Criminal Liability For Parents Who Fail To Protect

Minnesota Journal of Law & Inequality
Volume 5 Issue 2 Article 4
June 1987
Criminal Liability for Parents Who Fail to Protect

Anne T. Johnson
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Recommended Citation
Anne T. Johnson, Criminal Liability for Parents Who Fail to Protect, 5(2) LAW & INEQ. 359 (1987).
Available at: https://scholarship.law.umn.edu/lawineq/vol5/iss2/4
Minnesota Journal of Law & Inequality is published by the

University of Minnesota Libraries Publishing.
Criminal Liability for Parents Who Fail to Protect
Anne T. Johnson*
Introduction
Terri Williquette was a working mother of two children-a
seven-year-old son and an eight-year-old daughter. While she
worked, she left the children at home in the care of their father,
Bert. During his hours alone with the children, Bert Williquette
subjected them to extended physical and sexual abuse, including
beatings with a metal stick, forcing them to eat feces, and engaging
in oral and anal intercourse with the children. The children's
mother, Terri, was never present during the abuse, but both chil-
dren testified they told her about what their father was doing to
them.1 Terri never acted to protect her children from the horrors
they were forced to suffer at the hands of their father.
On November 15, 1983, the State of Wisconsin charged Terri
Williquette with two counts of criminal child abuse under Wiscon-
sin Statute section 940.201.2 She was charged with failing to pre-
vent her husband from abusing her children. The Circuit Court of
Door County dismissed the charges. On appeal by the state, the
Court of Appeals of Wisconsin reversed, holding that while a par-
ent's failure to protect was not a direct act of abuse under section
940.201, it constituted aiding and abetting in the crime of child
abuse. a In light of her legal duty to protect her children, Terri
Williquette's knowledge of the abuse and her failure to prevent it
4
supported an inference of her intent to assist in the crime.
Ms. Williquette appealed and the Supreme Court of Wiscon-
sin affirmed the decision of the appellate court.5 The supreme
court concluded, however, that Ms. Williquette could be prose-
* The author will receive her J.D. from the University of Minnesota in May,
1988. Before law school, she ran a therapeutic preschool program for children with
emotional and behavioral problems.
1. State v. Wihiquette, 129 Wis. 2d 239, 245-46, 385 N.W.2d 145, 147-48 (1986)
[hereinafter Williquette II].
2. Wis. Stat. Ann. § 940.201 (West 1982); See infra text accompanying notes 6-
7.
3. State v. Williquette, 125 Wis. 2d 86, 370 N.W.2d 282 (Ct. App. 1985), aff'd
129 Wis. 2d 239, 385 N.W.2d 145 (1986) [hereinafter Williquette 1].
4. Id. at 90-91, 370 N.W.2d at 285.
5. Williquette II, 129 Wis. 2d 239, 385 N.W.2d 145 (1986).
Law and Inequality [Vol. 5:359
cuted directly for the crime of child abuse under section 940.201, as
well as for the crime of aiding and abetting child abuse.6 The Wis-
consin child abuse law, section 940.201, states that "[w]hoever tor-
tures a child or subjects a child to cruel maltreatment, including,
but not limited, to severe bruising, lacerations, fractured bones,
burns, internal injuries or any injury constituting great bodily
harm... is guilty of a Class E felony." 7 While the statute does not
expressly include acts of omission within the definition of child
abuse,8 the supreme court interpreted the statute to include the
failure to protect a child from known maltreatment. 9 The court
held that Ms. Williquette had an affirmative duty as a parent "to
protect her children from a foreseeable risk of cruel maltreat-
ment." 10 By ignoring her children's pleas and continuing to leave
them with her husband, who she knew was abusing them, Ms. Wil-
liquette's conduct was considered one of the causes of the abuse."1
Terri Williquette's situation is not unusual. The fact that her
case made it all the way to the state supreme court is unusual.
Child abuse is disconcertingly prevalent in this country. 12 Too
often when an adult hurts a child, another adult is present and
aware of the abuse. Instead of preventing the abuse, the second
adult knowingly allows it to happen, as Terri Williquette did. By
allowing Terri Williquette to be charged under section 940.201, the
Wisconsin Supreme Court held her equally responsible for the in-
jury to her children.13
Terri Williquette's conviction raises some serious questions
about what constitutes child abuse, and the appropriate remedies
for this abhorrent crime. Was Ms. Williquette's crime of passively
allowing the abuse to continue on the same scale as the actual
abuse committed by her husband? How broadly can we construe
parental duty? Will criminal liability for the failure to protect
help eradicate child abuse in this country? Will criminal liability
6. Id. at 256, 385 N.W.2d at 152.

7. Wis. Stat. Ann. § 940.201 (West 1982).
8. Id.
9. Williquette II, 129 Wis. 2d at 262, 385 N.W.2d at 155.
10. Id. at 262, 385 N.W.2d at 155.
11. Id.
12. It is estimated that over one million children are physically abused or ne-
glected each year in the United States alone, while another 100,000 to 500,000 are
sexually abused annually. See John E.B. Myers, The Legal Response to Child
Abuse: In the Best Interest of Children? 24 J. Faro. L. 149, 169-70 (1985).
13. Terri Williquette was charged with two counts of child abuse under Wis.
Stat. § 940.201 for failing to protect each child from repeated sexual and physical
abuse by their father. Although not reported in the case record, one may assume
that Bert Williquette was also charged under § 940.201 for at least two counts of
physical and sexual abuse of his children.
19871 PARENTS WHO FAIL TO PROTECT
for Terri Williquette help heal the Williquette children, or make

their mother a better parent? How do we get parents to protect
their children from harm?
This article addresses these questions. It focuses specifically
on Terri Williquette's "crime"-the failure of a parent to protect
her children from abuse. Section I of the article traces the judicial
and stautory development of criminal laws dealing with child
abuse, specifically addressing the progression from a total absence
of laws protecting children to laws that criminalize the failure to
protect. Section II discusses three major rationales behind the deci-
sion to prosecute for the failure to protect-punishment, deter-
rence, and rehabilitation. In this section, the effectiveness of
holding a parent criminally liable for failure to protect her 14 chil-
dren is analyzed in terms of fulfilling the purposes of these ratio-
nales. The final section of the article sets out suggestions for an
"ideal" program for parents who fail to protect their children from
abuse.
I. Development of Child Abuse and Neglect Laws for the Protection

of Children
A. National Commitment to the Protectionof Children
Child abuse such as that suffered by the Williquette children

is neither a recent nor a unique phenomenon. Abuse of children
has existed throughout the ages and around the world. 15 For cen-
turies children were regarded as property, having virtually no
rights.16 It was believed that "parents ... had the right to do al-
most anything they wished with their children."1 7 Children were
valued as economic assets or objects of amusement.' 8 It has only
been within the last two centuries that there has been a growth of
interest in children's rights and a move to actively protect them
from abuse. In 1874, the sensational newspaper coverage of one
egregious case of child maltreatment prompted intervention on be-
14. For purposes of simplicity, this article will use the feminine nouns and pro-
nouns when referring to parents who fail to protect. This is not to say, however,
that only men abuse children and only women fail to protect them from abuse.
Certainly either parent may take either role. For cases involving women who
abuse while the man takes the passive role, see ifra note 62.
15. For an overview of the history of child abuse, see, Samuel X. Radbill, Chil-
dren in a World of Violence: A History of Child Abuse, in The Battered Child 3
(C. Henry Kempe, M.D. & Ray E. Helfer, M.D. ed., 3d ed. 1980).
16. See A. Schwartz & H.L. Hirsch, Child Abuse and Neglect: A Survey of the
Law, in Child Abuse 32 (Amnon Carmi & Hanita Zamrin ed. 1984).
17. Mildred Daley Pagelow, Family Violence 154 (1984).
18. Id. at 151.
half of the child.19 The Society for the Prevention of Cruelty to

Animals was the only agency available to intervene as there was
no established social agency concerned with the protection of chil-
dren. 2 0 In response to this case and the publicity surrounding it,
the Society for the Prevention of Cruelty to Children was
2
formed. 1
Government involvement in the protection of children has
been continually affected by the dilemma of balancing family au-
tonomy with coercive intervention by the state.22 On the one
hand, parents' rights to raise their children without interference
from the state has been established through a long line of
Supreme Court cases: 23 parents have a right to guide their chil-
dren's education;24 unmarried and divorced parents cannot be de-
prived of their rights to the care and custody of the minor children
without procedural safeguards; 25 and parents even have a constitu-
tional right to institutionalize a child without formal adversarial
26
hearings.
Summing up the Supreme Court's traditional view of paren-
tal rights, Chief Justice Burger wrote in Parham v. JR.: "Our ju-
risprudence historically has reflected Western Civilization
concepts of the family as a unit with broad parental authority over
19. Catherine J. Ross, The Lessons of the Past: Defining and Controlling Child
Abuse in the United States, in Child Abuse, An Agenda for Action 63, 74 (George
Gerber, Catherine J. Ross & Edward Zigler ed. 1980).
20. The famous case of "Mary Ellen" was the impetus for the formation of
agencies designed for the protection of children. Eight-year-old Mary Ellen Wilson
was kept locked in the apartment of the family to whom she had been indentured.
She was rarely bathed or fed, and was repeatedly beaten. When she was discovered
by a charitable worker in 1873, the New York City police department and other
agencies refused to become involved. It was not until the Society for the Preven-
tion of Cruelty to Animals petitioned the court in Mary Ellen's behalf that action
was taken and the abuser jailed. The child was sent to an orphanage and later was
indentured to another family. See id. See also Barbara J. Nelson, Making an Issue
of Child Abuse 5-11, 53-54 (1984).
21. See Ross, supra note 19, at 74.
22. Eli H. Newberger & Richard Bourne, The Medicalization and Legalization
of Child Abuse, in Critical Perspectives on Child Abuse 139 (Richard Bourne & Eli
H. Newberger ed. 1979).
23. Pamela D. Mayhall & Katherine Eastlack Norgard, Child Abuse and Ne-
glect: Sharing Responsibility 266-67 (1983).
24. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1970) (state cannot require school
attendance after eighth grade for Amish children when it burdens free exercise of
religion); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (state cannot require pub-
lic school attendance); Meyer v. Nebraska, 262 U.S. 390 (1923) (state cannot prohibit
German instruction in the schools).
25. See, e.g., Stanley v. Illinois, 405 U.S. 645 (1972) (unmarried father cannot be
deprived of custody of children on death of mother without a hearing); May v. An-
derson, 345 U.S. 528 (1953) (parent's right to care of minor children crucial in deci-
sion that sister state need not recognize custody decree obtained ex parte).
26. See Parham v. J.R., 442 U.S. 584 (1979).
1987] PARENTS WHO FAIL TO PROTECT
minor children."27 While recognizing that child abuse and neglect

do exist in our society, Burger went on to state: "That some par-
ents 'may at times be acting against the interests of their children'
...creates a basis for caution, but is hardly a reason to discard
wholesale those pages of human experience that teach that parents
28
generally do act in the child's best interests."
On the other hand, these traditional parental rights must be
limited by the "legitimate rights and interests of children." 29 In
response to this concern for the rights of children, the doctrine of
parenspatriae has developed in this country as the underlying jus-
tification for intervention in the parent-child relationship.30
Parenspatriae "is the state's limited paternalistic power to protect
or promote the welfare of certain individuals, like young children
and mental incompetents, who lack the capacity to act in their own
best interests."31 Before intervening in the family relationship,
however, "the state must show that the child's parents are either
unfit, unable, or unwilling to care for the child adequately." 32 In
extreme cases, therefore, concern for children may override the
parents' right to raise their children without interference from the
state.
In the past two decades this country has committed itself to
the protection of its children. In 1974, Congress passed the Child
Abuse Prevention and Treatment Act, P.L. 93-247.33 This Act es-
tablished a National Center on Child Abuse and Neglect and pro-
vided state grants to develop child abuse prevention, treatment,
and research programs. 34 In 1978, Congress extended the Act to
include new programs to prevent and treat sexual abuse.35 Addi-
tional funding was provided in 1981 to extend the programs
through fiscal year 1983.36
Even with this legislation, however, studies in the late 70's
27. Id. at 602.

