How Failure to Protect Laws Punish the Vulnerable
e Journal of Law
How Failure to Protect Laws Punish the Vulnerable
Health Matrix: Th 0
Amanda Mahoney 0
0 Thi s Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Health Matrix: The J ournal of Law-Medicine by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons
How Failure to Protect Laws
Punish the Vulnerable
Contents Introduction .................................................................................. 430? I. Historical Context of Abuse in the United States. ................. 432?
Amanda J. Mahoney, J.D. Candidate 2019, Case Western Reserve
University School of Law; M.A. George Mason University. I would like to
thank Professor Sharona Hoffman for her guidance and support and the
Health Matrix staff for their contributions. I would also like to thank
Professor Michael Benza for his guidance and always taking the time to
help me think through and develop my ideas. Finally, I would like to
thank my family for their endless support and patience.
C. Arguments for the Removal of the ?Resistance Requirement? in
V. Better Ways to Effectuate Change for Mothers and
Children Living in an Abusive Environment ......................... 455?
A. Battered Woman Syndrome Defense ...............................................455?
1. Current Use for Homicide or Manslaughter Cases .......................... 455?
2. Applying Battered Woman Syndrome Defense to FTP Cases ........ 457?
B.? Affirmative Defenses in State Statues and Changes to Sentencing
?[K]ill me later. Just help me, please.?1
Tondalao Hall was with her father one night, looking for a new
place to live so she and her children could move away from her abusive
boyfriend, Robert Braxton Jr. While Hall was out, Braxton broke the
femur of Hall?s son.2 After initially concealing the truth about what
happened, Braxton eventually pled guilty to two counts of child abuse
and was sentenced to two years in jail and eight years of probation.3
Hall, who also was physically and emotionally abused by Braxton, was
convicted of four counts of child abuse for leaving the children with
Braxton and sentenced to thirty years in prison under a ?failure to
protect? statute.4 Since sentencing, she has been denied clemency and
Abstract at 619, Pedraza v. Arkansas, 2014 Ark. 298 (quoting Victoria
Pedraza who was urging her husband to allow her to get help for her
dying child) available at https://www.documentcloud.org/documents/
Ian Smith, ACLU Wants Justice for Abused Mother Who Failed to Report
Child Abuse She Says She Didn?t Know was Happening, OKLAHOMA?S
NEWS 4 (Oct. 24, 2017),
Dallas Franklin, Oklahoma Judge Dismisses Review of Abused Woman
Who Failed to Report Child Abuse by Boyfriend, OKLAHOMA?S NEWS 4
(Dec. 12, 2017, 6:
/12/12/oklahoma-judgedismisses-review-of-abused-woman-who-failed-to-report-child-abuse-byboyfriend/; OKLA. STAT. tit. 21 ? 843.5 (2017).
lost appeals to modify her sentence.5 Hall is eligible for parole in 2030;
Braxton was released the day of sentencing.6
Failure to Protect (FTP) Laws have strayed far from their
statutory intent when they are used to punish victims of domestic
abuse. Under FTP laws, if a caregiver knows or suspects that a child is
being abused and fails to report it, for any reason, the caregiver can be
prosecuted the same as the abuser.7 Frequently, these laws are used to
prosecute mothers who are also victims of the abuser, with evidence of
their own abuse used against them in court.8 This application of FTP
laws does not accomplish the goals of encouraging parents to remove
their children from abusive environments and preventing child abuse.
Moreover, when FTP laws are used to prosecute abused mothers,
lawmakers and courts are compounding the problems they seek to
resolve for abused children.
In many cases, FTP laws over-criminalize behaviors of mothers who
fail to ?seek help? in specific ways, while overlooking the steps that a
mother has taken to protect her children. FTP laws have made the
status of being an abuse victim into a crime because the history of a
woman?s own abuse is used as evidence that she should have expected
her abuser to also abuse the children.9 The divergence from the initial
rationale behind FTP laws is highlighted here in an analysis of several
typical cases. There are more efficient and socially satisfactory ways to
reduce childhood abuse, help children who are abused, and create better
Part I of this note will review abuse in the United States. There
has been rapid change in the attention paid to child abuse over the past
half-century, with a large increase in awareness and governmental
action. Statistics, however, show that child abuse is still as prevalent
as ever in American households. FTP laws have grown out of multiple
misapplications of placing blame for child abuse.
Updated FAQ: Tondalao Hall?s Hearing, ACLU OKLA. (Dec. 8, 2017),
Candace Liger, Free Tondalao Hall, CHANGE, https://www.change.org/
p/district-attorney-david-prater-free-tondalao-hall (last visited Jan 15,
Jeanne A. Fugate, Who?s Failing Whom? A Critical Look at
Failure-toProtect Laws, 76 N.Y.U. L. REV. 273, 293 (2001).
See State Dep?t of Human Services v. Tate, No. 01-A-01-9409-CV-00444,
1995 WL 138858, at *1 (Tenn. Ct. App. Mar. 31, 1995); Megan Lambert,
A Father Abuses His Children but Somehow Their Mother Goes to Prison
For 30 Years, ACLU (Jan. 31, 2018, 4:30 PM), https://www.aclu.org/
blog/criminal-law-reform/sentencing/father-abuses-his-childrensomehow-their-mother-goes-prison-30; Campbell v. State, 999 P.2d 649,
659 (Wyo. 2000).
Part II examines several FTP cases, including two recent cases that
have garnered media attention for the strict punishment of an abuse
victim. Although the laws are gender-neutral, women are
disproportionally prosecuted and courts have a history of applying
different standards and expectations to mothers and fathers.
Additionally, a side-by-side comparison of two Florida cases from the
same year, emphasizes the stark gender-based differences examined.
Part III will review the circumstances that most abused women
face. Many studies have shown that they are socially isolated with few
resources, emotionally and psychologically traumatized, and out of
touch with many aspects of reality. In order to survive, these women
employ coping mechanisms in their everyday life, which are aimed at
protecting themselves and their children.
Part IV will evaluate the misuse and unfairness of FTP laws. FTP
laws are comparable to ?status? laws that do not address an overt act,
but instead criminalize a person?s status instead of a behavior. I will
also discuss similar laws that have been declared unconstitutional or
are currently being challenged, and how their characteristics compare
to FTP laws.
Part V contains recommendations for leniency and changes to FTP
laws to ensure children grow up in the safest possible environment.
Primarily, introducing options such as a battered woman syndrome
defense and affirmative defenses within the statutes will help keep FTP
laws in place, but provide some balance for abused women.
Furthermore, recommendations are made for sentencing guidelines that
encourage judges to account for a woman?s history of abuse and
understand how her actions were shaped by her history of abuse.
I. Historical Context of Abuse in the United States.
A. Tidal Wave of Change, Starting in the 1960?s
Before the 1960s, little attention was paid to preventing child
abuse.10 Although there have always been some mechanisms in place to
protect children,11 the governmental role was minor until the
mid1900?s.12 An article introducing ?Battered Child Syndrome? brought the
issue of child abuse to the public spotlight in 1962.13 This article detailed
the importance of physicians detecting child abuse and the clinical
indicators of abuse.14 The article focused national attention on the
11. Id. at 449.
12. Id. at 452.
impact of abuse and the lack of research about children who are
The article not only captivated the public, but also caught the
attention of Congress. This led to rapid and sweeping change by the
legislature. Specifically, the Social Security Act Amendments of 1962
increased funding for child welfare services and required states to offer
child welfare services statewide by July 1, 1975.16 Between 1963 and
1967, all fifty states enacted laws requiring physicians to report signs
of abuse.17 President Nixon signed the Child Abuse Prevention and
Treatment Act in 1974, which provided federal funding to states for the
?prevention, identification, and treatment of child abuse and neglect?
and research on child abuse.18
The Adoption Assistance and Child Welfare Act of 1980 focused on
adoption and foster care, and stressed the importance of keeping
children in their homes whenever possible.19 In the 1990s, however, this
emphasis on keeping children with their parents as much as possible
was criticized for allowing children to stay in unsafe environments.20 In
response, Congress passed the
Adoption and Safe Families Act of 1997
which emphasized child safety as the primary goal, in addition to the
desire to keep families together.21
Meyers, supra note 10, at 455 (citing Elizabeth Elmer, Identification of
Abused Children, 10 CHILD. 180 (1963)).
Child Abuse Prevention and Treatment Act, 42 U.S.C. ?? 5101-5106
(2016); 40 Years Ago: Child Abuse Prevention and Treatment Act Passed,
NAT?L LOW INCOME HOUS. COAL. (Oct. 14, 2014),
supra note 10, at 457.
