Policy Analysis essay

Motherhood and Crime Author(s): Dorothy E. Roberts Source: Social Text, No. 42 (Spring, 1995), pp. 99-123 Published by: Duke University Press Stable URL: https://www.jstor.org/stable/466666 Accessed: 03-09-2018 04:57 UTC

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Motherhood and Crime

Introduction

Women's criminal conduct is of growing interest to both criminologists and legal scholars, while the subject of motherhood has recently been embraced by feminist legal theorists. There are important insights into the social construction of women's identities where these two topics meet. To find evidence of a special relationship between motherhood and crime, students need only open their first-year criminal law casebook to the omis- sion liability section. Most, if not all, of the cases concern mothers (or women in mothering roles) who failed to care properly for their children. These cases demonstrate that criminal law is more likely to impose an affirmative duty on mothers than other classes of people.

I usually push my criminal law students to determine the extent of the

obligation mothers owe their children when we discuss Commonwealth v. Howard. In this case, a mother was convicted of manslaughter for failing to protect her young child from her boyfriend's deadly abuse. "Must a mother forego all self-interest, take on any risk, in order to avoid criminal liability?" I ask. "Must she even risk injury to herself in order to ensure her children's safety?" At least one student will invariably respond: "A mother must be willing to give up her own life in order to protect her chil- dren from harm."

This special relationship between motherhood and crime should be a prominent subject of feminist inquiry. For motherhood, like sexuality, plays a critical role in women's subordination. Martha L. Fineman calls motherhood "a colonized concept-an event physically practiced and experienced by women, but occupied and defined, given content and value, by the core concepts of patriarchal ideology" (1991: 289-90). A woman's status as childbearer determines her social identity. Society assigns women the enormous responsibility of childrearing, yet it not only does not pay women for this labor, but degrades it as well. To the extent that society values women's role as mother, it does so only when the events of motherhood attach to a legal father. Despite this fact, no woman achieves her full position in society until she gives birth to a child. At one level or another, society exerts structural and ideological pressures upon women to become mothers. It defines all women as mothers or potential mothers.

Dorothy E. Roberts

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Legal rules

reward conduct

that fulfills a

woman's

maternal role,

while punishing

conduct that

conflicts with

mothering.

This social meaning of motherhood does not define women's experi- ence of mothering. Adrienne Rich distinguishes between motherhood, the experience-the relationship between a woman and her children-and motherhood as enforced identity and political institution (195-6). While some women may experience mothering as debilitating and intrusive, and

though certain feminist theories call motherhood oppressive, many women experience fulfillment and happiness in mothering. Motherhood contains this fascinating paradox: although it is devalued, exhausting, confining, and a principal way in which women are shackled to an inferior

status, for many women motherhood is life's greatest joy. It is my intention

to discuss motherhood in a way that neither denies women's oppression in

motherhood nor women's pleasure in mothering. The law compels and legitimates prevailing relationships of power.

Criminal law not only defines and mandates socially acceptable behavior, but it also shapes the way we perceive ourselves and our relationships to others. Legal rules reward conduct that fulfills a woman's maternal role, while punishing conduct that conflicts with mothering. Society's con- struction of the mother, its image of what constitutes a good mother and what constitutes a bad mother, facilitates its continuing control of women. Society considers women who fail to meet the ideal of motherhood deviant or criminal. It stigmatizes unwed and unfit mothers, along with women who do not become mothers, for violating the dominant norm. Considering our society's general neglect of children, it is probable that laws which punish mothers' conduct do so just as much to enforce gender roles as to protect children.

Given the centrality of motherhood to women's social position and the importance of criminal law in enforcing ideology and social struc- ture, feminist inquiry should critically examine the criminal law's treat- ment of mothers. To date, however, feminist criminologists and legal scholars have devoted surprisingly little attention to this subject. Feminist analyses of crime tend to concentrate on men's victimization of women rather than women's criminal offenses. When feminist scholars do exam-

ine female crime, they usually study juvenile delinquency, property crimes, and prostitution.

There are several points in the cycle of motherhood at which to exam- ine criminal law's treatment of mothers. A mother may become a criminal even before the birth of her child. For example, some criminal laws pun- ish a woman's conduct during pregnancy. Criminalizing abortion rein- forces the norm that women should want to bear children because it quite literally compels women to become mothers. Here, society considers a woman's refusal to bear a child an unnatural act, a rebellion against her essential role. Mothers' crimes also include killing or abandoning their babies. Fathers who abandon their children can escape criminal responsi- bility simply by leaving the children with their mother. As long as he is not

100 Dorothy E. Roberts

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living with the mother, the father escapes responsibility even though his failure to provide harms the child. Mothers, conversely, have an immedi-

ate and unavoidable duty to care for their newborn children.

I have two purposes in this article. Both involve the feminist task of situating women's crimes within the context of patriarchal power. First, I explore how laws criminalizing maternal conduct construct the mean- ing of motherhood. Second, I attempt to assess mothers' crimes in rela- tion to women's struggle against a self-annihilating role, a struggle often resulting in family violence. I do not focus on the general criminal be- havior of mothers, but instead center on crimes characterized by a fail- ure to mother.

Here, I will not debate whether motherhood is a natural source of

women's power or whether it is inherently oppressive. Instead, I examine how the criminal law enforces those aspects of motherhood which are subordinating, while punishing women's resistance to them; I also explore the nature of this resistance. I do not seek primarily to explain, in the tra-

dition of criminology, why some mothers commit crimes against their children. It is not surprising that some mothers fail to fulfill their maternal

obligations. What is surprising is that so many women continue to be good mothers: women who continue to sacrifice their own lives' ends, spend their last dollar unselfishly on their children, live in desperation, and remain in violent homes because they refuse to give up being a mother. The astonishing aspect of many mothers' lives is the battle they fight for their children against sickness, poverty, war, and violence. Society should celebrate and reward the mother's battle for her child, but women's essen-

tial nature cannot explain it. A woman mothers even when she longs for escape, even when she is seething at the unfairness, even when mothering does not seem natural. The importance of criminal law's definition of the mother lies not only in the relatively few women it punishes, but also in the way most women internalize that meaning and conform to it.