28. Id. (quoting Bartley v. Kremens, 402 F. Supp. 1039, 1047-48 (E.D. Pa. 1975),
vacated and remanded, 431 U.S. 119 (1977)).
29. See 442 U.S. at 630 (Brennan, J., concurring in part and dissenting in part).
30. See Jeanne M. Giovannoni & Rosina M. Becerra, Defining Child Abuse 51
(1979). See also Schwartz & Hirsch, supra note 16, at 32.
31. Note, Developments in the Law-The Constitution and the Family, 93 Harv.
L. Rev. 1156, 1199 (1980).
32. Id. at 1201-02.
33. The Child Abuse Prevention and Treatment Act of 1974, Pub. L. No. 93-247
(codified as amended at 42 U.S.C. §§ 5101-5106 (1982)).
34. 42 U.S.C. §§ 5101-5106 (1982).
35. The Child Abuse Prevention and Treatment and Adoption Reform Act,
Pub. L. No. 95-266 (codified as amended at 42 U.S.C. §§ 5101-5106 (1982)).
36. The Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35 (codified
as amended at 42 U.S.C. § 5107 (1982)).
and early 80's continued to show an increase in the incidence of

child abuse and neglect in this country. 37 In response, Congress
passed the Child Abuse Amendments of 1984,38 demonstrating its
"firm conviction that research, prevention and treatment efforts in
the areas of child abuse and neglect and sexual abuse must con-
tinue with an identifiable national focus." 39 These amendments
included the extension of appropriations through fiscal year 1987,
increases in yearly appropriations, and the authorization of $4 mil-
lion per year expressly for the funding of sexual abuse prevention
and treatment programs. 40 In order to qualify for these funds,
states must have in effect a law providing for the reporting and in-
vestigation of all known and suspected cases of abuse.41 All fifty
states have enacted child abuse reporting statutes meeting the re-
quirements of the Act. 42 These laws impose a duty on profession-
als working with children to report suspected cases of child abuse
and neglect. The failure to do so makes one guilty of a misde-
meanor. 43 The list of professionals required to report suspected
abuse of children varies, but generally it includes doctors, teachers,
37. The National Center on Child Abuse and Neglect study for the year ex-
tending from May 1, 1979 to April 30, 1980, estimated 652,000 cases of child abuse
and neglect in the United States. A study by Dr. Murray Straus of the University
of New Hampshire in 1975 revealed that an estimated 1.8 million children per year
are severely battered, and about 6.5 million are abused. The American Humane As-
sociation statistics for 1981 showed 851,000 substantiated reports of child abuse and
neglect. S. Rep. No. 246, 98th Cong., Sess. 4, reprinted in 1984 U.S. Code Cong. &
Admin. News 2918, 2921.
38. The Child Abuse Amendments of 1984, Pub. L. No. 98-457 (codified as
amended at 42 U.S.C. §§ 5101-5107 (Supp. 1985)).
39. S. Rep. No. 246, reprinted in 1984 U.S. Code Cong. & Admin. News at 2922.
40. The Child Abuse Amendments of 1984, Pub. L. No. 98-457 (codified as
amended at 42 U.S.C. § 5101-5107 (Supp. 1985)).
41. 42 U.S.C. § 5103(b) (Supp. 1985). This section also requires that the law pro-
vide for immunity of reporters from prosecution; that the state take immediate
steps to protect children found to be abused or neglected; that the state demon-
strate there are adequate personnel, training, and programs available to assure that
all cases of abuse and neglect will be effectively handled; that the state provide for
confidentiality of records, cooperation between law enforcement agencies, courts,
and social service agencies, guardians ad litem for children involved in court pro-
ceedings, and dissemination of information to the public about the issue of child
abuse, neglect, and treatment methods available; that the level of state funding not
be reduced below the level in 1973; and that, where possible, parent organizations
dealing with the issues of child abuse and neglect get preference in the distribution
of funds.
42. For more information on child abuse reporting statutes, see Note, Unequal
and Inadequate Protection Under the Law: State Child Abuse Statutes, 50 Geo.
Wash. L. Rev. 243 (1982).
43. See, e.g., Minn. Stat. § 626.556, subd. 6 (Supp. 1985) ("A person mandated by
this section to report who knows or has reason to believe that a child is neglected
or physically or sexually abused, . . . and fails to report is guilty of a misde-
meanor.") The laws relieve people who report in good faith from civil or criminal
liability. See, e.g., Minn. Stat. § 626.556, subd. 4 (Supp. 1985).
child care workers, nurses, and law enforcement officers. 44

Through the Child Abuse Acts and Amendments, the coun-
try has demonstrated a national concern for the protection of chil-
dren. With this national commitment and funding, the states must
implement programs and enact laws which will ensure that the na-
tional goal of the protection of children is met.
B. State Involvement in Protection of Children

1. Laws criminalizing child abuse.
The non-accidental physical injury of children can be prose-
cuted under criminal assault and battery statutes. 45 In the event
of injury to a child resulting in death, states have relied on homi-
cide and manslaughter statutes to convict the offender. 46 Even
with these available criminal sanctions, states have moved further
to ensure the safety of those unable to protect themselves; thus
recognizing that children are different from adults and require
more protection. In addition to the mandatory reporting laws,
most states have enacted statutes that impose criminal sanctions
on persons convicted of hurting children. 4 7 The criminal child
abuse statutes that resulted from this concern for the protection of
children can be divided into two categories: those that punish peo-
ple who actually commit the abuse ("commission" statutes); and
those that include acts of omissions, as in exposing the child to a
risk of danger, or neglecting to perform a duty of care and protec-
tion ("omission" statutes).
48 49
All but two states have enacted criminal child abuse laws.
44. Minn. Stat. § 626.556, subd. 3 (Supp. 1985) includes "[a] professional or the
professional's delegate who is engaged in the practice of the healing arts, social
services, hospital administration, psychological or psychiatric treatment, child care,
education, or law enforcement .. " Wis. Stat. Ann. § 48.981(2) (West 1987) lists all
persons required to make reports, including:
physician, coroner, medical examiner, nurse, dentist, chiropractor, op-
tometrist, other medical or mental health professional, social or public
assistance worker, school teacher, administrator or counselor, child
care worker in a day care center or child caring institution, day care
provider, alcohol or other drug abuse counselor, member of the treat-
ment staff employed by or working under contract with a county de-
partment ... , physical therapist, occupational therapist, speech
therapist, emergency medical technician-advanced (paramedic), ambu-
lance attendant or police or law enforcement officer. ...
45. See, e.g., Wis. Stat. Ann. § 940.19 (West 1982); Minn. Stat. §§ 609.221-609.224
(Supp. 1987); N.M. Stat. Ann. §§ 30-3-1, 30-3-5 (1984).
46. See infra notes 65-66 and accompanying text.
48. "States" includes the 50 states and the District of Columbia.
49. The two states which do not make the injury of children a separate and dis-
tinct crime are Alaska and Washington. Alaska Stat. § 11.51.100 (1986) defines the
crime of endangering the welfare of a child as desertion of the child under circum-
Thirteen of these states require an act of commission 5 0 -the ac-

tual infliction of harm to a child through torture, beating, burning,
etc. The rest of the states include acts of omission among the be-
haviors they proscribe. Of the states with "omission" statutes,
eight expressly identify the crime as the violation of a duty of care
and/or protection.5 1 The remaining states find a person guilty of
stances which create a substantial risk of injury to the child. Wash. Rev. Code Ann.
§ 26.44.010 (1986) requires the reporting of abuse of dependent persons, including
both children and "[a]dult dependent persons not able to provide for their own pro-
tection .... Washington's criminal code does not include separate crimes for the
abuse or endangerment of children. One must assume that the crimes of assault
and reckless endangerment would include harm to children. Wash. Rev. Code Ann.
9A.36.010-050 (Supp. 1987).
50. Ala. Code § 26-15-3 (1986) (a person is guilty of child abuse "who shall tor-
ture, willfully abuse, cruelly beat or otherwise willfully maltreat any child under
the age of 18 years ..."); D.C. Code Ann. § 22-901 (1981) (a person is guilty of cru-
elty to children "who shall torture, cruelly beat, abuse, or otherwise wilfully mal-
treat any child under the age of 18 years . ..");Ga. Code Ann. § 16-5-70 (1984)
("[a]ny person commits the offense of cruelty to children when he maliciously
causes a child under the age of 18 cruel or excessive physical or mental pain"); Ill.
Ann. Stat. ch. 38, para. 12-4.3 (Smith-Hurd 1987) (a person is guilty of aggravated
battery of a child "who intentionally or knowingly... causes great bodily harm or
permanent disability or disfigurement to any child under the age of 13 years...");
La. Rev. Stat. Ann. 14:93 (West 1987) ("[c]ruelty to juveniles is the intentional or
criminally negligent mistreatment or neglect.., whereby unjustifiable pain or suf-
fering is caused..."); Md. Ann. Code of 1957 art. 27 § 35A (Supp. 1986) (a person is
guilty of child abuse "who causes abuse to the child..."); Mass. Ann. Laws Ch. 265
§ 13B (Law. Co-op. Supp. 1987) (a person may be imprisoned who "commits an in-
decent assault and battery on a child under the age of fourteen ...."); N.J. Stat.
Ann. § 2C:24-4 (West Supp. 1987) (a person is guilty of endangering the welfare of a
child "who causes the child harm that would make the child an abused or neglected
child . .."); Ore. Rev. Stat. Ann. § 163.205 (Butterworth 1985) (criminal maltreat-
ment of a child includes behavior that "intentionally or knowingly causes physical
injury or injuries to the dependent person"); S.D. Codified Laws Ann. § 26-10-1
(1984) (a person is guilty of abuse of a minor "who abuses, exposes, tortures, tor-
ments or cruelly punishes a minor in a manner which does not constitute aggra-
vated assault"); Tenn. Code Ann. § 39-4-401 (1982) (a person is guilty of child abuse
"who malicously, purposely, or knowingly ... treats a child under eighteen (18)
years of age in such manner as to inflict injury or neglects .. .so as to adversely
affect its health and welfare ..."); W. Va. Code § 61-8-24 (Supp. 1986) (a person is
guilty of cruelty to children "who shall cruelly ill treat, abuse, or inflict unnecessa-
rily cruel punishment upon, any infant or minor child . . .");Wis. Stat. Ann.
§ 940.201 (West 1982) ("tortures a child or subjects a child to cruel maltreatment
. ).
51. Haw. Rev. Stat. § 709-904 (1985) ("[a] person commits the offense of endan-
gering the welfare of a minor ... by violating or interfering with any legal duty of
care or protection owed such minor."); Me. Rev. Stat. Ann. tit. 17-A, § 554 (1983)
(the crime of endangering the welfare of a child includes knowingly endangering
"the child's health, safety or mental welfare by violating a duty of care or protec-
tion"); Miss. Code Ann. § 97-5-39 (Supp. 1986) (a person may be found guilty of
child abuse who "omits the performance of any duty"); Mont. Code Ann. § 45-5-622
(1986) (a person may commit the offense of endangering the welfare of children
"by violating a duty of care, protection, or support"); N.H. Rev. Stat. Ann. § 639:3
(1986) (the crime of endangering the welfare of a child includes "purposely violat-
ing a duty of care, protection or support he owes to such child"); Ohio Rev. Code
child abuse who allows non-accidental injury to a child,52 or who

