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Friday, February 29, 2008

Punishing Family Status: Some Examples (Part I)

Yesterday, I posted the introduction to a working draft of a paper, Punishing Family Status, by Ethan, Jennifer Collins and myself.  Today we provide the first half of an overview of places within the criminal justice system where defendants are burdened in some way on account of their family status.  I should note that what's below is not intended to be comprehensive; for instance, we have very recently come across some statutes that make it a crime for persons to not support their parents--filial responsibility statutes. We don't discuss these statutes in the paper below, but we plan on discussing them more in our book version of the project.  Of course, if you have any thoughts about other criminal laws that should fit into our analysis described below, please let us know via email. Please excuse any formatting errors that might arise in the reproduction here--and note that we have omitted our footnotes here.



Certain crimes permit prosecution of a defendant for conduct that would not otherwise be unlawful in the absence of a defendant’s familial connection to the crime. Examples include certain vicarious and omissions liability statutes, incest, bigamy, adultery and nonpayment of child support. Thus, to illustrate, incest statutes proscribe sexual conduct even between mature, consenting individuals, and other statutes impose criminal liability for the nonpayment of child support, even though we do not ordinarily criminalize a failure to satisfy a debt. In all of these examples, the familial status alters the blameworthiness the criminal justice system assigns to the underlying conduct. We examine these kinds of crimes in turn. Although these examples are not necessarily exhaustive, we believe they are the most frequently found examples of the criminal justice system’s decision to criminalize certain conduct on the basis of family status.


A. Omissions Liability


In June 2002, a 21 year-old mother named Shavon Greene was charged with aggravated manslaughter after her boyfriend allegedly beat her 21 month-old daughter to death. The prosecutor did not allege that Greene was even present during the beating; instead, she was charged because she had disregarded warnings from a social services investigator not to leave the child alone with her boyfriend. Greene eventually pled guilty to culpable negligence in the child’s death.

 At a high level of generality, the dominant rule in American criminal justice (as well as tort law) systems remains that citizens are under no obligation to rescue each other. In other words, even if the failure to act to help another person in distress would constitute a moral failing, the criminal justice system does not generally impose liability on those who simply keep on walking.

The exceptions to the general rule are well-known, though the prospect of criminal law enforcement of an exceptional duty to rescue is much more unusual than tort law enforcement. As the D.C. Circuit stated in Jones v. United States: 

There are at least four situations in which the failure to act may constitute breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntary assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

It is the second category that is of special interest here, for the status of husband to wife and parent to child are paradigmatic, even if not exclusive, examples of status relationships in which one owes a duty to rescue sufficient to trigger criminal responsibility (rather than mere tort liability). Accordingly, parents are regularly held criminally liable for neglect for failing to protect a child who was being sexually abused by another individual, and held criminally liable for manslaughter for failing to protect a child from fatal physical abuse inflicted by another. These prosecutions exemplify the family ties burden phenomenon by which persons in certain family relationships are held accountable for harms to others even when those harms are inflicted by another independent actor.

  Not surprisingly, such prosecutions have been hotly debated by the legal academy. Some of the debate has revolved around whether the passive parent should be entitled to argue that her status as a battered person herself should excuse her failure to act. Perhaps the most highly publicized case in this regard involved Lisa Steinberg, who was beaten to death by her father while her mother, Hedda Nussbaum, allegedly did nothing to prevent the abuse. After Nussbaum established that she too had suffered serious physical abuse at the hands of Joel Steinberg, the prosecutor’s office elected to drop charges initially filed against her.

