The law of motherhood in the gender-dependent application of criminal responsibility for failing to protect children

• Author: Deborah Anthony
• Position: Professor of Legal Studies at the University of Illinois Springfield
• Pages: 1-33

ARTICLES

THE LAW OF MOTHERHOOD IN THE GENDER-DEPENDENT

APPLICATION OF CRIMINAL RESPONSIBILITY FOR FAILING

TO PROTECT CHILDREN

DEBORAH ANTHONY*

ABSTRACT

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.

INTRODUCTION .............................................. 2

I. LEGAL OVERVIEW ....................................... 3

II. CASE EXAMPLES ........................................ 6

A. THE NON-ABUSING PARENT WAS PRESENT. . . . . . . . . . . . . . . . . . 7

* Professor of Legal Studies at the University of Illinois Springfield. Special thanks to Donna

Duncan, who graciously spoke with me on several occasions and provided the inspiration for this article,

and to Skylar Hayes, who provided invaluable research assistance as well as unsurpassed conference

presentation and travel camaraderie. © 2022, Deborah Anthony.

1

1. Father Was the Abuser . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. Mother Was the Abuser . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. THE NON-ABUSING PARENT WAS NOT PRESENT .............. 9

1. Father/Man Was the Abuser and Mother Was Not Present . . 10

2. Mother/Woman Was the Abuser and Father Was Not

Present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

III. THE REASONABLE MOTHER AND CRIMINAL NONCOMPLIANCE WITH

MATERNAL IDEALS........ ............................... 17

A. THE GENDER-SPECIFIC ‘REASONABLE PERSON’. . . . . . . . . . . . . . . 17

B. HISTORICAL DEVELOPMENT OF THE MYTH OF MOTHERHOOD IN

LAW ............................................ 18

C. THE IDEAL MOTHER IN THE CRIMINAL PROCESS FROM INVESTIGATION

TO SENTENCING ..................................... 19

D. DOMESTIC VIOLENCE AGAINST THE MOTHER. . . . . . . . . . . . . . . . . 25

E. INTERSECTIONAL CHARACTERISTICS ....................... 29

IV. ANALYSIS OF POTENTIAL APPROACHES ......................... 30

CONCLUSION ............................................... 33

INTRODUCTION

Donna Duncan of Illinois was in Florida for temporary nursing work in the fall of

1999. Her infant daughter and eight-year-old son Joseph remained at home in Illinois

with her partner, Ernst Bruny. On September 28, 1999, Ernst called Donna in Florida

and told her that he had beaten Joseph to death. Donna went to the local police in

Florida and explained the situation and her concern for her son. They contacted

Illinois police, who went to the home for a welfare check. There, they found Joseph’s

battered and deceased body in a suitcase in a bedroom closet. Ernst admitted to “pun-

ishing” Joseph for various infractions and to placing him in the suitcase. He was

arrested and charged with first-degree murder, conspiracy to commit murder, aggra-

vated battery of a child, and concealment of a homicidal death. He subsequently pled

guilty and was given a life sentence, which was later reduced to sixty years.

1

Travis Deneal, Court Reverses Woman’s Murder Conviction, SOUTHERN ILLINOISAN (May 7,

2004), https://perma.cc/8TQJ-LQG8.

As soon as Donna returned to Illinois, she too was arrested. She was charged

with first degree murder in the death of her son. It was undisputed that she was

not in the same state when Joseph was killed and had no hand in his injuries and

death. Neither was it claimed that she had abused him at any other time prior to

his death. Her crime, according to the state, was leaving Joseph in Bruny’s care.

She was culpable, prosecutors claimed, because she knew that Bruny had been

abusing her son (a claim which she contested other than a single incidence of

Bruny whipping Joseph with an electrical cord). Since this violated Donna’s legal

duty of care to her son, such knowledge amounted to first-degree murder, they

1.

2 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:1

argued. Prosecutors relied on Illinois’s Law of Accountability, which is designed

for the charging of criminal accomplices who share a common “criminal design”

or plan, or where the accomplice purportedly shared the criminal intent of the per-

petrator, despite not having actually committed the crime charged. This law was

used to argue that Donna shared the “criminal design” of her son’s murderer, and

that she “should have known” that her son’s murder was likely to happen.

2

Justice Voices, Justice Voices episode 3, part 1: Donna Lomelino, YOUTUBE, at 1:16:37 (June 16,

2021), https://perma.cc/5A5B-WL7P.

Donna

was convicted of murder, aggravated battery of a child, and concealment of a

homicidal death.

3

She was sentenced to twenty-two years in prison,

4

and she

served eight and a half years before being released.

5

Cases like Donna’s are not unusual. Similar stories can be found all over the

country. Analysis of these cases reveals a disturbing pattern: when a child is

injured or killed by an adult in the home, a marked gender division appears in the

application of charges against the non-abusing parent. While states regularly

prosecute mothers for the harm perpetrated by their male partners, men rarely

face the same charges when the roles are reversed. Although the statutory or com-

mon law upon which such prosecutions are based is gender-neutral, the applica-

tion of the principles is decidedly not.

Parents are held to a reasonable standard of care in the upbringing of their chil-

dren, and the full force of criminal law may be brought to bear upon them when

they fail to fulfill that duty. But in practice, “reasonable” appears to mean some-

thing quite different for mothers than it does for fathers. Disproportionate bur-

dens, expectations, and legal punishments are placed on mothers, where the legal

concepts of foreseeability, intent, and parental duty are twisted and weaponized,

wielded differently depending on the parent’s gender. The absence of overt gen-

der distinctions in the law disguises the fact that the operation of the criminal jus-

tice system is deeply informed by and in service to stereotyped social demands of

women while it masquerades as a system of neutral, even-handed justice. As a

result, certain actions render mothers significantly and unjustifiably more vulner-

able to severe punishment than the same behavior does for fathers.

I. LEGAL OVERVIEW

Generally, United States (U.S.) law imposes no legal duty to rescue a person

from harm caused by another, even when doing so poses little to no effort or risk

to the savior.

6

States have added such a duty in some narrow circumstances—

2.

3. Id. at 1:19:00.

4. Although the murder conviction was subsequently overturned on appeal due to new state legal

precedent holding that conviction of a forcible felony such as aggravated battery cannot serve as the

predicate for felony murder, the court determined that the evidence was sufficient for conviction on all

charges including murder, and the other convictions remained. Deneal, supra note 1. The sentence was

reduced from twenty-two years to ten. Justice Voices, supra note 2, at 1:20:00.

5. Justice Voices, supra note 2, at 1:20:00.

6. See generally AM. JUR. 1st Negligence (2006).

2022] THE LAW OF MOTHERHOOD 3