Requiring battered women die: murder liability for mothers under failure to protect statutes.

• Author: Jacobs, Michelle S.

Pauline Zile allowed her daughter to die. During 7-year-old Christina Holt's terrifying last weeks of lift, Pauline Zile wasn't a mother; she was a co-conspirator.(1)

I will never forget seeing Christina on the living room floor, nor her laying on the bed.(2)

INTRODUCTION

She was a sorrowful sight as she appeared before the nation on the evening news. A thin, modestly dressed woman with tired lines etched into her face. Every parent's worst nightmare had just come true for her. Her daughter disappeared that day from the bathroom in a flea market.(3) Pauline Zile looked into the camera and sent her daughter a consoling message: "Mommy's going to find you. I love her. Her little brothers miss her so much. We want her to come home."(4) She told her daughter not to be afraid and encouraged her, if she could, to try and find a way to call home.(5)

This is how the public was first introduced to Pauline Zile of Rivera Beach, Florida, whose seven-year-old daughter, Christina Holt, was reported missing on October 22, 1994.(6) For three days, her neighbors, the police, and the public-at-large searched for Christina.(7) Fairly quickly after the announcement of little Christina's disappearance, however, suspicions about the veracity of Pauline Zile's disappearance report began to mount. A witness from the Swap--Shop the flea market where Pauline Zile first reported the disappearance--had some doubts about the missing child.(8) An early report that the child had been found evoked a strange response from her mother. Even before it was confirmed that the child was not Christina, Pauline Zile had expressed doubt that the child was her daughter.(9)

All too soon, the public came to understand why Christina's mother was so sure she had not been found. Christina was dead and had been dead for a month before Pauline Zile appeared on television and reported her missing.(10) She died during the course of a beating administered by John Zile, her stepfather.(11) To stifle Christina's cries during the beating, he covered her mouth.(12) She choked to death on her own vomit.(13) Her body lay hidden in a bedroom closet for several days before John Zile buried her in a field behind a K-Mart store in Tequesta, Florida.(14) Pauline Zile's child died not by her mother's hand but as a result of the affirmative act of John Zile. Yet, Pauline was charged with first degree murder.(15) The state alleged that she failed to prevent John's actions, which were classified as aggravated child abuse, an enumerated felony under Florida felony murder statute.(16) Thus, Zile is the first woman in Florida to be convicted by a jury for first degree murder based on failure to protect her child.(17)

Zile's counsel did little before the trial to develop the facts of her life.(18) Through a press release at the beginning of the representation, her counsel intimated that a defense would be fashioned which would focus on John's violent behavior toward Pauline; yet no evidence was produced for the press or at trial.(19) Other than her defense counsel's own opinions about the merit of the State's case, the only view the public had of Pauline Zile came in a letter that she wrote to Ellis Rubin, her lawyer, which was released to the press. In the letter Zile constructs a list of regrets she had in her life, including her failure to get help for Christina on the night of her death.(20) Rather than helping the public understand Pauline better, defense counsel's release of the letter backfired: the State Attorney's office used the letter to establish that Pauline knew she had a duty to do something to save her child.(21) Little of the State's case-in-chief focused on the Zile family life for any household member besides Christina.(22) Counsel for Pauline Zile presented no witnesses on her behalf, choosing to rest at the conclusion of the State's case. No more was known about Pauline Zile at the conclusion of her case than was known at its inception. She remained an enigma to the public and friends alike.(23) No one came to learn of the many markers which suggested that John Zile was violent towards Pauline as well as Christina.(24) Calls for the death penalty were unabated and when she was sentenced to life without the possibility of parole the public felt it had been cheated. People wanted her to die.(25)