What are the problems with failure to prevent abuse prosecutions? First, critics charge that such prosecutions disproportionately target women. Indeed, women are more likely to bear the brunt of such prosecutions than men simply by virtue of the fact they are more often the custodial parent. Further, women are typically held to a higher standard of care in childrearing relative to men. As Naomi Cahn and Marie Ashe have argued, “Cultural middle-class norms expect all women to be primarily responsible for their children. The criminal justice system supports this norm by criminalizing the abusive and neglectful behavior of parents, penalizing mothers particularly harshly.”  But supporters of prosecutions of passive parents counter that even a parent’s status as a victim of domestic violence cannot categorically excuse her failure to act to prevent the abuse of her child. For example, Mary Becker has suggested that “mothers, even when abused themselves, should be held to a high standard of care for their children and should normally be held responsible for their own abuse or neglect of their children and for failing to protect their children from others’ abuse and neglect, provided that they knew or had reason to know of the harm to their children.” That’s because even though the mother may have been weakened physically or mentally by virtue of the abuse she has suffered, unless she is “literally a hostage,” she still has options to employ in an attempt to protect her child that are not available to the child itself; young children, after all, are utterly defenseless and completely dependent upon adults for their protection.


B. Vicarious Liability

  In St. Clair Shores, Michigan, Susan and Anthony Provenzino were charged with a misdemeanor for failing to “exercise reasonable control” over their sixteen year-old son. Alex Provenzino had committed a number of crimes, including burglarizing churches and homes and attacking his father with a golf club. Despite knowledge of some of his burglaries, the Provenzinos had supported Alex’s release from juvenile custody, after which he continued to commit crimes. The jury convicted the Provenzinos after just fifteen minutes of deliberation. The parents were each fined $100 and ordered to pay $2000 in court costs.


In the civil justice system (rather than in criminal justice), courts will sometimes hold a defendant (like an employer) liable for compensatory damages to an injured party even if the employer is not personally at fault for his employee’s misconduct. It’s often thought that such vicarious liability can be justified because if an innocent enterprise is made to recompense the victim, the enterprise can more easily absorb the cost of the tort and pass on the cost to consumers, which has the effect of minimizing burdens on any single tort victim. This rationale for vicarious liability erodes, however, when the liability leads to a criminal penalty against an individual rather than a civil payment for compensatory damages. After all, in the context of fines, the victim is not being paid; rather the state is. And the defendant is not being forced to merely pay for harm; the defendant is being condemned through punishment for wrongdoing that someone else committed even if the defendant was unaware of and did not participate in the wrongdoing and even if the defendant instructed the wrongdoer that such misconduct was forbidden.

Despite this disjunction between rationale and scope, jurisdictions regularly impose vicarious criminal liability. We sometimes see vicarious criminal liability in the context of public welfare offenses to ensure public health and safety. We also see vicarious liability in the context of the crime of conspiracy; co-conspirators have been held liable for substantive crimes committed by another member of the conspiracy, through the Pinkerton doctrine, even if not present at the scene of that crime or aware of the crime’s commission. These efforts are controversial and have been subject to substantial criticism.

But in the family context, we have seen the envelope of vicarious liability pushed even further. In the Pinkerton scenario, for example, some precursors for liability are that the actor commit the criminal act of joining the conspiracy and that the additional crime at issue be committed in furtherance of the conspiracy and be reasonably foreseeable. But when it comes to family members, we are seeing efforts to impose liability in the complete absence of criminal conduct by the parents.. Although such efforts have a long history, there has been a new spate of such laws in recent years. In the last year, for example, a Cleveland suburb adopted an ordinance holding parents criminally liable if their children are charged with a crime; a third conviction under the statute could result in parents serving 180 days in jail. Although an Ohio court recently ruled the Cleveland ordinance unconstitutional, it remains true that the renewed enthusiasm for vicarious parental liability commands attention. One community in Alabama recently proposed that parents be held criminally liable when minors consume alcohol in their homes, even if the parent had no knowledge at all that the alcohol was being consumed.

  According to one commentator, criminal parental liability statutes fall into four categories. “The first two categories, truancy and curfew laws, generally impose criminal liability on a parent who knowingly allows his or her child to commit acts (staying out past an established curfew; not attending school) which would not be criminal if committed by an adult.” The third category, “contributing statutes,” impose liability on parents, or potentially any adult, who affirmatively contributes to the delinquency of a minor for, by example, “sending a child to a brothel” or providing a weapon.

