Everyone hates dead baby cases. Attorneys, experts, judges, and juries hate dead baby cases. I hate dead baby cases. Yet, I’ve worked on dozens of them.

Domestic violence isn’t just about adults. The vast majority of homes where there is violence, also have children in the home. These children are always impacted, regardless of what anyone tries to tell you. Kids in violent homes are more likely to be direct victims of physical and emotional abuse, but have higher rates of sexual abuse as well. And witnessing the abuse (seeing, hearing, or feeling the tension in the home) is damaging as well.

Men who abuse their female partners are almost always the ones who are the perpetrators when a child is killed. Sometimes the child is a scapegoat; sometimes just another easy target. But, when a child is killed, both parents are usually charged. Even if she is a victim of severe physical abuse, the mother is almost always charged when the child is killed by her male partner. She might be charged with murder, failure to protect, or child abuse. In my experience, juries frequently find her guilty of second degree murder.

Does being abused excuse a mother from being responsible for the safety of her child? No. The problem is always: where do you draw the line? When is she so abused that she cannot protect herself or anyone else from the abuse? When is she safe enough to be responsible for getting her children out of an unsafe home? When is it understandable that her denial didn’t allow her to foresee that he would hurt their baby?

These are all relevant questions and difficult ones. I don’t think any two cases are alike. Each has to be evaluated on it’s own merits because there is no “one size fits all” here. All factors have to be taken into account. Even then, there may be a lot of disagreement.

These are among the most difficult cases we deal with. Children have a right to be protected. And yet, how do we really evaluate for that?