Even as the public and government were becoming more active in
preventing and remedying child abuse, the laws were not consistently
enforced. Stereotypical gender roles were still very prevalent,22 and care
of children fell almost entirely to women. Society primarily looked at
preventing child abuse as a responsibility of a mother, not a father.23
When a male?s actions were abusive towards a child, it was viewed as
the mother?s fault for leaving her child with the wrong person.24
Although there were government-mandated child welfare programs
in place by the 1980s, they did not function as intended. When Karen
Dalton reported her husband to the police for abusing their children,
the police refused to get ?involved in a family matter.?25 A neighbor
even testified that Karen had tried to leave, but her husband threatened
to kill the children (once even held one of her children outside of a
third-floor window) or to kidnap them if she did leave.26 This did
nothing to sway the court. Karen lost her parental rights, as the court
disregarded her attempts to seek help. The Court stated there was no
question about her ?unfitness?27 and that during the seven years of her
marriage she should have found another opportunity to leave.28
B. Child Abuse Today in America
Despite this rapid increase in governmental support s
ince the 1960
child abuse remains in American homes at high rates. A 2015 report
showed that over 3.1 million referrals were made to Child Protective
Services (?CPS?) and almost sixty percent of those initial reports were
?screened-in,? meaning that they required some kind of investigation or
intervention.29 This report found that the average CPS investigation
and response worker completed seventy-two cases per year (related to
child abuse and neglect), with some individuals having caseloads as high
as 205 per year.30 Furthermore, the average referral included more than
25. In re Dalton, 424 N.E.2d 1226, 1230 (Ill. App. Ct. 1981).
24. Id. at 595.
27. Id. at 1231.
28. Id. at 1232.
30. Id. at 14.
one child.31 This study included results from 19,280 CPS professionals,
totaling over 1.38 million cases, but does not include data from some
states, including six out of the ten most populated states (California,
Florida, New York, Pennsylvania, Ohio, and Georgia). 32
Between 2011 and 2015, the claim of abuse was substantiated or
indicated in eighteen percent of cases reported to CPS, while 55.9% of
cases were ?unsubstantiated? (CPS was unable to rule out abuse, but
was also unable to collect enough information to conclude abuse).33 The
likelihood of being abused is greatest in the first year of life, with the
frequency decreasing each year.34 The majority of children in this report
suffered from neglect, while physical and sexual abuse were second and
In 2014, homicide was the third most common cause of death in
children between one and four years of age and the fifth most common
for children between five and fourteen years of age.36 The
Administration for Children and Families estimates that abuse and
neglect were responsible for 1670 child deaths in 2015.37 Parents were
responsible for 77.7% of childhood homicide deaths.38 Another study
found that the United States? system on tracking this information is so
flawed, that the actual number of child deaths from abuse and neglect
may be two times greater than reported.39 These unpleasant realities of
the prevalence of child abuse understandably drive legislation aimed at
C. History of FTP Laws.
1. Statutory Goals of FTP
The goal of FTP laws is to encourage caretakers to report instances
of childhood abuse and interpersonal violence, thereby reducing the
31. Id. at 10.
33. CHILD. BUREAU, supra note 29, at 18.
34. Id. at 20, 53-54.
35. Id. at 47.
37. CHILD. BUREAU, supra note 29, at 52-53.
38. Id. at 55.
violence to which a child is exposed.40 The states vary as to whether or
not they have an FTP statue and how severe the sentences can be. As
of 2015, forty-eight states, Washington D.C., and four U.S. territories
have FTP laws; Maryland, Wyoming, and Puerto Rico do not.41 The
statutes designate the crimes as either misdemeanors or felonies, with
civil penalties, criminal penalties, or both.42 Current federal law under
the Child Abuse Prevention and Treatment Act includes parents and
caregivers who fail to act in their definition of ?child abuse and
neglect,?43 but states may elect to impose stricter standards.
FTP supporters believe that by charging a caretaker who knows
(or even suspects) a child is being abused with the same crimes as the
abuser, the laws compel caretakers to report abuses at greater rates.44
Some of these states even allow for the prosecution of a parent who
?allows? a child to watch the parent suffer the abuse.45 The hope is that
this reporting will help stop the cycle of violence and reduce the lasting
impacts of childhood abuse, such as antisocial behaviors, anxiety,
PTSD, and violent behaviors later in life.46 Although the intentions
behind the laws are laudable, these laws in reality hurt mostly women;
women who many believe should not be punished as severely as they
2. Compliance with FTP Laws
Purportedly, parents can comply with FTP laws and not be
prosecuted if they report the abuse and get the child out of the abusive
environment or make the abuser leave.47 None of these options are as
simple and straightforward as courts and the legislatures seem to think.
As detailed in Part IV, mothers and children living in abusive
41. U.S. DEPT? OF HEALTH & HUM. SERVS. ? CHILD. BUREAU, PENALTIES FOR
FAILURE TO REPORT AND FALSE REPORTING OF ABUSE AND NEGLECT
(2016), available at https://www.childwelfare.gov/pubPDFs/report.pdf.
43. Child Abuse Prevention and Treatment Act, 42 U.S.C. ?? 5101-5106
44. See Jacobs, supra note 23, at 611-12, 615.
47. Jacobs, supra note 23, at 615.
environments are not able to easily leave. There are a myriad of social,
financial, and physical factors that prevent many abused mothers from
In addition to leaving, these women are also expected to report the
abuse to authorities. Seeking help may be unrealistic for some of the
same reasons. As discussed in Part IV, these women often do not have
anywhere else to go, they distrust others, and they have no support
system or financial resources. The abused women know that they will
face repercussions when the abuser finds out that they have reported
the abuse. Undereducated, poor, and minority women may be the most
likely to face abuse.48 This group has the greatest need for
governmentsponsored services,49 while at the same time, these women may have a
history of distrust of police, social workers, and any other
assistanceproviding organization,50 stemming from systemic persecution and
neglect.51 In some cases, the distrust may even be due to the victim?s
previous fruitless attempts to seek help for the abuse.52
Most FTP laws only examine whether or not a parent was able to
stop their child from being abused and reported the abuse to law
enforcement.53 These FTP laws ignore the capabilities of the mother,
the realities of the social situation, and the mother?s own status as an
48. CTR. FOR DISEASE CONTROL, THE NATIONAL INTIMATE PARTNER AND
SEXUAL VIOLENCE SURVEY (2017), at 198, available at
https://www.cdc.gov/violenceprevention/pdf/NISVSStateReportBook.pdf; Lecia Imbery, The Intersection of Poverty and
Domestic Violence, COAL. ON HUM. NEEDS (Oct. 16, 2014),
https://www.chn.org/2014/10/16/intersection-poverty-domesticviolence/#.WgD71GhSw2w; SUNITA KISHOR & KIERSTEN JOHNSON,
WOMEN AT THE NEXUS OF POVERTY AND VIOLENCE: HOW UNIQUE IS THEIR
DISADVANTAGE? 147 (2005), available at https://dhsprogram.com/
49. WALKER, supra note 46, at 16.
53. E.g. ARIZ. REV. STAT. ? 13-3623 (LexisNexis 2017); ARK. CODE ANN. ?
527-221 (2017); N.D. CENT. CODE ? 14-09-22 (2017).
abuse victim.54 When women in these abusive situations are prosecuted
for another person?s actions (that they may not even know about), their
prosecution is furthering the cycle of distrust of ?the system? and
alienating the people who need the most help.
II. Cases Highlight the Harsh Application of FTP and
Unrealistic Expectations of a Woman
A. Representative FTP Cases
Arlena Lindley lived with her son Titches and her boyfriend, Alonzo
Turner. One cold morning, Titches was seen by Lindley?s friend sitting
outside without shoes.55 Turner became angry with the boy after
Titches soiled himself. Turner whipped Titches with a belt, threw him
against the wall, pushed his face into oatmeal on the floor, stuck his
head in the toilet, and stepped on his chest.56 Lindley tried to leave with
Titches, but Turner would not let her take him57 and Turner locked
Lindley out of the house.58 While she was away from the home, she
declined the opportunity to call the police, instead she called Turner,
not wanting to anger him any further.59 Lindley then returned home,
told Titches to take a nap, then went to several stores, at the request
of Turner.60 When she returned, Titches was struggling to breathe. An
ambulance was called and Titches later died due to his injuries.61
Threatened with ninety-nine years of imprisonment,62 Lindley pled
guilty to injury to a child and was sentenced to forty-five years
56. Id. at *2-3.
57. Id. at *3.
59. Lindley, LEXIS 2044, at *4.
60. Id. at *4-5.
61. Id. at *5-7.
63. Lindley, LEXIS 2044, at *9.
Lindley?s testimony highlighted many common themes seen in
homes with abuse. She acknowledged that she did not call the police
when she left because she was scared of what Turner would do and
thought it would be safer to calm him down by listening to him.64 She
had the same reasoning for running errands after returning the first
time.65 Turner had convinced her that if she sought medical care for
Titches, CPS would take Titches away from her.66 That morning,
Turner threatened to kill her if she touched Titches or tried to leave
with him.67 She even tried to get Turner to focus his aggression at her
and leave Titches alone.68 Because of the ongoing abuse in the house,
Lindley was trying to set up a plan to leave Turner, but the process
was taking time.69 Lindley was even packing up Titches? clothes when
her friend came over that morning.70 She could not have predicted that
Turner was going to beat Titches so aggressively that he would die, and
when she did see the extent of his injuries, she called 911 to try to save
2. Aubriana Coke
Aubriana Coke (Brie) was two years old when her mother called
911 to report that she was not breathing.72 After Brie was pronounced
dead, multiple bruises caught the attention of the hospital staff.73 Her
mother, Victoria, and stepfather, Daniel, reported that she had fallen
from a dock the day before and Brie started acting strange later that
day.74 They reported being hesitant to seek medical attention because
of a previous DHS investigation.75 As the investigation around Brie?s
death went on, warning signs alerted authorities that the parents? story
was false. There was a mysterious green cord that Victoria and Daniel
gave conflicting stories about. The medical examiner said that Brie?s
64. Id. at *8.
68. Lindley, LEXIS 2044.
69. Id. at 49.
70. Id. at 72.
71. Id. at 52-53.
bruises were not caused by a fall from a dock and he called her death a
homicide. In addition, there were concerns about the use of unusual
punishment methods.76 Shortly after being arrested, Victoria admitted
the dock story was false, that Daniel had punched Brie in the stomach,
and that he had routinely abused both her and Brie.77
Because of her plea deal to testify against Daniel, the charge of
capital murder against Victoria was dropped.78 She was only charged
with permitting child abuse, for which Victoria received the maximum
sentence of twenty years imprisonment.79 Additionally, as a requirement
of Arkansas law, Victoria will have to register as a sex offender when
she is released.80 The prosecutor, Deen, acknowledged that Victoria was
controlled by and feared Daniel. Deen recognized that she was only able
to tell the truth once she was arrested, away from his control and
brutality, but he asserted that fear did not remove her duty as a
mother. Deen also stated that he would not have put Victoria on trial
had she taken a more aggressive approach to defending Brie: ?[s]he
should?ve cut his throat while he slept.?81
B. Stark Gender Differences
1. Historical View of Woman
Until the 1980s, mental health professionals and physicians widely
believed that abused women had specific, negative characteristics that
explained why they were abused.82 Purportedly, the women were
aggressive masochists who enjoyed being hurt or punished and were
sexually inadequate for their husbands.83 Additionally, the evidence of
abuse that was noticed by a professional was frequently characterized
as a symptom of a mental illness.84 For example, a women who has been
psychologically abused will frequently exhibit signs of paranoia and
distrust because she has been manipulated to believe that everyone but
her abusive partner is trying to hurt her.85 That misinterpretation of
80. ARK. CODE ANN. ? 12-12-903(s)
includes . . . [p]ermitting abuse of a minor?).