The fourth category is the most controversial and is exemplified by the Cleveland ordinance referenced above – statutes that in essence convict parents for crimes committed by their children, or even for “unsavory activities engaged in by children,” on a “failure to supervise” theory or the like. For example, Louisiana has a statute subjecting parents to up to six months’ imprisonment for permitting an unlicensed minor driver to drive a vehicle if the minor ends up involved in an accident that resulted in death or serious bodily injury to another person. The statute also makes it a crime for a parent, “through criminal negligence,” to permit “the minor to associate with a person known by the parent” to be a gang member, a convicted felon, or a drug dealer or user. A parent convicted under this particular provision faces up to thirty days in a jail and a $250 fine. The statute allows a parent to escape liability under these latter provisions if they sought assistance from various agencies in modifying the child’s behavior or if they referred “the child to appropriate treatment or corrective facilities.”

There are two separate inquiries related to these legislative efforts: First, are they likely to be effective at reducing the incidence of crime by minors? Second, even if effective, is it just to hold parents liable for crimes committed by their children? Professor Dan Filler suggests that such statutes could be effective if the consequences for violation were sufficiently severe and certain, although of course we might not be willing to live with stakes of such high magnitude. For example, if parents whose children threw an alcohol-filled party for their friends faced a felony conviction and a lengthy jail term, most reasonable parents would quickly “lock up the booze and perhaps install a nanny-cam to monitor the house.” It is also important to note that these statutes are only likely to be effective if they are enforced more than just occasionally; even though these statutes are on the books in a number of states, criminal prosecutions remain relatively rare. Still, there have been some high-profile prosecutions, including the St. Clair prosecution discussed above.

But even if these statutes were made effective, would it be just to use them against parents? Support for these statutes is apparently motivated by the belief that “poor parenting” is a root cause of much of the juvenile crime in this country. As one family outreach worker exclaimed, “We have an adult problem, not a children problem . . . If we can get our adults together, the children will naturally fall in line.” One commentator has suggested that that “the rationale behind the parental liability laws – punishing the parents to reduce acts of juvenile delinquency by their children – must be based on a series of interconnected assumptions:” first, that the nature of the child’s behavior is directly – if not primarily – caused by the quality of the parenting in the household; second, that we can somehow create a “universal model of adequate parenting,” which all parents can and should adopt regardless of their circumstances; and third, that the threat of punishment will induce parents to adopt this government-sanctioned model of parenting.

Critics of these statutes, on the other hand, argue that the link between poor parenting and juvenile crime is far less certain than proponents suggest. Juveniles are no doubt also profoundly influenced by their peers, by their schools, by their communities, by the media, and perhaps by their genetic make-up. In addition, the threat of criminal liability might actually negatively impact parenting, rather than enhance it. One critic suggests that parental responsibility statutes will induce some parents to “over-parent[], that is by either severely restricting their child’s freedom or by excessively punishing the child.” Other parents might respond by “under-parenting,” that is, by distancing themselves from their children “by filing ungovernability or similar petitions to transfer responsibility to the state.” In either case, the relationship between parent and child would become more adversarial and negative, rather than more productive and positive.


C. Incest

  In 1997, Allen and Patricia Muth were convicted of incest after they entered into a sexual relationship and had four children. Allen and Patricia were biological brother and sis-ter, although they did not meet until Patricia was eighteen because she had been in foster care since she was a baby. At the time of their convictions, Allen was 45 and Patricia was 30. At the time of sentencing, the judge stated “I believe severe punishment is war-ranted in this case. . . . I think they have to be separated. It’s the only way to prevent them from having intercourse in the future.” The judge then sentenced Allen to five years in prison and Patricia to five years. Their parental rights to at least some of their children were also terminated because of the incestuous relationship.


