Cornered: Deborah Anthony on Gender and the Legal System

Content warning: this episode discusses domestic violence involving children.

In People v. Collins, the Supreme Court of California overturned a second-degree murder conviction based on a failure-to-protect theory. In its opinion, the court cited the research of a law professor in Illinois. Dr. Deborah Anthony, Professor of Legal Studies at the University of Illinois Springfield, wrote the 2022 article the court cited in its opinion. That article, titled The Law of Motherhood in the Gender-Dependent Application of Criminal Responsibility for Failing to Protect Children, is part of Dr. Anthony's ongoing research into gender and the legal system.

IICLE® is a 501(c)(3) not-for-profit based in Springfield, Illinois. We produce a wide range of practice guidance for Illinois attorneys and other legal professionals in all areas of law with the generous contributions of time and expertise from volunteer attorneys, judges, and other legal professionals.

Transcript

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Oh, you're an attorney?
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I have a friend who...
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I've been meaning to update my will, but I just bought a new house…
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I want to start a business…
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My brother was fired…
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Hey, my friend got divorced a while back.
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I just don't understand how her ex-...
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You've been there.
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At a social function, meeting friends of friends.
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Word gets out that you're an attorney and suddenly your night is filled with partygoers asking you quote-unquote simple legal questions.
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The questions are seldom in your area.
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Some of the stuff you haven't thought about since law school.
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You're being cornered out of court.
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In the Cornered Out of Court podcast from IICLE, you'll hear from fellow attorneys about the questions they get and the responses they give to escape being cornered.
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A content warning for listeners.
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This episode discusses domestic violence involving children.
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Please be advised.
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In People v.
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Collins, the Supreme Court of California overturned a second-degree murder conviction based on a failure to protect theory.
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Dr.
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Deborah Anthony, professor of legal studies at the University of Illinois Springfield, wrote the 2022 article the court cited in its opinion.
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That article, titled “The Law of Motherhood in the Gender-Dependent Application of Criminal Responsibility for Failing to Protect Children,” is part of Dr.
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Anthony's ongoing research into gender and the legal system.
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Hello, my name is Deborah Anthony.
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I am a professor of legal studies at the University of Illinois, Springfield.
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I'm also a licensed attorney.
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I practiced for a few years in Minnesota before jumping into my teaching career, and I still do some pro bono work as well.
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What prompted you to begin researching the charge of criminal failure to protect children?
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The background of this research is
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Very interesting, in my opinion.
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It was prompted by some increasing awareness on my part of criminal prosecutions of mothers for abuse that was perpetrated against their children by their male partner.
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This was percolating in the back of my mind when I had a student in one of my classes who, in introducing herself, went into quite a bit of detail about her own personal experience with this.
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where she had been working temporarily out of state.
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And while she was gone, her partner murdered her eight-year-old son.
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And when she returned to Illinois, which of course she did immediately upon hearing what had happened, she was arrested and charged with first-degree murder in her son's death.
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And she was convicted and sentenced to 22 years in prison for the murder of her son.
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So she was not charged with neglect,
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or with accessory.
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She was charged as the principal actor, just as her partner was.
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He also was convicted.
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But it was really remarkable to me that there was no contention that she actually had perpetrated the abuse or had been responsible for the murder directly, but that somehow she was criminally responsible for leaving her son
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with her partner.
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So this was really the catalyst for me getting into this research more broadly, and I was curious if this is happening in Illinois, these were not the famous news cases that I had been reading about, then is it happening all over the place?
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And to what extent is this phenomenon a thing in the criminal system?
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Are people aware of it?
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And if it's happening with mothers, is it also happening with fathers?
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And so that's when I started diving into this idea of criminal failure to protect your children.
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which in one way or another is a criminal offense in every state.
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In Illinois, we do have a crime of child abuse and neglect, but oftentimes in this state, people are prosecuted under accountability theory, which is not specific to children, right?
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It's more of accessory to any type of crime, and that was in fact my students'
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charge as well under accountability theory.
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And so that's often the case in various states.
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So sometimes it's failure to protect and sometimes it's accountability theory or the analogous provision in the state's law.
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And what I found was really striking that over 95% of the time it is mothers who are prosecuted for this crime.