81. Campbell, supra note 78 (quoting Thomas Deen).
WALKER, supra note 46, at 101.
83. Snell et al., The Wifebeater?s Wife, 11 ARCHIVES OF GEN. PSYCHIATRY
107, 111-112 (1964).
84. WALKER, supra note 46, at 103.
symptoms by professionals often led to an incorrect diagnosis of a
psychiatric illness, which in turn reaffirmed the belief that something
was inherently wrong with abused women.
Although FTP laws are written in gender-neutral language, they
are disproportionally enforced against women.86 This is because our
society tends to place a much higher burden for raising children on the
mother than on the father.87 It was always the mother?s role in our
society to raise the children and provide a nurturing environment.88 The
father was typically seen as the ruler of the house and the authority
figure, not to be questioned. Although the modern view of fathers is
less of a strict disciplinarian89, the roles in abusive households are often
still conforming to this stereotype: the male is the breadwinner, in
control of the house, and the woman is subservient, in need of guidance
Even when there is evidence of a loving, non-abusive relationship
between the child and mother, judges still tend to impose harsh
punishments on a mother who failed to protect.91 It has been declared
that a mother who loves her children should have an even greater
instinct to protect them from harm.92 Historically, even when a mother
does try to intervene and fails, it is typically seen as inaction by the
86. Jacobs, supra note 23, at 619.
WALKER, supra note 46, at 78; Jacobs, supra note 23, at 619.
88. See Jacobs, supra note 23, at 587.
90. See, e.g., ZVI EISIKOVITS & ELI BUCHBINDER, LOCKED IN A VIOLENT
EMBRACE: UNDERSTANDING AND INTERVENING IN DOMESTIC VIOLENCE
4445 (2000); WALKER, supra note 46, at 78.
91. See e.g. Johnson v. State, 508 So.2d 443, 444-445 (Fla. Dist. Ct. App.,
1987) (Zehmer, J., dissenting) (mother plead no contest to manslaughter
after her boyfriend beat her daughter to death. The state presented
evidence that he also abused the mother, had a history of trauma, and a
low intelligence. The state also shared that the mother seemed to have a
loving relationship with her daughter and there was no evidence that she
abused the child in any way. The state recommended three to seven years
imprisonment for the mother and the judge gave her the maximum
sentence of 15 years for failing to protect her daughter).
police and courts.93 Frequently, these cases involve mothers with limited
resources; namely, mothers who work and need to leave their children
in the care of their partners.94
After Wanda Lee Tate?s husband pled guilty to all counts of severe
child abuse, both parents lost parental rights. During her trial for failing
to protect her children, evidence that Wanda also suffered her
husband?s abuse and that she was in constant fear of him was presented
and undisputed.95 Later, when Wanda was seeking to have her parental
rights reinstated, the Court stated, ?with reference to [Wanda], the
Court finds that even animals protect their young.?96 The Court then
declared that she needed to take responsibility for her own actions and
that ?the natural maternal instinct that any mother should
have . . . should have overcome her fear if she is to be a fit mother?
and refused to return her parental rights.97
Two cases from 1995 in Florida highlight the sharp contrast in
gender-based expectations. In the first case, Walter Zile was convicted
of the first-degree murder of his stepdaughter.98 He had beaten her,
stored her body in a closet for days, and then buried her.99 The child?s
mother, Pauline Zile, was present at the time of the beating.100 Although
it was well-known that Walter was abusing Pauline too, Pauline?s
93. State v. Walden, 306 N.C. 466 (1982) (mother was convicted of assault
with a deadly weapon without ever wielding a ?weapon? of her own. The
children?s father entered their apartment, began hitting them with a belt.
When she tried to intervene, she was repeatedly struck in the face. The
court still claimed she failed in her ?inherent? duty to take affirmative
action to protect them); See also EISIKOVITS & BUCHBINDER, supra note
90, at 118-119 (police verbally berated a woman who reported abuse,
indicating that a call for help was a waste of time and that her action fell
on deaf ears); see, e.g., Sentencing Transcript at 80, Texas v. Lindley,
2010 Tex. App. LEXIS 2044
(Tex. Ct. App. 8th Dist. Mar. 24, 2010)
96. Id. at 2.
97. Id. at 3.
98. Zile v. State, 779 So.2d 535, 536 (Fla. Dist. Ct. App. 2000).
99. Zile v. State, 710 So.2d 729, 731 (Fla. App. 1998).
100. Id. at 731-732.
counsel failed to introduce any of that evidence at her trial.101 Pauline
was also convicted of first-degree murder and sentenced to life
imprisonment.102 Prosecutors had even sought the death penalty for
Pauline because she failed to protect her daughter.103
The same year, Jessica Schwarz was convicted of abusing her
tenyear-old stepson, leading to his death.104 He was found nude in the pool,
with bruises all over his body at 6:00 am.105 There was evidence that
the abuse had been ongoing and obvious.106 Jessica had even discussed
her dislike of the child with others; seventeen witnesses testified that
she physically and mentally abused the child.107 Even though CPS had
been involved with the family because of multiple reports of abuse,108
David Schwarz (the child?s father), claimed he had not noticed any
evidence of abuse.109 Jessica was sentenced to life in prison; David was
not charged with any crime related to his son?s death.110
Although there are some differences between these two cases, there
is no legal explanation as to why one parent was found culpable and
the other was not charged with any crime. Pauline Zile saw her child
being abused. David Schwarz claimed to have no knowledge of his son?s
abuse, in spite of his son?s behavioral problems, hospitalizations, and
CPS investigations.111 Given how FTP laws have been applied to
mothers, this claim of ignorance should not have released David
Schwarz from all responsibility. Mothers have been prosecuted under
101. Jacobs, supra note 23, at 583.
104. Schwarz v. State, 695 So.2d 452, 453 (Fla. App. 1997).
106. Id. at 454.
110. Jacobs, supra note 23, at 584.
FTP laws without having seen the abuse.112 Judges have told the
mothers that they should have realized that the abuse was happening;
the bruises were visible and the warning signs were present.113 Here, the
court system viewed the woman as responsible for the child, but the
father as blameless and a second victim.
III. Realities in Families of Abuse
When women are abused, evidence of their abuse is often used
against them in their trial for FTP.114 This is done in spite of all of the
evidence that women in abusive relationships have a difficult time
leaving their abuser for many legitimate reasons, including the abuser?s
psychological control over them.115 Despite all of the known barriers to
leaving the abuser, courts demand that an abused woman perform the
impossible, at the very first hint of abuse, and leave with her child.
The American Medical Association has recognized that coercive
behaviors are a major factor in domestic violence and abuse cases.116
Specifically, ?isolation, deprivation, and intimidation? are used by the
abuser to control and manipulate the victim.117 At the same time, the
woman may be socially isolating herself in order to hide the abuse and
her shame.118 Not only will she seclude herself from family and friends,
but an abused woman is likely to miss work because she wants to hide
the physical signs of abuse or may even be asked to leave due to visible
marks.119 This seclusion is important when discussing the obstacles an
abused mother faces, because it compounds each of them, making them
even more difficult to surmount. Although the importance of the
abuser?s coercive control is rarely recognized by policy makers and the
legal system, helping women break from the abuser?s mental control
can account for at least half of the services abuse victims seek.120
Frequently, the woman has lost the ability to trust family and friends
113. Campbell, 999 P.2d; Davis, 1998 Ky. LEXIS.
114. Mabatah, supra note 58, at 357; Jacobs, supra note 23, at 619; Barrientos
v. Johnson, No. EDCV 15-2187-R (KS), 2016 U.S. Dist. LEXIS 72852, at
*32; Fugate, supra note 7, at 292.
115. See Fugate, supra note 7, at 293.
116. American Medical Association Diagnostic and Treatment Guidelines on
Domestic Violence, 1 ARCHIVES OF FAM. MED. 38, 39 (1992).
118. WALKER, supra note 46, at 35.
119. Stephanie Riger et al., The Radiating Impact of Intimate Partner
Violence, 17 J. INTERPERSONAL VIOLENCE 184, 194 (2002).
120. EVAN STARK, COERCIVE CONTROL: THE ENTRAPMENT OF WOMEN IN
PERSONAL LIFE 35 (2007).
and can no longer successfully navigate any relationships or accurately
perceive the motives of others.121
Why Women Do Not Leave Right Away
1. No Place to Go
Most of the time, the women do not have a safe place to go at
which their abuser cannot reach them.122 It takes a long time for an
abused woman to find a safe place to live, especially when she has
children to bring with her.123 The family and friends an abused woman
has kept ties with may be reluctant to invite the abused family into
their own home, fearing for their own safety.124 Although shelters may
provide a temporary living space, it is difficult for most abused woman
to transition to single-family living due to financial barriers.125
In a large study of women, battered women were almost twice as
likely as non-battered women to report that they did not have access
to a car.126 The same study found that abused women were half as likely
to see friends frequently and changed residences almost three times as
much as non-abused women.127 For many victims of abuse, the abuse
continues even when they are not living with the abuser.128 In fact,
separating from an abuser can greatly increase the severity of abuse
because the abuser is angered and likely to retaliate.129
2. Accessing Services
Even after a mother has taken steps to physically leave, there are
hindrances to success. Women who do seek out help from law
121. WALKER, supra note 46, at 35 (reporting that battered women need
support for survival, have trouble understanding neutrality or
objectivity in others, and how this can impact the ability of the women
to interact with and trust a therapist).