This essay centers on the meaning of motherhood enforced by the criminal law's treatment of mothers who abuse or fail to protect their chil-

dren. Part 1 argues that the present institution of motherhood submerges women's selfhood and examines two aspects of criminal law that enforce mothers' selflessness-the sentencing of female lawbreakers and the pun- ishment of mothers for failing to protect their children from abuse. By placing maternal failure in its political context-the violent power struggle within the home-I attempt to show that the criminal law sometimes pun-

ishes mothers for their resistance against male control. Part 2 examines a second oppressive aspect of motherhood-patriarchy's use of children as hostages to secure women's obedience. This section explains how child abuse inflicted by mothers relates to the contradictory role of children as, simultaneously, the source of mothers' vulnerability and their power. I consider the experience of black mothers, who have viewed their homes as

Motherhood and Crime 101

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locations of oppression and resistance, to illustrate a complex political interpretation of motherhood. Finally, Part 3 proposes an approach to maternal crimes that describes a vision of a liberated motherhood by iden- tifying with criminal mothers. This project entails the difficult task of dis- tinguishing mothers' oppositional actions that are truly subversive and liberatory from those that subjugate children and reproduce the current social order.

1. The Suppression of Women's Selfhood

I do not claim that motherhood is inherently or totally oppressive; my aim

is to identify injustices in motherhood's present configuration. I focus on two problems. First, motherhood extinguishes women's individual identi- ties, and second, motherhood leaves women vulnerable to patriarchal power because society and individual men hold their children hostage. Together, these aspects of motherhood constitute the essence of oppres- sion-the denial of a person's ability to define herself and to determine the course of her own destiny.

A mother is a selfless creature. In the words of Adrienne Rich, "insti- tutionalized motherhood demands of women maternal 'instinct' rather

than intelligence, selflessness rather than self-realization, relation to others rather than the creation of self" (196). Because society defines women as caretakers of children, it subordinates women's personal needs and desires. It expects mothers to deny their own identities to fulfill the role prescribed by the state. As presently constituted, motherhood denies women's potential as full human beings.

Pregnancy unavoidably ties a woman's welfare to her fetus. Caring for young children necessarily entails some degree of self-sacrifice. But this connection need not mean self-destruction; society, not biology, deter- mines the nature of this sacrifice and the degree to which motherhood annihilates a woman's individual identity. The criminal law reinforces the

image of the mother as a selfless being.

Sentencing and Womens Identity as Mothers

The criminal law's treatment of female offenders illustrates society's image of all women as mothers or potential mothers, rather than as individuated selves. A woman's role in the family determines the criminal sentence that a court will impose upon her. Historical data indicating that women receive lighter sentences than men might seem to discount the claim that sexist ideology influences the criminal justice system. However, the

102 Dorothy E. Roberts

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enforcement of gender roles, rather than simple disparities in treatment,

reflects patriarchal attitudes. Courts often consider the effect of a woman's

sentence on her family, especially her children, as more important than its effect on the woman herself.

Sociologist Kathleen Daly theorizes that the treatment of offenders depends on two factors: (1) informal social controls that work in place of formal incarceration, and (2) the social costs created by incarceration (1987a, 152). Both factors result in what she calls "familial-based jus- tice." Judges assume that defendants with family responsibilities have greater informal social controls in their lives. They are also reluctant to deprive children of a provider or caregiver. Judges consider caretaking to be more indispensable than economic support to children's welfare. Thus, while these considerations lead to the more lenient treatment of

both male and female familied defendants, the mitigating effect of family is greater for women. Courts, therefore, treat mothers more leniently than fathers.

Although society defines all mothers as selfless, societal concepts of race and class determine the meaning of maternal selflessness. Both the valuation of white middle-class mothers and the devaluation of others

form the standard that measures a mother's selfishness. Scholars have

noted the race- and class-based construction of maternal selflessness in

child custody decisions. Adoption law, for example, generally assumes that the unwanted loss of a newborn harms mothers. However, it treats

unmarried birth mothers as having no maternal instinct while penalizing those who consider keeping their babies. The law expects poor and minority mothers to selflessly permit the adoption of their children in order to give them a better life. In Canadian child welfare cases, judges consider First Nation women selfish, and therefore bad mothers, for

struggling to regain custody of their children from white middle-class foster homes.

Race and class accordingly interact with gender in determining moth- ers' sentences. Women who do not fit the norm of the ideal mother-sin-

gle and divorced women, women with children in foster care, women of color, working-class and poor women-require harsher treatment and are more dispensable. Courts may assume that white middle-class mothers are both more amenable to nonjudicial social controls and more needed in the home by their children than other groups of mothers.

Because courts often consider black women less fit to mother, they are more likely to confine black women to custodial prisons. This logic leads to racially disparate treatment of mothers, which Nicole H. Rafter suggests may be an additional reason for the long-standing greater racial imbalance among female inmates than among male inmates (141-3). His- torically, smaller numbers of black women have been imprisoned than

Motherhood

extinguishes

women's individ-

ual identities and

leaves women

vulnerable to

patriarchal power

because society

and individual

men hold their

children hostage.

Together, these

aspects of mother-

hood constitute

the essence of

oppression-the

denial of a

persons ability to

define herself

and to determine

the course of her

own destiny.

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either white or black men. However, significantly greater proportions of

incarcerated women were black. One explanation is judges' greater reluc- tance to incarcerate white female offenders than their black counterparts.

Daly also found that race affects how judges make family-based deci- sions (1989, 136). Gender differences in the leniency afforded family ties

were greatest for black defendants. The mitigating effect of having chil-

dren was stronger for black women than for white women and weaker for black men than for white men. Is there a way to reconcile the findings of Rafter and Daly? Rafter's work suggests that fewer black women than white women receive lenient treatment from the criminal justice system because it is harder for them to meet the test of ideal motherhood and

because the system expects them to give up mothering their children. Daly's work suggests that courts treat those fewer black women who meet their expecations of good mothers in a way that drastically diverges from the majority of cases involving black female and male offenders, who are

afforded the benefits neither of race nor of gender.

Women Who Commit Crimes as Mothers

Although the law treats mothers who commit general crimes with relative leniency so that they may fulfill their traditional role, it treats women who

commit crimes as mothers most harshly for violating the traditional role. The criminal justice system punishes female defendants according to the extent to which their acts deviate from appropriate female behavior. Daly found that familied women who committed crimes that made them "bad"

mothers, such as sexual abuse of children or prostitution, did not receive the courts' mercy (1987b, 285). These women not only break the law, but by breaking the law they transgress their own female nature and their pri- mary social identity as a mother or potential mother.

