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Tanaka Criminal Law Casebook
Resource 5 . 2 . 5

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

Elizabeth Tanaka

Excerpt:

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.  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.

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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.  By making such assumptions, the courts are in fact requiring that mothers risk serious bodily injury or death before their duty to act is satisfied.

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

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