Contrast the treatment Pauline Zile received to the public and legal response to a father similarly situated. David Schwarz was the father of A.J., a child who was killed during the same period of time as Christina Zile in a neighboring Florida community.(26) The boy's stepmother, Jessica Schwarz, was arrested and charged with abusing him over an eighteen month period.(27) The abuse eventually caused the child's death.(28) David Schwarz lived with the family during the period of time Jessica abused the boy.(29) When the boy died, the stepmother was prosecuted for murder. No failure to protect charges were brought against David and there were no public outcries seeking his death.(30) David Schwarz was allowed to "get on with his life" and forget the tragic death of his son.(31) Pauline Zile and Jessica Schwarz, on the other hand, will spend the rest of their lives in prison.(32)

This article explores the legal dilemma of a growing number of women who find themselves--as perhaps Pauline Zile did--at the intersection of domestic violence and child abuse: women who are accused of murdering their children when spouses or significant others have actually killed the children in a household where violence rules. These women may have either a justification or an excuse defense available to them but are effectively precluded from taking advantage of such defenses either through the ignorance of their lawyers or by gender bias in the application of criminal law.(33)

Progress has been made in educating the public, law enforcement and the actors within the judicial system about the realities of violence against women and against children within the home. However, the critical interconnections between violence against the mother and violence against her children have not been fully understood by our courts. No consistent theory has been developed for the defense of mothers that is based on the connection between the abuse that a mother is receiving at the hands of the violent partner and her ability to prevent harm to her children. In fact, though public awareness of child abuse increased at the same time as awareness of domestic violence increased, the two seem to work at odds with each other.(34) As awareness of the abuse increases, so does the likelihood of prosecution for the mother--despite the fact that both mother and child are abused by the same person. Courts have been reluctant to excuse the mother's failure to save the child from abuse on the grounds that she herself has been abused. In fact, the mother's encounter with violence in a sense heightens her dilemma. The courts reason that since she is aware of the violence that occurs in the home, she should do more to ensure that her children are shielded from that violence.(35)

Nor have advances in post-conviction relief benefited the women whose children have been killed by a violent intimate. Many states have developed post conviction remedies for women who can establish that they were battered by spouses whom they killed.(36) However, when a woman is convicted of the murder of her child, she will not qualify for a clemency petition, despite the fact that the death of the child was actually caused by the same abuser the woman would have been justified in killing.(37) This article suggests that the mother should be able to assert that she is justified in not protecting the child because of the risk of death or serious bodily injury to herself.

Criminal liability for these mothers is increasingly based on a "failure to protect" or omissions theory. Ordinarily, a person accused of a crime is required to commit a voluntary act (actus reus) with a required state of mind (mens rea) before society will attach criminal significance or liability to the person's behavior.(38) There are crimes, however, which are either specifically defined in terms of failure to perform some specified act or failure to act when there is a legal duty to do so.(39) A parent's common law duty to her child falls into this category. Both parents have a duty to clothe and feed their children and maintain basic necessities.(40) The parental duty to the child is, at least theoretically, not without limit. A duty to act is limited initially by the actor's ability to perform the expected act.(41) The primary issues for the parents are the extent and nature of the acts they must perform to satisfy this duty. While a parent is expected to expose herself to a greater degree of risk to save her child than would a stranger,(42) the parent is not required to risk death or serious bodily injury.(43) Parents are expected to take every step reasonably possible to prevent harm to their children.(44)

Though the law holds both parents to the same duty, society particularly expects that the mother will be the child's protector. The mother is expected to suppress any individual identity or needs of her own in order to serve and protect the needs of her child.(45) She is expected to use more than reasonable efforts to protect her child, to do more than the law requires. She is expected to use every effort. When a child dies through abuse at the hands of someone other than the mother, and the state determines that the mother failed to take reasonable steps to save her child, the mother can be prosecuted for "failure to protect." There appears to be no discussion in the cases of what constitutes "every reasonable" step possible to satisfy the duty to act.(46) The unspoken assumption may be that the mother can end the abuse by simply picking up the phone and calling the police. Such assumptions ignore the realities of violence by the significant other.(47) By...