122. Erica Burman & Khatidja Chantler, Domestic Violence and
Minoritisation: Legal Policy Barriers Facing Minoritized Women Leaving
Violent Relationships, 28 INT?L J. L. & PSYCHIATRY 59 (2005).
124. Riger et al., supra note 119, at 186.
125. Martin et al., supra note 123, at 110.
126. WALKER, supra note 46, at 36.
enforcement or social services are often confronted with questions that
make them uncomfortable and wary.130 An abused woman who has
finally been able to seek help typically finds it difficult to repeatedly
recount the abuse; she is ready to move on.131 Furthermore, she may be
confronted with questions about why she did not leave sooner, creating
a feeling that she is to blame for the abuse.132 The guilt is only worsened
when she must account for her children?s abuse too. When this is
compounded by the woman?s distrust and suspicion of others because
of her abuse experiences, utilizing available services is daunting.
Abused women rarely have access to financial resources that would
allow them to leave. Even when they are not living in poverty, their
abusive partner limits their access to money.133 Women who reported
being abused were over three times as likely as non-abused women to
report that they had no access to cash.134 Women who suffered the
greatest amount of emotional abuse were less likely to have any
autonomy than a woman who suffered from only physical violence.135
This means that women who experience the most psychological trauma
and have the most distorted thought processes are the least likely to
have a job, let alone independent finances.
4. Threats of Future Violence
An abuser will typically make threats about what he would do if
the woman left: harm her, harm himself, and harm her family members
(including children).136 The women have likely already seen their
abusers follow through on threats of violence when they have done
something the abusers did not like.137 In addition to overt threats of
violence, abusers frequently threaten to report the mother to CPS.138
This can be especially effective when the children are actually suffering
from physical abuse, as they will have evidence of abuse for CPS to
130. EISIKOVITS & BUCHBINDER, supra note 90, at 112.
133. E.g. WOMEN OF COLOR NETWORK, supra note 50.
134. WALKER, supra note 46, at 35-36.
135. STARK, supra note 120, at 13.
find. Also, if CPS has already been involved with the family, the mother
will have a heightened sense of fear and awareness of what can
happen.139 These threats are not empty; women are at the greatest risk
of severe violence after they leave their abuser.140 Even threats of the
abuser committing suicide are effective to prevent women from leaving
because of her emotional ties and dependence on him.141 With these
realities, an abused mother may reasonably think that staying will
placate the abuser and that it is the safest option for everyone.
This reality is demonstrated by statistics on states that have
mandatory arrest laws for domestic violence.142 Mandatory arrest laws
require an officer to arrest someone for domestic violence without a
warrant, if there is probable cause to believe the assault took place.143
States claim that reports of domestic abuse are down, but, these laws
may actually just decrease reporting of abuse while increasing rates of
domestic homicide.144 A woman may be more hesitant to report abuse
because she believes that she will be arrested too or she believes that
the abuser will retaliate once released.145 Using FBI homicide reports,
one study found that the rates of domestic partner homicide increased
almost sixty percent in states with mandatory arrest laws.146 This
139. EISIKOVITS & BUCHBINDER, supra note 90, at 120.
141. U.C. DAVIS, supra note 138.
142. Mandatory arrest laws were enacted after a 2-year study showed that
arresting the offender decreased their likelihood to re-offend within six
months. However, the author of the study later declared ?The evidence
shows that, while arrest deters repeat domestic violence in the short run,
arrests with brief custody increase the frequency of domestic violence in
the long run among offenders in general.? Lawrence Sherman et al., The
Variable Effects of Arrest on Criminal Careers: The Milwaukee Domestic
Violence Experiment, 83 J. CRIM. L. & CRIMINOLOGY 137, 139, 167 (1992)
(finding that any initial deterrent impact is gone within 30 days and
escalation of violence occurs within one year).
143. Iyengar, supra note 140, at 86.
146. Iyengar, supra note 140, at 85, 97.
increase is likely due to two reasons; victims report less often because
they do not want their partners to be arrested, and victims fear that if
the abuser is arrested, he will respond with even more extreme
B. Coping Mechanisms That Allow Women to Feel In-Control of the
Denial is recognized as a psychological mechanism used to detach
from a painful reality and is frequently employed by parents whose
children are being abused.148 Denying the abuse psychologically shields
the mother from the emotional stress and guilt from letting down her
child.149 It also spares her the anger and sense of betrayal she would feel
towards her partner, especially for sexual abuse.150 If a mother has a
history of being abused herself, this will compound her remorse and
guilt because she knows the pain her child has experienced.151
A study of sexually abused children in Scotland found that almost
every parent had psychopathological symptoms after finding out about
their child?s sexual abuse.152 Learning of sexual abuse of a young child
may be more traumatic for a non-abusing parent than the abuse is for
the child.153 Denial is a recognized psychological tactic, but it prevents
the mother from being able to help her children in abusive
environments. Although this is employed as a coping mechanism for the
mother, it also becomes a barrier to leaving the abuser.
A mother may also be in denial about how much she is able to
impact the abuser?s behaviors. Abused women reported that they felt
they had greater control over what happened in their lives than did
non-abused women.154 This is likely a result of trying to create an
appeasing environment for the abuser under the belief that the abuser
147. Id. at 88.
148. Christine Adams, Mothers Who Fail to Protect their Children from Sexual
Abuse: Addressing the Problem of Denial? 12 YALE L. & POL?Y REV. 519,
151. Id. at 521-522.
152. Fiona Forbes et al., Early Intervention Service for Non-Abusing Parents
of Victims of Child Sexual Abuse, 183 BRIT. J. PSYCHIATRY 66, 70 (2003).
153. Poonam Tavkar, Psychological and Support Characteristics of Parents of
Child Sexual Abuse Victims: Relationship with Child Functioning and
Treatment, THESES DISSERTATIONS, AND STUDENT RES.: DEP?T OF
154. WALKER, supra note 46, at 107.
can be prevented from becoming violent.155 Over ninety percent of
abused women reported that they perform at least one daily behavior
aimed at keeping the abuser happy.156 These women believe that by
structuring the environment to please the abuser, they can control the
abuser?s violent episodes and avoid the violence.157
2. Trying to Shield the Children
Because many women with children in abusive situations do not
feel they have a reasonable way to leave their abuser, mothers are likely
to try to bear the brunt of the abuse themselves. Mothers report trying
to get the abusers to focus on them, yell at them, or even hit them,
instead of the child.158 This tactic has likely worked in the past, so a
mother expects this to work in the future. Just as in Lindley?s case, she
had no way of knowing that this tactic may not work when the abuser
delivers the next beating.159 If an abused mother?s circumstances
severely limit her options for dealing with the abuser or leaving, using
herself as a distraction appears to her as one of the most effective ways
of protecting her children.
IV. Evaluating the Statutes
A. Constitutionality of a ?Status? Crime
1. Status Versus Conduct
The U.S. Supreme Court has refused to uphold certain criminal
statutes if the purported crime does not involve the performance of an
overt act. The Court held that it is unconstitutional for a state to
criminalize the status of being addicted to narcotics if the accused did
not use or possess any narcotics in the state.160 The court equated this
to punishing someone for contracting a disease or having a mental
illness.161 It is ?cruel and unusual punishment,? in violation of the
Eighth Amendment, to declare someone guilty for their status when
they have displayed no criminal behavior.162 The state cannot punish
someone for displaying symptoms of their addiction without the
defendant actually using drugs in the state.
159. See id.
161. Id. at 666.
162. Id. at 667.
157. See EISIKOVITS & BUCHBINDER, supra note 90, at 43.
160. Robinson v. California, 370 U.S. 660, 667 (1962).
FTP laws are criminalizing the status of being a victim of abuse for
many women. Even if the mother has been the only one suffering abuse
and the child witnesses the abuse, or the abuser is ?caught? after the
first time he abuses the child, the mother is held accountable just the
same. Prosecutors argue that she should have known that because she
was being abused, the abuser was likely to do the same to the child.
The symptoms of abuse make a woman unable to leave and protect her
children the way the law would like. An abused woman?s symptoms
become the conduct criminalized by FTP laws without any evidence
that she abused her children.
Removing Children Due to Mother?s Victimization
Aware that simply witnessing violence can negatively impact a
child, several states were charging abused mothers with neglect for their
?participation? in domestic violence.163 Even though the child wasn?t
abused, if a child witnessed domestic violence, they were removed from
their mother?s care and placed in foster care.164 One mother, Shawline
Nicholson, ended a relationship with her boyfriend and he then
assaulted her, for the first time.165 She called 911 and was taken to the
hospital.166 While admitted, she was informed that CPS had taken her
children because she was not able to protect them given that her
boyfriend had beaten her.167 Charges of neglect were filed against
Nicholson, and even after her children were returned, she was listed by
the state as a neglectful parent.168 Nicholson joined with other mothers
prosecuted in similar circumstances and filed a class action law suit
against the city and CPS. Upon review, the Federal Court declared this
practice unconstitutional169 and several other states have concluded the
163. Nicholson v. Williams, 203 F. Supp. 2d 153, 215-16
(E.D. N.Y., 2002)
STARK, supra note 52, at 43; but see Justine A. Dunlop, Judging
Nicholson: An Assessment of Nicholson v. Scoppetta, 82 DENV. U. L. REV.
