Criminalizing Vulnerability

Introduction

This article explores the potential of vulnerability theory to problematize the criminal offence of ‘causing or allowing the death of a child’, by uncovering the gendered discourse that surrounds this crime. The offence, which carries a sentence of up to 14 years imprisonment, was introduced in England and Wales as part of the Domestic Violence, Crime and Victims Act (2004, section 5). It was amended in 2012 to encompass cases where a child survives despite suffering ‘serious’ harm. ¹ The article challenges the use of the ‘allowing’ element of the offence to prosecute mothers who are themselves subject to abuse.

Because failure to protect cases are heard in the Crown Court, they are not reported, meaning that knowledge of these cases is limited to media reports, and these are notoriously sensationalist (Cunliffe, 2011; Goc, 2007). In order to overcome this limitation, I observed one case – R v. Green & Critchley (unreported, 2013) – in its entirety ² . My analysis in this article largely focuses on this case as representative. I suggest that, while this criminal offence places pressure on women to incriminate their abusive partners, the legal discourse surrounding failure to protect paradoxically silences those same women. In this way, the law manipulates, exacerbates and ultimately criminalizes their vulnerability.

Green & Critchley flags up the problems with how this legislation operates in practice, and with how failure to protect discourse is infused with an archaic maternal ideology, which is itself grounded in notions of femininity and maternity which silence mothers who are charged under its provisions (Panko, 1996). The labelling of these women as having failed to meet the demands of maternal ideology in order to explain their crimes (and to justify their punishments) leaves no space for women to share their complicated lived experiences with the courts. In this way, essentialist, culturally recognizable stock stories render women’s ‘true’ narratives unknowable. This process exacerbates the vulnerability of abused mothers who are charged. It denies them agency and allows patriarchal gender ideology to continue unchallenged (Cunliffe, 2011; Smart, 1977; Wiest and Duffy, 2013).

Drawing on the work of Martha Fineman, I propose a shift away from maternal responsibility (which is the basis of the law as it is currently understood), and towards the concept of relational vulnerability. There are several benefits to be gained from this move. First, by focusing on how the abuser manipulated and exacerbated the vulnerability of mother and child, a relational vulnerability analysis shifts attention away from the omissions of the abused woman and towards the actions of her abuser. It thereby challenges the attribution of moral responsibility and legal culpability and should result in failure to protect charges being considered inappropriate where there is evidence of abuse towards the mother. A relational vulnerability approach also grapples with how a defendant can be simultaneously vulnerable but nevertheless in possession of agency. As a consequence, the criminal law’s need to pathologize and demonize ‘criminal’ women might be overcome. Finally, an understanding of vulnerability as a universal aspect of the human condition, as proposed by Fineman, challenges the feminization of vulnerability. Not only has this construct been used to deny agency to women, but it has perpetuated the myth that ‘invulnerability’ is both desirable and achievable.

‘You Played Roulette with Her Life’

On 30 August 2012, a 999 call was made from the family home of Natalie Critchley (aged 20), Richard Green (aged 22) and their two young children. Critchley informed the operator that their 3-year-old daughter, Lia, had been suffering from a stomach upset. Green then snatched the telephone and told the operator that his daughter was not breathing. Arriving 3 min later, the paramedics tried to revive Lia, but she was already beyond medical help and was pronounced dead shortly after arriving at the Royal Preston Hospital. She had multiple injuries on her body and a post-mortem found that the cause of death was peritonitis caused by the severing of the duodenum. Medical expert witnesses agreed that the injury that caused her death could not have been accidental; it would have required ‘great force, a violent kick or punch in the stomach or being thrown extremely violently against a hard surface’. Green was charged with two counts: (i) murder and (ii) causing or allowing the death of a child. Critchley was charged with the single count of causing or allowing the death of a child.