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I couldn't find more than, I think, two cases.
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out of hundreds of cases where the father was prosecuted, even under really egregious facts, right?
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So we find women prosecuted when they're out of state or when they're away at work.
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But in cases where men are in the home, for example, and witnessing the abuse, often still are not prosecuted, or when they are, it's for a lesser offense, right?
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Then we see the prosecution for neglect.
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or failure to seek medical attention, things like that, versus being prosecuted as the principal actor, which is almost exclusively something that is leveled against mothers.
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How does your research about gender in the law provide a way to view other legal injustice issues?
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I think we know that historically gender was overtly relevant in the law in general and in family law in particular.
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So this was a critical component in how various legal issues and family issues were resolved until that became clearly unconstitutional, right?
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So now the statutes and the application of those statutes must be gender neutral.
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And so we ostensibly don't bring gender into those decisions.
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But what I found in this empirical research, but also in looking more deeply into a lot of kind of broader issues with gender in the legal system, is that a lot of social expectations of women and mothers, especially, is imputed into the way the system operates.
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For example, according to the data that we have, mothers are more likely to actually be the perpetrators of child abuse.
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There are some scholars that call that into question a little bit, because that too is in large part based on the individuals within the system who are enforcing child abuse.
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So whatever disparities and biases might exist may also come into play in that.
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But assuming that's true,
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then it would suggest that the men in those children's lives would be more likely to be prosecuted for failure to protect their children, right?
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Because if the mothers are more likely to be committing the abuse, then the other people who are around as that's happening are the ones who are not protecting their children.
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But the opposite is what we actually see in reality.
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I found that the questions that are asked when a situation has arisen, when abuse has taken place, when a child is murdered,
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directly impact the direction that the case goes.
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It also made it very difficult for me to find comparative data to analyze.
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So when police come into a situation and we'll say it's that it's clear that the father has committed some acts, some abusive act on a child, their questions often are looking at immediately at the mother's culpability.
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right?
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What did she do or not do?
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How clean is the house?
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Are the children's clothes dirty?
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Is their hair washed?
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And so these questions end up coming out in the media reporting.
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They end up coming out in the prosecution's case that they make.
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They come out in the juries when we do have evidence of jury comments and opinions about this, in some of the judges' comments.
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But nobody thinks to ask those questions when the mother is the one that's committed the abuse and the father is around in some contexts.
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So I had to work a lot harder to extrapolate some of that information, such as was there a prior child abuse case open?
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So was the father likely to know?
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that there was potential for harm there?
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Or were there visible injuries that were older before the child was killed that the father was likely to have seen?
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Because again, the police, the prosecutors, they don't think about digging into and investigating culpability when the non-abusing parent
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was the father versus the mother, but it's immediately where their mind goes when it is the mother.
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In that sense, gender seems really directly relevant and central in these cases, and the arguments and the commentary that are made within the criminal trials also reveal a lot of that.
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In presenting the mother's failure to meet her obligations as a parent,
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It seems really directly related to motherhood, more than parenthood more broadly.
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As the mother, she carried that child.
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She has the greatest responsibility.
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And in cases where the father murdered the child, there were even comments about how the mother was more responsible, more guilty than the man who struck the final blow.
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And so those sorts of revelations were really striking and very consistent.
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And I think that when they happen on the case by case basis, people are less aware of the issue as it's playing out, right?
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You're not thinking about the bigger picture and how universal or nearly universal these things are when you're looking at an individual case and this person seems like they should have done more, right?
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They seem culpable, but would we think that, would we feel the same way?
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if the gender of the parents were reversed?
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Would we think, how could this father not have, how could his father have left his child with the mother and gone dork?
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He should have known.
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And this concept of should have known becomes really central in a lot of these cases.
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And there seems to be an assumption that the mother should have known, even sometimes in the complete absence of any prior abuse or evidence that the mother knew of any prior abuse.