671, 672 (2005).
164. STARK, supra note 120, at 43.
165. Nicholson v. Williams (Defending Parental Rights of Mothers Who are
Domestic Violence Victims), N.Y. CIV. LIBERTIES UNION,
https://www.nyclu.org/en/cases/nicholson-v-williams-defendingparental-rights-mothers-who-are-domestic-violence-victims (last visited
Jan 20, 2018) (hereinafter Defending Parental Rights).
169. In re Nicholson, 181 F.Supp.2d 182, 185 (E.D.N.Y., 2001); Defending
Parental Rights, supra note 165; STARK, supra note 120, at 43.
170. E.g. In re Sehy, App. Nos. 306370, 306371, 2012 Mich. App. LEXIS 1577
at *22 (Aug. 14, 2012); N.J. Div. of Youth & Family Services v. S.S., 372
N.J. Super. 13, 15-16 (2004).
Federal Courts have long recognized that the Fourteenth
Amendment protects the ?fundamental right of parents? to have ?care,
custody, and control of their children.?171 Furthermore, it has been
declared unconstitutional for the State to remove children from their
parent(s) without showing unfitness.172 In Nicholson, the Court
recognized that even temporarily removing a child from their parent
can impact the child?s emotional well-being, and it is the child?s
constitutional right to stay with an abused, yet competent, parent.173
With FTP prosecutions, children are removed from their mother?s care
in a similar manner, with the same disregard for the children?s
emotional and psychological well-being. Many mothers prosecuted
under FTP are not unfit, they just did not have the resources to
physically separate from the abuser.
B. FTP Laws? Poor Deterrent Effect
There is evidence that simply enacting stricter punishments for
criminal actions does not increase compliance with the laws or create
greater deterrence.174 In order for a criminal law to actually have the
effect of deterring criminal behavior, it must have several components
present. First, the targeted group needs to have knowledge of the law;
specifically, what it criminalizes and who it punishes.175 Second, the law
needs to actually impact an individual?s behavior.176 Altered states of
mind that may impact a person?s decision-making and reasoning
abilities need to be accounted for when determining if behavior will
likely be impacted.177 This is compounded by the fact that people tend
to spend time with those like themselves, which can continue to cloud
their judgment and alter what is considered normal.178 Finally, the
recognized punishment for the crime needs to outweigh the gain from
171. Troxel v. Granville, 530 U.S. 57, 66 (2000).
172. Quilloin v. Walcott, 98 S.Ct. 549, 555 (1978) (?We have little doubt that
the Due Process Clause would be offended ?[if] a State were to attempt to
force the breakup of a natural family, over the objections of the parents
and children, without some showing of unfitness and for the sole reason
that to do so was thought to be in the child?s best interest?.?) (quoting
Smith v. Org. of Foster Families for Equality & Reform, 431 U.S. 816,
173. In re Nicholson, 181 F.Supp.2d 182, 185 (E.D.N.Y., 2001).
174. See, e.g., PAUL H. ROBINSON, DISTRIBUTIVE PRINCIPLES OF CRIMINAL LAW:
WHO SHOULD BE PUNISHED HOW MUCH? 58 (2008).
175. Id. at 24.
176. Id. at 28.
177. Id. at 28-29.
178. Id. at 30; TOM R. TYLER, WHY PEOPLE OBEY THE LAW 24 (1990).
the commission of the crime.179 This cost-benefit analysis includes the
likelihood, severity, and timeliness of the punishment.180
FTP Laws Analyzed for Deterrence Effect
FTP laws likely do not have a strong deterrent effect. Defendants?
knowledge of FTP laws has not been studied. That is to say, it is
unknown whether or not these women are aware of FTP laws before
they are prosecuted. These women most likely do not know of the
nuances of their legal duty to protect their children in abusive
environments. Since no data is available, however, for the purposes of
this article, we will assume that defendants were aware of FTP laws.
It has been well documented that women exposed to abuse tend to
have an atypical and flawed pattern of reasoning due to emotional and
psychological abuse, as discussed in Section IV.181 This altered mindset
explains why women stay in abusive environments, produce excuses,
and rely on coping mechanisms to deal with the abuse instead of leaving
or reporting it.182 Furthermore, women with a history of abuse are more
likely to be in abusive relationships.183 A woman?s previous experiences
often shape what she considers normal behaviors and how to respond
in times of tension.
The cost benefit analysis for abused women is likely the greatest
factor. An abused woman will be aware of the risk of even more severe
abuse if she tries to leave or seek help.184 She has probably seen little
punishment given to abusers and finds the criminal justice system to
be ineffective.185 Furthermore, if she was aware of FTP laws, she may
be worried about seeking help if the child abuse has been ongoing and
she fears both retaliation from the abuser and criminal liability. An
abused woman who believes she can handle the abusive episode will see
the benefit of not reporting and avoiding the perceived costs. All these
factors combined show that FTP laws do not encourage most women
to report domestic child abuse or leave; in other words, they do not
deter this crime of omission.
179. ROBINSON, supra note 174, at 32.
180. Id.; TYLER, supra note 178, at 21-2.
181. LENORE E. A. WALKER, BATTERED WOMAN SYNDROME 76 (4th ed. 2017)
(hereinafter BATTERED WOMAN SYNDROME]; Frederick L. Coolidge &
Laura W. Anderson, Personality Profiles of Women in Multiple Abusive
Relationships? 17 J. FAM. VIOLENCE 117, 126-127 (2002).
182. BATTERED WOMAN SYNDROME, supra note 181; Jacobs, supra note 23, at
183. Sara F. Stein et al., The Social and Individual Characteristics of Women
Associated with Engagement with Multiple Intimate Violent Partners, J.
OF INTERPERSONAL VIOLENCE 1, 17 (Nov. 2016).
184. See Fugate, supra note 7, at 293.
2. Increasing Strictness Does Not Increase Compliance
When Louisiana made rape of a child under twelve years of age a
capital punishment, the U.S. Supreme Court eventually struck the
punishment down as unconstitutional.186 Not only was the punishment
declared not proportional to the crime, it did not serve the social goal
of preventing rape of children.187 Research also indicated that when
there was a preexisting social or familial relationship between the rapist
and the child, there was a particular hesitancy to report the abuse
because of the extreme punishment.188 All of the legal proceedings for a
death penalty case also forced the child victim to repeatedly re-live and
re-tell the abuse story.189
Although the death penalty has not been used in an FTP
prosecution, life sentences can be given under FTP laws,190 and the same
arguments can be made here. In the circumstances where the mother
was not part of the abuse or was not able to protect the child, a life
sentence (or even a sentence equal to or greater than the abuser?s) is
disproportionate to the crime she is guilty of. If mothers are afraid of
being prosecuted for the abuse or having their children taken away due
to FTP laws, there is no incentive to seek help from a governmental
body or social program.
Additionally, if a child is old enough to know that their mother
may be held accountable for the child?s abuse at the hands of another,
the child will be less likely to seek help in order to protect the mother.191
Forcing children, who are already victims of abuse, to live through (and
186. Kennedy v. Louisiana, 554 U.S. 407, 469 (2008).
187. Id. at 445-446.
188. Id. at 445.
189. Id. at 442-443.
190. OKLA. STAT. tit. 21, ? 843.5 (D), (J) (2017).
191. Alex Campbell, How ?Failure to Protect? Laws Cost a 12-Year-Old Rape
Victim His Mother, BUZZFEED (Oct. 7, 2014, 7:26 PM),
(telling the story of a boy, Collin, who reported being raped by his
stepfather. The stepfather also regularly abused the mother, even holding
a gun to her head. This was used against her at her own trial. The
stepfather pled guilty to various sex crimes and was sent to prison for 15
years for raping Collin. Collin?s mother was sentenced to 20 years for
allowing the rape to happen. Collin has expressed regret for coming
forward about his stepfather and, in turn, getting his mother sent to
prison. Collin stated, ?I would have rather gone through the abuse for the
rest of my life? than have his mother imprisoned.); WALKER, supra note
46, at 82 (finding that abused children have a strong dependence on
their parents and will refuse to work with law enforcement or social
services to protect either parent).
possibly participate in) the conviction of a non-abusive parent will be
traumatic for a child of any age.
C. Arguments for the Removal of the ?Resistance Requirement? in Rape
Until the 1980s, almost all rape statues required that the victim
fight back.192 The victim was expected to ?resist to the utmost? or at
least as much as legislatures thought a woman should resist in the
circumstance.193 In the 1970s, activists argued that fighting back should
not be a requirement because it will most likely lead to increased injury
for the victim.194 Furthermore, the law should focus on the behavior of
the attacker, not requiring the victim to act in a certain way.195 As a
result, many states have removed the ?resistance requirement? from
their rape statutes.196 This reflects an understanding that these
situations elicit a large spectrum of victim behaviors, all as a response
to characteristics of that individual attack.
Similar arguments can be made against prosecuting abused women
under FTP laws. These women have been abused before, and most
likely have seen their children be abused. When a mother has learned
that she is unable to stop the abuse, it is unreasonable to insert a
?resistance requirement? compelling her to carry out a narrow set of
actions (stopping the violence, removing the child, and calling the
police) that she knows will almost always make the situation worse by
further angering the abuser, increasing the level of violence, and
lengthening the attack.
Initially, FTP prosecutions appear different from rape prosecutions
because there is a third party involved (the child). The FTP defendants
advocated for here, however, are comparable. Even though the mother
has a duty to protect her child, when she is also a victim of the abuse,
the expectations need to be different. We recognize that rape victims
should not be required to fight back if their attacker has a gun because
it will only increase the probability that the victim will be shot.
