Mothers prosecuted, punished for what they didn’t do

USA Today
Rochelle Sharpe

When California Gov. Arnold Schwarzenegger denied parole to a battered woman last week, he underscored a message that courts and prosecutors are increasingly giving mothers: They can be prosecuted for murder and imprisoned if they fail to prevent their children from being killed.

Linda Lee Smith, 52, has spent 24 years in prison in the murder of her 2-year-old daughter, Amy. Although the parole board has declared her suitable for release six times since 1989, the state’s governors have decided otherwise.

Smith was convicted of second-degree murder in San Luis Obispo County in 1980 and sentenced to 15 years to life after she did not stop her boyfriend from fatally beating Amy. Whether Smith participated in Amy’s abuse was hotly disputed at her trial. The prosecution argued that by not aggressively intervening, she condoned the violence.

That Smith may have been a victim of domestic violence was no defense, Schwarzenegger said. He said in his May 18 letter denying parole that Smith still poses “an unreasonable threat to public safety.”

Smith’s situation is not unique. Legal scholars and court dockets across the nation suggest that during the past two decades, mothers increasingly have been blamed —— and prosecuted ——for not protecting their children from harm. That includes women who have been victims of domestic violence or who have used drugs while they were pregnant.

“There’s the sense of a noose being tightened,” says Michelle Oberman, a Santa Clara University law professor and co-author of the book Mothers Who Kill Their Children.

“We want to try to find some way to think we’re protecting children,” says Benjamin Wolf, associate legal director of the American Civil Liberties Union in Illinois. Fixing social problems is too complicated, he says. “Blaming the mother is the easy way out.”

Some prosecutors say women merely are being held to the same standards as men.

“If we’re not going to hold the mother accountable, then who’s going to be responsible for protecting that child?” says Wendy Macfarlane, a deputy district attorney in Ventura County, Calif.

It is unclear precisely how many mothers are being prosecuted and convicted of failing to protect their children each year. They are charged under a complex web of state laws, which are enforced differently in various jurisdictions. No one tracks the number of prosecutions across the states.

Oberman and other legal scholars say there is no doubt prosecutions and convictions of mothers in children’s deaths are on the rise. Anecdotal evidence from court dockets supports that:

  • In Lake County, Ind., the county prosecutor isn’t excusing Felicia Gordon for not intervening in the fatal beating of her son George, 7, in March. Gordon, 27, of Gary, was charged with murder after her boyfriend repeatedly hit, punched and kicked the boy to death. She admitted to police that she could hear beating and screaming for 10 minutes. Her attorney, Lemuel Stigler, says she stayed in another room during most of the incident because she was trying to protect her other son, a 1-year-old. She says her boyfriend pointed a gun at her after the beating and threatened to hurt her if she called police. If convicted at her trial this summer, she could face more than 65 years in prison.
  • In a case this week, Arlene Haines, 24, of Ulysses, Pa., pleaded guilty to child endangerment because she didn’t stop her boyfriend from fatally abusing her 2-year-old daughter, Serena, last year. Had a plea agreement not been struck, Haines could have been sentenced to up to seven years.

Preventing harm can even include not doing enough to prevent a child’s suicide. In October 2003, Judith Scruggs was found guilty of contributing to her son’s suicide. A Connecticut jury convicted Scruggs of risk of injury to a minor because she kept such a filthy home and allowed her 12-year-old’s hygiene to deteriorate so much that he was bullied at school. She received probation.

That same month, the U.S. Supreme Court refused to hear an appeal of a South Carolina mother convicted of murder through an interpretation of the state’s homicide-by-child-abuse law. Regina McKnight was prosecuted for having cocaine in her system when she suffered a stillbirth. She is serving 12 years in prison.

Mary Becker, an Illinois attorney involved in a protection case, says mothers are being treated differently under the law because they are assumed to be a child’s natural protector. Fathers rarely are charged, she says.

In 1992, Illinois became the first state to consider parents accomplices to first-degree murder if they don’t protect their children. That’s when an appellate court upheld the conviction of Kimberly Novy of Shiloh, Ill., saying that although she’d been battered by her husband and may not have caused her stepson’s fatal injuries, her actions —— and inaction ——made her responsible for his murder. She is serving 30 years.

The following year, Illinois prosecuted Kathy Cecil of Wood River for the first-degree murder of her 2-year-old son, Michael. She didn’t participate in his fatal beating and had been repeatedly punched, choked and raped by her lover for months. Cecil, now 31, was sentenced to 35 years in jail.

Battered women don’t get much sympathy in many of these cases. Some prosecutors say abuse of the mother is irrelevant.

“That’s not an excuse for standing by and letting someone beat your child to death,” says Terry Patton, the state’s attorney in Henry County, Ill.

Advocates of battered women say it’s not that simple. These women may be unable to help because if a husband or boyfriend is beating a child, they probably are beating the mother, too.

That was happening in Linda Lee Smith’s case, her surviving daughter, Bethany McDermott, said in an interview last week.

McDermott said her mother did not intervene in Amy’s beating because she was paralyzed with fear. She said Smith had been battered and sexually tortured for months by her boyfriend, David Foster, who was convicted of second-degree murder and is still in prison. Her mother had been severely beaten when she tried to stop Foster from harming McDermott, then 3, a few weeks earlier.

“Standing back and not doing anything was horrible,” said McDermott, 29. “But such a harsh punishment wasn’t the right answer.”

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