53
creates a substantial risk for such injury to occur.
One of the problems that may arise when an affirmative duty
to protect a child is created is fear of retaliation by the abuser.
Protecting a child from someone who is violent and angry could
prove dangerous to the intervener. To alleviate this danger, two
states have expressly included an affirmative defense in their stat-
utes. 54 In order to exercise the defense, the defendant must have
reasonably believed that to interfere would result in additional in-
jury to the child or to the defendant.55 Case law, however, indi-
cates that courts are reluctant to accept this defense, because
protecting a child does not necessarily require risking additional
injury. 56 Other options include removing the child at another
time, or reporting the abuse to those who can prevent it.57
While protecting children who cannot protect themselves is
the rationale behind the state child abuse statutes, states are cogni-
zant of the delicate balance that must be maintained between the
rights of children and the rights of parents. Many states include in
their child abuse statutes statements regarding their commitment
to protecting children and to strengthening families. For example,
Minn. Stat. § 626.556 (1986) reads in part: "[T]he public policy of
this state is to protect children whose health or welfare may be
jeopardized through physical abuse, neglect or sexual abuse; to
strengthen the family and make the home, school, and community
Ann. § 2919.22 (Anderson Supp. 1987) (endangering children includes "violating a

duty of care, protection, or support"); 18 Pa. Cons. Stat. Ann. § 4304 (Purdon 1983)
(the crime of endangering the welfare of a child is committed "by violating a duty
of care, protection or support"); Wyo. Stat. 6-4-403 (Supp. 1987) (a person commits
the crime of endangering children "by violating a duty of care, protection or
support").
52. See, e.g., Okla. Stat. Ann. tit. 21 § 843 (West 1983) ("Any parent or other
person who shall willfully or maliciously injure, torture, maim, or use unreasonable
force upon a child . . . or who shall cause, procure or permit any of said acts to be
done..."); Conn. Gen. Stat. Ann. § 53-21 (West 1985) ("who willfully or unlawfully
causes or permits any child ... to be placed in such a situation that its life or limb is
endangered, or its health is likely to be injured, or its morals likely to be impaired
. ."). .
53. See, e.g., Mo. Ann. Stat. § 568.050 (Vernon Supp. 1987) ("A person commits
the crime of endangering the welfare of a child if: (1) He knowingly acts in a man-
ner that creates a substantial risk to the life, body or health of a child...").
54. See Minn. Stat. § 609.378 (1984) and Iowa Code Ann. § 726.6.1.e (West Supp.
1986).
55. In Minnesota, "[it is a defense to a prosecution (for knowingly permitting
the continuing physical or sexual abuse of a child) that at the time of the neglect
there was a reasonable apprehension in the mind of the defendant that acting to
stop or prevent the neglect would result in substantial bodily harm to the defend-
ant or the child in retaliation." Minn. Stat. § 609.378 (1986).
57. See infra note 63 and accompanying text.
safe for children by promoting responsible child care in all

settings ... "
The State of Washington has taken an even stronger position
on the importance of maintaining the sanctity of the family. The
declaration of purpose, which precedes the statutes concerning
abuse of dependent persons, reads as follows:
The bond between a child and his or her parent, custodian, or
guardian is of paramount importance, and any intervention
into the life of a child is also an intervention into the life of
the parent, custodian, or guardian; however, instances of non-
accidental injury, neglect, death, sexual abuse and cruelty to
children by their parents, custodians or guardians have oc-
curred, and in the instance where a child is deprived of his or
her right to conditions of minimal nurture, health, and safety,
the state is justified in emergency intervention based upon ver-
ified information; and therefore the Washington state legisla-
ture hereby provides for the reporting of such cases to the
appropriate public authorities. It is the intent of the legisla-
ture that, as a result of such reports, protective services shall
be made available in an effort to prevent further abuses, and
to safeguard the general welfare of such children .... Pro-
vided further, That this chapter shall not be construed to au-
thorize interference with child-raising practices, including
reasonable parental discipline, which are not proved
58
to be inju-
rious to the child's health, welfare, and safety.
Despite a commitment to maintaining the integrity of the
family, states have determined that intervention is warranted in
some instances for the protection of children. When a child is
gravely injured, states are willing to prosecute the abuser. Some
states have taken the next step in protecting children by prosecut-
ing adults for behavior that seriously endangers a child's life, in-
cluding the failure to protect.
2. Convictions for the failure to protect.

a. Imposition of a parentalduty.
Thirty-five states have recognized that parental duties extend
beyond the duty not to abuse children. These states, through the
inclusion of acts of omission in their child abuse statutes, expressly
acknowledge that parents owe a duty of care and protection to
their children. 59 State legislatures and courts have demonstrated a
willingness to use their statutes to convict people for failing to pro-
tect when another person's direct abuse of a child results in death
or serious bodily harm.
58. Wash. Rev. Code Ann. § 26.44.010 (1986).

59. See supra note 51 and accompanying text.
Parents have a duty to support, nurture, sustain, and protect

their children. 60 The courts have held that the duty of a parent to
protect is that which a reasonably prudent person would do to pre-
vent harm to another. 61 Both parents share this duty.62 Removing
the child from the situation, evicting the abuser, or reporting the
abuse to authorities would satisfy this parental duty.63 The non-
abusive parent need not physically stop the abuse, 64 but she cannot
60. See, e.g., State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975), cert. denied, 425
U.S. 942 (1976) (affirmative duty to provide medical care to child); Palmer v. State,
223 Md. 341, 164 A.2d 467 (1960) (mother's duty imposed by Code to provide sup-
port, care, nurture, welfare and education).
The Child Welfare League's standards for child protective services discusses
parental responsibilities as follows:
In our society, both parents and children have natural and legal rights
that are accompanied by corresponding responsibilities enforceable by
law. Parents are responsible for giving their children the love, care
and protection they need; and for providing, within their ability and
the resources available to them...
-protection and supervision of the child's well-being....
Standards for Child Protective Services § 0.7 (Child Welfare League 1980).
61. See, e.g., State v. Adams, 89 N.M. 737, 738, 557 P.2d 586, 587 (Ct. App. 1976),
cert. denied, 90 N.M. 7, 558 P.2d 619 (1976) (after mother's abuse of child resulted in
death, father convicted of negligent homicide for "failure to do an act which one is
under a duty to do and which a reasonably prudent person in the exercise of ordi-
nary care would do to prevent injury .. . to another."); Worthington v. State, 409
N.E.2d 1261, 1274 (Ind. Ct. App. 1980) (father convicted of neglect in drowning
death of child for failure to exercise his statutory duty to "discover and act in a rea-
sonable manner"); State v. Williams, 100 N.M. 322, 670 P.2d 122 (Ct. App. 1983),
cert. denied, 100 N.M. 259, 669 P.2d 735 (1983) (mother convicted of child abuse be-
cause she failed to act as reasonably prudent person and allowed her child to re-
main with abusive father); Smith v. State, 408 N.E.2d 614, 622 (Ind. Ct. App. 1980)
("The standard of care is what a reasonable parent would do or not do under the
circumstances.").
62. Though we usually think of mothers as being the persons guilty of a failure
to protect their children from abuse by fathers or boyfriends, several cases have
found fathers liable for failing to protect their children from the abuse of their
wives. See, e.g., State v. Portigue, 125 N.H. 352, 481 A.2d 534 (1984) (father con-
victed of child endangerment for failing to prevent wife's beating of their child);
State v. Kamel, 12 Ohio St. 3d 306, 466 N.E.2d 860 (1984) (doctor father convicted
after failing to secure further medical attention for son after wife's beatings);
Worthington v. State, 409 N.E.2d 1261 (Ind. Ct. App. 1980) (father convicted in
drowning death of daughter in view of evidence that he had witnessed or heard
wife's previous abuse).
63. See, e.g., Palmer v. State, 223 Md. 341, 164 A.2d 467 (1960) (appellant could
easily have removed child from danger); State v. Williams, 100 N.M. 322, 670 P.2d
122 (Ct. App. 1983), cert. denied, 100 N.M. 259, 669 P.2d 735 (1983) (failure to re-
move or seek help was proximate cause of child's injuries); Lott v. State, 686 S.W.2d
304 (Tex. Ct. App. 1985) (despite evidence of mother's dependence on boyfriend for
drugs which allegedly kept her from leaving him and obtaining necessary medical
care for her child, her conviction was upheld).
64. See, e.g., State v. Williams, 100 N.M. 322, 324, 670 P.2d 122, 124 (Ct. App.
1983), cert. denied, 100 N.M. 259, 669 P.2d 735 (1983) (mother claimed her preg-
nancy and her husband's threats prevented her from intervening---court held that
"[tihe issue is not whether defendant physically stopped the abuse, but whether she
ignore her duty and knowingly allow a child to suffer at the hands
of another.
b. Convictions under "omission" statutes.

