Failure to Protect

America’s prisons are filled with women who should not be there. Most have been convicted for tangential participation in crimes committed by men. Guilt by association is enough to put a good woman away for many years.

With 2,300,000 people incarcerated, one would guess that the prosecutorial beast has enough game to satiate its appetite. But in fact, the more it feasts, the greater its hunger. It’s newest appetite is for mothers who associate with men who abuse children.


Love or rage?

Nobody know this better than Pennsylvania inmate Miriam Nebot. At age 18, Miriam met a guy who was smart, funny and charming. They began to date, and she fell in love-hard and quick. They moved in together, and very soon a baby was on the way. They had little money, but she was happy to be independent and starting a family.

Slowly his ‘other side’ began to show- short tempered, possessive, and controlling. He became abusive, and she frightened. Still, she somehow believed this was a show of love. A love which caused emotions to run wild.

After being blessed with the birth of a beautiful girl, the relationship went from bad to worse. Love became black eyes, a busted nose, and cracked ribs.


Miriam Nebot

Miriam Nebot


Learned Helplessness

Miriam never called the police or asked for help. Having watched her mother and stepsister suffer the same, insanity was a state of normality. And instead of venting or defending, she rationalized: “If I do this or that, maybe things will be different.” Psychologists call this state, “learned helplessness.”

Her husband’s anger went from bad to worse. He found a new target: the baby. First there were bumps and bruises. Then bite marks. Then burns.

Reporting this to the authorities was a possibility, but there might be repercussions. What if they took him to jail? Or took the baby away? Being codependent and trapped, Miriam kept everything inside.

Ultimately, this became “the worst decision in my life.”

Some six and a half months after giving birth, her beautiful baby was dead. The official cause of death was head trauma.


Failure to Protect

Miriam was charged with murder. Before trial, the Lebanon County D.A boasted, “Nebot is being charged with homicide not because it is thought she physically caused her daughter’s death, but because she failed to prevent it.” (“Mom, doctor charged in baby’s death.” The Patriot-News, Friday July 04, 2008)

The D.A’s action is typical of an emerging type of prosecution throughout the country. “Failure to protect” exists on the books in most states. On the surface, it is gender neutral, but according to a study by SUNY law professor Jeanne Fugate, “Defendants charged and convicted with failure to protect are almost exclusively female.” (New York University Law Review, Vol 76:272, April 2001)

And it does not seem to matter if the police and D.A. know that the father was the sole abuser. Fugate writes, “Yet in virtually every case where Dad is the abuser, the Mom is charged with failure to protect.”

The net effect: convicting young impoverished women for associating with bad men.


Nebot not alone

Miriam is hardly the only mother serving time for child abuse perpetrated by a man. In Florida, Marion Faye Cason was arrested in 2005, two and half years after her three year old daughter’s death. Her male housemate at the time, the actual perpetrator, accepted a 15 year plea bargain. Marion, claiming innocence, went to court and sought vindication. She is serving life without parole.

Former Illinois inmate Tabitha Pollock’s case closely mirrors Miriam’s. One of Pollock’s four children, her three year old daughter, suffered abuse from her male partner and died in 1995. The district attorney charged that “she should have known” that her male partner was a threat to the child. Sentenced to 36 years, she was released by the Illinois Supreme Court in 2002.


Trial and Sentence

Miriam stood trial in August, 2008. Crippled with guilt, she took an open plea for 3rd degree murder. Expecting a sentence of 6 to 12 years, the presiding judge, practically tripled the sentence of his dark skinned defendant. She is serving 17 to 35.

Miriam proclaims,, “I am not saying that I am completely innocent. I am guilty of not protecting my daughter to my fullest capacity.”

A brave and honest admission. The question arises: to what degree can an impoverished mother protect both her child, and herself, from an abusive, dysfunctional spouse? What is it about our society that wants to lock away women, particularly mothers, for associating with bad men?

Had this crime happened north of the border, Miriam would probably not have even been tried. According to Professor Sharron Fast, a Canadian jurist currently at the University of Hong Kong, ‘failure to act’ is not criminalized under the common law. The concept of charging a mother with murder who does not know that her child is being abused by her spouse seems an aberration. Without clear evidence of abetting, there is little for any prosecutor to act upon.”

The end result for women like Miriam is a judicial hysterectomy. Motherhood is sacrosanct- one disaster, no more children. The nationwide trend of locking young women away signals a deeper motive: the prevention of future pregnancies. Could anything be more cruel or unusual?

Michael H. Fox is associate professor at Hyogo University in Japan, and director of the Worldwide Womens Criminal Justice Network (

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