V. Pualani Enos, "Recent Development: Prosecuting Battered Mothers: State Laws' Failure to Protect Battered Women and Abused Children," 19 Harv. Women's L. J. 229, 240-48 (Spring 1996).
* Clinical Fellow, Northeastern University Law School Domestic Violence Institute.
J.D., George
Washington University National Law Center, 1995; B.A., Skidmore College, 1992.
I would like to
thank Joan Meier, Clare Dalton, and Lois Kanter for their encouragement, support,
and assistance
with this Article. I would also like to acknowledge the domestic violence clinical
programs and
hospital advocacy projects at the George Washington University National Law
Center and the
Northeastern University Law School for providing me with the experiences that
inspired this Article.
Assumption 1: Courts Equate Knowledge of Abuse with the Ability to Stop the
Abusive Behavior
or Protect the Child in Some Other Way
The most commonly held myths contend that: (1) the mother could have protected
her child by
taking the child away from the abuser, removing the abuser from the home, or
separating the child
from the abuser by other means; (2) if the mother needed or wanted help, such
assistance would
be readily available from police, social services, or the judicial system; (3)
family, friends,
neighbors, and religious institutions would have supported and assisted the
battered woman if only
she truly desired to protect her children; (4) battered women should risk their
lives in an attempt to
protect their children from abuse; and (5) a mother who fails to protect her
child from harm is
responsible for that harm, regardless of her efforts to stop it.
1. Myth 1: The Mother Could Have Protected her Child by Taking the Child Away
from the Abuser, Removing the Abuser from the Home, or Separating the Child
from the Abuser by Other Means
a. Case Descriptions
In Gayle W. Phelps v. State, Gayle Phelps left her twenty-two-month-old son
with her husband
while she visited her daughter, who was in the hospital with a leg injury. n57
During the time in
which Gayle visited her daughter, her abusive husband inflicted numerous injuries
upon her son
[*241] that ultimately resulted in the child's death. Gayle was subsequently
prosecuted for child
abuse.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n57 439 So.2d at 731.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
At trial, Gayle testified that her husband beat her and had previously injured
her father so severely
that he had to go to the hospital to "get sewed up." n58 In addition,
Gayle testified that she had no
knowledge of the abuse inflicted upon her son during her stay at the hospital
with her daughter.
n59 However, both the son's babysitter and the abusive husband's sister testified
that they had told
Gayle about various injuries to the young toddler. n60 Consequently, the court
found that Gayle
had knowledge of her husband's abuse of her son and that such knowledge gave
rise to a duty to
protect. n61 The court concluded that Gayle neglected her duty by allowing her
son to remain in
her husband's care. n62
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n58 Id.
n59 Id.
n60 Id. at 730-31.
n61 See id. at 729.
n62 Id. at 734.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
In Commonwealth v. Julia Cardwell, Clyde Cardwell had repeatedly sexually
abused his daughter
from the time she was eleven years old until the time she ran away at age sixteen.
n63
Prosecutors charged Clyde's wife, Julia, with "violating a duty of care,
protection and/or support."
n64
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n63 515 A.2d 311, 312 (Pa. Super. Ct. 1986).
n64 Id. at 313.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
Julia first learned of her husband's abusive behavior when her daughter was
fifteen years old. Julia
remained with her husband for ten more months but took steps to move herself
and her daughter to
her parents' house and to transfer her daughter to a new school that was located
farther away from
Clyde. n65 Julia also wrote Clyde two lengthy letters telling him that she knew
about the child
abuse and would not tolerate further violations by Clyde. However, Julia was
unable to separate her child from the abusive father before the CPS initiated
court proceedings, largely because Julia's
parents' house burned down, causing the death of her father. n66
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n65 Id. at 315-16.
n66 Id.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
In Cardwell, the court stated that under Pennsylvania law, parents are required
to take steps that
are reasonably calculated to fulfill a duty of care. n67 At trial, the child-victim
"testified that she
and Julia were afraid of Clyde, that Clyde beat Julia up on one occasion, that
he threw and broke
things in the house, that he had punched a number of holes in the walls of the
house, and that he
carried a .357 magnum pistol which he kept on the mantelpiece". n68 The
court "noted" the
dangers posed by Clyde and the intervening circumstances that had hindered Julia's
move [*242]
from her husband, but nevertheless held that the duty of a parent to protect
her child is not
discharged by incomplete or ineffectual action. n69 Moreover, the court stated
that Julia's actions
could not reasonably be expected to protect her daughter's physical and emotional
safety and
thus, demonstrated a failure to fulfill the duty to protect her daughter. n70
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n67 Id. at 315.