Likewise, abuse victims should not be required to act in a way that
they know will increase the severity of the abuse for themselves or their
192. Peter Landsman, Does Removing the Force Element Matter?: An
Empirical Comparison of Rape Statistics in Massachusetts and Colorado,
21 WM. & MARY J. WOMEN & L. 767, 768 (2015).
193. Julie Horney & Cassia Spohn, Rape Law Reform and Instrumental Change
in Six Urban Jurisdictions, 25 L. & SOC?Y REV. 117, 118 (1991).
194. Id.; David P. Bryden, Redefining Rape, 3 BUFFALO CRIM. L. R. 317, 356
195. Horney & Spohn, supra note 193, at 118.
196. Landsman, supra note 192, at 768.
Some advocates have called for courts to examine the amount and
type of force used in a rape and the response of the victim.197 Sometimes
the attacker may exert psychological, manipulative, or coercive control
without physically threatening the victim.198 Even though overt
physical force is not present, the victim does not feel safe to call for
help or strongly resist. The same principles can be translated to a
mother being too afraid to call for help during a violent episode by the
abuser, even if she is not currently the one being abused. Each situation
needs to be examined individually in light of the history of abuse,
resources available, and steps the mother did take to protect her
children. This need for individual consideration supports the need for
expert witnesses and leniency in sentencing guidelines for abuse victims,
as discussed in Part VI.
V. Better Ways to Effectuate Change for Mothers and Children Living in an Abusive Environment
Both legal changes and community-based actions need to be taken
in order to protect abused mothers from harsh FTP prosecution and
end the systemic abuse children face. Affirmative defenses like battered
woman syndrome and ones that are built into FTP laws are an
important step towards acknowledging that abused mothers should not
be prosecuted strictly for being in a position of helplessness.
Additionally, judges should be encouraged to scrutinize the full picture
in FTP sentencing, examining the woman?s history of abuse and her
actual relationship and interactions with the child, away from the
abuser. States can leave FTP laws in place and still punish the negligent
caregivers that the laws were originally intended to punish without
exacerbating the devastating realities of abused children who have
A. Battered Woman Syndrome Defense
1. Current Use for Homicide or Manslaughter Cases
Shortly after the national attent
ion abuse received in the 1960
idea of ?battered woman syndrome? was introduced.199 A ?battered
woman? was defined as ?a woman . . . who is or has been in an intimate
relationship with a man who repeatedly subjects or subjected her to
forceful physical and/or psychological abuse.?200 Following the
development of the psychological theory, a self-defense claim for
197. Bryden, supra note 194, at 359.
199. WALKER, supra note 46, at 3.
200. Id. at 260.
battered woman slowly became accepted by states.201 This defense
strategy allows a woman to introduce evidence of the abusive
relationship and expert testimony on the psychological impact of the
abuse and how that impacted her decisions.202 The jury may then use
that knowledge to consider the mitigating effects that her condition as
a battered woman had on her actions.203
Battered woman syndrome (BWS) as an affirmative defense is most
often used when an abused woman murders (or attempts to murder)
her abuser in, what she claims is, self-defense during a time where she
is not being physically abused.204 Without the knowledge of her status
as a battered woman, however, it appears that the woman attacked the
?victim? at a time where she was not in imminent danger (which is
required to claim self-defense).205 The expert testimony allows the jury
to understand why the woman did not leave the abuser,206 that she
knows she is in danger at all times,207 and why she felt violence was her
only option208 due to the psychological trauma and symptoms discussed
here in Part V.
In order to establish her status as a battered woman, she must first
present evidence that she has gone through the cycle of abuse at least
202. State v. Koss, 551 N.E.2d 970, 974 (Ohio 1990); Sheehan v. Powers, 2017
U.S. Dist. LEXIS 173480, at *21-22 (D. N.Y. Oct. 18, 2017).
203. Koss, 551 N.E.2d at 978.
204. Walker, Self-Defense, supra note 201, at 321.
205. Id. at 324-25; Abbott, supra note 201, at 157.
206. Koss, 551 N.E.2d at 974.
207. Walker, Self-Defense, supra note 201, at 325; Abbott, supra note 201, at
208. Walker, Self-Defense, supra note 201, at 325-326.
twice and she remained in the relationship.209 Furthermore, expert
testimony can only be included to the extent it will aid the jury in
understanding the abused woman?s actions and her view of reality.210
Then the testimony must pass a three-part admissibility test: the
information is outside the knowledge of the ordinary layperson; the
?expert? is qualified to provide the court with the information; and the
information stems from a reputable background rooted in an accepted
science.211 Additionally, ?the probative value of the testimony must
outweigh [the] prejudicial impact? against the man she attacked.212 It is
important to note that the court?s acceptance of a woman?s status as
battered does not guarantee acquittal or even leniency; it is just to aid
in the analysis of the facts surrounding the attack.213 Use of this defense
also allows for the evidence of abuse to be considered during sentencing,
whether or not the jury accepted the defense.214
2. Applying Battered Woman Syndrome Defense to FTP Cases
Unless states amend the current writing of FTP laws, BWS defense
should be carried over to FTP cases. This would allow prosecution of
the caregivers whose actions were intended to be criminalized by FTP
laws while providing a defense when the woman is also a victim of
abuse. As the research and science behind the psychological symptoms
of abuse grow, courts need to adapt their approach. Expert testimony
describing a woman?s history of abuse from the same abuser, how her
thought patterns were manipulated to have distrust of everyone and
incorrectly perceive reality, and how she employed various coping
mechanisms to lessen the abuse will help a court understand whether
she acted in a reasonable way, given the circumstances. This will allow
for the court to account for the steps a woman did take to protect her
children, given the resources she has available, and looking at the whole
situation, not just the moments during that instance of abuse.
The same requirements for the use of BWS defense in homicide
cases can be used for FTP cases. The woman will be expected to provide
evidence of her own abuse and expert testimony to convey the intricate
209. Koss, 551 N.E.2d at 974.
210. See Ibn-Tamas v. U.S., 407 A.2d 626, 632 (D.C. App. 1979).
212. Id. at 647.
213. Abbott, supra note 201, at 156.
214. See People v. Johnson, 205 A.D.2d 344, 344 (Sup. Ct. N.Y. 1994); United
States v. Whitetail, 956 F.2d 857, 863-864 (1992) (holding that 18
USCS ? 5K2.10 allows the Court can consider the evidence and reduce
a sentence to less than the sentencing guidelines if ?the victim?s
wrongful conduct contributed significantly to provoking the offense
behavior,? regardless of if the jury accepted the battered woman
syndrome defense) (citing 18 USCS ? 5K2.10 (2017)); Abbott, supra
note 201, at 160.
psychological impact the abuse had on her behaviors. The same test for
admissibility and probative value can also be directly applied. Just as
the court is able to use the evidence and testimony to reduce sentences
for homicides, judges in FTP cases should be able to sufficiently and
freely consider a woman?s history of abuse when sentencing. Court must
move towards accepting the precedent to allow the use of this defense
for FTP prosecutions. Evidence of a woman?s abuse is often already
exploited by the prosecution in FTP cases, it is only fair to allow the
defendant a chance to use that same information to ask the court to
better understand her actions.
Introducing the BWS defense does not necessarily mean acquittal.
The charges could be amended to lesser charges. Some charges could be
dropped so that the woman faced fewer charges and less overall time.
With amended sentencing guidelines, a woman who was able to
successfully use the defense may just face less overall time. In some
cases, acquittal may be appropriate. But, having variability here will
help appease critics. Women may still have some consequences and
therefore the overall goal of FTP laws is not lost on this subsection of
women and mothers. Introducing this defense simply allows the court
to account for her behavior and better effectuate change.
Even if BWS is allowed as a defense for FTP cases, there are still
concerns to be addressed state-by-state. Importantly, if a state chooses
to recognize BWS as a defense for FTP, who will pay for the expert
witness? Expert witnesses are costly and these women likely have very
limited resources. The woman may be represented by a public defender
who may have to ask the state to help cover the cost of the expert
witness.215 Although states and federal courts have allowances to help
indigent defendants,216 it can be difficult for defendants to obtain that
funding. Furthermore, the BWS defense alone is not enough to protect
abused woman. The defense is tough to successfully use and rarely able
to be exercised, mainly due to strong public opposition. Statutes and
sentencing guidelines217 must include the option of leniency for abused
women and account for the ways that they have protected their
215. Meghan Millea, Battered Woman Syndrome Defense is Denied for Feb.
26 Trial, TIMES REP. (Feb. 12, 2013, 12:04 PM),
Affirmative Defenses in State Statues and Changes to Sentencing
Some states include affirmative defenses in their statutes regarding
child neglect and endangerment. Typically, the statutes specify that
there must be ?reasonable apprehension? that attempting to stop the
abuse would result in significant harm to the person or the child.218
These affirmative defenses are helpful for ensuring the statutes are not
punishing the wrong group, but they currently do not provide enough
protection. First, we know that an abused woman will see an interaction
or instance of abuse very differently from a non-abused person. Her
view of when harm can occur, how substantial it will be, and how her
intervening can negatively impact the situation is not the same as it
would be for the average person. In order for these affirmative defense
clauses to apply to an abused woman, there likely would be a need for
both evidence of her abuse to show her apprehension of getting
physically involved and expert testimony to help interpret her
perception and actions.
Alternatively, Ohio?s statute?s affirmative defense applies when the
person did not have the ability to prevent the abuse but requires
?timely and reasonable steps to summon aid.?219 This caveat will often
work against an abused mother. Even if the court finds that she was
unable to prevent the abuse and is justified in her actions, the
requirement for seeking help is a hindrance to her using the defense.
Because the average person is not able to account for the psychological
and physical barriers of an abusive relationship, an abused woman will
likely not be able to seek help for the abused child in a manner that an
average person considers proper and timely. Without understanding
that a woman knew it would be safer to tend to the child herself or
wait until the abuser is gone seek help, it is improbable that a jury
would find that an abused woman met the criteria for this defense.