When questioned about the events leading up to Lia’s death, Green and Critchley each denied perpetrating or witnessing any violent conduct towards their daughter. They each stated that Lia had suffered gastrointestinal symptoms for a couple of days prior to her death. They had assumed that she was suffering from a common childhood stomach upset. When prompted to describe Lia’s last days, Green claimed that she had fallen off a swing the day before her death and landed on her bottom. However, medical experts discounted the possibility of this event causing such extreme blunt force trauma; particularly as, by Green’s own admission, Lia was ‘fine’ afterwards and was seen on closed-circuit television walking home later that day. The experts emphasized that she would not have been able to do this after the injury that led to her death. Both parents had also informed paramedics, nurses and the police that Lia had been ‘up and about’ a very short time before she collapsed, a description which one expert found ‘extremely unlikely…almost impossible’. These inconsistencies between the parents’ accounts and the medical evidence were central to the trial.

Green & Critchley is a typical failure to protect case in that, first, a child died in the family home. Second, neither parent would admit responsibility for the death, nor would they incriminate one another. The Crown’s case was that Green violently attacked Lia, causing her fatal injuries. Critchley, while absent at the time of the attack, was aware of Green’s violent tendencies due to the abuse she herself suffered throughout their relationship. Consequently, she had ‘allowed’ her daughter’s death by failing to protect her from Green. Furthermore, the prosecution contended that, upon her return to the family home, Critchley knew that Lia had been seriously injured but she failed to summon potentially life-saving medical assistance because of her feckless nature and due to her ‘misguided loyalty’ to her partner. Green’s defence was that his daughter was suffering from a stomach bug; she had fallen off a swing and then collapsed the following morning and that he was devastated and baffled by his daughter’s sudden death. Critchley’s defence was that, as far as she was aware, her daughter was never physically harmed by Green. She believed that Lia was suffering from a stomach upset until the point in time when she collapsed. At that moment, she sought urgent medical assistance.

Protecting Children; Punishing Mothers

The rationale for adopting failure to protect legislation in England and Wales was to close a loophole created by R v. Lane & Lane (1986). In that case, which involved the death of a child, neither parent would admit responsibility. Neither parent would testify against the other and there no evidence which indicated which parent was culpable. The Court held that, given the ambiguous circumstances, the case could not proceed. This precedent was applied in subsequent cases with similar facts (Law Commission, 2003b: 1), sparking public outrage and leading child protection groups, such as the National Society for the Prevention of Cruelty to Children (NSPCC), to complain that parents were quite literally ‘getting away with murder’. In 2003, the NSPCC published the report which led to the enactment of section 5 of the Act (NSPCC, 2003).

In the event of an unexpected child death, where neither parent will admit responsibility or incriminate the other, section 5 is said to provide a ‘safety net’. If the Crown cannot prove murder or manslaughter beyond a reasonable doubt, section 5 can give rise to an alternative homicide charge. But in Green & Critchley, ³ the Crown accepted that Critchley was not present when Lia’s injuries were inflicted. However, contrary to the Law Commission’s recommendations, section 5 is not limited to circumstances where it is unknown which parent inflicted the injury. Instead, the provision criminalizes any parent (or member of the household) who has failed to take ‘reasonable steps’ to protect a child from harm which they ‘had foreseen or ought to have foreseen’ (Law Commission, 2003a). The objective elements – reasonable steps and foreseeability – leave much to a Court’s discretion, and they place a heavy burden on trial judges to ensure that their directions to juries are clear. In Green & Critchley, section 5 amounts to a statement of responsibility. It is used to apply pressure to women such as Critchley to incriminate their partners and thus help the Crown to secure a conviction of murder, as opposed to the lesser offences of manslaughter or causing the death of a child. After several weeks in Court, Green pleaded guilty to manslaughter and the section 5 charge against Critchley was thrown out. In its place was substituted the lesser child cruelty offence of failing to obtain appropriate medical attention (Children and Young Persons Act 1933, section 1 (2)).