The law's interpretation of maternal crime depends on each criminal mother's social position. Anthropologist Anna Lowenhaupt Tsing con- ducted a study of twenty-five cases of women charged with endangering newborns during unassisted births (296). Tsing found that courts viewed these mothers as different kinds of criminals depending on their race and

class. Viewing young white college women as innocent products of a dis- torted maturation process, the courts treated them leniently. On the other hand, the courts sentenced women of color and poor white women harshly because these crimes were perceived as obstinate and cunning refusals of obstetrical expertise.

For example, a state charged Donna Sloan, a nineteen-year-old white college student, with murder, felony child abuse, and concealing a death when she gave birth in a bathroom stall, wrapping the baby in toilet tissue

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and placing it in a trash can after assuming it was dead (Tsing, 286-9). At sentencing, the court characterized Sloan sympathetically as young, con- fused, and in shock and pain during the delivery. It sentenced her to four

years probation and four hundred hours of community service. Within a year of Donna Sloan's sentencing, the state charged Marlene Harris, a twenty-five-year-old white woman who worked for a temporary maid ser- vice, with murder and felony child abuse when she accidentally drowned her baby after she gave birth alone in a motel room (ibid., 291-4). According to the judge and prosecutor, Harris's refusal to seek medical assistance demonstrated that she was irresponsible, devious, and danger- ous. The judge sentenced Harris to ten years in the penitentiary for com- mitting the same offense as Sloan.

The criminal law's interpretation of the severity of maternal crimes, like its interpretation of maternal selflessness, depends on race and class (Roberts, 7). Since middle-class white women fit society's notion of the ideal mother, criminal law more easily restores them to conforming moth- erhood. Courts treat white college women more leniently than other groups of mothers because they do not commit "irredeemable criminali- ties" (Tsing, 291). Judges view their crimes as the result of mere misdi- rection. They believe that noncustodial therapy and education can easily rehabilitate these women. Women of color and poor white women, on the other hand, do not fit the ideal of motherhood. Therefore, they are "iden- tified not as educable products of defective maturation, but as outside of middle-class 'normal' values. They can be controlled but not changed" (ibid., 285). Moreover, while judges consider the infant's death an isolated incident in the lives of middle-class white women, the same crime justifies

the constant monitoring of the reproductive lives of poor white women and women of color.

Mothers Who Fail to Protect Their Children and

the Context of Family Violence

The starkest example of criminal law's suppression of a mother's per- sonal identity is the prosecution of women for failing to protect their chil- dren from another's abuse. In 1991, a Tennessee jury convicted Denise Maupin of aiding and abetting the first-degree murder of her two-year-old son Michael. The day her son died, Ms. Maupin left her two children at home in the care of her boyfriend, Thomas Hale, while she went to her first day of work at a local fast food restaurant. When she returned home she found that Hale had beaten Michael until he was barely conscious for wetting his pants. Michael died that night in the hospital. The court sen- tenced Denise Maupin to life imprisonment.

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Courts hold

mothers

responsible

for violence

in the family.

Society considers

child abuse a

failure of a

mother's natural

capacity to

nurture and

protect.

In 1992, the prosecutor in Kings County, New York, charged Mrs. G. with sexual abuse of her children and with neglect for failing to protect them from their father's sexual abuse. The case came to the attention of

the authorities when Mrs. G. went to the 68th police precinct for help after her husband violently assaulted her. After referral to the Victim Ser-

vices Agency, she told a caseworker that her husband had been molesting the children, as well as beating her. At trial, Mrs. G. testified that her hus-

band would threaten her, punch and kick her, and bang her head against the wall for trying to intervene when he abused the children. In 1987, Mrs. G. fled from her husband and moved in with her sister in Florida.

Not long afterward, Mr. G. located his wife through a private detective. He harassed his wife and her sister until she returned to him in New

York. Two experts testified at the trial that Mrs. G. suffered from battered woman's syndrome, which deprived her of the ability to protect herself and her children. Nevertheless, the judge entered a finding of neglect, imposing strict liability.

Courts hold mothers responsible for violence in the family. Society considers child abuse a failure of a mother's natural capacity to nurture and protect. Even though men are at least as likely as women to abuse children, psychological theory and social service practice generally attribute child abuse to maternal deficiency. With respect to the failure of child abuse researchers to study the father's role, Judith Martin observes,

"[T]he mother is not only expected to be most deeply and intimately con- cerned with child-rearing; she is also at fault should any mischance occur

in that process. No matter who actually harms the child, the mother has failed in her duty to create a safe environment for her young" (300). The criminal law reflects this dominant social science view of a mother's

responsibility for child abuse. Overwhelming evidence of the connection between men's battering of

women and the battering of children reveals that power relationships, rather than women's nature, are responsible for family violence. Women who fail to protect their children from violence are often victims of vio- lence themselves. Studies conducted in both the United States and Great

Britain show that in most families in which the father batters the mother,

the children are also battered (Bowker et al., 158, 162; Walker 1984, 59). Children whose mothers are battered are more than twice as likely to be battered than children whose mothers are not battered. Furthermore, the

woman's batterer is typically the one who is also beating the children. Evan Stark and Anne H. Flitchcraft conclude from their numerous stud-

ies on this association that "child abuse in these relationships represents the extension of ongoing violence and is an intermediary point in an unfolding history of battering" (107).

Courts, however, have not asked how this web of violence affects the

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mother's liability. They presume that a woman's obligation to her children

always takes precedence over her own interest in independence and phys- ical safety. Feminists have criticized people who ask battered women, "Why didn't you leave?" because this question fails to recognize the phys- ical, social, and legal constraints that keep women in violent homes. Courts are slowly beginning to acknowledge these constraints in self- defense cases.

These impediments do not seem to matter, however, when both mother and child are battered. Judges assume that a woman's maternal instinct to protect her children from harm overcomes any barriers to escape. The law isolates each woman's maternal duties from other facets of her life, "requiring that pregnancy be a transcendent moment that can carry every woman outside the complexity of her particular history" (Tsing, 297). Motherhood subsumes a woman's identity as an individu- ated self.

One approach that takes women's individual situations into account argues that battered mothers are physically and emotionally incapable of controlling or escaping the violence in their homes. This approach pro- poses that the law allow battered mothers charged with failing to protect their children to introduce expert testimony on battered woman's syn- drome, as is now common in women's self-defense cases. This is an

important legal strategy because it forces the legal system to consider the real limits on a mother's ability to guard her children from harm.