It is difficult to write a statute that is neither under-inclusive nor
over-inclusive. While some states have taken a step towards recognizing
that there can be extenuating circumstances that impact the ability to
intervene, abused mothers are still left vulnerable. Therefore, in
addition to having affirmative defenses built into the statutes, states
should include instructions for leniency in their sentencing guidelines to
account for abused mothers? circumstances. Amending the sentencing
guidelines would help create consistency and remind judges to consider
the full set of circumstances surrounding an event, not just the outcome.
Judges should be encouraged to look at a woman?s history of being
abused, whether she participated in abusing the child, her psychological
state, and her means to remove herself and her child from the abusive
218. IOWA CODE ? 726.6(1)(e) (2018); MINN. STAT. ? 609.378(2) (2017); OKLA.
STAT. tit. 21, ? 852.1 (2017).
219. OHIO REV. CODE ANN. ? 2903.15(B) (LexisNexis 2018).
environment. While some courts have begun to do this on their own,220
the state should play a role in looking out for this vulnerable population.
Instead of requiring prosecution of mothers as though they were the
abuser, the statutes and sentencing guidelines should be amended to be
more lenient and responsive to abused mothers. Implementing better
affirmative defense options for abused women and ensuring they are
available will be a big step towards refocusing the harshest penalties of
FTP laws away from abuse victims. While society should encourage
those who are in a position to prevent abuse to do so, the law should
not punish victims for being victims. The laws should protect women
who are not in a reasonable position to report abuse or leave, so the
abused women are not facing decades in prison. Instead, the
government and society should be looking at ways to end the abuse
Additionally, there are numerous community-based ways to combat
childhood abuse: improving access to education, employment
opportunities, family planning, and safe sex; offering support groups
and shelters; and creating programs to foster community engagement
and trust of authorities or the government. Moreover, incarcerating a
non-abusive parent will not significantly decrease the risk of future
abuse for that child. Children in residential or foster care may
experience even higher rates of abuse and victimization than the
Many mothers are unaware of the services and legal protections
that exist to support them and their children. Educating all women and
mothers about services that are available to them as early as possible
will enable those in need to seek out help and know how to properly
break ties with the abuser. States also need to ensure that all women
have access to the safeguards they are expected to use in situations of
domestic abuse. Additionally, law enforcement and social service
providers should receive specialized training on how to interact with
victims of abuse. The victims may not be in a rational mental state,
and it is important that the first interactions these women and children
have foster their trust in the social and legal systems.
While it is vitally important to encourage mothers to report abuse
of their children, FTP laws alone do not promote a safer environment.
220. E.g. United States v. Whitetail, 956 F.2d 857, 863-864 (1992).
221. Mary I. Benedict et at., Types and Frequency of Child Maltreatment by
Family Foster Care Providers in an Urban Population, 18 CHILD ABUSE
& NEGLECT 577, 578 (1994); Daniel Pollack & Gary L. Popham, Jr.,
?Wrongful Death? of Children in Foster Care, 31 U. LA VERNE L. R. 25,
26 (2009); See generally Carolyn A. Kubitschek, Holding Foster Care
Agencies Responsible for Abuse and Neglect, 32 HUM. RTS. 6 (2005).
The laws and courts need to be able to fully examine the situation of
the mother and the child involved. Understanding the plight of an
abused woman and the daily struggle she faces should allow for leniency
in some circumstances. Knowing that an abused woman faces an
alternate view of reality because of the psychological and emotional
trauma she has faced, should allow for courts, prosecutors, and even
the public to extend understanding or sympathy. Accounting for the
ways she did try to protect her children and used the actual resources
she had available, is a reasonable provision that should be included
when looking at an FTP case. FTP laws were not enacted to punish
victims of abuse; they are designed to encourage those who are capable
to report the abuse of someone who is vulnerable. An abused mother
has likely seen the legal system fail her and her children. She may have
little or no resources available. It is unrealistic to expect her to believe
that simply reporting the abuser will end the harsh reality she and her
?The well-intentioned efforts to help victims must be judged by their
results, not our intentions.?222
I. Historical Context of Abuse in the United States. ................. 432? A. Tidal Wave of Change, Starting in the 1960's .................................. 432? B . Child Abuse Today in America ....................................................... 434? C. History of FTP Laws. .................................................................... 435? 1 . Statutory Goals of FTP .................................................................. 435? 2 . Compliance with FTP Laws............................................................ 436 ?
II. Cases Highlight the Harsh Application of FTP and Unrealistic Expectations of a Woman ................................. 438? A . Representative FTP Cases ............................................................. 438 ? 1 . ?Titches Lindley ............................................................................... 438? 2 . Aubriana Coke ................................................................................ 439? B. Stark Gender Differences ............................................................... 440? 1 . Historical View of Woman .............................................................. 440? 2.?Wanda's Story................................................................................. 442 ? 3 . ?Case Comparison............................................................................. 442 ?
III. Realities in Families of Abuse ................................................. 444? A .? Why Women Do Not Leave Right Away ......................................... 445? 1 . No Place to Go ............................................................................... 445? 2 . Accessing Services ........................................................................... 445? 3 . Finances .......................................................................................... 446? 4 . Threats of Future Violence ............................................................. 446? B . Coping Mechanisms That Allow Women to Feel In-Control of the Abuse ......................................................................................... 448? 1 . Denial.............................................................................................. 448? 2 . Trying to Shield the Children ......................................................... 449 ?
IV. Evaluating the Statutes ......................................................... 449? A. Constitutionality of a ?Status? Crime.............................................. 449? 1 . Status Versus Conduct.................................................................... 449? 2.?Removing Children Due to Mother's Victimization ........................ 450? B . FTP Laws' Poor Deterrent Effect ................................................... 451 ? 1 .?FTP Laws Analyzed for Deterrence Effect...................................... 452 ?
2. Increasing Strictness Does Not Increase Compliance ...................... 453 ?
10. John E.B. Meyers , A Short History of Child Protection in America, 42 FAM. L.Q. 449 , 454 - 55 ( 2008 - 2009 ).
13. C. Henry Kempe et al., The Battered-Child Syndrome, 181 J. AM. MED. ASS'N 17 , 17 ( 1962 ).
16. See H.R. REP . NO. 87 - 2006 , at 1 , 3 ( 1962 ) (Conf . Rep.); Wilbur J. Cohen & Robert M. Ball , Public Welfare Amendments of 1962 and Proposals for Health Insurance of the Aged, SOC . SEC. BULL., Oct. 1962 , at 15-16 (including services which ?prevent[ed] or remed[ied] . . . neglect, abuse, exploitation or delinquency of children? and provided aid to neglected or high-risk children in ?child welfare services?).
17. Leonard G. Brown III & Kevin Gallagher, Mandatory Reporting of Abuse: A Historical Perspective on the Evolution of States' Current Mandatory Reporting Laws with a Review of the Laws in the Commonwealth of Pennsylvania, 59 VILL. L. REV . TOLLE LEGE 37 , 37 ( 2013 ).
Adoption Assistance and Child Welfare Act of 1980 , Pub. L. No. 96 - 272 ,
94 Stat. 500; Adoption Assistance and Child Welfare Act of 1980 , H.R.
3434 , 96th Cong. ( 1980 ).
Meyers , supra note 10, at 460.
Adoption and Safe Families Act of 1997 , Pub. L. No. 105 - 89 , ? 101 ( a ),
111 Stat. 2115 ( 1997 ) ; Cathleen S. Graham, Implementation of the
Adoption and Safe Families Act of 1997: The Indiana Experience? 1
ADVANCES IN SOC. WORK 79 , 79 ( 2000 ).
22. Women 's Roles vs . Social Norms, N.Y. TIMES (Dec. 30, 1986 ), https://www.nytimes.com/ 1986 /12/30/style/women-s -roles-vs-socialnorms .html.
23. Michelle S. Jacobs , Requiring Battered Women Die: Murder Liability for Mothers Under Failure to Protect Statutes, 88 J. CRIM . L. & CRIMINOLOGY 579 , 593 ( 1998 ).
32. Id . at 14; North Carolina Becomes Ninth State With 10 Million or More People , Census Bureau Reports, U.S. CENSUS BUREAU ( Dec . 22, 2015 ), https://www.census.gov/newsroom/press-releases/ 2015 /cb15- 215 .html.
36. Kenneth D. Kochanek et al., Deaths: Final Data for 2014 , 65 NAT'L VITAL STAT . REP . 10 , 10 , 12 ( 2016 ).
39. Child Abuse , Neglect Kills Hundreds in View of Authorities, AP Reports , CBS NEWS , ( Dec . 18, 2015 , 12 :23 PM), https://www.cbsnews.com/ news/child -abuse-neglect-kills-hundreds-in-view-of-authorities-apreports/.
40. Brenda M. Ewen , Failure to Protect Laws: Protecting Children or Punishing Mothers?, 3 J. FORENSIC NURSING 84 , 84 ( 2007 ).
45. E.g., Nicholson v . Scoppeta , 820 N.E. 2d 840 , 844 (N.Y . 2004 ); In re Lonell J., 673 N.Y.S. 2d 116 , 118 ( N.Y. App . Div. 1998 ) (holding that N.Y. Fam . Ct. Act ? 1012 should be read to include domestic violence between parents as sufficient to establish neglect).
46. See Jacobs, supra note 23 , at 585; LENORE E. A. WALKER , THE BATTERED WOMAN SYNDROME 74 (2d ed. 2000 ) ; see generally Kempe , supra note 13; Impact on Child Development , U.S. DEP'T OF HEALTH & HUM. SERVS . - CHILD . BUREAU, https://www.childwelfare.gov/topics/can/impact/ development/ (last visited Nov. 4 , 2017 ).
