Last Friday, a Brooklyn mother was convicted of manslaughter in an infamous case that has, once again, led to soul-searching and overhaul of New York City’s child welfare system. What is remarkable about this case is that the mother never struck a single blow; rather, her 7-year-old daughter was beaten to death by her stepfather. Seven months ago, the stepfather was similarly convicted, and he is currently serving 26 1/3 to 29 years in prison. Ironically, the mother could end up serving much more time than that, because she was also convicted of assault, unlawful imprisonment, and endangering the welfare of a child.
As any child advocate will tell you, the facts of cases such as this one are horrifyingly familiar: brutal beatings and sadistic tortures by one adult (in this case, the little girl was tied to chairs, held under cold water, and forced to use a litter box instead of a toilet), chilling acquiescence by another adult, and mistake after mistake by whatever public agency is supposed to prevent this kind of thing by early intervention into suspicious circumstances. Nearly two decades ago another notorious New York case, which involved the beating death of another little girl, triggered a national discussion about accountability and responsibility on the part of the “passive” parent. In that case, 6-year-old Lisa Steinberg was beaten unconscious by Joel Steinberg (who had illegally adopted her) while Steinberg’s partner, Hedda Nussbaum (pictured above), was in the next room. Steinberg left the apartment for three hours, leaving the girl unconscious, and Hedda did not call for help until the next morning, when the child stopped breathing. In the Steinberg case, though, Joel was convicted of the killing while all charges were ultimately dropped against Hedda.
Why the difference in outcomes?
Readers who recall the Steinberg case may also recall that news photos of Hedda Nussbaum showed a woman who had herself been so badly beaten that former friends barely recognized her: she was covered in bruises, and her nose had been broken numerous times. The argument was made that she, too, was a victim, and that her fear of Joel Steinberg made it impossible for her to stand up and protect her child. The prosecutors used her testimony to get Joel Steinberg convicted, and then they let her go on with her life. Even at that time, child advocates were aghast: surely Hedda could have done something, even if it was only to call the ambulance as her child lay dying on the bathroom floor! In a society that expects its mothers to be child-centered and self-sacrificing, Hedda Nussbaum presented a troubling image. Hence a push began to draft statutes that made it a crime to fail to act to prevent the abuse or neglect of a child, and to enforce such statutes where they already existed.
Wisconsin’s version of such a statute can be found in Wis. Stat. §948.03. Wisconsin’s version makes it a felony to fail to act to prevent bodily harm to a child where a person having responsibility for the child’s welfare has knowledge of the harm or intended harm and, while “physically and emotionally capable” of taking preventive action, fails to do so. It is not always immediately clear when someone is “physically and emotionally capable” of action, however. Hedda Nussbaum was a very troubled person emotionally, and it appears that Nixzmary’s mother, Nixzaliz Santiago, is also troubled. Her lawyers say that she had learning disabilities as a child, and was living with her four children in a homeless shelter by the time she was 22 years old. After she miscarried a pregnancy, she is said to have kept some of the fetal tissue in a jar at home. Not surprisingly, the prosecution paints a different picture of Santiago, describing her as a manipulative person who actually encouraged her husband to discipline the girl, never intervening when his beatings went out of control.
The lead prosecutor in the Santiago case characterized the conviction as “a good day for the children” because parents are now on notice that what they don’t do counts as much as what they do. I hesitate to use the word “good” in association with any part of this case. However, overall, I believe that the law should punish a parent’s failure to protect a child in any case where a parent had an opportunity to save the child without risking the parent’s own immediate death or injury. I am troubled, however, by the possibility that the punishment imposed on the passive mother might exceed that imposed on the actual murderer. In that case, I think the mother may well be the victim of an injustice: the imposition of a higher standard on her than on the stepfather. Since the passive parent is invariably female, and the active abuser is almost always male, this introduces a possible claim of gender bias, and a return to the “blaming the victim” claims that surrounded the Lisa Steinberg case.