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And so the concepts of intent and foreseeability are really absent, but assumed that the intent that we settle on is that she intended to leave the child with him.
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And then therefore, that's considered good enough, right, when we're looking for intent on the accountability theory or the failure to protect, rather than intent to actually commit the crime itself.
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One other thing I will add that I think reinforces some of comments that I made related to the disparity is that I found a number of cases where the sentence against the mother, who was not the abuser, was actually higher and more severe than the sentence against the father, who was the abuser.
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And in a couple of cases, the father was even found not guilty.
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in a trial, and the mother nevertheless was found guilty of the crime of leaving the child with him, who was released for, you know, being acquitted of the crime of abusing the child, but she was convicted of the crime of leaving the child with the father.
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And women have received life sentences.
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They've received, I found a case where she received 75 years.
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In one case, she got three times the sentence that the father did who killed the child.
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He got 20 years and she got 60.
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And so this is, those I wouldn't say are the typical outcomes, but they're common enough that they are noteworthy, that this is a reflection, I think,
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of how serious we consider the mother's responsibility, that she be all-knowing and able to foresee every possible eventuality, and also strong enough to manage every violent situation that is either present or may become present.
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And one other component that I didn't talk about was the prevalence of violence against the mother in a lot of these cases.
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where in cases where the father has harmed or killed the child, it is also likely that he has been violent with the mother in the past.
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And that fact ends up being a double bind against the mother.
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Either she, if she brings it up in her defense, it is used against her in one way or another, right?
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It's used against her as either she's making it up and she's trying to get sympathy, or it's actual evidence that, additional evidence that she should
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known the danger to the child.
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And so there really is no good way of inserting that evidence into these trials.
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And so oftentimes their attorneys advise them not to do it because it complicates it and or makes the case against them even worse.
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And there were a few cases I found where the child was killed as the mother was in the process of trying to leave an abusive relationship.
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And
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even that violence against her either at best was irrelevant in the case or was still used against her where she's trying to identify the least dangerous.
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response to the situation.
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And so the fact that she may choose not to leave in that moment, for example, then is, again, more evidence against her for failing to protect her child.
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But when she does choose to try to leave in that moment and the child ends up murdered as a result, then that is not helpful in her defense.
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So it's a double-edged sword, and family violence that is often involved in these situations ends up complicating it significantly.
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for the mothers in a way that is difficult to resolve in their favor.
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One of my areas of research is gender in the law more broadly, and this was probably the most striking example of gender disparity in the legal system that I have seen in my career.
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What role can social science research play in advancing justice?
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It's a great question.
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And I think that it can be really central because when we look at cases on an individual basis and we're looking at the statute and we look at the facts and we apply the facts to the requirements of the law, there's a tendency to assume, especially as attorneys, right?
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That we're being objective and we're being logical and we're applying things exactly as they should be or to the best of our ability.
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without recognizing some of these social issues, some of these kind of implicit biases that do come into play.
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And so the social science research can really shed a lot of light on some of these trends.
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that I think is really helpful in allowing us to recognize that as a, you know, looking at the big picture, we may have a problem, right?
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This much disparity does not indicate a just system, right?
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And so that, I think, what can allow us to think more carefully about the individual cases when they do come up.
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We can step back a bit and think about, okay, so if this type of case
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typically plays out in a particular way that is not consistent with other demographic groups, then maybe we can reflect more carefully on the issues and some potential remedies for that.
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And so social science research doesn't actually come into cases very often in terms of, this is evidence that we consider relevant.
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So it's interesting when that does happen.
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But I think as members of the bar and as practitioners in the system, it can be really relevant and helpful in us helping us think about how we approach the system in general and cases in particular.
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Thank you, Dr.
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Anthony.
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Dr.
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Deborah Anthony is Professor of Legal Studies at the University of Illinois, Springfield.
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00:17:38
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Thank you for joining us for another edition of Cornered Out of Court, brought to you by the Illinois Institute for Continuing Legal Education.