An alternative approach situates mothers' failure to protect their chil- dren in its political context. Rather than seeing battering as an excuse for mothers' failure to protect their children, this approach suggests we need to rethink the relationship between motherhood and family violence. Bat-

tering arises out of a struggle for power in the home-"the batterer's quest for control of the woman" (Mahoney, 2-3). Battering is a response to women's struggle against male domination within the family. A man's inability to fulfill the patriarchal ideal of manhood by providing for his family or exercising authority in the home may lead him to attempt to restore his power through physical abuse. Many men respond to women's attempts to resist male privilege in the home by violently subjugating both women and children. -

The typical pattern of assault suggests that male violence is not ran- dom, but "is directed at a woman's gender identity" (Stark and Flitch- craft, 100). For example, Lenore E. Walker, a leading authority on bat- tered women, discovered that her battered clients encountered increased

violence when they became more assertive and began to make their own decisions (1979, 202). Battering typically is evoked by struggles around gender issues, such as sex, housework, child care, the woman's employ- ment outside the home, and her involvement in the family's finances. Bat-

Battering is a

response to

women's struggle

against male

domination

within the family.

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terers often justify their assaults with complaints about the woman's inad- equate performance of household duties. A batterer's violence is his attempt to control the boundaries of the woman's role in the family.

Battered Mothers' Resistance in the Home

Martha R. Mahoney criticizes early studies that assumed that battered women hold "traditional" attitudes about women's social roles (54-5). A researcher looking for traditionalism may mistake traditional activities, such as domestic work or bearing several children, as a reflection of the woman's attitude, rather than as the result of the man's attempt to control her. Other studies have found, however, that battered women tend to

share less traditional attitudes concerning the role women should play in the family, while battering men were likely to have more traditional atti- tudes (ibid., 56).

Battering is often particularly directed at a woman's identity as a mother. Many women report that family violence began or intensified when they became pregnant. Some scholars theorize that the man's sense of competition with the child for the woman's attention causes this inten-

sified battering. I suggest that battering pregnant women and new mothers is part of men's continued quest to enforce the woman's compliance with her role as mother. For example, men often batter their pregnant wives and girlfriends in an effort to coerce these women to carry the pregnancy to term. Men may also batter their children in an effort to enforce the woman's maternal role. It seems likely that Thomas Hale murdered Denise Maupin's son at least partly in retaliation for Maupin going to work and leaving him with the chore of caring for the boy.

If we understand child abuse as an extension of abuse experienced by the mother, we must see it as linked necessarily to women's resistance to their inferior status in the family. Male violence against children is often part of men's quest to control the mother, and it may intensify when the mother resists. When the criminal law punishes battered mothers for fail- ing to fulfill their maternal role, it may be punishing women's resistance. This view does not suggest that every failure-to-protect case involves a mother's opposition to male domination; some mothers simply do not care about their children and even maliciously participate in the abuse. Nor does this view suggest that the law should not protect children from harm. Children need protection because they are dependent on their par- ents for their well-being. Rather, this view calls for a political analysis of violence against children that explores whether their mothers resist con- forming to oppressive family roles.

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Two features of child abuse cases support the proposition that the criminal law punishes mothers' resistance. First, a mother's liability for another's abuse of her child sometimes depends on whether she is other- wise a good mother. In determining the mother's responsibility for child abuse, courts look at further evidence of bad mothering, such as not want-

ing children, leaving the children in the care of another to go to work, and keeping a messy house. Second, courts treat mothers who appear pathet- ically weak or deranged more leniently than mothers who struggle to retain power in their homes. In State v. Scott, for example, the court con- victed Winifred and Marvin Scott of cruelty to a juvenile, sentencing them to five years of hard labor, when their two-year-old son died from

severe grease burns. The Scotts claimed that the injury was accidental and that they neglected to seek medical attention because they did not have enough money to pay for burn treatment and transportation. The Louisiana Supreme Court reversed Winifred Scott's conviction because the trial judge refused to compel production of health department records showing that Winifred did not participate in making family decisions, that she had received mental health counseling, and that she was "incompe- tent, weak, depressed and subservient to her husband."

The Pennsylvania Supreme Court adopted a drastically different view of maternal liability in Commonwealth v. Cardwell. The court upheld Julia Cardwell's conviction for failing to protect her daughter Alicia from sexual abuse by Clyde Cardwell, her husband and Alicia's stepfather. Clyde abused Alicia for four years, beginning when Alicia was about eleven years old. Ten months passed between the time that Julia became aware of the danger to her child and the date Alicia finally ran away from home. During those ten months, Julia took steps to try to escape with Alicia. Julia wrote two letters to Clyde, expressing her awareness of the abuse and her plan to leave him. She made an unsuccessful attempt to move to her mother's house, moving some of her and Alicia's clothing and applying for Alicia to transfer schools. The destruction of her mother's house by fire, however, frustrated Julia's plans.

Clyde's violence, combined with the setbacks Julia encountered, might explain Julia's failure to act. Alicia testified at the trial that she and her mother were afraid of Clyde. He had beaten Julia, smashed objects in the house, punched holes in the walls, and kept a pistol on the mantelpiece. Violence often escalates and becomes potentially lethal when battered women attempt to leave the batterer. Attempting to leave, therefore, may have been the most dangerous step Julia could have taken.

The Pennsylvania Supreme Court, however, did not consider whether Clyde's terrorization of Julia and Alicia mitigated Julia's criminal liability. Ironically, the court used Julia's efforts to challenge Clyde's abuse against

Courts treat

mothers

who appear

pathetically weak

or deranged

more leniently

than mothers

who struggle to

retain power in

their homes.

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her. The court found that Julia owed her daughter a duty of care and pro- tection, pointing out that Julia's letters to Clyde established her awareness of the abuse and its endangerment of her daughter's welfare.

Of course, Julia may have failed to leave Clyde because her desire to maintain a relationship with him superseded her concern for Alicia. Per- haps her accommodation to patriarchal ideals, rather than resistance to them, caused her maternal failure. It is impossible to explore these possi- bilities, however, unless the inquiry accounts for the mother's particular circumstances in failure-to-protect cases. Because a woman's compliance with an idealized maternal role is what primarily concerns courts in these

cases, they neglect to examine the power struggle typically underlying family violence. The political focus I suggest enables courts to begin to recognize mothers' oppositional acts.