In practice, the offence of failure to protect has been frequently used to criminalize women who are themselves victims of abuse (Fugate, 2001; Panko, 1996). For example, Herring (2007, 2008) highlights the plight of Rebecca Lewis, whose partner killed her 13-month-old son. Lewis stayed with this abusive partner as he had threatened to kill her if she ended the relationship. Notwithstanding this threat, she was convicted, with the Court criticizing her for ‘putting her own interests first, above and beyond that of [her] vulnerable child’. Even though she was not present at the scene of the attack, Lewis was still sentenced to 6 years in prison. Similarly, Kirsty Smedley was found guilty of failing to protect her 2-year-old son. He died as a result of a violent attack perpetrated by Smedley’s partner, Daniel Rigby, while she went to buy cannabis for him. Rigby and Smedley were sentenced to 17 and 4 years, respectively. ⁴ During the trial, it emerged that, a couple of weeks prior to the murder, Rigby had been arrested for assaulting (headbutting) a pregnant Smedley in public. However, the case against him was dropped as a result of an investigation that was ‘plagued by errors’ (Scheerhout, 2014).

Thus, a history of domestic violence does not diminish a woman’s responsibility for failing to remove a child from the risk of harm by providing an explanation and justification for inaction. Rather, in these cases, the Crown argues that the more frequent and severe the abuse experienced by the mother, the more likely it is that she was aware of her partner’s propensity for violence (Fugate, 2001; Herring, 2008: 146). This then ‘proves’ that the harm suffered by the child was foreseeable and, ultimately, that the woman failed to take reasonable steps to protect her child from the potential threat. As a consequence, the defence may decide not to submit evidence of a history of violence against the mother. The context in which her actions – or, more accurately, her omissions – occurred therefore is never articulated in Court. As I shall demonstrate below, this approach exacerbates the woman’s vulnerability because the lack of factual context results in an increased reliance on age-old tropes of female criminality and idealized notions of motherhood. ⁵ The jury is encouraged by the Crown to interpret a mother’s failure to meet this glorified standard of mothering as the justification for the imposition of criminal responsibility (on women who are themselves the victims of abuse) (Herring, 2008; Panko, 1996).

Gendered Tropes and the Failure to Protect

Tropes are stereotypical ‘stock stories’ grounded in a particular characteristic or status. To ‘explain’ female criminality without disrupting gender roles, they offer essentialist, culturally recognizable explanations which serve to pathologize women. This in turn justifies the imposition of criminal punishment (Morrissey, 2003). By portraying the cause of female deviance as a flaw within the particular woman herself, the tropes serve to prevent any understanding of the broader context in which a woman might function. The result is the silencing of defendants and the denial of women’s agency. Abused women who are charged with failing to protect their children are subject to many overlapping and contradictory tropes which result from the conflicting ideological preconceptions of them as women, mothers and victims. Despite being grounded in outmoded conceptions of femininity (and maternity), these tropes of female criminality continue to resonate in criminal trials and they remain influential with juries. For instance, Ballinger (2012) has compared the 1955 trial of Ruth Ellis, the last woman in England to be hanged, and her posthumous appeal in 2003. Despite the gap of 48 years, the discursive tropes mobilized in both the trial and the appeal were strikingly similar. Of course, these tropes may be used by the defence to ‘recuperate’ a woman back towards a more desirable notion of femininity. Alternatively, they are deployed by the Crown in order to distance her from that ideal, thereby making her less sympathetic to judges, juries and the wider public (Cunliffe, 2011; Bell and Fox, 1996; Nicolson, 1995; Seal, 2010).

The so-called ‘mad/bad’ dichotomy dominates discourses of female criminality (Allen, 1987). When women commit typically ‘masculine’ crimes, they are ‘doubly transgressive’ in that they defy both the law and assigned gender roles (Carlen and Worrall, 1987; Smart, 1977; Weare, 2013). They are then demonized as bad: so monstrously unfeminine as to be ‘other’ to their gender (Nicolson, 1995). By contrast, when women commit crimes that are more aligned to perceived gender roles, they are pathologized as mad (Coates and Wade, 2004). Mothers such as Critchley are characterized as either pathologically bad or mad depending on which tropes of faulty femininity are advanced by the defence and prosecution. In Green & Critchley, the claims put forward by the Crown centred on apparent hypersexuality, duplicity and fecklessness. This resulted in Critchley’s construction as pathologically bad and, as a result, as deserving of punishment.

