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Note - Finding Favor: A Call for Compassionate Discretion in Cases of Battered Mothers Who Fail to Protect


Domestic violence is a complex issue facing millions of families in the United States. The structure of the law (as well as the mechanics of the criminal justice system) frequently penalizes women who are also victims of domestic violence by subjecting them to criminal culpability, along with their abuser, when an abusive partner harms their children. This is because criminal culpability extends to acts of omission on the part of caretakers who observe abuse or have reason to believe that abuse is occurring. As a result, victims become perpetrators when women who experience domestic abuse fail to leave their abusers in time to save their children. Failure to intervene can even result in women being charged with murder for the deaths of their children at the hands of their abuser, even if they did not participate in the acts leading up to death. Yet, women who are experiencing domestic abuse face unique struggles that complicate their ability to leave their abusers or even recognize abuse that may become fatal before it is too late. The law is ill equipped to handle this dilemma, and women are being charged and sentenced along with their abusive partners.

This Note explores notable, recent examples of women who were either charged with the failure to protect their children from abuse, or with murder for failing to prevent the deaths of their children. Many scholars, practitioners, and law students have proposed solutions to this issue with varying degrees of success. This Note aggregates and explores some of those solutions, and argues for greater use of prosecutorial discretion in charging these women as a necessary piece of the puzzle.