Lady Madonna, Children at Your Feet: The Criminal Justice System's Romanticization of the Parent-Child Relationship

Abstract

This Article is an attempt to begin a conversation about the way children who have been victimized by their parents are treated by the criminal justice system. I suggest that even though as a society we are obsessed with our children, that obsession has not translated into criminal justice policies that adequately protect them. Parental offenders are systematically treated better by the criminal justice system than are extrafamilial offenders, and we need to grapple with whether that preferential treatment is appropriate. I suggest that in many instances it is not, and I therefore propose some principles that I hope provide some guidance for the future formulation of criminal justice policy. The Article unfolds in five Parts. Part I describes the romanticization phenomenon, drawing on sources both from law and from popular culture to demonstrate how we idealize the parent-child bond. As a result, we have come to believe that we can ordinarily rely upon the strength of that bond, without messy interference from the criminal justice system, to protect our children from harm. In other words, the belief that love, not law, is sufficient to protect our children permeates our approach to family violence. Part II gives concrete examples of the adverse consequences of this phenomenon and demonstrates how this phenomenon has harmed children. I have chosen in this Part to focus on the most serious crimes that parents can commit against their children: the crimes of murder and rape. These crimes are the focus of the Article because the conduct at issue without question can be characterized as criminal; indeed, these crimes receive our greatest wrath outside the realm of the family. Unfortunately, the romanticization phenomenon affects the criminal justice system's treatment of even these most serious of crimes. This Part also includes a discussion of the parental discipline defense, both because defendants often raise that issue in child homicide cases and because I believe that our continued willingness to endorse the use of corporal punishment against children is contributing to the larger problems discussed in this Article. Part III addresses some of the objections raised to using the criminal justice system more vigorously to protect children from parental violence. For example, perhaps parental offenders simply are less dangerous than stranger offenders. Other objections include the idea that we do not need the incentives of the criminal law to protect children because the fear of losing a child is incentive enough to induce appropriate parental behavior, or that parents who have lost a child are suffering enough and the infliction of additional punishment through the criminal justice system is simply gratuitous and cruel. This Part also grapples with the very real harms that greater use of the criminal justice system could potentially create, such as disruption of families or a disproportionate impact on families of color. Part IV sets forth some principles that hopefully can better guide policymakers and practitioners in the future as they grapple with how best to protect our children from harm. This Part argues that if we are serious about protecting children as a class from physical injury, we must reorient our thinking about criminal justice policy toward the home, rather than away from it. This Part also addresses some of the particular issues related to motherhood and child abuse. Finally, Part V offers some brief concluding thoughts.

Keywords: parent, child, abuse, criminal justice, sexual abuse, parental discipline, homicide, poverty, race, home, reform, motherhood

JEL Classification: K1, K4, K14, K42, K32