n68 Id. at 312.
n69 Id. at 315-16.
n70 Id. at 314. The court did not inquire as to the possibility that Clyde
may have killed Julia's
father in order to prevent her from leaving him.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
Similarly, in In re Interest of C.D.C., the Supreme Court of Nebraska terminated
the parental rights
of a battered mother after finding that the mother was unable to sever ties
with the abuser. n71
While court reports describe the abuser kicking, punching, burning, and dragging
the mother
across a parking lot by her hair, the court failed to refer to these incidents
when interpreting and
rationalizing the behavior of the mother. n72 The court blamed the battered
mother for her inability
to terminate relations with the abuser and found that her inability to provide
her child with a
violence-free environment demonstrated a "willful failure" to meet
the demands of her parental
responsibilities, thereby justifying the termination of her parental rights.
n73
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n71 455 N.W.2d 801, 807 (Neb. 1990).
n72 See id.
n73 Id.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
Finally, in an unreported case, Loch, decided in 1992, a Minnesota court found
Janice Loch guilty
of aiding and abetting her ex-boyfriend, Daniel Roethler, in the rape of her
eleven-year-old daughter and in the solicitation of a child to engage in sexual
conduct. n74
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n74 See Rebecca Sisco, Villain or Victim?, MINN. WOMEN'S PRESS, Mar. 24-Apr. 6, 1993, at 7.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
Daniel beat and threatened Janice for over two years. n75 Janice sought help
from the Minnesota
CPS and the Minnesota police department, but they told her there was nothing
they could do. n76
Because these agencies do not keep records of the cases in which they fail to
act, there was no
documentation available for Janice to present at trial. n77 In the meantime,
Daniel refused Janice's
pleas for him to stay away from Janice and her children and Daniel repeatedly
forced his way into
Janice's apartment by smashing her windows. Janice previously had attempted
to separate herself
from her attacker, planned her escape, and was awaiting one more paycheck in
order to fix her car
and flee without Daniel's knowledge. n78
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n75 Id.
n76 Id. at 8.
n77 Id. (stating that "a representative from the [CPS] office testified
that there was no record of
Loch's call.")
n78 Id.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
In response to an attempt to obtain a Civil Protection Order (CPO), Daniel
tried to attack Janice
but was restrained by neighbors. n79 Janice [*243] refrained from calling the
police, remembering
that Daniel had raped Janice's daughter once and Daniel had threatened to kill
the daughter or
Janice if Janice attempted to call the police. Janice believed that Daniel would
carry through with
his threats because he had done so in the past. n80
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n79 Id.
n80 Id.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
Daniel's violence reached its crescendo when Daniel locked both Janice and
her daughter in a
bedroom and Daniel raped the daughter. Janice testified that she believed that
if she had tried to
escape, seek help, or intervene, Daniel would have killed her or her daughter.
Thus, Janice told her
daughter to comply with Daniel's demands. Similarly, when Janice's son came
to the door to see
what was wrong, Janice sent her son away, hoping that he would notice something
was wrong and
call the police once he was out of Daniel's earshot. n81 Despite the motivations
behind Janice's
actions, she was convicted for aiding and abetting in Daniel's rape of Janice's
daughter. n82
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n81 Id.
n82 Id. at 7.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
b. Reality: Leaving the Batterer Often Increases the Danger to the Battered
Woman and her
Children
In light of what is known about domestic violence, the fears experienced by
battered women are
reasonable, and the courts should take these fears seriously. Many courts assume
that the best
way to protect against future violence is for the woman to leave her batterer.
In some cases, leaving may be a life saving act; n83 however, leaving the
abuser is not a
guarantee that physical violence, or the risk thereof, will be eliminated or
reduced. n84 On the
contrary, studies indicate that in many cases, violence increases when the victim
attempts to
leave the home. n85 Harassment, assaults, and threats often become more frequent
and
increasingly severe after the battered woman has separated from her violent
partner. n86 As in
Loch, n87 abusive men may search for women and assault, murder, or threaten
them for many
years after separation. Daniel ignored Janice's demands that Daniel stay away
from her and her
children, repeatedly created disturbances outside of Janice's apartment, and
forced his way into
the apartment by breaking through the windows. n88
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n83 See JILL DAVIES, LEGAL AID SOCIETY OF HARTFORD COUNTY, INC., USING SAFETY
PLANNING AS AN APPROACH TO WOMAN-DEFINED ADVOCACY 5 (1994) (on file with the
Harvard Women's Law Journal).
n84 Id. at 6.
n85 See CAROLINE W. HARLOW, U.S. DEP'T OF JUSTICE, FEMALE VICTIMS OF VIOLENT
CRIME 5 (1991).
n86 See ANGELA BROWNE, supra note 5, at 115-16.
n87 Sisco, supra note 74, at 8.
n88 Id.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
[*244] The risk of violence that increases after separation requires many
women to go into hiding.