Morrissey (2003: 23) criticizes feminist legal scholars for advancing a third trope of victimhood which equally risks denying women agency. She argues that, by only engaging with ‘deserving’, sympathetic women who have committed violent crime in response to abuse (such as the battered woman who kills her abuser), feminist explanations of female deviance perpetuate the idea of women as ‘pathological victims’. Since pathology is antithetical to responsibility, constructing perpetrators as victims of their own physiology means that they cannot be considered autonomous agents (Armstrong, 1999; Weait, 2007). This can have tactical benefits, including reduced sentences and even the avoidance of custodial sentences altogether (Nicolson, 1995). However, this practical gain for individuals comes at the expense of the status of women more generally. By playing into misogynistic notions of female embodiment, it perpetuates the idea that women are too embodied to be considered rational agents (Shildrick, 1997). As a response, feminist theorists have made a conscious effort to address unsympathetic female defendants who commit theoretically ‘difficult’ violent crimes (Bell and Fox, 1996; Seal, 2010; Winter, 2002). For example, in her analysis of the trials of serial killers, Rose West and Myra Hindley, Winter (2002) respects West and Hindley’s agency while continuing to challenge the denial of female subjectivity in the courtroom. She maintains that it should be the defendants’ actions and omissions on trial, rather than their femininity. In Green & Critchley, I would argue that respect for Critchley’s agency requires that the Crown’s case be based on facts, such as how she downplayed the seriousness of Lia’s condition when summoning medical attention, rather than on whether she adhered to a traditional gender role.

Constructing Critchley: Mother/Victim/Abuser/Other?

In failure to protect cases, including Green & Critchley, idealized notions of femininity and maternity converge to create a culturally familiar stock story for the jury. This obscures women’s ‘real’ narratives and denies their agency. Legal discourse perpetuates idealized notions of femininity and maternity. Vulnerability has become synonymous with being the ideal victim who adheres to strict gender roles and is both legally and morally innocent. Brown challenges this ‘vulnerable victim’/’dangerous wrongdoer’ dyad, arguing that, in reality, there is a nexus between vulnerability and transgression. In other words, it is possible to be both vulnerable and transgressive. To be perceived as vulnerable, one must be willing to disclose a great deal of personal information and show ‘compliance’; that is, to be accepting of any assistance offered (Brown, 2014). Perversely, though, compliance is hindered by cultural assumptions which prevent victims of domestic violence from identifying the cause and extent of their vulnerability. In this regard, Mahoney (1991) argues that some victims of domestic abuse do not seek, nor do they accept, help because they do not identify as victims. This is due to the fact that the victim stereotype is too extreme and reductionist to reflect their lived reality. In contrast, their situation feels both more trivial and more chaotic. This is exemplified by Critchley’s nonchalant response after Green punched and kicked her on a bus, months after Lia’s death. When the bus driver asked her why she ‘put up with it’, she simply replied ‘because he’s my boyfriend isn’t he?’.

Cunliffe’s (2011: 146) contention that ‘the public and legal desperation for confession goes far beyond legal strategy’ also plays out in Green & Critchley. Green’s guilty plea is synonymous with a confession, which in turn casts Critchley as the defendant who is still hiding information and obstructing the truth. Even after acceptance of Green’s manslaughter plea, the preoccupation of the Crown and the police continued to be with why Critchley would not ‘tell the truth’ and blame Green for their daughter’s death. This sense of frustration is likely to have been shared by the jury who, as Nadler (2012) concludes, are less interested in the defendant’s act itself than in the motivation behind that act or, in this case, the failure to act and the refusal to incriminate.

