This series will take part across three entries, each focusing on the various components that have led to and influenced the sometimes-controversial punishment of victims.
By Dr. Marissa Stanziani
This is the second article in a series of three.
Part 1 | Part 2 (here) | Part 3
Last month’s blog introduced failure to protect laws, the main concepts behind "Battered, Bereaved, and Behind Bars", a Buzzfeed article I read many years ago that really made me think critically about our legal system. Stemming from the early 1960’s when medical professionals galvanized the discourse on child abuse, legislation regarding how best to protect our nation’s children came to the forefront. Across the nation, states began instituting mandatory reporting laws, creating government funded systems to help investigate such cases and support children, and establishing criminal and civil statutes to penalize individuals who engaged in such abuse. However, many states did not stop there and began to use such statutes to establish criminal and civil responsibility of the non-abusing parent who failed to act on behalf of the child; also known as, failure to protect laws. In this month’s installment, we discuss how the legal system, like many systems, is rife with biases, in this case, gender biases. We explore how that has played out in terms of failure to protect laws and the perhaps unfair burden placed upon women.
Gender Biases and the Legal System
On the surface, “failure to protect” laws appear straight forward and gender neutral, however, they have been used to prosecute women at a much higher rate than men (Fugate, 2001). This finding is congruent with the fact that mothers (biological or other) tend to be the primary caretakers and are the primary persons held accountable for any omissions and/or failings in caretaking (Sedlak, et. al., 2010). Contrary to what one might guess, women are more often the perpetrators of child maltreatment than men (see the U.S. Department of Health & Human Services, Administration for Children and Families, Administration on Children, Youth and Families, Children’s Bureau’s report which indicates that more than one-half (53.0%) of perpetrators are female and 46.1 percent of perpetrators are male). Yet, there are few instances in which a male has been prosecuted under failure-to-protect statutes and these prosecutions represent the exception and not the rule. Thus, one may consider if gender biases are at play.
By its societal definition, parenting is highly gendered, and the law is prone to reinforce this gendered approach in both criminal and civil cases. Despite some advancement in society’s theories of parenting, there are still automatic associations between motherhood and being female that are much stronger than fatherhood and being male. These types of automatic associations still often reflect traditional parenting beliefs that align with traditional gender roles, which in turn result in different performance standards for mothers and fathers. A father can leave his children without being seen as abandoning them, and can fail to provide them food, clothes, or nurturement without being viewed as neglectful (Strega et al., 2008). However, the notion that a mother’s behavior directly and exclusively affects the child’s behavior is a long-held and pervasive societal belief. The “good” mother is expected to be selfless and to put the needs of her children above all else; in fact, her love for her children is expected to overcome any physical, emotional, financial or moral obstacle with little or no concern for her own safety (Chesler, 2011). Thus, a woman who fails to fulfill these expectations is deemed a “bad” mother. Past research and case law have demonstrated that “bad” mothers are perceived as highly culpable when their child is victimized by a third party (Lane v. Commonwealth, 1997; Muehe v. State, 1995; Schernitzki, 2000; State v. Williquette, 1985), effectively creating an atmosphere of “mother-blaming.”
Despite the courts pledge to impartiality and objectivity, the law codifies tradition; in its inherent nature, the law defines culture while simultaneously reinforcing the beliefs that underpin it. In short, law and societal norms are synergistic. Research has demonstrated differential treatment of men and women in the legal system (Hodell et al., 2014), suggesting that women are typically treated more leniently than their male counterparts. Specifically, men are less likely to be released on their own recognizance at pretrial, more likely to be prosecuted, more likely to be convicted, and, when convicted, are sentenced more harshly for the same crime in comparison to their female counterparts (e.g., Hodell et al., 2014). Furthermore, an effect of mock juror gender has also emerged; research suggests that female participants, compared to males, are more punitive in cases of intimate partner violence (Maeder, Mossiere, & Cheung, 2012; Stanziani, Newman, Cox, & Coffey, 2019) and more sensitive to the experience of battered victims (Stanziani & Cox, 2017; Terrance, Plumm & Little, 2008).
However, research on this disparity outside the context of domestic violence has been less robust (Blais & Forth 2014). While an analysis of court data of the United States has shown that females are generally sentenced less harshly than their male counterparts (Steffensmeir & Demuth, 2006), mock juror studies suggest that the sex of the defendant has no effect on juror perceptions and outcomes as it pertains to violent crimes (Blais & Forth, 2014; Cox & Kopkin, 2016).
Taken together, our laws are created by and simultaneously create social and cultural norms. While in many cases, this can further progress or radically change things, we often find it also has a way of impeding progress. The age old saying, “the more things change, the more they stay the same,” seems to fit the gendered approach to failure to protect laws, even as our society slowly moves towards less patriarchy and more egalitarianism. Although, in many cases, women are sometimes provided leniency in criminal settings, this same leniency has not extended to the expectations regarding parenting abilities. In next month’s blog, we explore the relationship between intimate partner violence and child abuse, and how this places women, and victims of all genders in a precarious legal place on top of their already difficult reality.
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