The Culpability of Passive Abuse

Posted on Categories Criminal Law & Process, Family Law, Wisconsin Criminal Law & Process

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.

5 thoughts on “The Culpability of Passive Abuse”

  1. I have little or no sympathy for women or men for that matter who sit back allowing their children to be abused. This includes things beyond the home, it includes abuse by bullies and inept teachers and administrators at school. I lost my 12 year old grandson Chris Cejas to just such abuse in 2002 when his biological father and step monster beat, tortured, and killed him in Sacramento.

    There is no excuse for most parents or step parents to sit by while a child is killed either suddenly or by inches when a simple phone call could change everything. Having said that I also believe there is a tipping point when one of the parents, usually the mother, has been abused to the point of inaction. Most of us cannot believe that is possible, but I know it can happen. Someone once said (I wish I could remember who) that some stress will push us to action, but too much stress will paralyze us.
    I, too, cannot find a situation in my mind that could or would allow me to not step up and give my own life to save a child, but then I have never been abused to the point of paralysis. I have believed for a long time that apartment managers should be made mandated reporters under the Child Abuse and Neglect Reporting Act. I have tried numerous times to get what I call the Chris Cejas amendment to the Child Abuse and Reporting act to include apartment managers but have found no interest anywhere.

    I have seen too much of this problem of one parent unable or unwilling to report. It seems to me if a mandated reporter was close at hand, someone who knows the smallest things that happen in their complexes from who parks in the wrong parking place to who leaves their laundry in the driers, why not be able to tell them in private? Who would know “you” told, it could have been any nosy neighbor. Somehow we have to make this stop. Our children are dying in the darkness in their beds, on bathroom floors alone, afraid and in pain.

  2. Criminal liability for the passive observers of violence is the subject of a forthcoming law review article by Jennifer Collins, Ethan Leib, and Dan Markel, which I blogged about here: http://law.marquette.edu/facultyblog/2008/09/12/should-criminal-law-be-used-to-enforce-family-responsibilities/. They argue that liability should be extended from traditional family relationships, such as parents and spouses, to care-giving relationships more generally. This might result, for instance, in the same-sex partner of a domestic abuse victim facing criminal liability for failing to save the partner. Interesting idea, although (as I indicate in my earlier post) not one that I would ultimately support.

  3. In response to Michael O’Hear’s comment, I want to emphasize that the Wisconsin statute imposes criminal liability for failing to act to prevent bodily harm on any “person responsible for the child’s welfare” which includes not only a parent but a “stepparent; guardian; foster parent; treatment foster parent; and employee of a public or private residential home, institution or agency; other person legally responsible for the child’s welfare in a residential setting; or a person employed by one legally responsible for the child’s welfare to exercise temporary control or care for the child.” 948.01, definitions. These people share the characteristics of being legally in control of a child for a period of time and physically in a position to see harm and either intervene to prevent it or remove the child to another location.

    In the context of child abuse I think this is a good approach, because prosecutors will frequently find themselves facing an injured or murdered child who has been in the continuous custody of 2 or 3 adults, each of whom is accusing the other of hurting the child. By making it a crime to stand passively by while someone else hurts a child, we make it possible to punish the crime. I can’t go so far as to say that now justice is done, largely because to me justice would involve restoring the child’s body and soul to health, and the law hasn’t figured out how to do that yet.

    In response to Pat Dazis’ comments:
    I am very, very sorry for the loss of your grandson. Your comments bring up another issue — not just the responsibility of the parents, but the moral duty of non-related bystanders. An apartment manager is certainly what we would call a “permitted reporter” meaning that he could and should report suspicions of child abuse to the authorities, and the reporting statutes would protect him from lawsuits or other retaliation. The moral question is: why don’t more people do this? It seems that we Americans have fallen into the trap of thinking that what happens in a private home is “none of our business.” When a child is being beaten, however, I would argue that is is everybody’s business.

  4. Wisconsin has made some gains on your latter point by granting landlords the ability to help protect an abused child through the Wisconsin Safe Housing Act (2007 Wisconsin Act 184). Wisconsin now permits a landlord to terminate the tenancy of an abusive tenant who presents an imminent threat to any other tenant or the child of any other tenant if the abusive tenant is named in one of several injunctions, including a child abuse restraining order.

    It’s a great step in the right direction, and I think it helps landlords to target the real problem of a “disruptive” unit, rather than forcing an entire family to suffer because of an abuser’s actions. Even if the landlord kicks out an abusive parent/partner, several pressing problems can remain. For one, an abuser is unlikely to give up pursuit of his victims once out of the house. Additionally, the abuser will be well aware of the victims’ location if the tenants remain in the household. Moreover, the remaining tenant(s) are stuck with trying to come up with each month’s rent with one less income.

  5. In response to the comments of Judith McMullen: After Chris was killed many people with whom I spoke thought everyone everywhere was a mandated reporter, and I suppose in a perfect world that would be the case. Most were aware that teachers and doctors were the most likely to report child abuse, but when I explained the wide variety of people who are actually mandated by law state by state they were quite surprised.

    As the years have passed I have been deeply involved in the study of child abuse and the reasons people don’t report. I have discovered they are basically two-fold. One, as you said, people seem to think that what goes on behind closed doors is none of their business. I think that is an excuse not to get involved.
    The underlying cause in my opinion is fear. Fear of some secret of their own they don’t want discovered.
    Fear of the abuser as in Chris’s case. One person who lived at the apartment complex was actually quoted as saying, “Cejas (the bio donor) was a hot head and people made it their business to avoid him.”
    Fear of making the situation worse for the child by making the abuser angrier at the child. Whatever the reason somehow we have to convince people that the children at risk are more important than anything else.

    One of the most disgusting things about Chris’s situation and eventual death was knowing there were full-grown adults afraid of this monster who were willing to leave a child in his clutches knowing he was hurting him. Full-grown adults who knew as we all do that one anonymous phone call would have been enough to stop it.

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