if we are serious about protecting children as a class from physical injury, we must reorient our thinking about criminal justice policy toward the home, rather than away from it. This Part also addresses some of the particular issues related to motherhood and child abuse. Finally, Part V offers some brief concluding thoughts.
In the twenty-first century, our obsession with our children, which rose to a fever pitch in earlier decades,11 has achieved even greater heights.12 For example, the pop-culture media is replete with references to our current obsession with the well-being of our children. Although these kinds of sources are anecdotal to be sure and certainly not rigorous empirical evidence, they nonetheless paint a striking picture. In the recent book The Overachievers: The Secret Lives of Driven Kids, for example, the author discusses the phenomenon of "helicopter parents," a...