Citation. 129 Wis. 2d 239,385 N.W.2d 145, 1986 Wisc.
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Appellee was charged with child abuse for failing to prevent future acts of abuse by her husband whom she knew to be abusing their two kids. The State appealed a dismissal of the charges.
Synopsis of Rule of Law.
A parent has a duty to act when the parent knowingly acts in disregard of the facts giving rise to the duty to act or protect their child.
Facts.
Appellee is the mother of two children. Her husband was found guilty of repeatedly abusing verbally, sexually and physically their two children. The State alleges that Appellee was aware of the abuse but failed to take any action from preventing her husband from inflicting this abuse. The Trial Court found that the mother’s alleged failure was insufficient to constitute child abuse under the statute and the State appealed.
Issue.
Whether a mother can be prosecuted for child abuse for failure to act to stop it.
Held.
A parent who fails to take any action to stop child abuse can be prosecuted as a principal under the statute.
The State does not limit its application to individuals that directly inflict the abuse, it also covers situations where a person has a duty toward a child exposes the child to a foreseeable risk of abuse.
A person may be found guilty of an offense when his omission to act produced a specific result if the person has a legal duty to act and when he can physically perform the act.
When a special relationship exists between persons, social policy may impose a duty to protect and this would be considered a sufficient legal duty.
The parent must knowingly act in disregard of the facts giving rise to a duty to protect and act.
Dissent.
The dissent argued that there is nothing in the law imposing the duty the majority has imposed on a parent. Rather, the dissent feels that it is the duty of the State Legislature to enact legislation to impose this duty, not the courts.
Discussion.
The majority focused on the existence of special relationship between parents and children that would give rise to a legal duty to act. After identifying this relationship, the Court found that the parent must knowingly disregard this duty prior in order to sustain a conviction of this statute. The Court noted that this is not an element of the crime Appellee was charged with, but is a necessary finding to hold Appellee guilty of the crime cha