The offence of failure to protect allows guilt to be inferred from silence. Critchley’s reluctance to implicate Green is presumed to be meaningful and is interpreted as proof of her duplicity. The provision is intended to compel women like Critchley to give evidence and incriminate their partners. Ironically, however, elements of the offence silence defendants disrupt their narratives and increase their reliance on gendered tropes to plug the gaps. Victimhood tropes were never raised in the case, as Critchley and Green jointly (and successfully) petitioned for evidence of incidents of domestic violence perpetrated against Critchley to be excluded (since it would have prejudicially affected both of them). For women, this is the ultimate ‘catch 22’: the facts likely to make jurors sympathetic to mothers such as Critchley and allow their omissions to be contextualized are the same evidence which will incriminate them most forcefully. This form of reasoning ignores the complexities of an abusive relationship. It relies on a narrow, individualistic conception of autonomy inappropriate in the context of familial abuse, as opposed to a relational understanding which recognizes that a person’s independent ‘free’ choice always operates within a wider framework of practical, emotional and structural constraints (Friedman, 2014).

The narrative which Critchley relied upon in Court – that she and Green had a ‘normal’ family life and that she believed Green was a good father who would not hurt their children – appeared disjointed and contained unexplained gaps. As a result, she appeared to be deceitful to the jury. For example, one of her colleagues gave evidence stating that she had seen holes in the plaster of a living room wall which had been caused by a table having being thrown. However, Critchley failed to corroborate this, maintaining that Green was not violent towards their children. The link between duplicity and femininity has a long history throughout mythology and theology and gives rise to the ‘duplicity paradox’: ‘the woman is constructed as artifice and marginalised for lacking essence and authenticity’ (Tseelon, 1995: 5). Thus, rather than acknowledging Critchley’s agency, her motives are systematically assumed in Court to be duplicitous and thus deserving of punishment. Her acts and omissions are systematically stripped of context, allowing guilt to be inferred from her silence. It is assumed that she is not telling the truth because she is morally corrupt. She failed to protect her child because she is feckless and ambivalent, rather than as a consequence of the absence of realistic options.

This perceived lack of coherence in Critchley’s account is particularly prejudicial given the jury’s preference for narratives which are both consistent and familiar (Cunliffe, 2011; Ellison and Munro, 2009). Barristers invoking the competing tropes at play in a case such as Green & Critchley are so intent on constructing a legally and culturally acceptable narrative – in this case, the feckless teenage mother – that they risk silencing defendants, thereby making the truth even more elusive. As Saunders (2012) notes, an account which includes untruths does not necessarily render the entire narrative void, yet this does not seem to be appreciated in failure to protect discourse. Inconsistencies in Critchley’s account were seen as discrediting all of her narrative. She is not lying about some aspects; she is a liar. Critchley was depicted as lacking in virtue so that she could be condemned by the Crown for ‘play[ing] roulette with [Lia’s] life’. Consequently, Critchley’s vulnerability failed to come across in Court. Through her failure to comply – by not incriminating Green – she is silenced by both the interpretation of the offence and the application of cultural tropes. The result is that Critchley is deemed an ‘evil wrongdoer’ rather than a vulnerable victim (Brown, 2014).

Dependency and the Criminalization of ‘Secondary’ Vulnerability

The current response to abused women who fail to protect their children fails to recognize the multiple ways in which caring creates vulnerabilities for the caregiver (Kittay, 1999). Kittay describes this dynamic as ‘secondary vulnerability’ in that it flows directly from the responsibility for being a main carer. She argues that this responsibility for care affects the carer’s autonomy, due to the burden of knowing that another is so reliant upon her. For example, Critchley’s decisions were inevitably shaped by her caregiving responsibilities. Her vulnerability was thus exacerbated by her caring role as mother, combined with the fact that she worked outside of the home (Dodds, 2014: 200). In this way, failure to protect truly uncovers the ‘dark’ side of care. Despite experiencing domestic abuse, Critchley’s responsibility for responding to Lia’s innate vulnerability had become so naturalized that she was expected to ensure the safety of her child ‘24/7’, even during her absences from the family home due to her work commitments. Lia’s dependency was shouldered entirely by her mother and, when Critchley had no choice but to leave her in the care of her father, tragedy struck.

