PUNISHING FAMILY STATUS JENNIFER M. COLLINS,∗ ETHAN J. LEIB,∗∗ AND DAN MARKELℵ INTRODUCTION.............................................................................................1329 I. AN OVERVIEW OF FAMILY STATUS AND CRIMINAL JUSTICE BURDENS...........................................................................................1334 A. Omissions Liability for Failure to Rescue.................................1335 B. Parental Responsibility Laws....................................................1338 C. Incest.........................................................................................1343 D. Bigamy.......................................................................................1345 E. Adultery.....................................................................................1346 F. Nonpayment of Child Support...................................................1347 G. Nonpayment of Parental Support..............................................1348 II. A FRAMEWORK FOR ANALYZING FAMILY TIES BURDENS................1349 A. A Defendant-Centered Perspective, Among Others..................1350 1. The Defendant as the Object of Punitive Coercion.............1350 2. Family Members as the Object of Harm.............................1350 3. Burdens as Devices for Promoting “Family Life and Values”................................................................................1351 ∗ Associate Professor of Law, Wake Forest University School of Law; B.A., Yale; J.D., Harvard. ** Associate Professor of Law, University of California – Hastings College of the Law; B.A., Yale; M.Phil., U. of Cambridge; J.D., Yale; Ph.D., Yale. ℵ Assistant Professor of Law, Florida State University College of Law; A.B., Harvard; M.Phil., U. of Cambridge; J.D., Harvard. For comments and conversations about this project, we are very grateful to Kelli Alces, Tommy Crocker, Dave Fagundes, Brian Galle, Carissa Byrne Hessick, Rick Hills, Rob Kar, Zak Kramer, Wayne Logan, Melissa Murray, Michael O’Hear, B.J. Priester, Alice Ristroph, Jonathan Simon, Jason Solomon, Jeannie Suk, Fernando Teson, Steve Vladeck, Lesley Wexler, Ron Wright, and Ekow Yankah; and to our hosts and participants at workshops at the 2008 Law and Society conference in Montreal, Hofstra, University of Arizona, Prawfsfest!-Loyola (L.A.), and Florida State, where earlier versions of this project were ventilated. We thank Katherine Kao, Eli Mark, Megan Schanbacher, Brandy Mills, and our schools’ librarians, who provided helpful research assistance; and, for editing assistance, we owe thanks to our team at Boston University Law Review. Last, we are grateful to each other, and most of all, to our families for their enduring patience and love. This article will be part of a revised and expanded book published next year: DAN MARKEL, JENNIFER M. COLLINS & ETHAN J. LEIB, PRIVILEGE OR PUNISH: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES (Oxford University Press, forthcoming Apr. 2009). Please feel free to contact us with comments or questions: [email protected]; [email protected]; [email protected]. 1327 1328 BOSTON UNIVERSITY LAW REVIEW [Vol. 88:1327 4. Burdens as Devices to Serve Goals Beyond Family Promotion............................................................................1352 5. Burdens in Relation to Family Ties Benefits.......................1353 B. Revisiting the Costs of Family Ties Benefits..............................1355 1. Inequality and Discrimination.............................................1357 2. Gender Bias, Heteronormativity, and Repronormativity.....1358 C. Uncovering a Structure of Family Ties Burdens: Voluntary Caregiving.................................................................................1359 D. Overcoming Family Status Through a Focus on Voluntary Caregiving.................................................................................1363 E. Bringing It Together: How to Scrutinize a Family Ties Burden.......................................................................................1366 III. APPLICATION OF THE FRAMEWORK TO FAMILY TIES BURDENS........1369 A. Omissions Liability for Failure to Rescue.................................1370 1. Parental Duties to Rescue Children.....................................1370 a. Voluntary Caregiving and Liberty Interests..................1371 b. Minimalism and Means Analysis...................................1375 c. Gender, Inequality, and Discrimination........................1376 2. Spousal Obligations to Rescue Each Other.........................1380 3. Duties to Rescue in Other Relationships.............................1383 B. Parental Responsibility Laws....................................................1384 1. Voluntary Caregiving and Liberty Interests........................1385 2. Minimalism and Means Analysis........................................1385 3. Gender, Inequality, and Discrimination..............................1389 4. Summary.............................................................................1390 C. Incest.........................................................................................1390 1. Voluntary Caregiving and Liberty Interests........................1392 2. Minimalism and Means Analysis........................................1395 3. Gender, Inequality, and Discrimination..............................1398 4. Summary.............................................................................1399 D. Bigamy.......................................................................................1401 1. Voluntary Caregiving and Liberty Interests........................1402 2. Minimalism and Means Analysis........................................1402 a. Coercion and Minors.....................................................1402 b. Economics.....................................................................1404 c. Bigamy Laws as a Safeguard Against Defiance of the Liberal State..................................................................1405 3. Gender, Inequality, and Discrimination..............................1406 4. A Solution............................................................................1409 E. Adultery.....................................................................................1411 1. Voluntary Caregiving and Liberty Interests........................1411 2. Minimalism and Means Analysis........................................1412 3. Gender, Inequality, and Discrimination..............................1412 