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Requiring Battered Women Die: Murder Liability for Mothers Under Failure to Protect Statutes

NCJ Number
173592
Journal
Journal of Criminal Law & Criminology Volume: 88 Issue: 2 Dated: Winter 1998 Pages: 579-660
Author(s)
M S Jacobs
Date Published
1998
Length
82 pages
Annotation
This article explores the legal dilemma of women accused of murdering their children when spouses or significant others have actually killed the children in a household where violence rules.
Abstract
The article examines the multiple expectations that society and the law has of mothers, sets forth societal requirements for women who are mothers, and explores societal reactions to domestic violence. As part of a review of society's understanding of child abuse, the article points out the tension between policies aimed exclusively towards protecting children, at all costs, from violence in the home, and policies developed to protect women from violence in the home. The article also analyzes the law on murder liability through a failure to protect; critiques the application of omissions or failure to protect theory of murder liability for battered mothers; examines the issue of whether battered women's behavior is reasonable; and proposes an agenda for change. The article recommends reexamination of several theoretical principles of criminal law, as insufficient scholarly attention has been devoted to the theories' impact upon women. Finally, the article suggests that a mother's actions may not be demonic, insane, reckless or neglectful, but may be reasonable behavior based on factors known to the mother at the time of a child's death or injury. Notes