Feminist Law Professors

The perfect mother is a ubiquitous, if impossible, part of American life. We see her in spandex at the gym, working out—self-care!—a week after delivering twins. She’s at center-stage when internet experts opine about how mothers can prevent teenagers’ opioid addictions. In the shadow of this unattainable, idealized vision of a mother as a virtual guarantor of their children’s health and happiness, actual mothers berate themselves for falling short of perfection, feeling ashamed and inadequate.

The idealized image of motherhood is incorporated into law through the standard of “the reasonable person”; juries are asked to decide, in a particular case, whether the defendant’s behavior falls below this standard and is therefore negligent or worse. In a society that expects women to be more careful than men and holds mothers to an even higher standard of care and solicitude, many people will unconsciously impose the attributes of “the perfect mother” on the “reasonable person” or “reasonable mother.”

For example, in 2004, Utah prosecutors charged Melissa Rowland with murder after one of her twins was delivered stillborn. The prosecutors asserted that Rowland had demonstrated “maternal selfishness” by declining to have a caesarian section and her “depraved indifference to human life” meant she should be convicted of murder.  In 2010, Christine Taylor fell down the stairs in Iowa; since she was pregnant, she went to the hospital to make sure that both she and her pregnancy were okay. When Taylor, whose husband had just abandoned her and their two young daughters, disclosed that she was ambivalent about the pregnancy, she was arrested—her fall was taken for attempted feticide. Another mother, Ginger McLaughlin of Oregon, was convicted of criminal child neglect after her husband, who had been violent to her other children eight months prior, killed their young infant while Ginger was grocery shopping.

Blaming Mothers by Linda Fentiman (NYU Press 2017)

My book, Blaming Mothers: American Law and the Risks to Children’s Health, demonstrates how powerful images of maternal perfection unconsciously influence key players in the legal and health care systems, making it more likely that mothers, and not others, will be held responsible for adverse effects on their children’s health.  Because the legal system largely assesses criminal responsibility and civil liability with the benefit of hindsight, it is easy for unconscious psychological mechanisms to influence our judgments about risk (how likely is it that a bad event will occur) and whether a mother/parent could have acted to prevent that risk.

Blaming Mothers builds on the research of leading social science and legal scholars – Martha Chamallas, Dan Kahan, Cynthia Lee, and Paul Slovic, to name a few – to explain how judges and jurors can have skewed perspectives when it comes to the culpability of mothers, particularly when these mothers are poor, black, or brown.

Every year, American mothers are prosecuted for homicide or child abuse when their children are killed or injured by their male partners. The converse—a father being prosecuted for abuse perpetrated by his female partner—is far less likely.  Most of these “child abuse by omission” cases are resolved by plea bargains; a small number of cases go to trial, and even fewer are the subject of an appeal.  In Blaming Mothers, I examined 108 appellate court decisions involving a parent’s failure to act to protect a child from a spouse or partner, published from 1960 to 2014. Eighty-seven of these defendants were mothers and eleven were fathers; ten defendants were either stepparents or the boyfriend or girlfriend of the abuser.  In about 40% of these cases, the mother was abused by her partner; in a cruel irony, that abuse is often used as evidence against mothers. Reflecting a persistent failure to understand how difficult it is for battered women to flee their abusers, one Oklahoma prosecutor reframed the mother’s status as a victim of abuse as a personal preference.  He argued against the mother of a murdered child, “She made the choice to stay…. It’s about putting your child at risk because of the choices you make, and the choices you make to stay in an abusive relationship.”

Substantial numbers of jurors, judges, and prosecutors appear predisposed to believe that single mothers, in particular, are highly sexualized beings, whose behavior must be closely scrutinized for evidence that lust overcame their maternal instincts. Nearly a quarter of American children live with a single mother, compared with 4% who live with single fathers. More than three quarters of children under eight living with single mothers are poor; two-thirds of these families receive no child support from the father.  Poor children are seven times as likely to be abused as those who live in middle-class and wealthier homes, and it is often the single mother who is blamed, both for the abuse and even for the poverty itself.

In contrast, consider how easily corporations have escaped responsibility for the harm they have caused children. Many corporations have successfully dodged public accountability for causing environmental harms, including lead poisoning, by exploiting society’s relentless focus on the perceived failings of mothers. Corporate defense attorneys have traded on our unrealistic expectations of mothers, deflecting blame away from their clients. In a leading commentary on childhood lead poisoning litigation, Daniel J. Penofsky, notes, “the chief defense strategy in such cases is to ‘trash’ the family.” Usually the “family” means the mother.

The federal government banned lead in paint in 1978, yet four decades later, children are poisoned by lead poisoning, condemned to struggle in school and in the job market.  The Centers for Disease Control put new annual cases of childhood lead poisoning at half a million, and one-third of our nation’s housing stock is still contaminated with lead paint. A landmark Wisconsin case, Thomas v. Mallett, involved Steven Thomas, a toddler who was severely injured by exposure to toxic levels of lead in the paint of his dilapidated home. Steven’s blood tests revealed very high lead levels, and psychological testing showed learning disabilities and low IQ, yet the jury declined to hold lead paint manufacturers accountable. Their attorneys argued that Steven’s limited intellectual abilities and behavioral problems were not due to lead exposure, but rather to “the home, the environment, [and] the genetics that he came from.”  The manufacturers’ expert witness explicitly attributed Steven’s disabilities to his mother, who had a “history of alcohol abuse” and a “poor diet,” as well as a “borderline” IQ.

Amid serious, documented injury caused by lead-containing products, not one American lead paint manufacturer has been held liable for harms like these. California is the only state in which manufacturers have been held responsible for cleaning up the public nuisance created by decades of marketing paints they knew to be toxic to children, and that appellate court ruling has been submitted for Supreme Court review.

The American Academy of Pediatrics has recognized that poverty is the single biggest risk to children’s health and well-being. Poor children are much more likely than their wealthier peers to live in substandard, toxic housing, and to lack nutritious food, safe places to play, and quality health care. The result is more physical and mental illness, lower academic achievement, and shorter lifespans.

We must educate the public, health care professionals, and legal players about the power and dangers of unconscious stereotyping, and we must seek legal change. The law must actively constrain the exercise of discretion by police and prosecutors, to narrow broadly worded statutes to limit the opportunities for overzealous charging, and provide robust judicial review of charging decisions and convictions.  Further, rather than responding to realized harms with criminal charges after the harms have occurred, government should act prophylactically, identifying and intervening when children and families are at risk for environmental harm, domestic violence, and other health problems. Girls and women need high quality health care if we are to promote healthy pregnancies and minimize the risks of preterm birth, and there are plenty of proven programs, like the Nurse-Family Partnership, that could be effectively expanded to provide health education and support to mothers. Because the perfect mother is a myth, strong social safety nets and precautionary legal interventions can and should help safeguard children.

-Linda Fentiman

(cross-post from the University of Minnesota’s Gender Policy Report, here)