Murder by Omission: Child Abuse and the Passive Parent
![handle is hein.journals/hjl36 and id is 403 raw text is: ARTICLE
MURDER BY OMISSION:
CHILD ABUSE AND THE PASSIVE PARENT
BRYAN A. LIANG*
WENDY L. MACFARLANE**
Under most states' criminal laws, a parent who causes the
death of his child through abuse or neglect can be charged
with murder However, few states have laws that allow for
murder charges to be brought against the non-abusing par-
ent. In this Article, the authors propose a model statute that
holds the passive parent as liable as the parent who actually
causes the child's death. The authors also argue against the
passive parent's use of Battered Woman's Syndrome as a
defense, suggesting that both parents bear the responsibility
for protecting their child's welfare.
A person may cause evil to others not only by his actions but
by his inaction, and in either case he is justly accountable to
them for the injury.
-John Stuart Mill, On Liberty'
On June 22, 1996, two-year-old Joselin Hernandez died by her
father's hands. It was the end of a short, tortured life for the lit-
tle girl, who was mistreated almost from birth. According to the
District Attorney who prosecuted the case, Joselin's father, Ro-
gelio, took pleasure in abusing his daughter.2 He joked and
* Dr. Arthur W. Grayson Distinguished Visiting Professor of Law and Medicine,
Southern Illinois University School of Law. B.S., Massachusetts Institute of Technol-
ogy, 1983; Ph.D., Harris School of Public Policy Studies, University of Chicago, 1989;
M.D., Columbia University College of Physicians & Surgeons, 1991; J.D., Harvard
Law School, 1995.
- Deputy District Attorney, Domestic Violence Unit, Ventura County, California.
B.A., University of California, Santa Barbara, 1995; J.D., Pepperdine University School
of Law, 1997.
1 JOHN STUART MILL, ON LIBERTY 11 (1859).
2 See Transcript, People v. Rogelio Hernandez and Gabriela Hernandez, No. CR40152,
Nov.17, 1997, at 33-67 (opening statement of Dorothy Corona, Ventura County Deputy
District Attorney) [hereinafter Transcript].](ViewImageLocal?handle=hein.journals/hjl36&div=18&collection=&method=preview&ext=.png&size=3)
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Murder by Omission: Child Abuse and the Passive Parent
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