In order to leave the abuser and stay safe, these women must completely relocate.
This may
mean giving up one's job and home, the children's school, family, friends, church,
and support
network in exchange for a new life in an unfamiliar place, so that the batterer
will be less able to
track the family down.
Abusive men will often threaten children and family members in an effort to
prevent the female
victim from leaving or in order to coerce her to return. n89 It is also common,
especially in cases
where severe violence exists, that the abuser will threaten to kill himself
if the woman leaves the
relationship. n90
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n89 See EWING, supra note 31, at 28.
n90 Id.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
Courts often "note" or "acknowledge" the fear of a battered
woman but refuse to consider the
reasonableness of these fears when determining the woman's culpability with
regard to her duty to
protect her children. n91 These judicial tendencies demonstrate the general
inability by courts to
understand fully the real terror of woman and child abuse.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n91 See, e.g., In re Interest of C.D.C., 455 N.W.2d 801, 807 (Neb. 1990);
In the Interest of William
Dalton, 424 N.E.2d 1226, 1232 (Ill. App. Ct. 1981); In the Matter of Glenn G.,
587 N.Y.S.2d 464,
470 (N.Y. Fam. Ct. 1992); Commonwealth v. Julia Cardwell, 515 A.2d 311, 314-16
(Pa. Super. Ct.
1986); Gayle W. Phelps v. State, 439 So.2d 727, 731 (Ala. Crim. App. 1983).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
In considering the battered mother's personal "knowledge" of the
batterer's violent tendencies,
many state courts have chastised and punished the battered mother for her inability
to leave the
batterer. n92 In State v. Gayle W. Phelps, an Alabama court convicted Gayle
Phelps of failing to
protect her son from her husband, reasoning that Gayle failed to move away and
separate herself
and her child from the batterer "knowing well Phelps' violent propensities."
n93 Similarly, in
Commonwealth v. Julia Cardwell, a Pennsylvania court based its decision to terminate
Julia
Cardwell's parental rights on her inability to remove her daughter successfully
from the house in
which her abusive husband resided. The court found that Julia's failure to find
a new home
"knowingly endangered the welfare of the child." n94
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n92 See In the Interest of J.L.S., 793 S.W.2d 79, 83 (Tex. Ct. App. 1990)
(terminating mother's
parental rights due to her failure to protect); In re Interest of C.P., 455
N.W.2d 138, 144 (Neb.
1990).
n93 439 So.2d at 734.
n94 515 A.2d at 315.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
The court ignored testimony about the abuser's severe violence against Julia
and her daughter and
about the fear that such violence created. Instead, the opinion belittled Julia's
exigent
circumstances, saying she was "tragically frustrated" by the burning
down of her parents' house
and the death of her father. n95 In addition, the court ignored Julia's trauma
[*245] as a result of
her father's death and failed to inquire into whether the abuser may have started
the fire. n96
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n95 Id.
n96 Id.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
Despite the common myth that battered women do not leave an abusive relationship,
many
battered women are able to terminate their relationships with their abusers
successfully. Studies
show that battered women respond to abuse by seeking help from both formal and
informal
sources, using more creative and diverse strategies as the violence increases
in severity and
degree. n97
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n97 See Mary Ann Dutton, Understanding the Women's Responses to Domestic Violence:
A
Redefinition of Battered Women Syndrome, 21 HOFSTRA L. REV. 1191, 1227-40 (1993).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
Leaving, however, is often a long and arduous struggle and the difficulty
of leaving a batterer is
often not appreciated. Some women's ability to escape their husbands' violence
is used against
other women who are not successful in their attempts. n98 The implication is
that the women who
are successful are more caring and conscientious caretakers.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n98 See generally id.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
This false assumption suggests that only "the will to leave" the
abuser is necessary to enable
battered women to disentangle themselves from a frequently complex and difficult
situation. In fact,
there are many obstacles confronting a battered woman who attempts to leave
or escape her
abuser, the most common being a pressing risk of separation assault, as discussed
above.