Incest remains one of the enduring sexual taboos. It is also yet another compli-cated example of a situation where criminal liability may attach to a person only on ac-count of some familial status. While prohibitions of incest are usually made in a blan-ket form, in theory they can be grouped into three different categories: first is regulation of sex between adults; second is regulation of sex between an adult and a minor, and third is regulation of sex between minors. Most jurisdictions are unlikely to make these distinc-tions in part because they don’t even inquire into whether the participants jointly consent to the sexual activity. This raises normative questions we address in Part III.

Forty-seven states criminalize some forms of consensual sexual relations be-tween family members, although there is some variation between the states in terms of what relationships are prohibited. All states with criminal incest statutes ban sexual re-lationships between parents and their children, regardless of the child’s age. And all of those states but one also ban sexual relationships between siblings; most ban relationships between aunts and uncles and their nephews and nieces. There is more divergence on the question of cousins; only eight states criminalize sexual contact between first cous-ins, but twenty-five states do not permit first cousins to marry. Some states also extend their prohibitions beyond blood relationships: “twenty-two states criminalize sex between stepparents and stepchildren” and some (but not all, interestingly) states treat adopted children the same as biological children for purposes of incest prohibitions.

What are the rationales behind these incest prohibitions? The most commonly cited rationale for prohibiting consensual relations is that incestuous relationships have the potential to create children with genetic problems if the parties decide to reproduce. Moreover, incestuous relationships have special potential to be abusive and nonconsen-sual, and this coercion may be difficult to detect. Additionally, some have viewed the incest taboo as a way to “prevent intrafamilial sexual jealousies and rivalries” or to facili-tate the purported “social advantages of forming ties outside the family.” But these ra-tionales cannot account for the breadth of the incest prohibition in many states; for exam-ple, consensual relationships between adult adopted siblings raise neither genetic difficulties nor the specter of coercion. It is therefore impossible to underestimate the influence of the “disgust factor.” In large part, these relationships are criminalized be-cause Americans view them with distaste or because they are, in some situations, relig-iously proscribed.

The topic of consensual adult incest has actually been the subject of some legal and political discourse of late because of its links to the same-sex marriage debate. Some have suggested – with an intention to alarm – that if we legalize same-sex marriage, the legalization of incest is sure to follow. But in contrast to the issues of gay rights and same-sex marriage, there is no committed mainstream advocacy movement of which we are aware that is currently arguing for the liberalization of incest laws.

Similarly, there is very little legal scholarship seeking to make an affirmative case for greater recognition of intra-familial romantic relationships; rather, discussions about incest usually involve simply pointing out that many of the arguments made in fa-vor of the laws are problematic. For example, commentators remark that the evidence related to the possibility of genetic harm is far less certain than once believed, and, in any event, many of the relationships currently prohibited do not trigger this concern at all.

There are a few recent exceptions in the academic literature to this general pat-tern. For example, Christine Metteer argues that the individual’s constitutionally pro-tected right to marry trumps the state’s interest in prohibiting incestuous marriages when the parties are related only by affinity rather than consanguinity. More provocative is a recent article by Ruthann Robson, who suggests that “the proffered explanations for in-cest prohibitions should be deeply problematic for any same-sex marriage advocate.” She argues that attempts to justify prohibitions against incest by appealing to religion or longstanding community mores should be soundly rejected, because “tribal customs should not govern our current cultural mores and constitutional notions any more than Leviticus should prevail.” She also argues that we should reject the genetics justifica-tion, because it “rests upon identity between marriage and procreation – the same logic that is used to resist same-sex marriage.” Whatever one makes of these normative arguments, incest laws fit the more general pattern of punishing family status in certain circumstances within the criminal justice system.

Posted by Administrators on February 29, 2008 at 12:34 PM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib, Gender | Permalink


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My ex husbands parents are financing his life so he can avoid working and paying childsupport. His mail is coming to there home so he can hide out in an apartment rented by them.Can they get into trouble for doing this?

Posted by: Gina | Feb 24, 2009 9:33:57 PM

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