When a child dies as a result of abuse which a parent failed to
prevent, that parent may be charged with criminal negligence 65 or
negligent homicide.66 Several courts, however, have allowed the
prosecution of the negligent parent under the state child abuse
67
statute, either in conjunction with charges of negligent homicide
or independently.68 In cases where the abuse results in severe
bodily injury to the child, the non-acting parent is charged under
the child abuse statute. 69 Courts have stressed the parental duty
in such cases. An Ohio court convicted a father after the death of
his child at the hands of the mother for "an inexcusable failure to
act in discharge of one's duty to protect a child."70 A Texas court,
sustaining a conviction of a mother for her child's death caused by
a boyfriend, stated: "[A]ppellant was the natural and custodial
parent who had a duty to provide medical care and protection for
the child. She knew the child was being abused over an extended
period of time, and that it was [the boyfriend] who was beating her
child."71
Parents cannot be convicted under these statutes based only
on their presence in the home.72 They must have witnessed the
abuse of the child73 or have been aware that abuse occurred when
was negligent in failing to take some action to avoid foreseeable abuse or to seek
help once it started.").
65. See, e.g., Palmer v. State, 223 Md. 341, 164 A.2d 467 (1960).
66. See, e.g., State v. Adams, 89 N.M. 737, 557 P.2d 586 (Ct. App. 1976) cert. de-
nied, 90 N.M. 7, 558 P.2d 619 (1976).
67. See, e.g., People v. Northrop, 132 Cal. App. 3d 1027, 182 Cal. Rptr. 197 (Ct.
App. 1982) (conviction of second degree murder and felony child abuse); People v.
Atkins, 53 Cal. App. 3d 348, 125 Cal. Rptr. 855 (Ct. App. 1975) (involuntary man-
slaughter, battery, and endangering the person and health of a child).
68. See, e.g., State v. Kamel, 12 Ohio St. 3d 306, 466 N.E.2d 860 (1984); State v.
Portigue, 125 N.H. 352, 481 A.2d 534 (1984).
69. See, e.g., State v. Wardlow, 20 Ohio App. 3d 1, 484 N.E.2d 276 (Ct. App. 1985)
(mother convicted of child endangerment for failure to either remove daughter or
evict boyfriend after known rape by mother's boyfriend of her 13-year-old daugh-
ter); State v. Williams, 100 N.M. 322, 670 P.2d 122 (Ct. App. 1983) (affirmed convic-
tion of mother for child abuse after failure to act following abuse by father).
70. State v. Kamel 12 Ohio St. 3d at 309, 466 N.E.2d at 863.
71. Lott v. State, 686 S.W.2d 304, 309 (Tex. Ct. App. 1985).
72. See People v. Northrop, 132 Cal. App. 3d 1027, 182 Cal. Rptr. 197 (Ct. App.
1982). In that case, the court held that the jury instruction "properly informed the
jury that appellant could not be found guilty . . . unless the evidence established
that she wilfully permitted her child to be placed in a health-endangering situa-
tion .... [She] could not be found guilty of the crimes simply based upon her pres-
ence in the house." Id. at 1040, 182 Cal. Rptr. at 205.
73. See State v. Portigue, 125 N.H. 352, 481 A.2d 534 (1984) (defendant was
the child was left in the perpetrator's care. 74 In Terri Williquette's

case, the court imputed knowledge of the abuse to Ms. Williquette
based on the evidence that the children had told her about the
75
abuse by their father.
Some courts use the "omission" statute to convict a parent or
other responsible person in cases where it is unclear exactly who
committed the abuse. For example, in a California case, a child
died from hemorrhaging caused by a severe skull fracture.76 The
California Court of Appeals stated: "[b]ased on the evidence
presented at trial, [defendant] could have violated section 273a
subd. 1 . . . in three different ways. She could have assaulted
Raelynn herself, permitted someone else to assault Raelynn in her
presence, or placed Raelynn in a life threatening situation by leav-
ing her with the person who had previously battered her daugh-
ter."77 The court affirmed defendant's conviction of second degree
felony murder for the death of her daughter because "the omission
to act is no different from an act which produces the same result;
either is likely to result in death." 78
In an earlier California case, the court admitted that it was
not clear whether the jury convicted the defendant of involuntary
manslaughter based on her own abusive actions or based on a fail-
ure to protect the child from her boyfriend's abuse. 79 Thus, some
courts are willing to use child endangerment statutes to make sure
that the parent is punished, even in cases where it is unclear
whether or not the parent actually committed any of the abuse.
The only prerequisite is that the parent knew the abuse was
occurring.
c. Constitutionalchallenges to "omission" statutes.

Statutes that create liability for the failure to take protective
action have withstood constitutional challenges on both vagueness
aware of the beatings of his daughter by his wife and had even witnessed some of
the beatings).
74. Jakubczak v. State, 425 So. 2d 187, 188-89 (Fla. Dist. Ct. App. 1983) (mother
knew "that the infant had previously suffered serious injuries-not self-inflicted-
while in the exclusive care and custody of the husband").
75. See Williquette II, 129 Wis. 2d 239, 245-47, 385 N.W.2d 145, 147-48 (1986).
76. People v. Benway, 164 Cal. App. 3d 505, 508, 210 Cal. Rptr. 530, 531 (Ct. App.
1985).
77. Id. at 510, 210 Cal. Rptr. at 533.
78. Id. at 512, 210 Cal. Rptr. at 534.
79. People v. Atkins, 53 Cal. App. 3d 348, 360, 125 Cal. Rptr. 855, 863 (Ct. App.
1975). See also State v. Schultz, 8 Ohio App. 3d 352, 457 N.E.2d 336 (Ct. App. 1982)
(affirmed trial court decision that mother was guilty of at least one violation of R.C.
2919.22, either by abusing the child herself, or by allowing her boyfriend to do so,
violating a duty of protection).
Law and Inequality (Vol. 5:359
and equal protection grounds. Defendants have challenged the

"omission" statutes claiming that the language is so vague it does
not provide sufficient notice of what constitutes the crime or the
requisite intent. Courts have held, however, that the use of the
words "may," "unreasonably," or "duty of care" are not so indefi-
nite that they cannot be understood by the average person of ordi-
nary intelligence.8 0 The statutes put the public on notice that
permitting another person to abuse a child may be grounds for
liability.S1
Challenges for the failure to properly define the level of in-
tent required for liability have also been unsuccessful. In 1975,
New Mexico's child abuse statute read only, "[a]buse of a child
consists of a person knowingly, intentionally or negligently and
without justifiable cause, causing or permitting a child to be:
[abused]." 8 2 The trial court in State v. Lucero dismissed defend-
ant's indictment, holding the statute unconstitutional. The court
found that the lack of distinction between intentional, knowing,
and negligent acts, and the lack of provisions for lesser included
offenses according to a defendant's culpability denied equal protec-
tion of the laws.83
The Court of Appeals of New Mexico reversed, interpreting
the child abuse statute broadly to impose "strict liability" or "lia-
bility without fault."8 4 The court defined a strict liability statute
as "one which imposes criminal sanction for an unlawful act with-
out requiring a showing of criminal intent."8 5 It held that a strict
liability standard could be imposed when "the public interest in
80. See, e.g., People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977) ("may" inter-
preted to mean "a reasonable probability"); State v. Fisher, 230 Kan. 192, 194-95, 631
P.2d 239, 241-42 (1981) ("may" interpreted to mean "reasonable probability" or
"likelihood," "unreasonably" means "the doing of or omitting to do something that
the average person, possessing ordinary mental faculties, would not have done or
would not have omitted under all of the attendant and known circumstances");
State v. Sammons, 58 Ohio St. 2d 460, 391 N.E.2d 713 (1979) (interpreted "duty of
care" to refer to the norm in society which is for parents to see that their children
are adequately nourished, clothed, housed, and protected from harm).
81. See, e.g., People v. Mann, 646 P.2d 352 (Colo. 1982) (definition of child abuse
in statute clear enough to provide notice of proscribed conduct); State v. Sammons,
58 Ohio St. 2d 460, 391 N.E.2d 713 (1979), appeal dismissed, 444 U.S. 1008 (1980)
(dismissed claim that "duty of care" language in statute was "fatally indefinite");
Commonwealth v. Mack, 467 Pa. 613, 618, 359 A.2d 770, 772 (1976) ("[p]hrases such
as 'endangers the welfare of the child' and 'duty of care, protection or support' .
are easily understood and given content by the community... ").
82. State v. Lucero, 87 N.M. 242, 243, 531 P.2d 1215, 1216 (Ct. App. 1975), cert.
denied, 87 N.M. 239, 531 P.2d 1212 (1975) (citing N.M. Stat. Ann. § 40A-6-1 (Supp.
1973)).
83. Id. at 243-44, 531 P.2d at 1216-17.
84. Id. at 244, 531 P.2d at 1217.
85. Id.
the matter is so compelling or ...the potential for harm is so great

that the interests of the public must override the interests of the
individual."8 6 The state's interest in the prevention of cruelty to
children was within the police power.8 7 The court went on to say
that "[w]hether an act prohibited by § 40A-6-1[88] . . .is committed
intentionally, knowingly or negligently is immaterial. The Legisla-
ture has the authority to make a negligent act a crime as well as
an intentional one."8 9 New Mexico has continued to apply its
strict liability standard to its child abuse statutes, holding that the
mens rea of the defendant who abuses a child or who permits such
abuse is not an essential element of the crime. 90 What matters is
that a child was injured.
d. Convictions under "commission" statutes.