50. WOMEN OF COLOR NETWORK, DOMESTIC VIOLENCE 2 ( June 2006 ), available at https://www.doj.state.or.us/wp-content/uploads/2017/08/ women_of_color_network_facts_domestic_violence_ 2006 .pdf.
51. Jeffrey Jones , In U.S., Confidence in Police Lowest in 22 Years, GALLUP (June 19, 2015 ), https://news.gallup.com/POLL/183704/ CONFIDENCE-POLICE- LOWEST-YEARS .ASPX.
52. Beverly Engel , Why Don't Victims of Sexual Harassment Come Forward Sooner?, PSYCHOL . TODAY (Nov. 16 , 2017 ), https://www.psychologytoday.com/us/blog/the-compassion -chronicles /201711/why-dont-victims-sexual-harassment-come-forward-sooner.
54. See , e.g. ARIZ. REV. STAT . ? 13 - 3623 (LexisNexis 2017 ) ; ARK . CODE ANN. ? 5-27-221 ( 2017 ) ; N.D. CENT . CODE ? 14 - 09 - 22 ( 2017 ). At least three states offer affirmative defenses if intervening would result in substantial harm to the child or the person: IOWA CODE ? 726.6 ( 1 )(e) ( 2018 ) ; MINN . STAT. ? 609 . 378 ( 2 ) ( 2017 ) ; OKLA . STAT. tit. 21 , ? 852 .1 ( 2017 ).
55. Lindley v. State, App. No. 08-08-00149-CR , 2010 Tex. App. LEXIS 2044 , at *2 (Tex . Ct. App. 8th Dist. Mar . 24 , 2010 ).
58. Jacqueline Mabatah , Blaming the Victim? The Intersections of Race, Domestic Violence, and Child Neglect Laws, 8 GEO . J. L. & MOD. CRITICAL RACE PERSP . 355 ( 2016 ).
62. Sentencing Transcript at 3, Texas v. Lindley , 2010 Tex. App. LEXIS 2044 (Tex . Ct. App. 8th Dist. Mar . 24 , 2010 ) (No. F06 -89089 -X).
67. Id . at *3; Sentencing Transcript at 78 , 162, Texas v. Lindley , 2010 Tex. App. LEXIS 2044 (Tex . Ct. App. 8th Dist. Mar . 24 , 2010 ) (No. F06 - 89089 -X).
72. ARKANSAS STATE POLICE CASE FORM ( 2012 ), available https://www.documentcloud.org/documents/1283064-victoria -pedrazaarkansas-state-police . html#document/p3/a176583.
78. Alex Campbell, Battered, Bereaved, and Behind Bars, BUZZFEED (Oct. 2 , 2014 ), https://www.buzzfeed. com/alexcampbell/how-the-law-turnsbattered-women-into-criminals?utm_term= . fhrOVjolp# .cbYyqbYBV.
89. The Changing Role of the Modern Day Father, AM . PSYCHOL. ASS'N , http://www.apa.org/pi/families/resources/changing-father. aspx (last visited Jan . 20 , 2018 ).
94. Barrientos v. Johnson, No. EDCV 15-2187-R (KS) , 2016 U.S. Dist. LEXIS 72852, at *3, *12 ( C.D. Cal . Apr. 22 , 2016 ); State v . Morrison , 437 N.W.2d 422 , 424 (Minn. Ct. App. 1989 ).
95. See State Dep't of Human Servs . v. Tate, No. 01 -A- 01 - 9409-CV-00444, 1995 WL 138858, at *1 ( Tenn. Ct . App. Mar. 31 , 1995 ).
102. Zile , 710 So.2d at 731 -732; Jacobs, supra note 23, at 583; Stephanie Smith , Pauline Zile Escapes Death, SUN SENTINEL (June 8 , 1995 ), http://articles.sun-sentinel.com/1995-06- 08/news/9506070619_ 1_pauline-zile-life-sentence-child-s-death.
103. Jacobs , supra note 23, at 583; Woman Gets Life Term in Murder of Daughter, BALT . SUN (June 8 , 1995 ), http://articles.baltimoresun.com/ 1995-06-08/news/1995159184_ 1_zile-rapp-christina.
108. Brief Life of A.j. Schwarz Filled With Violence, Custody Problems , SUN SENTINEL (Sept. 4 , 1994 ), http://articles.sun-sentinel.com/1994-09- 04/news/9409030431_ 1_david-schwarz-half-sister-stepmother.
109. Mike Folks , A.j. Case Haunts Father, SUN SENTINEL (July 17 , 1995 ), http://articles.sun-sentinel.com/1995-07-17/news/9507160205_ 1_davidschwarz-truck-driver-abuse.
111. Brief Life of A.j. Schwarz Filled With Violence, Custody Problems , supra note 108.
112. Campbell v. State , 999 P. 2d 649 ( Wyo . Sup. Ct. 2000 ); Davis v . Commonwealth , 1998 Ky. LEXIS 44 (Sup . Ct. 1998 ).
123. Andrea J. Martin et al., The Process of Leaving an Abusive Relationship: The Role of Risk Assessments and Decision-Certainty, 15 J. FAM . VIOLENCE 109 , 118 ( 2000 ); See Burman & Chantler, supra note 122; Eliana Dockterman , Why Women Stay: The Paradox of Abusive Relationships , TIME (Sept. 9 , 2014 ), http://time.com/3309687/whywomen-stay -in-abusive-relationships/.
136. Texas v. Lindley , 2010 Tex. App. LEXIS 2044 (Tex . Ct. App. 8th Dist. Mar . 24 , 2010 ), at *3; United States v. Webb , 747 F.2d 278 , 281 (Nov. 13, 1984 ).
137. In re Dalton, 424 N.E.2d 1226 , 1230 (Ill. Ct. App. July 31 , 1981 ).
138. Domestic Violence & Abuse, U.C. DAVIS, https://www.ucdmc.ucdavis.edu/hr/hrdepts/asap/Documents/Domestic Violence. pdf (last visited Nov. 5 , 2017 ).
140. Radha Iyengar , Does the Certainty of Arrest Reduce Domestic Violence? Evidence From Mandatory and Recommended Arrest Laws , 93 J. PUB. ECON. 85 , 89 ( 2009 ); Frances L. Coleman, Stalking Behavior and the Cycle of Domestic Violence , 12 J. INTERPERSONAL VIOLENCE 420 , 430 ( 1997 ); Ruth E. Fleury et al., When Ending the Relationship Does Not End the Violence, 6 VIOLENCE AGAINST WOMEN 1363 , 1364 - 66 ( 2000 ).
144. Mandatory Arrest Laws May Hurt Domestic Violence Victims? U. AKRON (Mar. 26, 2015 ), http://www.uakron.edu/im/news/mandatory-arrestlaws -may-hurt-domestic-violence-victims; Iyengar , supra note 140, at 85.
145. Mandatory Arrest Laws May Hurt Domestic Violence Victims , supra note 144; What is the Impact of Mandatory Arrest Laws on Intimate Partner Violence Victims and Offenders?, U. KY CENT . FOR RES. ON VIOLENCE AGAINST WOMEN (Dec . 2011 ), https://opsvaw.as.uky.edu/ sites/default/files/05_Mandatory_Arrest.pdf.
158. Sentencing Transcript at 198, Texas v. Lindley , 2010 Tex. App. LEXIS 2044 (Tex . Ct. App. 8th Dist. Mar . 24 , 2010 ) (No. F06 -89089 -X).
201. Lenore E.A. Walker , Battered Woman Syndrome and Self-Defense, 6 NOTRE DAME J. L. , ETHICS & PUB. POL'Y 321 , 322 ( 2012 (hereinafter Walker, Self-Defense); See e .g. Peter Jensen, Schaefer, Moved by Tales of Abuse, Commutes Sentences of 8 Women, BALT . SUN, ( Feb . 20, 1991 ), http://articles.baltimoresun.com/1991-02- 20/news/1991051077_ 1_spousal-abuse-battered-women-schaefer (reporting on the clemency to the 8 women and the governor's push for evidence of battered woman syndrome to be allowed at trial); Morgan Abbott, Admissibility of Battered-Spouse Syndrome Evidence in Alaska, 32 ALASKA L . REV. 153 , 155 ( 2015 ) (some women convicted of murder or assault prior to the acceptance of the battered woman syndrome defense have been pardoned); Isabel Wilkerson, Clemency Granted to 25 Women Convicted for Assault or Murder , N.Y. TIMES (Dec. 22, 1990 ), https://www.nytimes.com/ 1990 /12/22/us/clemency-granted-to-25 - women- convicted -for-assault-or-murder.html (?granted clemency . . . to 25 women who had been convicted of killing or assaulting husbands or companions who the women said had physically abused them .?); Tamar Lewin, More States Study Clemency for Women Who Killed Abusers , N.Y. TIMES , Feb. 21 , 1991 , at A19.
216. Laura D. Warren , The Indigent Defendant's Toolbox: Debating the Addition of the Battered Woman Syndrome Expert , 69 U. CHI. L. REV . 2033 , 2034 n. 84 ( 2002 ).
217. Richard S. Frase & Kelly Lyn Mitchell, What Are Sentencing Guidelines?, U. MINN. (Mar. 21 , 2018 ), https://sentencing.umn.edu/content/what -aresentencing-guidelines (?Sentencing guidelines are a set of standards that are generally put in place to establish rational and consistent sentencing practices within a particular jurisdiction?).
222. Belinda Luscombe , When Not to Arrest an Abuser in a Domestic Violence Case , TIME (Mar. 5 , 2014 ), http://time.com/12682/when-not -to-arrestan-abuser-in-a-domestic-violence-case/ (quoting Lawrence Sherman, the man who lead the research leading to mandatory arrest laws, now speaking out against mandatory arrest laws).