The Culpability of Passive Abuse

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? 

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Tussle of the Titans: Secunda v. Carpenter

There was a great debate this noon between our own Professor Paul Secunda and Dale Carpenter of Minnesota. The question before the house was the meaning of Lawrence v. Texas, a 2003 Supreme Court decision which struck down a state law prohibiting homosexual sodomy. Both Professors Secunda and Carpenter agree that the majority decision, written by Anthony Kennedy, was rather opaque (I regard this as kind), leaving us uncertain as to just what type of right it recognized and how similar claims might be assessed in the future.

In Professor Carpenter’s view, Lawrence should be read to recognize a fundamental right to sexual autonomy. State interference with this right should presumably be subject to strict scrutiny. Professor Secunda argues that Lawrence cannot be read in this way, but, instead, ought to be understood as a move away from strictly tiered scrutiny toward a balancing approach applying rational basis scrutiny with, I suppose, more or less “bite” depending upon the nature of the liberty interest infringed. It is my impression that the nature of this more “carniverous” form of review (I can’t help myself) would depend on some notion of what forms of human autonomy are most compelling and a regard for the need to protect discrete and insular minorities, a view that, for me, recalls John Hart Ely’s  masterwork Democracy and Distrust.

Both Professors Secunda and Carpenter argued forcefully for their positions.

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Cert Grant: What Is “Knowing” Identity Theft?

A federal statute, 18 U.S.C. § 1028A, imposes a mandatory two-year prison sentence on defendants who “knowingly” use “a means of identification of another person” in the course of committing a felony.  The two years is in addition to the sentence imposed for the underlying felony.  But what exactly does the word “knowingly” refer to in the statute: is it enough that the defendant knew that he was using a means of identification, or must the government also prove that the defendant knew the identification belonged to another person?  This is the question raised in a case that the Supreme Court agreed to hear earlier today, United States v. Flores-Figueroa.  The unpublished opinion below can be found at 2008 WL 1808508.

SCOTUS Blog summarizes the facts as follows:

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