2. Mothers' Vulnerability

Child Hostages

Child Hostages and Social Reproduction. The second oppressive aspect of motherhood to consider is its relationship to women's vulnerability. Patri- archy takes children hostage, both literally and symbolically, to secure women's obedience. Concern for their children leads mothers to acquiesce in social institutions they would otherwise reject. Adrienne Rich referred

to children as hostages in describing the way mothers train their children to conform to an unjust social order:

In attempting to give our children the security, the stability, we know they need, do we become more obedient to a social order we know is morally bankrupt; do we give in to the pressures of convention, of schools, of jobs; are our children our hostages to the State, its real safeguard-and escape- valve-against the anger of women? (259)

Black mothers' concern for their children creates a unique vulnera- bility. Perhaps the hardest part of being a black mother in America is rec- onciling the desire to ensure children's security with the temptation to succumb to society's mandates in establishing that security. Black moth- ers must teach their children to live in two cultures, both black and white.

Many black mothers feel that they must cultivate in their children what W. E. B. Du Bois described as "double consciousness": "One ever feels

his twoness-an American, a Negro; two souls, two thoughts, two unrec-

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onciled strivings; two warring ideals in one dark body" (17). A black mother tries to pass on to her children her own cultural identity and to teach them to defy racist stereotypes and practices.

At the same time as they attempt to instill defiance and cultural iden-

tity, black mothers must teach their children how to survive in a world that

is hostile toward black people and black culture. Teaching black children to be defiant is difficult because being too defiant spells danger, if not death. George Jackson, the revolutionary prison leader, indicted black mothers for this contradictory aspect of their mothering: "My mother at one time tried to make a coward of me. And so did every brother's mother

I've ever drawn out. . .. [Each mother] attempted to aid [her son's] sur- vival by discouraging his violence or by turning it inward" (215). Black children are the state's hostages, held for ransom that black mothers must surrender in the form of submission to both patriarchal and racist stan- dards. The task of raising our children curbs our own rebellion against sexist norms, but it also tempts us to restrain our children's rebellion against racism. Black mothers in this way help to perpetuate the current white-dominated patriarchal system even while resisting it, because we fear for our children.

Child Hostages Who Prevent Mothers' Escape

Patriarchy holds our children hostage not only at the metaphysical level of social reproduction, but also in concrete ways. The most powerful histor- ical example of patriarchy's restraint of women by holding children hostage comes from slavery. American slaveowners used children as hostages to prevent slavewomen from running away or to lure escaped women back to the plantation. One of the main reasons more African men than women escaped slavery was that children tied mothers to their mas- ters. Some slavewomen elected to take their children with them on the

journey to freedom. Few willingly abandoned their children in order to increase the chances of their escape. Most of the female runaways publi- cized as sought after by slave masters in the Georgia Gazette between 1763 and 1775 and between 1783 and 1795 reportedly took their children with them. The Gazette reported that only one runaway, a slavewoman named Hannah, abandoned one of her children. The story quoted Han- nah's owner as saying that, although she had taken her five-year-old daughter Lydia, "she had 'inhumanely' left 'a child at her breast"' (Wood, 610, n. 24).

Perhaps the best known black mother who fled slavery was Harriet Jacobs. Her autobiography explains how her feelings for her children ini- tially prevented her from escaping her master's sexual abuse:

Patriarchy takes

children hostage,

both literally and

symbolically, to

secure women's

obedience.

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The child

welfare system is

perhaps the most

pervasive means

of government

supervision of

poor and minority

communities.

I could have made my escape alone; but it was more for my helpless children

than for myself that I longed for freedom. Though the boon would have been precious to me, above all price, I would not have taken it at the expense of leaving them in slavery. Every trial I endured, every sacrifice I made for

their sakes, drew them closer to my heart, and gave me fresh courage ... (Brent, 91-2)

Harriet Jacobs' words reflect the paradox of motherhood: her children both bound her to slavery and gave her the courage to resist it. Harriet eventually did escape without her children, spending seven years hiding in closets and crawl spaces. Years later, she purchased her children's freedom.

Today children still make escape difficult for mothers. Hostaged chil- dren affect the decision of many battered women who remain in violent relationships. A battered woman must weigh the benefits of leaving with her children against the consequences her children will suffer on their departure. She must somehow balance her own safety against the harm to her children from inadequate housing, loss of economic security, and the absence of their father's companionship. Her daily preoccupation with caring for her children under stressful circumstances may encumber her ability to assess her personal damage.

Most battered women do not want to leave a violent home without

their children. But many shelters do not accept women with children. Additionally, the law presents mothers with a special dilemma: courts penalize women who do not take their children with them when they leave the batterer. For example, one woman fled from her home and hid in the surrounding woods when her drunken husband was beating her. She decided to leave her three children in the house with her husband because

he had never injured them before. A judge later granted custody of the children to her husband, holding her responsible for leaving them behind.

Patriarchy secures the compliance of mothers when it holds their chil-

dren hostage by exacting its threats in diverse ways. The state holds poor and minority children hostage through child welfare agencies. Malcolm X called foster care a modern system of legalized slavery. The state's dis- ruption of his own family reminded him of white slavemasters' control of slave families: "A Judge ... in Lansing had authority over me and all of my brothers and sisters. We were 'state children,' court wards; he had the full

say-so over us. A white man in charge of a black man's children!" (Little, 21). Social workers can also compel mothers' conformity to prescribed life- styles and childrearing patterns by threatening mothers with termination of parental rights. The child welfare system is perhaps the most pervasive means of government supervision of poor and minority communities.

In middle-class families, mothers' vulnerability is more likely to man- ifest itself in private child-custody disputes. Divorcing husbands may use

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children as hostages to win reconciliation or concessions from their wives.

Husbands may deliberately seize children to prevent their wives from leav-

ing. The father's threat of a custody action is a powerful tactic to coerce the mother's compliance with his demand for lower support payments, a larger share of the marital property, or more convenient visitation arrange- ments. Since many women view joint custody as "losing," while many men view it as "winning," divorcing women sometimes "bargain away needed property and support benefits to avoid the risk of 'losing' their children" (Fineman 1988, 761).