However, there are a number of additional reasons why the battered woman may
remain entrapped
in a violent situation.
As caretakers with concern for their children's emotional well-being, many
abused women believe
that their children must live with their father, have a parent who is a homemaker,
remain in the
same school, and maintain the same friends. n99 Women also realize the practical
difficulties of
leaving home with children in tow. n100 Furthermore, women also may be encouraged
by family
members, friends, or religious leaders to remain in the violent relationship
for the "sake of the
children." n101
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n99 DOBASH & DOBASH, supra note 5, at 148.
n100 Id.
n101 LENORE E. WALKER, THE BATTERED WOMAN SYNDROME 145-46 (1984).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
Women often face criminal liability when attempting to remove themselves and
their children from
their abusive partners. For example, if a woman flees home with her children
without the batterer's
knowledge, she may be charged with parental kidnapping n102 or risk the batterer
finding her and
abducting the children. Mothers who fail to protect their children are chastised
for neglect, yet
when the mothers flee with their children in order to protect them from harm,
the women often are
[*246] charged with acting irresponsibly. n103 Moreover, if the battered woman
flees the home
without the abuser's knowledge and is unable to take the children with her,
the police may charge
the mother with abandonment. n104
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n102 See Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (1995).
n103 AMERICAN BAR ASSOCIATION, THE IMPACT OF DOMESTIC VIOLENCE ON CHILDREN:
A REPORT TO THE PRESIDENT OF THE A.B.A. 17 (1994) [hereinafter ABA].
n104 See Joan S. Meier, Notes from the Underground: Integrating Psychological
and Legal
Perspectives on Domestic Violence in Theory and Practice, 21 HOFSTRA L. REV.
1295 (1993). In
order to coerce women to remain with them, abusers will frequently threaten
to seek sole custody
of the children. One-third of all women in one study stayed with their abusive
partners because of
punitive measures taken by the violent partner, including threatening lengthy
custody battles. ABA,
supra note 103, at 17.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
Lack of financial independence may also hinder the battered woman from leaving
her violent
environment. Batterers sometimes try to control their partners by limiting the
partner's access to
joint income. If a battered mother has no money, she may have to go to a women's
shelter which
may inspire CPS intervention because shelters may not be conducived to the health
and welfare of
children. Thus, the attempted escape of a financially vulnerable parent and
her child may in fact
cause the batterer to gain child custody because the mother is seen as unstable.
n105
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n105 See ABA, supra note 103, at 17.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
In addition, a battered woman who is a homemaker or who lacks a formal education
may have a
difficult time obtaining employment and finding daycare for her children. Furthermore,
the abusive
man may prevent the battered woman from working or cause her to lose her job.
n106 Finally,
women are less likely to leave a marriage or seek intervention if they lack
education or
occupational resources. n107
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n106 Women often lose their jobs due to being harassed by the batterer while
at work or due to
frequent absenteeism caused by injuries inflicted by the batterer. See Naomi
H. Archer, Battered
Women and the Legal System: Past, Present and Future, 13 LAW & PSYCHOL.
REV. 145, 150
(1989).
n107 DOBASH & DOBASH, supra note 5, at 146.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
If a woman is forced to leave her home with her children in order to escape
her violent partner,
there are few resources upon which she can rely. n108 Shelters are often unable
to fulfill all of the
woman's needs, since they may have no vacancy or refuse to accept children of
a certain age or
gender. n109 Social services are also inadequate in most cases and are not capable
of being
provided immediately. n110 Victims of domestic violence and their children should
not have to
become homeless in order to find a safe haven for themselves. n111
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n108 See Mahoney, supra note 8, at 62.
n109 Fifty-nine percent of women and children seeking shelter in New York
City's battered women
programs are turned away for lack of space. Zorza, supra note 27, at 421.
n110 NWAPP, supra note 26, at 1.
n111 Domestic violence accounts for 42% of homeless families in Philadelphia.
The New York
State Office for the Prevention of Domestic Abuse reported that battered women
and their children
made up 40% of those in the state's homeless shelters in 1987. Zorza, supra
note 27, at 421.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
[*247] In addition, a woman may initially stay with a batterer because she
believes that he can
learn to refrain from using violence. Expecting a woman to terminate what she
thought to be a
life-long relationship and deprive her children of their father after the first
abusive incident ignores
the substantial ties a woman has with the existing family structure. n112 A
battered woman often
seeks ways to eliminate the violence in her life, without necessarily having
to eliminate her
marriage. n113 Finally, the battered woman may be reluctant to claim the title
of "battered woman"
and the stereotypes, shame, and embarrassment that come with it. n114
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n112 See Mahoney, supra note 8, at 61-62.
n113 Id. at 62.
n114 Battered women often have a difficult time reconciling their qualities
of independence and
strength with the control exercised over them as a result of a few violent episodes.
