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.