There is a peculiar difficulty, then, in resisting the institution of motherhood. Resistance often harms children and may lead to the sepa- ration of mother and child. The tremendously intense feelings most mothers develop towards their children, along with ideological and struc- tural constraints, prevent mothers from rebelling. A mother may have to give in to patriarchal demands in order to keep her children. Mothers often must make the impossible choice between abandoning their chil- dren and accepting the status quo. Mothers usually try to endure for the sake of their children.

Mothers' Responses to Patriarchal Oppression

Women Who Strike at Their Children. A mother's abuse of her children

relates to all mothers' peculiar vulnerability. By using children as hostages, society makes children the immediate source of mothers' subordination. If

children are the chains that keep women from freedom, it is not surprising that mothers sometimes strike at those chains. Nor is it surprising that there is a remarkable connection between violence against women and their violence against their children. Studies show that battered mothers are much more likely to abuse their children than mothers who are not abused (Straus et al., 216-7). Women who beat their children participate in a profound contradiction: Children make them vulnerable, yet these children give them a degree of power.

While feminists now recognize violence against mothers as rooted in unequal power relationships in the family, they still speak of mothers' relationships to their children in emotional terms. When mothers are kind

to their children it is a result of their sweet, caring nature. When they are cruel to their children, it is a mad reaction to the strains of mothering. If men's abuse of women and children is a defense of male privilege, is child abuse perpetrated by mothers an assertion of maternal "privilege" in the home? Is it an attempt to control the little domain that mothers can claim

as theirs and to destroy the apparent source of their vulnerability? Akhil Reed Amar and Daniel Widawsky perceive child abuse as a form of slav-

If children are

the chains that

keep women

from freedom, it

is not surprising

that mothers

sometimes strike

at those chains.

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ery (1359-60). They argue that parental custody becomes child slavery in extreme cases of abuse when parents fail to treat their children as free per- sons with interests of their own. "Like the antebellum slave, an abused

child is subject to near total domination and degradation by another per- son, and is treated more as a possession than as a person" (ibid., 1364). Thus, the abusive mother who directs her opposition to motherhood at her child negates her child as a person, with interests worthy of respect, in the same way that battery of women and the law's treatment of mothers

negates the personhood of women. But a mother's abuse of her child is not perfectly analogous to a husband's abuse of his wife. The difference in power must be recognized. Maternal child abuse may be at once a form of

oppression and of opposition to the oppressive mothering role.

The Privatized Nature of Mothers' Responses to Patriarchal Oppression

A mother's response to her vulnerability is sometimes directed at her child. More often, mothers channel their frustration into self-destructive

behavior, such as depression, addiction, and suicide. Women usually respond to their inability to provide their children's needs with feelings of

guilt at failing in their maternal responsibility.

Two societal features influencing each woman's experience of moth- erhood further their resort to self-destructive behavior and child abuse.

First, mothering in nineteenth- and twentieth-century America has become an increasingly isolated experience. Separate spheres ideology placed men in the public realm of work, politics, and culture, while con- fining women to the private realm of family and home. The ideology and structure of child-care, which continue to place the full responsibility of

caring for children with mothers, inhibit their collective effort to transform motherhood. Most women view the burdens of motherhood as their own

private problem and, consequently, may not think of joining with other mothers to address maternal hardships. The physical seclusion of the mother-child relationship within individual homes compounds this con- ceptual difficulty. Moreover, women's conceptualization of family con- cerns as private discourages women from enlisting help from the state to improve the condition of their lives.

Second, the belief that the oppressive aspects of motherhood are bio-

logical, and therefore inevitable, inhibits a woman's opposition to the political source of her oppression. Richard A. Cloward and Frances Fox Piven, using examples of peasant rebellions in Europe and Southeast Asia, have pointed out that, historically, whether hungry people rioted or pas- sively endured hunger depended on their perception of the cause of food shortage (662-3). When people thought a shortage was due to natural

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disaster, they often endured their hunger. But when people thought the ruling class caused or perpetuated the shortage, they rioted. Similarly, women will more likely internalize their opposition to the expectations accompanying motherhood if they believe that nature is responsible for their condition rather than the actions of people in power. The view that maternal selflessness is natural also leads women to see their own violence

against their children as natural rather than as an act of domination. It is important to recognize violence in the home as a question of power that enlists a mother's complicity in the subjugation of her children.

These two impediments do not altogether prevent women from resist-

ing the current structure of motherhood. A mother's relationship to patri-

archy is a complex interaction between her agency and the social struc- ture, and between her opposition to male domination and accommodation to the roles society demands she fulfill. Linda Alcoff makes a similar point

in explaining how a woman's identity depends on her position in society and yet is a product of her own reconstruction:

I assert that the very subjectivity (or subjective experience of being a woman) and the very identity of women is constituted by women's position. However, this view should not imply that the concept of "woman" is deter- mined solely by external elements and that woman herself is merely a passive recipient of an identity created by these forces. Rather, she herself is part of the historicized, fluid movement, and she therefore actively contributes to the context within which her position can be delineated. (434)

Again, the patriarchal structure of motherhood contributes to abuse perpetrated by the mother. Society reinforces mothers' privatized responses to their vulnerability by viewing motherhood's burdens as nat- ural or private problems. A political analysis of maternal child abuse rec- ognizes that a mother's crime may be at once an act of domination and an act of opposition to a subordinating role. Understanding how mothers' crimes originate in family power struggles, rather than in nature or stress, may help us to redirect mothers' opposition away from oppressive and self-destructive acts toward more liberating forms of resistance.

Black Mothers' Insight: Families as Locations of Oppression and Resistance

The experience of black mothers suggests a more complex political inter- pretation of motherhood. As history indicates, they have viewed their homes as complicated locations of both oppression and resistance. Black mothers contradict the separate spheres ideology expressed both in the traditional division of male work and female domesticity, and in the femi- nist conception of the private realm as the locus of women's subordination.