Some states that do not expressly include acts of omission in
their child abuse statutes have still been willing to convict a parent
for failing to protect. This has been done through a broad inter-
pretation of the statute's language, or through the crime of aiding
and abetting.
Before the Wisconsin Supreme Court imposed direct criminal
liability on Terri Williquette for the failure to protect, 9 ' the state
court of appeals held she could be charged with aiding and abet-
ting child abuse. 92 The elements of aiding and abetting include an
intent to aid the commission of a crime and conduct that actually
aided in the crime's execution. 93 The court held that where the
defendant had a duty to act, an omission of such action could aid in
the execution of a crime. 94 Terri Williquette, as a parent, had a
duty to protect her children. Because she allegedly knew of her
husband's abuse but failed to intervene in any way to stop the
abuse, "[h]er knowing failure to intervene would reasonably indi-
cate an intent to assist the perpetrator .... Inaction in this situa-
95
tion supports an inference of an intent to assist the crime."
86. Id.
87. Id. at 245, 531 P.2d at 1218.
88. N.M. Stat. Ann. § 40A-6-1 was recodified in 1973 as N.M. Stat. Ann. § 30-6-1
(West 1984).
89. Lucero, 87 N.M. at 245, 531 P.2d at 1218.
90. See, e.g., State v. Coe, 92 N.M. 320, 587 P.2d 973 (Ct. App. 1978), cert. denied,
92 N.M. 353, 588 P.2d 554 (1978); State v. Fuentes, 91 N.M. 554, 577 P.2d 452 (Ct.
App. 1978), cert. denied, 91 N.M. 610, 577 P.2d 1256 (1978); State v. Lucero, 98 N.M.
204, 647 P.2d 406 (1982).
91. Williquette II, 129 Wis. 2d 239, 385 N.W.2d 145 (1986).
92. Williquette I, 125 Wis. 2d 86, 370 N.W.2d 282 (Ct. App. 1985).
93. Id. at 89, 370 N.W.2d at 284.
94. Id. at 90, 370 N.W.2d at 285.
95. Id. at 91, 370 N.W.2d at 285.
In State v. Walden,96 the North Carolina Supreme Court

found a mother guilty of aiding and abetting her boyfriend in the
assault of her child. The court discussed at length the affirmative
legal duty of parents to protect their children with "reasonable"
measures. 97 The court held that "the failure of a parent who is
present to take all steps reasonably possible to protect the parent's
child from an attack by another person constitutes an act of omis-
sion by the parent showing the parent's consent and contribution
98
to the crime being committed."
Wisconsin's child abuse statute section 940.201 holds people
guilty of felonies who torture or subject a child to cruel maltreat-
ment. The crime is further defined as "including, but not limited,
to severe bruising, lacerations, fractured bones, burns, internal in-
juries or any injury constituting great bodily harm. . . ."99 The
Wisconsin Supreme Court concluded in State v. Williquette, that
"a parent who knowingly permits another person to abuse the par-
ent's own child subjects the child to abuse within the meaning of
sec. 940.201."100
Despite the charge that the court was "usurping the legisla-
tive prerogative to make the criminal law,"101 the Wisconsin
Supreme Court included acts of omission as well as acts of com-
mission in its interpretation of criminal child abuse. The court
used statutory interpretive techniques of giving words their ac-
cepted, ordinary meaning, and looking to the underlying purpose
of the statute 0 2 to reach its decision that Terri Williquette's inac-
103
tion was proscribed by the statute.
Three years earlier in 1983, the Court of Criminal Appeals of
Alabama had interpreted Alabama's child abuse statute as encom-
passing both acts of omission and acts of commission. 0 4 In Phelps
v. State, 0 5 the court affirmed the conviction of a mother for child
abuse. Her husband had inflicted the injuries resulting in the
death of her son. Defendant did nothing to prevent the abuse.
The court found that Ms. Phelps knew about the abuse of her
96. 306 N.C. 466, 293 S.E.2d 780 (1982).

97. Id. at 473-76, 293 S.E.2d at 785-86.
98. Id. at 476, 293 S.E.2d at 787.
99. Wis. Stat. Ann. § 940.201 (West 1982).
100. Williquette II, 129 Wis. 2d at 242-43, 385 N.W.2d at 147.
101. Id. at 275, 385 N.W.2d at 161 (Heffernan, C.J., dissenting).
102. Id. at 248-49, 385 N.W.2d at 149-50.
103. Id. at 261-62, 385 N.W.2d at 155.
104. Ala. Code § 26-15-3 (1975) reads: "A responsible person ... who shall tor-
ture, willfully abuse, cruelly beat or otherwise willfully maltreat any child . . .
shall, on conviction, be punished by imprisonment ... for not less than one year
nor more than 10 years."
105. 439 So. 2d 727 (Ala. Crim. App. 1983).
twenty-month-old son and had a duty to prevent it.106 Defendant

"did voluntarily fail to remove the child... from the custody, care
or control of [the stepfather] who had repeatedly subjected the
child ... to acts of beating or burning or kicking, said omission
thereby worsening or aggravating the injuries or conditions which
lead [sic] to the death ... in violation of section 26-15-3 107
"....
States appear to have made the protection of children a prior-
ity. Despite the dilemmas raised by the conflict between the rights
of children to protection and the rights of parents to raise their
children free from state intervention, states have moved toward
requiring more protection for children.108 Parents can no longer
do whatever they please with their children. Those who harm
their children will be punished.
Protection of children does not stop there, however. Many
legislatures and courts are imposing a legal duty on parents to pro-
tect their children. Inherent in the right to raise children is the
duty to support and protect them. Just as states will now punish
professionals who fail in their professional duty to report sus-
pected child abuse, there appears to be a growing willingness to
punish parents who fail in their parental duty to protect their chil-
dren. As the problem of child abuse continues to grow in this
country, states are willing to take more drastic measures to stop
harm to children.
II. Rationales Behind Criminal Liability

Children need protection. They cannot protect themselves.
We expect parents to fulfill this role, but when they are unwilling
or unable to do so, the state will intervene. Criminal liability for
106. Id. at 734.

107. Id. at 732.
108. Montana has expressly acknowledged the dilemma that the imposition of
criminal liability for child endangerment places on states. In comments following
their child endangerment statute, the Montana commission stated:
This section penalizes a limited class of misbehavior by a parent or
other person legally responsible for the care and supervision of chil-
dren. This offense can be committed only by an act or omission in vio-
lation of a legal duty. That legal duty may be one which does not itself
carry a penal sanction; this section adds the penal sanction when viola-
tion of the duty creates a known danger to the child. Although the
commission recognizes that prosecution of parents will seldom be a
constructive solution to intra-family problems, it seems worthwhile to
retain a penal sanction for gross breach of parental responsibility ....
Mont. Code Ann. § 45-5-622 (1987) (Commission Comments). Like Montana, most
recent child abuse legislation has weighted the balance between parents' rights and
children's rights in favor of protecting endangered children. See Douglas J.
Besharov, The Legal Aspects of Reporting Known and Suspected Cases of Child
Abuse and Neglect, 23 Vill. L. Rev. 458, 461 (1978).
the failure to protect is one means the state can use to protect chil-
dren. The underlying rationales in holding people criminally lia-
ble for their actions are punishment, deterrence, and
rehabilitation. 0 9
We believe that someone who allows a child in their care to
suffer harm should be punished. It is a horrible crime which soci-
ety cannot excuse. Ideally by punishing offenders, others are de-
terred from committing the same crime. Parents who learn of the
conviction are put on notice of the consequences of failing to pro-
tect their own children and will take appropriate action. Finally,
we want to rehabilitate the offender, so that the crime does not re-
cur. Criminal liability provides the access necessary for rehabilita-
tion and treatment.
The doctrine of parenspatriaejustifies intervention in a fam-
ily because it is in the best interest of the child. 110 The question
that arises, however, is whether the decision to prosecute a mother
for allowing someone to injure her child is in the best interest of
the child."' Although criminal sanctions against the actual abuser
have been available for a long time, debate continues about the ef-
fectiveness of such sanctions.'1 2 Commentators question whether
the process and subsequent punishment are not worse than the
crime in terms of possible adverse effects upon the child."3 Many
of the same concerns arise with liability for the failure to protect.
There are, however, other concerns unique to this particular situa-
tion. In light of the fact that courts are convicting people like
Terri Williquette, we must examine the policy rationales behind
109. See Franklin E. Zimring and Gordon J. Hawkins, Deterrence: The Legal
Threat in Crime Control, 1-3 (1973). Incapacitation is another rationale often cited
for criminal liability. See Jack R. Gibbs, Crime, Punishment, and Deterrence 21-22
(1975). Since jail terms tend to be the exception in child abuse cases, however, this
article does not consider incapacitation as a justification for criminal liability.
110. See supra notes 30-32 and accompanying text.
111. One group of commentators has suggested that, rather than using the "best
interests" standard for determining appropriate placements in custody cases, courts
should use the guideline of "the least detrimental available alternative for safe-
guarding the child's growth and development." Joseph Goldstein, Anna Freud, Al-
bert J. Solnit, Beyond the Best Interests of the Child 53 (1979) (hereinafter
Goldstein). Goldstein argues this guideline "should serve to remind decisionmakers
that their task is to salvage as much as possible out of an unsatisfactory situation.
It should reduce the likelihood of their becoming enmeshed in the hope and magic
associated with 'best,' which often mistakenly leads them into believing that they
have greater power for doing 'good' than 'bad.'" Id. at 63.
112. See, e.g., B.M. Dickens, Child Abuse and Criminal Process: Dilemmas in
Punishment and Protection, in Child Abuse 77 (1984). See also Myers, supra note
12, at 149.
113. See Dickens, supra note 112 at 79-87; Myers, supra note 12, at 178-85.
such decisions and determine whether criminal liability is an effec-

tive means to the ends.
A. Punishment.
The image of intentionally hurting a child is repugnant to
most of us. We cannot imagine ever doing it, nor can we imagine
sitting passively by while someone else abuses a child. When we
hear of a case like Terri Williquette's, where a mother knew of the
unforgivable physical, sexual, and emotional abuse her husband in-
flicted upon their two children, we are outraged. We, as a society,
want that parent punished. She has violated our conception of
what a parent should be. She has failed to protect her babies, a
role that she is in the best position to fulfill. Although criminal
sanctions may appease society's feelings of outrage, the interests of
the individuals involved may not be furthered by such action.
1. Implications for the non-abusing parent.

Abuse in a family is symptomatic of deeper problems. Such
problems need treatment, not punishment.114 If one of the goals
of our child abuse laws is to strengthen the family,115 punishing
the non-abusive parent for failure to protect may be an ineffective
way to accomplish that goal. A parent's failure to protect may
stem from a general inability to cope with the stresses of life,
rather than from any intentional desire to cause harm to a child.
Punishment may relieve society's guilt, but, at the same time, may
further victimize the parent.
The dynamics of an abusive family are very complex.116 Mu-
tual dependence-both economic and emotional-is often a charac-
teristic. This dependence hinders the ability to get out of the
relationship.11 7 To leave a spouse, even if he is abusing one's chil-
8
dren, may require a tremendous sacrifice.ll
114. See Nigel Parton, The Politics of Child Abuse 152 (1985). See also Murray
A. Strauss, Stress and 0hild Abuse, in The Battered Child, supra note 15 at 86-103;
Norman Polansky, Mary Ann Chalmers, Elizabeth Buttenweiser & David Williams,
Damaged Parents, An Anatomy of Child Neglect 25-31 (1981) (hereinafter
Polansky).
116. Myers, supra note 12, at 245. In describing families involved in intrafamilial
sexual abuse, commentators have used adjectives such as "dysfunctional," "disorga-
nized," and "nonfunctioning." Morris J. Paulson, Louise Strouse & Anne Chaleff,
IntrafamilialIncest and Sexual Molestation of Children, in The Rights of Children
39, 44 (James S. Henning ed. 1982) (hereinafter Paulson). See also Polansky, supra
note 114, at 29-31.
117. See C. Henry Kempe, Incest and Other Forms of Sexual Abuse, in The Bat-
tered Child, supra note 15, at 198, 205.
118. Women are reluctant to leave spouses who batter them or their children. It
An abusing spouse may be the sole source of financial support