Remarks made to Green in sentencing imply that resentment and anger are an understandable reaction by a man forced to care for a sick child. In other words, maternal care is portrayed as a moral (and legal) necessity, but paternal care is rendered an act of altruism:

You were having to look after your two young children because there was no money to send them to nursery. And you resented it. Your partner Natalie Critchley, your co-defendant was out at work. So you had to deal with the children alone. You were frustrated and angry.

This naturalization of responsibility for responding to vulnerability ultimately provides the justification for criminalizing Critchley’s failure to protect (Walker, 1998). By attributing blame to mothers who are themselves subject to abuse, failure to protect laws render not only dependency, but also violence and vulnerability, hidden within the family. This creates a different kind of public/private divide (Fineman and Mykitiuk, 1995). While those types of vulnerability which may be visible to the public are seen as worthy of state resources, other vulnerabilities, such as those created by caregiving, are normalized as private and therefore are not seen as warranting the financial responsibility of the state.

From Maternal Responsibility to Shared Vulnerability

In this section, I argue that shifting the legal focus from maternal responsibility (Cain, 2016) to vulnerability will promote a more nuanced approach to abusive family dynamics. Not only does the drafting of section 5 implicitly criminalize vulnerability, but in addition, current legal expectations of mothers and gendered assumptions about care obligations exacerbate vulnerability and justify the criminalization of mothers who fail to protect. Relational vulnerability is a helpful way to frame these cases since, as noted by Mackenzie et al. (2014), it connotes harm, suffering, dependency and care – themes which pervade the failure to protect case law.

Vulnerability is a universal feature of the human condition in that we are all vulnerable as a result of both our corporeality and our social, co-dependent nature (Fineman, 2008). By focusing on this context rather than on individual characteristics, relational vulnerability helps to unpack issues such as foreseeability and responsibility, both of which are key elements of the failure to protect offence. After all, to understand a person’s calculation of risk and to decide if they acted irresponsibly, we must appreciate the context of their actions and their environment (Stychin, 2012).

Fineman’s (2000) notions of ‘inevitable’ and ‘derivative’ dependency are illuminating in the failure to protect scenario. She explains that inevitable dependency is caused by age or disability, whereas derivative dependency is perceived culturally as being preventable; for example, dependency on the welfare state. Fineman argues that inevitable dependency attracts a sympathetic response, both culturally and from the state and its institutions. By contrast, derivative dependency is perceived as considerably less worthy of sympathy and resources (Fineman, 1995). Failure to protect laws certainly seek to protect the inevitable dependency of children. However, by refusing to acknowledge the impact of abuse on the choices and actions of women, the criminal justice system simultaneously punishes the derivative (or secondary) dependency of abused mothers (Fineman, 2010).

I want to suggest that a vulnerability analysis makes three main contributions to this debate. First, by shifting the focus onto the person who is creating and exacerbating the vulnerabilities of mother and child, it challenges the victim/perpetrator dichotomy. This dyad is a result of, and perpetuates, the idea that to be recognized as a victim, one must adhere to a set of gendered ideals. Second, recognizing the impact of domestic abuse necessitates the reconsideration of the attribution of legal culpability and moral blameworthiness on abused mothers who fail to protect. Finally, a relational approach resists the ‘othering’ of these abused women; rather, it aids in the deconstruction of the dichotomies which provide the basis for long-standing gendered tropes that have silenced them. Diminishing the power of these tropes thereby will allow women the space to give a contextualized account of their actions, and hopefully will lead to their treatment as autonomous agents rather than as pathological failures. Furthermore, emphasizing the universality of vulnerability challenges the feminization of vulnerability, which derives from the fallacy of the autonomous, invulnerable male legal subject. I want now to expand on each of these claims.

