Punishing Mothers for Men’s Violence: Failure to Protect Legislation and the Criminalisation of Abused Women

Abstract

This article explores the gender dynamics of ‘causing or allowing a child to die’, contrary to the Domestic Violence, Crime and Victims Act 2004, section 5. This offence was intended to allow for prosecution where a child had been killed and it was uncertain who had killed him/her, but also to allow for prosecution of non-violent defendants who failed to protect him/her. More women than men have been charged and convicted of this offence signifying a reversal of usual patterns of prosecution and conviction. This analysis interrogates how section 5 criminalises women who have experienced domestic abuse. Drawing on a case observation, reported cases and media reports of cases, I suggest this offence derives from and perpetuates patriarchal constructs of motherhood. Grounded in a feminist approach building on women’s concrete experiences of law, I conclude that section 5 should be amended so that it is only used where it cannot be ascertained which defendant actively harmed a child.

The Criminalisation of Women in Joint Enterprise Cases: Exposing the Limits to ‘Serving’ Girls and Women Justice

“…Contemporary contributions examining women's criminalisation and punishment push us to consider how we rely on processes of criminalisation to respond to a range of social and personal harms (Clarke and Chadwick 2018;Harding 2022;Seagrave and Carlton 2010;Singh 2021). As with our focus of analysis here, this work shares scrutiny of state intervention and how a power to punish and consequent harms inflicted by the state are often 'the elephant in the room' in debates around women's experiences of justice (Fitz-Gibbon and Walklate 2021: iii).…”

‘Gold Standard' Legislation for Adults Only: Reconceptualising Children as ‘Adjoined Victims' Under the Domestic Abuse (Scotland) Act 2018

“…A second significant issue with a fragmented approach to managing coercive control is that it opens the door to possible unintended and problematic consequences in practice for victims of domestic abuse who are parents/caregivers. A consistent message in the research is that a shift is needed to hold perpetrators of domestic abuse fully accountable for the ‘cascading harm’ (De Simone and Heward-Belle, 2020: 4) they cause, against long-standing concern that both institutional and individual responses often transfer ‘blame’ to the non-abusing parent (usually mothers) for the harm caused to a child living in an abusive home (De Simone and Heward-Belle, 2020; Singh 2017, 2021; Wedlock and Molina, 2020). However, a legislative approach that does not recognise the abused parent/caregiver and child as victims together and simultaneously , but is instead engineered to separate their experiences, is more likely to lead to a decontextualisation of the coercive control.…”

“…Alternatively, those concerned with these risks may be left grappling with establishing affirmative defences for parents/caregivers who are victims of abuse (Scottish Government, 2019: 54–60). However, the possibility of a defence may not afford sufficient protection in practice, given problematic interpretative schemas deployed by decision-makers (see Tolmie, 2018: 57–58), the pervasiveness of highly gendered (Lapierre, 2010; Singh, 2017, 2021) and uninformed (McLeod, 2018: 22) expectations around parenting in the context of domestic abuse, and the general ‘credibility discounting’ that domestic abuse victims face (see Epstein and Goodman, 2018).…”

“…These protective behaviours are highly context specific and may not appear 'reasonable' or 'expected' to professionals or other outside observers (Sidebotham et al, 2016: 81). In some cases where a mother's capacity to protect is limited or reduced by coercive control, abused women can find themselves blamed, or even criminalised, for any harm experienced by their children at the hands of the perpetrator (Singh, 2017(Singh, , 2021 (see Part 3).…”

The Vulnerable (M)other and the Autonomous Legal Subject: Rethinking Vulnerability in Criminal Law

“…1 However, its final form, as enacted in section 5 of the Domestic Violence, Crime and Victims Act 2004 (s.5) (as amended by the Domestic Violence Crime and Victims (Amendment) Act 2012, section 1), 2 permits the prosecution of so-called 'passive abusers': those who knew, or ought to have known of a significant risk of serious harm to a child or vulnerable adult and failed to stop it. As I have argued elsewhere, this provision disproportionately criminalises abused mothers for allowing harm to come to their children (Singh, 2021). S.5 offers an ideal case study as it demonstrates how stigmatising notions of vulnerability are grounded in neoliberal ideals which attribute responsibility to the vulnerable to take steps to mitigate against the risk of harm from others (Munro and Scoular, 2012).…”