for the family. Particularly when the non-abusing spouse is not
working, the decision to leave with the children can result in a
drastic decline in family income. One study found that the differ-
ence in mean monthly income between father-present households
and father-absent households ranged from $200-$300 less for the
father-absent households.119 The study concluded that "[t]o be fa-
therless was to be low-income."120 The father-absent family may
be forced to depend on others or on the state for support.
The decision to leave an abusing partner is often compounded
by the lack of places to go. Abusive families tend to be socially iso-
lated, with few resources outside the home. 121 In some instances, a
woman's family will encourage her to remain in the violent rela-
tionship in order to keep the family intact.122
Emotional dependence is another factor in a parent's decision
to stay in a destructive relationship. Some women cannot imagine
being alone again. They feel that life with an abusive partner is
better than life with no partner at all.123 Some women claim that
they still love the man who has abused their children.124 For a
mother to acknowledge the abuse and take actions to stop it is to
threaten the security of the family unit.125 A mother may be un-
willing to do this despite the fact that the family unit she is pro-
tecting is dysfunctional.1 26
Our society must take some responsibility for the inability of
some women to leave abusive partners. Sex-role stereotyping per-
sists. Society still encourages girls to assume such feminine char-
has been theorized, however, that mothers of preschool-aged children who have
been sexually abused by the fathers are more likely to leave the abusers. This may
be due to the higher level of outrage because of the age of the children or the
shorter duration of the relationships, which may affect the dependence on the rela-
tionships the women feel. Jill Waterman, Family Dynamics of Incest with Young
Children, in Sexual Abuse of Young Children 215-19 (1986).
119. Polansky, supra note 114, at 138-39.
120. Id. at 139.
121. Stephen Bittner & Eli H. Newberger, Child Abuse: Current Issues of Etiol-
ogy, Diagnosis,and Treatment, in The Rights of Children, supra note 116, at 64, 72-
73.
122. See Lenore E. Walker, The Battered Woman 145-46 (1979).
123. See, e.g., Mobley v. State, 85 N.E.2d 489, 492 (Ind. 1949) (mother admitted
she did not stop the abuse of her child because she was afraid her boyfriend would
leave her). See also Polansky, supra note 114, at 144.
124. Paulson, supra note 116, at 55.
125. See Robert M. Horowitz & Howard A. Davidson, Protection of Children
from Family Maltreatment, in Legal Rights of Children 273 (R.M. Horowitz & H.A.
Davidson ed. 1984) (hereinafter Davidson). Battered women have stated "that they
did not want to deprive their children of their fathers by breaking up their mar-
riages." Walker, supra note 122, at 149.
126. Davidson, supra note 125, at 273.
acteristics as timidness and dependency, while boys are rewarded

for their aggressive, independent behavior.127 Women have been
conditioned to believe they are helpless and will not be able to sur-
vive independently.128 Women are also socialized to believe their
12 9
value is measured by their success as wives and mothers.130
From the time they are small children, women learn that "mar-
riage is forever," "you made your bed, now lie in it," and "divorced
women are responsible for their marital failures."131 The decision
to remove the children from an abusive setting may require over-
coming a sense of shame or embarrassment for failing as a
32
mother/wife.1
Socialization also factors into perceptions of violence. We live
in a violent society. Many people believe that physical punishment
is not necessarily wrong. In fact, studies have shown that between
84 and 97 percent of parents discipline their children using some
33
form of physical punishment.1
If a woman was raised in a physically punitive environment,
she is more likely to view such child rearing techniques as justi-
fied, or necessary to teach appropriate behavior.134 Children who
have been abused learn to associate violence with the people they
love.135 They may not know anything else. These children grow
up believing that parents hit you because they care. Therefore, as
an adult, the fact that one's spouse abuses the children may be
seen as an inevitable fact of life-an expression of love.
127. See Pagelow, supra note 17, at 122-23. See also Walker, supra note 122, at
51, 145-46.
128. See David Finkelhor, Psychologica4 Cultural and Family Factors in Incest
and Family Sexual Abuse, in Child Abuse: Commission and Omission 263, 266 (Jo-
anne Cook & Ray Bowles ed. 1980).
129. Studies done on abused wives have shown that women who are battered
often stay in the relationship because of a sense of shame and responsibility. "Wo-
men in our culture are encouraged to believe that the failure of a marriage repre-
sents their failure as a woman .. " Pagelow, supra note 17, at 309 (citing Del
Martin, Battered Wives 81 (1976)).
130. See Gertrude J. Williams, Toward the Eradicationof Child Abuse and Ne-
glect at Home, in Traumatic Abuse and Neglect of Children at Home 588, 597 (Ger-
trude J. Williams & John Money ed. 1980).
131. Walker, supra note 122, at 146.
132. See Kempe, Incest and Other Forms of Sexual Abuse, in The Battered
Child, supra note 15, at 198, 199. See also Shirley O'Brien, Child Abuse, A Crying
Shame 30 (1980).
133. Richard J. Gelles, Violence Toward Children in the United States, in Criti-
cal Perspectives on Child Abuse 53 (Richard Bourne & Eli H. Newberger ed. 1979).
134. See Ross D. Parke, Socialization into Child Abuse: A Social Interactional
Perspective, in Child Abuse: Commission and Omission, supra note 128, at 295, 300-
01. See also Richard Gelles, A Profile of Violence toward Children in the United
States, in Child Abuse, An Agenda for Action, supra note 19, at 82, 102.
135. Strauss, supra note 114, at 86, 89.
The idea of a "cycle of violence" or "violence begetting vio-

lence" has become popular as one way to explain the prevalence of
family violence.136 While some studies support the concept, defini-
tive answers are not yet available. 137 Research on incestuous fami-
lies has shown that a large proportion of the mothers are from
backgrounds of emotional deprivaton, abuse, desertion by their
8
own fathers, and unsatisfactory past relationships with men.13
Similarly, studies on neglectful families have shown that more
than three out of every five mothers who neglect their children
had experienced abuse themselves as children. There is a "ring of
common-sense logic" to the idea of a cycle of violence, but com-
mentators caution that strong empirical support is missing.139
Fear may be another motivating factor to explain a parent's
failure to protect. A parent may genuinely fear that an action to
protect a child might provoke retaliation against herself or the
child.140 The abuser who has been accused may be angry at the re-
porter or the child for the disruption in his life, particularly if in-
carceration was involved.141 In situations where incarceration is
not used, restraining orders may not necessarily protect a family
from further abuse.142 Judges can issue restraining orders requir-
ing the abuser to stop the violence and stay away from the victim.
If the abuser disobeys the order, contempt of court citations and
arrest orders usually result. 143 While such orders are said to be
80% effective, some people, particularly attorneys, feel that the
abuser will not obey a restraining order as it "is simply a piece of
paper which cannot force a batterer to cease his violent
behavior."144
Often, drug or alcohol dependence is another complicating
factor in the abusive family situation.145 Sometimes the abuser is
chemically dependent and the abuse occurs only when he is intoxi-
136. For an overview of the literature on the "cycle of violence," see .Pagelow,
supra note 17, at 223-57.
137. Id. at 256.
138. Paulson, supra note 116.
139. Pagelow, supra note 17, at 254.
141. See Richard Bourne, Child Abuse and Neglect: An Overview, in Critical
Perspectives on Child Abuse, supra note 133, at 1, 12. See also Mayhall & Norgard,
supra note 23, at 271.
142. See Lenore E. Walker, The Battered Woman Syndrome 141 (1984).
143. Walker, supra note 122, at 210-11.
144. Id. at 211.
145. See Edward Zigler, Controlling Child Abuse in America: An Effort Doomed
to Failure?, in Critical Perspectives on Child Abuse, supra note 133, at 171, 185.
See also Bernard Horowitz & Isabel Wolock, MaterialDeprivation, Child Maltreat-
ment, and Agency Interventions Among Poor Families, in The Social Context of
Child Abuse and Neglect 137, 168-69 (Leroy H. Pelton ed. 1985).
cated. This makes it easier for the non-abusing spouse to ignore or

excuse the abuse rather than act to prevent it. In other cases, the
non-abusing parent may be the one with the dependence. Drug or
alcohol addiction may prevent her from adequately providing for
46
and protecting her children.1
A parent who fails to protect her child from another's abuse
has not fulfilled the expectations that society places on her. She is
expected to be a "good" parent and not allow her children to be
victimized. Yet, in many cases, the parent is a victim as well. Pun-
ishment for her behavior only continues the victimization.
2. Effect upon the child.

The decision to punish a child abuser too often is determined
in light of the effect on the offender, and on society in general.
147
Rarely do we consider the needs of the child victim. We ap-
pease society's conscience without considering the effect upon the
child. One commentator discussing the dilemmas of criminal pros-
ecution of child abusers (committers as opposed to omitters) wrote:
"The paradox or incongruity arises ...in a court punishing a par-
ent for ignoring a child's welfare while itself ignoring a child's
48
welfare."1
In a typical situation of criminal child abuse, the perpetrator
will be punished by a jail term and/or a fine. 149 He is usually re-
moved from the family situation at least temporarily. Removing
or fining the non-abusing parent as well may not be in the best in-
terest of the child. Parents provide more than just basic need ful-
fillment and protection to their children. The parent-child
relationship is crucial to the child's development.15 0 Except in the
most extreme instances, the bond between parent and child is not
one that should be broken lightly, even temporarily.151 "Con-
146. See, e.g., Lott v. State, 686 S.W.2d 304, 309 (Tex. Ct. App. 1985) (mother's
dependence on drugs supplied by the perpetrator of child's abuse prevented her
from leaving him).
147. See Dickens, supra note 112, at 85.
148. Id.
149. See, e.g., Minn. Stat. § 609.378(b) (1986) ("a parent, legal guardian, or foster
parent who knowingly permits the continuing physical or sexual abuse of a chld...
may be sentenced to imprisonment for not more than one year or to payment of a
fine of not more than $3,000, or both").
150. Joseph Goldstein, Anna Freud, Albert J. Solnit, Beyond the Best Interests
of the Child 10 (1979). See also Goldstein, supra note 111, at 9-20; Mia Kellmer
Pringle, The Needs of Children, in The Maltreatment of Children 221, 228 (Selwyn
M. Smith ed. 1978).
151. Goldstein et al, writing about child placement generally, have proposed that
"[p]lacement decisions should safeguard the child's need for continuity of relation-
ships." Goldstein, supra note 111, at 31.
tinuity of relationships, surroundings, and environmental influ-

ence are essential for a child's normal development." 5 2 A child's
1 3
identity and emotional security spring from that relationship. 5 If
it is determined that both parents have violated child abuse laws-
through direct abuse and the failure to protect-it is likely the
children will be placed in foster care or with relatives "for their
protection." Yet, "[slafety from physical risk may be in conflict
with safety of personality development." 1 5 4
Even if the non-abusive parent is not incarcerated, there still
may be economic repercussions. The costs involved in a trial in
terms of time and money create a financial burden on the family.
Imposing a fine' 55 in lieu of incarceration may increase the eco-
nomic stress already felt by the family.156 Fines can also deprive
the parent and child of valuable interactive time important to the
child's development, as many parents must return to work to re-
57
pay the amount owed.'
The criminal justice process itself is traumatic for child vic-
tims. 1 58 A child may feel she deserved the abuse. When the par-
ent is punished by the criminal system, the child is likely to
interpret this as an inappropriate consequence and may feel re-
sponsible for the punishment levied on the parent, whom she still
loves.15 9 The psychological burden on the child if criminal sanc-
tions were imposed on both the perpetrating parent and the non-
abusing parent could be devastating. To convict a parent of the
failure to protect, there must be evidence that the parent knew of
the abuse her children suffered. 160 That evidence is usually pro-
vided by the child's testimony that she told her mother. The child,
then, may feel that she is effectively convicting both her parents.
Prosecuting a parent for child abuse may result in a "second
victimization" for the child victim.' 6 ' Many mental health profes-
sionals believe that "legal proceedings can have a profoundly dis-
turbing effect on the mental and emotional health of the child
152. Id. at 31-32.