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First, the dominant societal conception of family life that opposes motherhood to wage labor has never described black women's lives. Sep- arate spheres ideology dictates that men sustain the family economically and represent it in the public sphere, while women care for the private realm of children and the home. Black women, however, traditionally have

mothered while working (Jones, 127-9). Black women raised their chil- dren when they worked in the field during slavery and, after Emancipa- tion, many continued to raise their children while earning a living outside the home. Patricia Hill Collins believes that this aspect of black mother- hood is as much a product of self-definition as of racial oppression. She argues that West African tradition explains many of the features of black

mothering that confound the Eurocentric ideal of mother (4). Second, black women's history of working in a racist world also com-

plicates the feminist interpretation of the family as an institution of vio- lence and subordination. Historically, black women have viewed work out- side the home as an aspect of racial subordination and the family as a site

of solace and resistance against white oppression. Black women's attention to domestic duties within their own home has defied the expectation of total service to whites. Black women's housework and care for family members directly benefited black people, rather than white masters and employers. Angela Davis has observed that "slavewomen perform[ed] the only labor of the slave community which could not be directly and imme- diately claimed by the oppressor" (7).

Moreover, the immediate concern of many black mothers is just as likely to be state encroachments on their autonomy as it is to be domestic abuse of power. State-coerced sterilization and the prosecution of women who use drugs during pregnancy are examples of state intervention that pose a much greater threat for black women than for white women. With regard to child custody, the primary concern of white middle-class women is private custody battles during divorce. For most women of color, the dominant threat is the state's termination of their parental rights. The emancipatory meaning of black domesticity neither minimizes the exploited aspects of black women's labor in their homes nor negates the existence of domestic violence against black women and children. It suggests, however, a political interpretation of the home that espouses the possibility of a liberated motherhood.

Black women's tradition of recognizing motherhood as a potentially radical vocation bears closer examination. First, black women historically have experienced motherhood as an empowering denial of the dominant society's denigration of their humanity. Bearing and nurturing black chil- dren ensures the life of the black community; bearing and nurturing black children counteracts a racist society's power to kill black children through

poverty, malnutrition, inadequate health care, and unsafe housing; and

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bearing and nurturing black children defies the dehumanizing message that black people do not deserve to procreate.

Second, black women historically have practiced mothering in a way that overcomes some of the burdens of motherhood and that holds the

potential for the collective transformative action of mothers. Historically, black women have not mothered their children in isolation; nor does the

black community confine the act of mothering to birth mothers. Black women share a rich tradition of women-centered, communal childcare.

These cooperative networks include members of the extended family (grandmothers, sisters, aunts, and cousins) as well as nonblood kin and neighbors. Patricia Hill Collins uses the term "othermothers" to describe the women who help biological mothers by sharing mothering responsi- bilities (5). The relationship between othermothers and children ranges from daily assistance to long-term care or informal adoption. Relying on other women to share the burdens of motherhood is a potentially radical alternative to the harmful responses of child abuse and self-isolation.

Third, black women have recognized that children can give women the motivation, courage, and insight to resist oppression. Concern for children has often served as the foundation for formal collective struggles among black women, such as the Sisterhood of Black Single Mothers in Brooklyn and the Welfare Mothers' Movement. It may be that the experi- ence of communal mothering leads some black women to become com- munity activists in order to make a better life for the entire community's children.

Black women often mother for political ends. Karen Brodkin Sacks, for example, found that the black women involved in a union organizing drive at a local medical center brought family events into the workplace to create unity among workers. These women used familistic skills and shared a family idiom to conceptualize relationships with their coworkers (80-7). The black women at the medical facility were able to take on key organizing roles because of the skills they acquired in playing a central role in their families-"keeping people together, ensuring that obligations are fulfilled, and acting to express the group consensus" (ibid., 90). The political activism of black mothers invites a feminist revision of the rela-

tionship between work, family, and political action. Motherhood for many black women, far from hindering black women's political activism, has actually fostered their political activism.

Finally, the history of black mothers provides examples of maternal crimes that were acts of resistance. Slavewomen committed what the state

considered crimes against their children in an attempt to defy their mas- ters' exploitation of their sexuality and reproduction. Some refused to bear children by abstaining from sexual intercourse and by using contra- ceptives and abortives. Others committed infanticide. A. Leon Higgin-

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botham, Jr., tells the story of Jane, a Missouri slave convicted of murder-

ing her infant child, Angeline, in 1831 (694-5). Judge Higginbotham asks two important questions about this case. First, he questions Missouri's purpose in convicting Jane for the murder. Slavery's dehumanization of black children leaves little doubt that courts prosecuted slavemothers in order to protect the state's financial interest in the children, not the welfare

of the children. Second, Judge Higginbotham questions Jane's purpose in killing her daughter. He presumes that the mother's motivation was to protect her child from slavery's cruelty and that her homicidal act may have actually been an effort to fulfill her maternal duty of care. We need not condone the slavemother's act to understand that it arose from a

desire to spare, rather than harm, her child.

Judge Higginbotham does not ask the more troublesome question: What if Jane sacrificed her child as an act of defiance, one small step in bringing about slavery's demise? This possibility raises moral as well as factual questions that would be difficult to answer. Asking the question, however, makes it easier to see that a mother's crime against her child may be an act of opposition.

3. Identifying with Criminal Mothers

The task of progressive scholars is not just to identify oppressive aspects of law; it is also to describe a vision. This reconstructive project requires searching for examples of mothering that resist patriarchy and combining them with a "quantum leap" of imagination (Rich, 271). Those mothers that society considers most deviant may help us imagine what motherhood

might be like in a society in which women are "free to develop a sense of self that is our own, and not a mere construct of patriarchy" (Cain, 191).

After deconstructing society's view of these women it is actually possible to claim their oppositional insights and errors as part of a reconstruction of motherhood. Regina Austin describes how the black community applies a politics of identification to its lawbreakers:

"The black community" acknowledges the deviants' membership, links their behavior to the "community's" political agenda, and equates it with race resistance. "The community" chooses to identify itself with its lawbreakers and does so as an act of defiance. . . . [The politics of identification] demands recognition of the material importance of lawbreaking to blacks of different socioeconomic strata, however damaging such recognition may be to illusions of black moral superiority. Moreover, the politics of identification . . would have as an explicit goal the restoration of some (but not all) law- breakers to good standing in community by treating them like resources, providing them with opportunities for redemption, and fighting for their entitlement to a fair share of the riches of this society. (1774-75)

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Society is less likely to identify with criminal mothers than with other

classes of criminals. Austin observes that the black community rarely embraces black female lawbreakers, as it does black male lawbreakers, as

rebels against white injustice (1791). Women violate gender norms when they engage in violence or abandon their children in pursuit of crime. The dominant society's exploitation of these women makes them seem like victims deserving pity rather than resisters deserving glorification. Austin argues that "aggressive and antisocial behavior on the part of black male lawbreakers is deemed compatible with mainstream masculine gender roles and is treated like race resistance, but the same conduct on the part of black females is scorned as being unfeminine" (1791-92). Male crim- inologists who studied gangs in the United States and Britain over the last forty years "vicariously identified" with the delinquent boys, romanticiz- ing their deviance (Heidensohn, 141). In contrast, female criminologists have shown little affinity toward their female criminal subjects.