4. A Solution............................................................................1413 F. Nonpayment of Child Support...................................................1416 1. Voluntary Caregiving and Liberty Interests........................1416 2. Minimalism and Means Analysis........................................1417 3. Gender, Inequality, and Discrimination..............................1419 4. A Solution............................................................................1420 2008] PUNISHING FAMILY STATUS 1329 G. Nonpayment of Parental Support..............................................1420 1. Voluntary Caregiving and Liberty Interests........................1420 2. Minimalism and Means Analysis........................................1421 3. Gender, Inequality, and Discrimination..............................1421 CONCLUSION.................................................................................................1422 This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of “family ties burdens” or laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support. Part II develops a framework for the normative assessment of these family ties burdens. We first ask how these laws can properly be understood to be “burdens.” We then look at these sites synthetically and contextually to uncover a pattern underlying most of these family ties burdens; namely, they tend to promote voluntary caregiving relationships. We endeavor to explain why this rationale is instructive and normatively attractive for the design of family ties burdens within a criminal justice system committed to what we call “liberal minimalism.” We conclude Part II by articulating the contours and basis of a critical scrutiny that should attach to family ties burdens in the criminal justice system. Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status but are still capable of promoting and vindicating voluntary caregiving relationships. INTRODUCTION In 2005, Christina Madison watched while her new husband repeatedly punched her four-year-old son in the stomach after the child refused to get dressed for school. Madison did nothing to stop her husband from hitting the child. The child eventually died from internal bleeding as a result of a tear in his intestine. Prosecutors charged Madison for her failure to act; she was sentenced to twelve years in prison.1 1 Justin Boggs, Parents of Slain Victorville Child Receive Long Prison Terms, DAILY PRESS (Victorville, Cal.), Dec. 30, 2005, http://archive.vvdailypress.com/2005/ 113595069729822.html. For examples of other recent cases where states prosecuted mothers for failing to protect their children from harm inflicted by another, see also Steven M. Ellis, Court Upholds Murder Conviction for Failing to Protect Son, METROPOLITAN NEWS-ENTERPRISE (L. A.), Mar. 12, 2008, http://www.metnews.com/articles/2008/ rolo031208.htm (describing Sylvia Torres Rolon’s conviction for second-degree murder after she failed to protect her one-year-old child from her boyfriend’s severe physical 1330 BOSTON UNIVERSITY LAW REVIEW [Vol. 88:1327 Stories like Christina Madison’s abound. In the absence of her family status, Christina’s omission, or failure to rescue her child, would trigger no criminal liability. But because of it, she faces a very significant sentence. In this Article, we examine the various places in the American criminal justice system where the law imposes burdens on defendants on account of their familial status or familial connection to the crime.2 Where do these burdens exist? Why do we have them? What, if anything, is wrong with them? How can they be reformed? These questions are at the heart of our project, a project that picks up the story from where we left off a year ago. Specifically, in a study we published last year,3 we examined how and where the criminal justice system affirmatively privileges defendants who are members of a state-sanctioned family unit. Our study uncovered a range of what we called “family ties benefits.” For example, many states exempt family members who harbor fugitive relatives from prosecution; many states exempt family members from testifying against each other even in serious felony cases; and individuals who kill or rape family members are often subject to less serious penalties than those who attack acquaintances or strangers.4 We argued that extending such benefits on the basis of family status can incur serious but often obscured costs in the criminal justice system, particularly in terms of gender equality, fairness across similarly situated offenders, accurate outcomes, and crime prevention.5 We suggested that more careful design of such policies could help avoid some of the costs associated with “family ties benefits.”6 But standing alone, the picture painted in our last article is incomplete; in this companion Article, we try to complete the picture. As mentioned above, some forms of criminal liability are triggered because of one’s familial status, and for reasons that seem to have nothing to do with compensating for the “family ties benefits” we have already identified. These crimes include omissions liability for failing to rescue certain family members, parental abuse); Bill Scanlon, Mom Guilty in Baby’s Death, ROCKY MOUNTAIN NEWS (Denver), Dec. 22, 2007, http://m.rockymountainnews.com/news/2007/Dec/22/scared-mom-talks-baby- death-trial/ (describing the case of Molly Midyette, whose ten-week-old son died from injuries inflicted by his father). 2 Although we use the phrase “American criminal justice system,” there are actually many criminal justice systems in the United States operating at the local, state, and federal level under a host of laws, ordinances, principles and policies. Consequently, not all the practices we describe exist around the country in every single system and we try to explain how limited or pervasive the reach of each system is in the family ties burdens we examine. 3 See generally Dan Markel, Jennifer M. Collins & Ethan J. Leib, Criminal Justice and the Challenge of Family Ties, 2007 U. ILL. L. REV. 1147. 4 Id. at 1158-59, 1162-64, 1167-71; see also Jennifer M. Collins, Lady Madonna, Children at Your Feet: The Criminal Justice System’s Romanticization of the Parent-Child Relationship, 93 IOWA L. REV. 131, 145-49 (2007). 5 Markel, Collins & Leib, supra note 3, at 1190-99. 6 Id. at 1201-25. 