1. Shifting focus from the gender performativity of the mother to the actions of the perpetrator

A vulnerability approach ensures that attention remains firmly on the perpetrator rather than primarily analysing the actions or inactions of the victim (Orr, 2014). In the context of failure to protect, this would mark a paradigm shift. Instead of scrutinizing the moral and legal blameworthiness of women such as Critchley, who have themselves been subject to abuse, the focus shifts to the perpetrators of violence and how they have exploited the vulnerabilities of partners and children. This leaves space for an examination of the context in which omissions have occurred and for understanding the coercion that may have affected women’s decisions.

Acknowledging the vulnerability of abused women who have failed to protect their children renders the pursuit of criminal prosecutions of them undesirable. It also has implications regarding whether they are seen as morally blameworthy. Friedman (2014) has explored what vulnerability analysis brings to the issue of attributing moral responsibility to mothers. Acknowledging the level of coercion inherent in abusive relationships, she considers whether this justifies a woman’s failure to protect or whether it excuses or exempts her from moral responsibility. Friedman concludes that the abusive context excuses women of moral responsibility on the basis that ‘we accept that the act of the failing to protect was wrong but understandable if the woman concerned is in fear of serious harm herself’ (Friedman, 2014: 23).

While I agree that domestic violence should lessen not only the legal but also the moral accountability of mothers, these assumptions are overly simplistic given that Friedman herself recognizes a complex dynamic of coercion. ‘Excusing’ abused women for their failure to protect on account of their compromised moral agency fails to address the implicit assumption behind the failure to protect law: not only the implicit expectation of self-sacrifice but also of omnipresence. Friedman’s assertion that domestic violence ‘excuses’ mothers such as Critchley from moral responsibility remains focused on the failures of the mother, and the excusing of her shortcomings. But vulnerability analysis leads to a further means of conceptualizing whether women are blameworthy; namely, it allows women to explain. That is, it begins to shift the focus from her failure to what is wrong with her situation. By exploring the context surrounding Critchley’s omission, and specifically by looking at how Green exacerbated her vulnerability, Critchley’s lack of resilience may become explicable.

Not only would this approach make the criminalization of failure to protect more obviously undesirable, it would also diminish what Lacey and Pickard (2013) call ‘affective blame’, meaning the hostile emotions associated with blameworthiness. Affective blame is particularly problematic in failure to protect cases, not only with respect to members of the jury, but also with the wider public. For example, women who have been acquitted often have to deal with the hostile reactions of their local communities. This can have tragic consequences, such as in the case of the death of Danah Vince, who committed suicide following her acquittal of the offence of causing or allowing the death of her 16-week-old daughter. This resulted from her being subjected to taunts such as ‘baby killer’ from members of the general public (BBC, 2015).

In Green & Critchley, a focus on the actions of Green would significantly diminish the power of pathologizing tropes, as it would direct attention to Critchley’s circumstances, rather than attributing failure to her as a personal, internalized matter. Victim blaming frequently stems from a tendency to scrutinize the behaviour and character of the victim rather than the assailant. By adopting a vulnerability approach, previously ‘relevant’ factors which encourage victim blaming (such as drug or alcohol consumption or even mode of dress) become irrelevant (Crown Prosecution Service, 2015; Stanko, 1982; Orr, 2014). In the context of failure to protect, this paradigm shift diminishes the power of gender tropes in the courtroom. Under a vulnerability framework, Critchley’s alleged promiscuity loses its significance, as the focus shifts to Green’s manipulation of the vulnerability of both Lia and her mother. The dichotomies of mad/bad and virgin/whore thereby become irrelevant. Fundamentally, emphasizing the universality of vulnerability begins the task of unpicking the archaic pairing of femininity with vulnerability and masculinity with invulnerability (Clowes, 2013; Scott, 2014). The feminization of vulnerability reifies gender stereotypes and perpetuates gendered narratives. These tropes then come to dominate legal discourse and they silence women, deny them agency and further exacerbate their vulnerability.

