Criminalizing Vulnerability

Abstract

This article aims to uncover how, in attempting to ameliorate the vulnerability of children, the offence of ‘causing or allowing the death of the child’ criminalizes abused mothers. It explores how, in the courtroom, tropes of female criminality and constructs of the ‘bad’ mother are mobilized in ways that are both gendered and ‘classed’. The effect is to silence female defendants, deprive their actions of context, and deny them agency. This argument has implications for assessing the moral and legal culpability of abused women who fail to protect their children, because it shifts the focus onto how the abuser has exploited and exacerbated the vulnerability of both mother and child. This approach also challenges law’s preoccupation with scrutinizing (and punishing) women who do not adhere to a glorified, middle-class ideal of motherhood. More broadly, by focusing on the context of a woman’s alleged ‘failure’, there opens a space within legal discourse to refute the characterization of female criminality as being either ‘mad’ or bad, and of women who engage in criminal behaviour as being either ‘virgins’ or ‘whores’. Finally, in focusing on vulnerability as a universal and unavoidable part of the human experience, gendered assumptions of autonomy and the self/other dichotomy are challenged.