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52 U.S.F. L. Rev. 149 (2018)
Battering Mothers for Their Abuser's Crimes

handle is hein.journals/usflr52 and id is 155 raw text is: Battering Mothers for Their Abuser's Crimes By DANAE RoBINsoN* Introduction FAILURE TO PROTECT IS A CRIME OF OMISSION where a parent is charged because he or she failed to act when his or her child was being abused.' This charge is typically brought against the mother, even in cases where someone else abused the child.2 When the mother is also battered, this charge is often used against her because it indicates that she was aware of the violence in the home.3 In this note, I will argue that failure-to-protect laws further punish mothers who are also victims of domestic violence because the legal system places a heavier burden on mothers to protect their children.4 While all battered mothers are disadvantaged in their attempt for jus- tice, the legal system particularly harms mothers of color, and mothers of lower socio-economic classes by not employing the theories of inter- sectionality and anti-essentialism in failure-to-protect cases. Part I explains the law and posits that the disparity in enforce- ment against women and men is due to the heightened expectation society places on mothers to be the primary protector. Part II gives context as to how race and class play a role in domestic violence cases. Part III applies the theory of intersectionality to domestic violence and critiques failure-to-protect laws under that theory. Part IV similarly ap- plies the theory of anti-essentialism to domestic violence and offers an anti-essentialist critique of failure-to-protect laws. Part V suggests that incorporating anti-essentialism and intersectionality into the legal * Juris Doctor, University of San Francisco, School of Law Class of 2017; B.S. 2013, Georgia Institute of Technology. The author would like to sincerely thank the USF Law Review Staff for their hard work in preparing this comment for publication. 1. Jeanne A. Fugate, Who's Failing Whom? A Critical Look at Failure-to-Protect Laws, 76 N.Y.U. L. REv. 272, 276-77 (2001). 2. Id. at 274. 3. Id. at 280. 4. Id. at 275. 149