153. See Pringle, supra note 150, at 228.
154. Dickens, supra note 112, at 85.
155. See, e.g., Miss. Code Ann. § 97-5-39(1) (Supp. 1986) (fine not to exceed
$1,000); Mont. Code Ann. § 45-5-622(3) (1985) (fine not to exceed $500); Wyo. Stat.
Ann. § 6-4-483(c) (1977) (fine not to exceed $1,000).
157. See id.
158. See Myers, supra note 12, at 182. See also Mary Avery, The Child Abuse
Witness: Potentialfor Secondary Victimization, 7 Crim. Just. J. 3-4 (1983).
159. See Bourne, supra note 141, at 12.
161. See Myers, supra note 12, at 182-83.
victim."162 When a parent is prosecuted for the failure to protect,

the abusing parent has already been convicted. The child has been
through the legal process once. Much of the evidence on which
courts must rely to convict a person of child abuse is the testimony
of young children.16 3 Corroborating evidence is usually scarce be-
cause child abuse is a private crime.164 Rarely are there impartial
witnesses to the act.165 Continuous questioning about the event
can be embarrassing and traumatic for the child.166 To require a
child to go through the distressing process a second time in order
to punish the non-abusing parent may not be in the child's best
interests.
Our society places a high value on the protection of children.
The public demands reinforcement of these values through pun-
ishment. 167 If, however, we must further victimize both parents
and children to achieve that punishment, we should reconsider
whether punishment is worth the cost.
B. Deterrence
Deterrence is a second rationale behind a society's decision to
criminalize certain actions. Deterrence is the omission of a crimi-
nal act in response to the perceived fear and likelihood that one
will be punished for contrary behavior.168 People generally are de-
terred from criminal actions by their own inhibitions arising out of
a moral code shared by the general public.169 Most potential
criminals, however, do not respond in the same way to their inhibi-
tions, but rather evaluate the risk and severity of punishment
70
against the net advantages to be had from committing the crime.'
Many studies have been conducted to evaluate the effect of
criminal punishment as a deterrent on individual actors and on the
general public as a whole.171 The data is not yet conclusive about
162. Avery, supra note 158, at 3.

163. Dickens, supra note 112, at 81.
164. See Myers, supra note 12, at 184-85.
165. Schwartz & Hirsch, supra note 16, at 51.
166. See Myers, supra note 12, at 184.
168. Jack P. Gibbs, Crime, Punishment, and Deterrence 2 (1975).
169. James Q. Wilson, Thinking About Crime, Atl. Monthly, Sept. 1983, at 72, 77.
170. Id. at 79.
171. See, e.g., Alfred Blumstein & Daniel Nagin, The Deterrent Effect of Legal
Sanctions on Draft Evasion, 29 Stan. L. Rev. 241 (1979) (study found that the
higher the probability of conviction for draft dodging, the lower the actual rates);
Charles A. Murray & Louis A. Cox Jr., Beyond Probation 177 (1979) (study found
that incarceration of juvenile offenders reduced the recidivism rate substantially);
Lawrence W. Sherman & Richard A. Berk, The Specific DeterrentEffects of Arrest
for Domestic Assault, 49 Am. Soc. Rev. 261 (1984) (actual arrests of spouse abusers,
the effects of criminal sanctions as deterrents. As one social scien-

tist wrote, "[iun some situations some individuals are deterred from
some crimes by some punishments."172 What does seem clear is
that for deterrence to work at all, three factors must be present.
First, there must be certainty that the sanction will follow the
act. 173 Second, the severity of the sanction must be sufficient to
outweigh the advantages to be gained from committing the
crime.174 Finally, the punishment must follow quickly. 75 For
general deterrence to occur, public knowledge of criminal sanc-
tions is a necessity.176 Someone whose act might be deterred must
believe that the threat of punishment is directed toward them and
77
will be enforced.1
The criminalization of the failure to protect will only act as a
deterrent to the extent that it puts people responsible for the care
of children on constructive notice that they have a duty to protect
the child.' 7 8 Publicizing the existence of the law and the sanctions
that result from its violation has been shown to be helpful in de-
terrence.179 Only with awareness that others before her have been
held liable for failing to stop the abuse of children will a parent be
likely to try to prevent abuse or to seek treatment for the family,
in order to avoid liability.
Until more parents are charged with the crime of failing to
protect, and these charges are publicized in the media to maximize
citizen awareness, most parents will remain unaware of their legal
responsibility. Adequate methods for increasing public awareness
of the duty to protect children and the ensuing sanctions for fail-
ing to meet that duty are required to ensure that criminal sanc-
tions will be effective deterrents.
Another positive aspect of notice is that it may relieve some
of the emotional burden on the non-abusing parent. She knows,
and everyone around her knows, that she must act to prevent the
abuse of her children, or she risks criminal liability. The decision
as opposed to separation and mediation, reduced the likelihood of subsequent re-

ports for the same crime).
172. Gibbs, supra note 168, at 11.
173. Id. at 117.
174. Id. at 130.
175. Id. at 104. See also Wilson, supra note 169, at 78-88.
176. Franklin H. Zimring & Gordon J. Hawkins, Deterrence, The Legal Threat
in Crime Control 158 (1973).
177. Id.
178. See, e.g., Williquette II, 129 Wis. 2d 239, 262, 385 N.W.2d 145, 155 (1986)
("This construction of sec. 940.201 gives the defendant notice that she has an af-
firmative duty to protect her children from a foreseeable risk of cruel
maltreatment").
179. Wilson, supra note 169, at 78.
to seek intervention or to leave the abuser is more easily justified

to herself and others when she effectively "has no choice" if she
wants to avoid liability herself.
On the other hand, fear of criminal liability still may not be
enough to change the dynamics of the abusive family and en-
courage reporting of abuse. Fear of punishment is most likely to
factor into a person's decision whether or not to commit a crime
when there are obvious advantages to be gained by the crime.18 0 A
mother who allows someone to hurt her child is probably not
thinking about the advantages of her passive behavior. She is not
likely to be thinking of what the repercussions of her non-action
will be beyond her immediate situation. Her behavior is more
likely the result of a passive acceptance of what society has "dealt"
her than a conscious consideration of the advantages of her
behavior.
By criminalizing the failure to protect, our society seeks to
deter parents from ignoring their duty to protect their chldren.
The hope is that criminal sanctions will motivate these parents to
actively stop the abuse through whatever means are available to
them. Without increased public awareness of the existing duty
and possible sanctions, however, the deterrent effect of the laws
will be minimal.
Even with increased public awareness, deterrence is not guar-
anteed. There is still significant controversy over the effects of
punishment as a deterrent generally. If the effectiveness of crimi-
nal sanctions as a deterrent for the average criminal lawbreaker is
still in question, it seems reasonable to question strongly its effec-
tiveness with a parent caught in an abusive family situation.
C. Rehabilitation
The third rationale behind imposing criminal sanctions for
the failure to protect is that rehabilitation of the offender can be-
gin. 18 ' Upon conviction, the parent is made aware of societal ex-
pectations, and can change to become a better provider for her
children. Ideally, rehabilitation allows for the needs of all the in-
terested parties-the child, the parent, and society-to be met.
The child is protected while remaining in the parent-child rela-
tionship, and the parent is not further victimized by society. Reha-
bilitation allows the parent to step out of the role society has
helped to create and to learn to be a better parent. Finally, reha-
180. Id. at 79.

181. For a general discussion of rehabilitation's role as an alternative to punish-
ment, see generally Punishment and Rehabilitation (Jeffrie G. Murphy, ed. 1985).
bilitation appeases somewhat the public cry for punishment of

child abusers as the abuser "pays" for the crime through
rehabilitation.
Criminal sanctions on parents who fail to protect ideally
could ensure that these parents get the treatment they need. The
threat of liability alone may make parents more amenable to coop-
erating with treatment alternatives.18 2 Another advantage of
criminal sanctions is that outside agencies become aware of the
problem, ending the isolation which allows the dysfunction in the
family to continue.
The abusing family needs strengthening. Children need ther-
apy to overcome the effects of the abuse and learn to trust their
parents again; and parents need to learn how to provide for and
protect their children. As long as the sanctions imposed on par-
ents who fail to protect consist of incarceration, probation, or fines
without mandated treatment, however, rehabilitation will not nec-
essarily occur. Incarceration will not turn an ineffective parent
into an effective one. The prison environment is not equipped to
teach mothers how to protect their children. 8 3 Indeed, separating
parents from their children in a coercive, dehumanizing prison en-
vironment may disable a parent further rather than help.184 When
the abusing parent is jailed, the abuse will stop, which may justify
the imprisonment. With non-abusing parents, however, incapacita-
tion is not required to stop the harm to the child, since this ends
with the removal of the abusing partner. Therefore, incarceration
can only be justified for its punishment value or for rehabilitation.
Incarceration almost universally requires disruption of the
family, since few prisons allow families to remain together. 8 5
Separation of children from parents, however "bad", may be more
harmful than keeping the family intact. 86 If the family has al-
ready suffered the loss of the abusing parent, it is not often in the
best interest of the children to lose the other parent as well.18 7 As
long as a family is separated by the incarceration of a parent, treat-
182. See Donald N. Duquette, Liberty and Lawyers in Child Protection, in The
Battered Child, supra note 15, at 316, 317.
183. See Dickens, supra note 112, at 86. The author further states, "[i]t is evi-
dent that no education or sensitization in the needs and capacities of children is
achieved in prisons . Id.
184. Id. at 86-87.
185. See Note, On Prisoners and Parenting: Preserving the Tie that Binds, 87
Yale L.J. 1408, 1409 (1978) [hereinafter On Prisoners and Parenting]. See also
Laura Schoenbauer, IncarceratedParents and Their Children - Forgotten Fami-
lies, 4 Law & Inequality 579 (1986).
187. For more information about the effects on children of the incarceration of
parents, see On Prisonersand Parenting,supra note 185, at 1408.
ment of that family unit and strengthening of the parent-child re-

lationship cannot occur.
Our system should concentrate on rehabilitating the parent
within the family. We should teach her the skills she needs to ful-
fill her parental duty. Those skills cannot be learned in a vacuum.
They should be taught within the environment in which they will
be utilized-the family.
If criminal liability for the failure to protect is going to be ef-
fective and rehabilitation is truly going to occur, the neglecting
parent must be required to enter treatment. Simply imposing a
fine or placing the parent on probation will not begin the rehabili-
tation process for the family. The conviction for failing to meet so-
cietal expectations is useless unless the offender is required to
work to meet those expectations. A figurative slap on the wrist is
not enough. We must show the parent where she failed in her
duty and what she must do to correct the situation. Rehabilitation
must actually occur.
III. An Ideal Program