By contrast, Rowbotham (2011: 115) suggests that the solution is ‘for the criminal justice system to develop a conscious awareness of [gender stereotyping]’. She argues that it is theoretically and practically impossible to entirely resist its pull. From my courtroom observation, however, legal professionals appear to be acutely aware of the role which gender (and maternal) stereotyping can play in these cases. Critchley wore a black trouser suit every day of the trial, aside from the day when she was cross-examined. On that occasion, she wore a black pencil skirt and cardigan, leading the Detective Chief Inspector to remark on her ‘mumsy’ change of dress. Vulnerability theory assists in understanding why this comment was inappropriate. It highlights the need for a cultural shift whereby gender stereotypes are not par for the course and, in turn, will no longer be seen as an inevitable aspect of courtroom rhetoric (Bell and Fox, 1996).

Just as legal professionals seem well aware of the manipulation of gender stereotypes, jurors could be made more aware of this aspect of the current legal process. At present, gendered discourse is so dominant that juries are not adequately equipped to be able to distinguish between the failure to live up to a stereotypical ideal, and the failure to protect from harm. It has been established that, when assessing the credibility of a witness’ account, jurors cannot divorce their decision-making from their stereotypical preconceptions of the ideal victim (Ellison and Munro, 2009). In the context of failure to protect, judges also need to be mindful of this in their summing up, because they can affirm or undermine the narratives presented by the prosecution and defence and thereby shape the verdict of the jury (Winter, 2002).

Conclusions

In this article, I have argued that identity-based constructs of vulnerability and glorified notions of motherhood have led to the adoption of failure to protect laws. These create, perpetuate and exacerbate the condition of vulnerability, rather than fostering resilience. Although children undoubtedly are vulnerable, this does not justify the imposition of a regime which punishes victims of domestic abuse. The offence of failure to protect is pathogenic in that it manipulates and exacerbates the vulnerability of abused mothers who are charged with this crime. The law embodies the opposite of Fineman’s call for a non-authoritarian responsive state which strives to empower its citizens. Instead, the current approach is punitive and coercive. In short, the law should not apply where there is evidence of domestic violence towards the defendant. Women who have lost their children at the hands of their partners should be able to disclose their experiences of domestic abuse without fear that this will be used against them to prove their failure to protect in law.

Charging mothers with this offence risks further ruining the lives of women who are themselves victims of abuse. Even if acquitted, a woman may be prevented from regaining custody of any surviving children, gaining custody of any future children ¹² or being able to work with children. The discourse surrounding failure to protect is also problematic because it illustrates law’s continued reliance on antiquated tropes which deny women’s agency. It creates the impression that their failure is a result of something inherently wrong with them rather than something wrong with the context in which they were attempting to parent. Damaging tropes of femininity, maternity and victimhood all converge in these cases, rendering the circumstances of the omission irrelevant. A failure to meet a glorified standard of motherhood should not be synonymous with a failure to protect in law. It is not a justification for criminalizing vulnerability.

A shift towards a more nuanced approach, which takes account of parties’ relational vulnerability, focuses on the party who has exacerbated or manipulated the vulnerability of both mother and child. This reduces the likelihood of legal culpability for abused mothers by rendering prosecution undesirable. Furthermore, a more holistic approach which takes into account the circumstances in which women were attempting to parent helps to explain their actions and omissions, lessening the moral blame attributed to them. In allowing mothers such as Critchley to disclose the abuse they have suffered, women’s actions and omissions are afforded context. This creates space for sympathetic reactions and lessens the reliance on gendered tropes. By deconstructing the gendered nature of vulnerability and resilience, this approach also destabilizes the cornerstone of criminal law, namely the invulnerable male legal subject. Furthermore, this shift challenges traditional constructs of femininity and this may lead to discursive gains for women, not just in failure to protect cases, but with respect to the woman (and mother) of legal discourse more generally.