NCJ Number
179120
Journal
Harvard Women's Law Journal Volume: 22 Dated: Spring 1999 Pages: 89-121
Date Published
1999
Length
23 pages
Annotation
This analysis of laws, judicial decisions, and legal standards regarding abused women's responsibility for failing to protect their children from the father's abuse concludes that current standards are fatally flawed and that the reasonable battered mother test (RBMT) is the appropriate standard for courts to use.
Abstract
Current State laws on child abuse and neglect hold battered mothers responsible for harms that they have neither created nor perpetrated. Such laws punish battered mothers, while failing to protect children from abusive paramours and fathers. Thus, the legal system has concluded that mothers have an affirmative duty to intervene. However, it has not examined how government inaction contributes to the continuation of the domestic violence; the legal system also deems irrelevant any evidence of government inaction. However, where the government alleges that a battered mother has failed to protect a child, the appropriate standard must account for the spouse abuse. Wholly objective or hybrid legal tests are fatally flawed, because they neither recognize nor contemplate the nature of the violence or its transformative characteristics. In contrast, the RBMT incorporates the experiences of abused mothers and their children; thus, it more adequately reflects the content and context of the violence and how that violence shapes maternal decisions. This test also recognizes government inaction or inappropriate actions that place mothers and children at greater risk of harm. Thus, the RBMT recognizes the responsibilities of both the mother and the government and thereby produces the potential for developing protection paradigms that keep children safe, empower mothers, and locate the contours of maternal and government responsibility. Footnotes