There is no question that we must do everything we can to
protect children. Therefore, states have decided they will inter-
vene in the interests of children when parents do not fulfill their
responsibilities. Criminal prosecution of adults who abuse chil-
dren, and of those who allow them to be abused, is one way states
try to protect children.
Theoretically, criminal liability should protect children in
three ways. It punishes the offender for committing an act pro-
scribed by society. It rehabilitates the offender so that the behav-
ior is stopped permanently. Finally, it deters others from
committing the same offense against innocent children.
Realistically, however, in the context of the failure by a par-
ent to protect, criminal sanctions effectively protect children only
to the extent they put parents on notice of their duty to protect,
and provide leverage to get offenders into treatment programs.
The punishment of a parent for failing to prevent harm to her
children may cause further emotional and developmental harm to
the child, rather than meeting the state goal of protecting the
child. These families need treatment, not punishment. Criminal
sanctions are not effective deterrents to others who might allow
abuse to occur, unless the public is made aware of their duty to
protect and of the consequences of not protecting. Finally, crimi-
nal liability does not guarantee rehabilitation. There may be par-
ents who are not amenable to treatment, and who cannot or will
not learn the skills needed to protect their children. Criminal lia-
bility can, however, be the leverage needed to get offenders into
treatment programs-the necessary first step that many people are
unable to take alone.
Parents who fail to protect should be charged with the crime
of child abuse. Once charges are filed, however, pre-trial diversion
should be used for all first-time offenders who allow another adult
to injure their children. This would incorporate criminal sanctions
to the extent they can be used for leverage and deterrence.
Pre-trial diversion is not new. It is being used in some juris-
dictions for sexual abuse offenders.1Ss The program is justified in
part because of the "determination that punishment for certain of-
fenders is unlikely to deter future criminal behavior, whereas
counseling or treatment can change behavior patterns which have
led to and may in the future again result in criminal activity."'18 9
While there are variations, pre-trial diversion programs generally
offer persons charged with crimes alternatives to traditional crimi-
nal proceedings by allowing defendants to fulfill certain specified
obligations on a voluntary basis. 190 Often these obligations include
participation in a treatment program.191 Charges will be dismissed
or lowered substantially if the defendant successfully completes
92
the conditions of the diversion process.1
Under the pre-trial diversion program, the parent would be
charged under the state child abuse statute, regardless of whether
it is a "commission" or an "omission" statute. At that point, how-
ever, the family would be diverted into a treatment program that
would include therapy for the abused children and for the parent.
The therapy for the children would help the children overcome
the effects both of the abuse itself and of being let down by the
parent who did not act to prevent the abuse. The goal of therapy
would be to improve the children's self-esteem and renew their
trust in adults. At the same time, it is hoped that therapy would
188. Olathe, Kansas is one such jurisdiction using pretrial diversion for child sex-
ual abuse offenders.. See Helen Swann, Debi Coffey, Roger Courtney, Dennis
Moore & Kevin Moriarity, Johnson County Child Sexual Abuse Treatment Pro-
gram, A Pre-trialDiversion Model, Olathe, Kansas, in Innovations in the Prosecu-
tion of Child Sexual Abuse Cases 43 (Josephine Bulkley ed. 1983).
189. Josephine Bulkley & Donna Wulkan, Pre-TrialDiversion, Juvenile/Crimi-
nal Court Coordinationand Other Innovative Approaches in Legal Interventions,
in Innovations in the Prosecution of Child Sexual Abuse Cases, supra note 188, at
9.
190. Id. at 9-10. See also Nat'l Ass'n of Pretrial Services Agencies, Performance
Standards and Goals for Pretrial Release and Diversion: Pretrial Diversion 5
(1978).
191. Bulkley & Wulkan, supra note 189, at 9-10.
192. Id.
interrupt the possible cycle of violence by teaching skills that

would enable the child eventually to become an effective parent.
The program for the parent would be designed to teach the
skills needed to meet societal expectations. A parent who has
failed to protect her children has done so in part in response to her
environment. Changing that environment is the first step to reha-
bilitation. The parent must learn she does have some control over
her environment. She must be taught the skills required to be in-
dependent-both emotionally and economically. The treatment
program should incorporate self-esteem, job skills, and awareness
of available resources. The parent must also learn appropriate
parenting skills so she will be able to provide for her children's
physical and emotional needs.
If the parent successfully completdd the program, she would
be placed on probation for six months during which time there
would be continuing supervision of the family.193 If no further re-
ports of abuse were filed during this time, the charges would be
dropped completely, though a record of the arrest would be re-
tained. If, however, the parent did not complete the treatment
program or there was evidence that she abused her children or
knowingly allowed another adult to abuse them, the full force of
the criminal system could be invoked to fully prosecute the parent
for child abuse. A second offense by the parent at any later date
would also trigger prosecution under the child abuse statute.
Pre-trial diversion would allow the criminal system to be
more sensitive to the interests of the child victims and the needs of
the non-abusing parent, while still responding to society's desire to
make parents responsible for their children's protection. It would
enable families to stay intact and participate in the healing process
193. Illinois presently has a similar provision in its statute concerning aggravated
battery of a child. Ill. Ann. Stat. ch. 38 para. 12-4.3(b)(1)&(2) (Smith-Hurd Supp.
1987) reads:
(1) When a person engaged in the actual care of the victim child ...
pleads guilty to, or is found guilty of the offense of aggravated battery
of a child, the court may, without entering a judgment of guilt and
with the consent of such person, defer further proceedings and place
such person upon probation upon such reasonable terms and condi-
tions as it may require. At least one such term of probation shall be
that the person report to and cooperate with the Department of Chil-
dren and Family Services at such times and in such programs as the
Department ... may require.
(2) Upon fulfillment of the terms and conditions imposed, the court
shall discharge such person and dismiss the proceedings. Discharge
and dismissal under this Section shall be without court adjudication of
guilt.... However, a record of the disposition shall be maintained and
provided to any civil authority in connection with a determination of
whether the person is an acceptable candidate for the care, custody,
and supervision of children.
together. Deterrence of future crimes at the individual level

would occur since the parent would understand that if she should
fail in her parental duty a second time, full criminal prosecution
would be pursued without the benefit of diversion.
On a general level, deterrence could be effected by publicity
of the offense and the resulting charges. Parents who hear about
the offense and resulting sanctions through media coverage might
be less inclined to allow their children to suffer. Finally, pre-trial
diversion allows for the protection of children in that it provides
for supervision of the family during the healing process without
the disruptive effect of separation.
Conclusion
The two Williquette children suffered tragically at the hands
of their abusive father and passive mother. They suffered through
the trials of their father and of their mother. Their victimization
must stop and the healing process must begin.
Terri Williquette was guilty of failing to protect her children
from the horrors their father inflicted on them. Society demands
that she accept responsibility for the consequences of her inaction.
Terri Williquette's healing process should begin now as well. She
must learn to overcome her own victimization and to be the parent
her children deserve. She cannot do that alone or in prison. She
needs rehabilitation within the family we expect her to protect.
A pre-trial diversion program for an offender like Terri Willi-
quette would combine the benefits to be gained from criminal lia-
bility for the failure of a parent to protect, with the necessary
treatment so that families can continue with their lives. Such a
program would further the state and national goals of increased
protection for our children while ensuring that the process itself
does not inflict further abuse.

Criminal Liability For Parents Who Fail To Protect

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Criminal Liability For Parents Who Fail To Protect

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Minnesota Journal of Law & Inequality

Volume 5 Issue 2 Article 4

Criminal Liability for Parents Who Fail to Protect

Follow this and additional works at: https://lawandinequality.org/

Minnesota Journal of Law & Inequality is published by the

6. Id. at 256, 385 N.W.2d at 152.

for Terri Williquette help heal the Williquette children, or make

I. Development of Child Abuse and Neglect Laws for the Protection

Child abuse such as that suffered by the Williquette children

half of the child.19 The Society for the Prevention of Cruelty to

minor children."27 While recognizing that child abuse and neglect

27. Id. at 602.

and early 80's continued to show an increase in the incidence of

child care workers, nurses, and law enforcement officers. 44

B. State Involvement in Protection of Children

Thirteen of these states require an act of commission 5 0 -the ac-

child abuse who allows non-accidental injury to a child,52 or who

Ann. § 2919.22 (Anderson Supp. 1987) (endangering children includes "violating a

safe for children by promoting responsible child care in all

2. Convictions for the failure to protect.

58. Wash. Rev. Code Ann. § 26.44.010 (1986).

Parents have a duty to support, nurture, sustain, and protect

b. Convictions under "omission" statutes.

the child was left in the perpetrator's care. 74 In Terri Williquette's

c. Constitutionalchallenges to "omission" statutes.

and equal protection grounds. Defendants have challenged the

the matter is so compelling or ...the potential for harm is so great

d. Convictions under "commission" statutes.

In State v. Walden,96 the North Carolina Supreme Court

96. 306 N.C. 466, 293 S.E.2d 780 (1982).

twenty-month-old son and had a duty to prevent it.106 Defendant

II. Rationales Behind Criminal Liability

106. Id. at 734.

such decisions and determine whether criminal liability is an effec-

1. Implications for the non-abusing parent.

An abusing spouse may be the sole source of financial support

acteristics as timidness and dependency, while boys are rewarded

The idea of a "cycle of violence" or "violence begetting vio-

cated. This makes it easier for the non-abusing spouse to ignore or

2. Effect upon the child.

tinuity of relationships, surroundings, and environmental influ-

152. Id. at 31-32.

victim."162 When a parent is prosecuted for the failure to protect,

162. Avery, supra note 158, at 3.

the effects of criminal sanctions as deterrents. As one social scien-

as opposed to separation and mediation, reduced the likelihood of subsequent re-

to seek intervention or to leave the abuser is more easily justified

180. Id. at 79.

bilitation appeases somewhat the public cry for punishment of

ment of that family unit and strengthening of the parent-child re-

III. An Ideal Program

interrupt the possible cycle of violence by teaching skills that

together. Deterrence of future crimes at the individual level

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