See Mahoney,
supra note 8, at 59.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
The notion that "battered women don't leave" is a damaging one for
several reasons. By putting the
responsibility on the woman to leave the bad relationship, the notion implicitly
blames the woman
and excuses the violent behavior of the batterer. Even more devastating, the
notion that "battered
women don't leave" absolves social service institutions and law enforcement
agencies from
carrying out their responsibilities to victims of violence. Many agency workers
accept this notion to
rationalize their reluctance to become involved in family matters that may raise
difficult issues and
challenge their own value systems. Officials may also believe this false assumption
in order to
avoid involving themselves in a process that is almost always protracted and
frustrating. Their
assumptions may help to excuse them from participating in a poorly functioning
system that is
unlikely to produce equitable results.
In an effort to rationalize ignoring a citizen in need, enforcement officials
often mischaracterize a
woman's active attempts to gain independence as a "whimsical ploy"
for immediate attention with
no future implications. n115 Too often, every person the battered woman turns
to for help excuses
themself from participation in the struggle and heightens the woman's sense
of powerlessness.
n116 Consequently, while most women [*248] are capable of eventually leaving
their batterer
permanently, this is often a long and difficult process.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n115 In my work as an advocate for battered women in a hospital, a police
officer told me that I
was wasting my time trying to help "those people" because if they
really wanted out of the
relationship they would not be having these problems. He assured me that the
client I was working
with would be back with her partner tomorrow. He told me that from his 10 years
of experience he
knew that the "stupid women" always go back.
n116 I became acquainted with one woman who sought help in an emergency room
and who listed
all the people whom she asked for help only to be told there was no way they
could help. Police
officers told her that the abuser would have to kill her before they could act.
Security guards where
she worked told her that she would have to prove that her partner choked her,
broke her nose, and
knocked out her teeth before she could receive protection at her workplace.
The woman had been
repeatedly stalked, harassed, assaulted, and threatened, only to be told that
there was "nothing
that could be done" to protect her. She made too much money to obtain legal
services from a
clinic and too little money to pay a private attorney. When I met her she was
preparing to be killed,
hoping only that she could leave proof of the identity of her killer.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
The false assumption that women can leave an abusive relationship at any time
is so widely held
that courts often rely on the presumption even when faced with strong evidence
to the contrary. For
example, the prosecutor in the Loch case blamed Janice for her inability to
escape her boyfriend,
Daniel. The prosecutor argued that Janice chose to return to Daniel and disregarded
evidence that
Janice tried unsuccessfully to keep Daniel out of the apartment. Moreover, Janice
lacked the
financial ability to relocate and hide from Daniel. n117
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n117 Janice Loch attempted to separate from Daniel, but he repeatedly broke
into Janice's
apartment and harassed her and her children. Sisco, supra note 74, at 8.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
Similarly, the State v. Gayle W. Phelps court clearly based its opinion on
an assumption that
Gayle had the option to leave at any time. Furthermore, the court applied this
false assumption
when it concluded that Gayle never "created" the opportunity to leave
her abuser. The
Commonwealth v. Julia Cardwell court also selectively applied facts regarding
violence against a
battered woman. The court's faulty interpretation of the violence against Julia
influenced its
assessment of Julia's ability to leave her abuser. n118
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n118 515 A.2d 311 (Pa. Super. Ct. 1986).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
In In the Matter of Glenn G., a New York court recognized that a battered
woman may fail to act
due to her inability to escape the dangers posed by the batterer, yet this acknowledgement
was
subsumed by the court's strict liability interpretation of an omission statute.
n119 The court found
that the battered mother's unsuccessful attempts to escape her batterer and
protect her children
from abuse did not demonstrate that the mother was condoning the abuse. n120
The court
acknowledged that the mother was powerless to stop the abuse and found that
the mother had not
"allowed" the abuse within the meaning of New York's child abuse statute;
n121 however, under
New York's strict liability statute, the court found the battered mother liable
because her actions
were "manifestly inadequate to protect the children." n122 This holding
illustrates the inequity
which results from strict liability "failure to protect" statutes.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n119 587 N.Y.S.2d 464, 470 (N.Y. Fam. Ct. 1992).
n120 Id.
n121 Id.
n122 Id.