Society's condemnation of female lawbreakers is especially strong for criminal mothers. Mothers who hurt or abandon their children deviate not

just from gender norms, but from the quintessential female role. Even feminists may find it difficult to identify with criminal mothers who harm

children because of feminism's uncompromising opposition to male vio- lence against women and children. Perhaps feminist reluctance to identify with criminal mothers is attributable partially to the way all women have so deeply internalized the dominant images of motherhood.

Identification with lawbreakers is not an uncritical acceptance or emu-

lation. For example, Austin points out that a literal association with black lawbreakers "could be justified only by gross magnification of the damage black criminals actually inflict on white supremacy and a gross minimiza- tion of the injuries the criminals cause themselves and other blacks" (1780). Henry A. Giroux similarly notes that students engage in "a range of oppositional behaviors, some of which constitute resistance and some of which do not" (285). Resistance theorists understand that subordinate groups respond to power in both reactionary and progressive ways. The reactionary response supports the dominant social structure and the pro- gressive response subverts it. When students violate school rules, for example, they may be acting out dominant ideologies of racism or sexism, rather than challenging the repressive aspects of schooling. "Put simply, not all oppositional behavior has 'radical significance,' nor is all opposi- tional behavior a clear-cut response to domination" (ibid.).

The central pursuit of resistance theory, then, is to distinguish oppo- sitional action that is truly subversive and liberatory from that which merely reproduces the oppressive status quo. A feminist praxis based on identification with criminal mothers must recognize the damage criminal mothers inflict on children, while criticizing society's construction of mothers and celebrating mothers' positive resistance. This is risky terri-

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tory. It is extremely difficult to discern the transformative potential in what is basically a response to subjugation, as demonstrated by the fol- lowing two examples of contradictory interpretations of female deviance.

Many inner city female crack addicts have left their children with grand- mothers and aunts in order to feed their habit. Is their rejection of child-

rearing responsibilities an instance of resistance to traditional maternal roles? Philippe Bourgois suggests that the greater female involvement with

crack reflects a growing emancipation of inner-city women (643-5). Austin observes, however, that these mothers' crack addiction may be more the cause of their "liberated" behavior than a consequence of it (1795).

British criminologist Pat Carlen suggests that the autobiographical accounts of criminal women she collected demonstrate how "under cer-

tain material and ideological conditions lawbreaking may comprise ratio- nal and coherent responses to women's awareness of social disabilities imposed on them by discrimination and exploitative class and gender rela- tions" (28). She further asserts that, through crime, these women adopt roles that "lift them above social disabilities imposed on them as women" (ibid.). However, this interpretation of criminal women's conduct as emancipatory is partially contradicted by their own assessments of the chaos in their lives. Moreover, female lawbreakers tend to hold traditional

views about family roles. Perhaps their involvement in crime is merely a response to their economic marginalization, similar to that of men.

Identification with criminal mothers presents the danger of valorizing

or excusing violence and, in the process, denying women's agency. Alter- natively, it is plausible that mothers' deviant behavior is purposeful. This

assumption dignifies women, even though their actions may be reprehen- sible. Purposeful agency theory allows us to identify the features of social and political contexts that lead women to defy the norms of motherhood. A critical stance also allows us to distinguish acts of rebellion which hurt ourselves and our children from those acts that attack the systemic sources of mothers' subordination.

I am not suggesting a simplistic approach that excuses all mothers who hurt their children. Rather, I propose a more complicated analysis that considers the political situations of mothers. The battered mother who fails to protect her child from a violent father against whom she her- self is struggling, the desperate teenager who abandons her unwanted baby, and the violent mother who beats her toddler to death for wetting the bed, are judged by the current analysis for their failure to conform to a standard of selfless motherhood. I suggest we use feminist theory to change our focus from the state's definition of criminal mothers, which arises from racist and patriarchal norms, to an analysis that evaluates

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mothers' opposition to those norms. This change in analysis might pro- duce a theory of motherhood and crime that can help to transform the institution of motherhood as it exists today.

4. Conclusion

Whenever I read the horrible facts of child abuse cases, I see an image in my mind of mothers and children trapped in a prison, struggling desper- ately to get out. Our mission must be to release them. Adrienne Rich powerfully claimed that this will require nothing less than abolishing the

present institution of motherhood. But she goes on to explain: "To destroy the institution is not to abolish motherhood. It is to release the creation

and sustenance of life into the realm of decision, struggle, surprise, imag- ination, and conscious intelligence, as any other difficult, but freely chosen work" (280). The task of legal scholars and activists must be to use the law, as much as it will permit, to aid this release of motherhood. We must

help to release motherhood from an institution that negates women's self- hood and that uses children as hostages to compel women's obedience. Then, we must begin the difficult work of transforming motherhood by

supporting oppositional acts of mothers that truly resist oppression and by redirecting those mothers whose reactionary acts perpetuate the current oppressive regime of motherhood and child abuse.

The task, then, is not as simple as viewing criminal mothers as either pathetic or liberated women. It may be deviant mothers, rather than com-

pliant ones, who best reveal the mechanisms by which the institution of motherhood confines women and the price women pay if they resist. We must condemn mothers' violence against their children. However, their violence should also force us to confront the complexity of women's sub- ordination and the radical measures we must take to eradicate it.

References

A longer, fully documented version of this essay was published in the Iowa Law Review, October 1993, copyright 1993 by The University of Iowa and Dorothy E. Roberts. This article is based on the Fifth Annual Criminal Justice Lecture presented at Rutgers University School of Law, Newark, in October 1992. I pre- sented an earlier draft of this article at the University of Maryland School of Law and Seton Hall University School of Law Legal Theory Workshops, the Univer- sity of Chicago Law School Feminist Legal Theory Workshop, and the Clason Lecture, Western New England College School of Law, and thank the partici- pants for their comments. I especially am grateful to Taunya Banks for her sug- gestions and support. Jorge Martinez, Dierdre Mason, Jillan Stoddard, James

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