2008] PUNISHING FAMILY STATUS 1331 responsibility laws imposing liability on parents because of crimes or misdeeds committed by their children, and criminal liability for nonpayment of child or parental support.7 Defendants are also burdened on account of their family status when they face prosecution for incest, adultery, or bigamy.8 In all seven of these instances, in the absence of the particular familial status of the defendant, the actions or omissions at issue would largely be ignored by the criminal justice system or treated more leniently. This Article analyzes these “family ties burdens” and asks whether they are justifiable as is or if redesigned. Although scholars have considered these burdens individually, part of our contribution here is viewing these burdens synthetically and explaining what sense, if any, can be made of them when viewed as a whole. Thus, in Part I, we survey the various sites in the criminal justice system where defendants who are members of state-recognized families face special burdens that are not visited upon individuals who are not members of a state-recognized family unit. We begin Part II by explaining why we have generally taken a “defendant- centered” perspective in thinking about the sites of family ties burdens, since many “burdens” on defendants based on family status may, conversely, have been established to benefit the family members of such defendants (and potential defendants).9 Focusing on family ties burdens from the defendant’s perspective helps raise awareness of why such burdens are normative yellow flags. As we explain in Part II, family ties burdens have tremendous potential to discriminate in ways we find unjustified.10 The rest of Part II constructs a 7 As we explain later, these family ties burdens might also be referred to as family ties “duties,” in the sense that particular obligations are imposed on individuals because of their family relationships. See discussion infra Part II.C. We have chosen to use the term “burdens” because we are focusing upon the state’s decision to use the power of the criminal law to induce compliance with those duties in the first instance and to penalize any eventual non-compliance. 8 We recognize that this group of burdens may fall into a slightly different category than omissions liability, parental responsibility laws, or nonpayment of child or parental support because a desire to enforce a certain vision of public morality might motivate a state’s decision to utilize the power of criminal law. We think it is important to recognize, however, that the state is promoting a certain vision of family within both categories of burdens, in that it is essentially trying to foster an environment in which caregiving can flourish, and we must consider whether the use of the criminal law in these contexts effectively serves that goal. In addition, these two categories of burdens are linked in the sense that the existence of a certain family relationship is a prerequisite for imposing liability, and thus both categories warrant analysis under our framework. 9 We acknowledge that some victims may feel that they, as well as defendants, have been harmed by family ties burdens. 10 Consider the example of omissions liability. Absent a contract or other special circumstances, a hypothetical Jill cannot rely upon the state to signal to her life partner Denise that Denise is obligated by law to prevent harm to Jill. This pattern risks marginalizing persons who consider themselves family members but are not recognized as such by the state or other institutions. In this sense, targeting persons with unusual 1332 BOSTON UNIVERSITY LAW REVIEW [Vol. 88:1327 normative framework to explain under what circumstances burdening family status might be justified. We highlight that the vast majority of the family ties burdens implicate the caregiving function of families. For example, society imposes liability on parents for their omissions to reinforce the notion of a special obligation worthy of enforcement through the criminal justice system: to care for their children by protecting them from harm. The same logic of promoting caregiving plausibly motivates criminalization of nonpayment of child and parental support and some of the other family ties burdens we discuss in Part I. The problem is that promotion of caregiving is expressed through family ties burdens in ways that are, at times, illiberal and insufficient. This conclusion is underwritten by an underappreciated point about how the criminal justice system allocates family ties burdens. Our research in Part I shows that the criminal justice system tends to enforce family ties burdens against those who have voluntarily chosen their caregiving role.11 In other words, state-imposed burdens tend to fall chiefly on those persons who have voluntarily entered into a status relationship and enjoy the privileges associated with that relationship, thus making it seem more just to require those persons to carry some burdens in return. Building upon this internal coherence, we argue that a voluntary caregiving orientation to burden allocation in the criminal justice system is much more attractive than allocation on formal familial status alone. Whatever one thinks of relational obligation within the family divorced from ideas about consent or voluntarism, when it comes to criminal justice design, liberal principles recommend a focus on voluntary caregiving rather than an arbitrary status-based allocation of duties. Indeed, a voluntarist approach to family ties burdens is expressive of and consistent with a “liberal minimalist” orientation to criminal law legislation. It is liberal in that it justifies additional interference into interpersonal relationships through criminal sanctions only through a showing that individuals have roughly consented to these extra obligations by their antecedent conduct of joining or starting particular relationships. A voluntarist approach is also liberal in a second sense in that it tries to carve out a large space for personal freedom to operate in a way compatible with the personal freedom of others. It is only with respect to these two notions (voluntarism and respect for robust liberties) that we use the term “liberal” or “liberalism.” And it is minimalist in two ways too. First, we seek a narrow tailoring between government objectives and the means used to advance those objectives. Second, we seek to constrain the use of criminal law sanctions when non-criminal measures are available and equally or nearly as effective in realizing the substantial public interest in reducing the prohibited conduct. Thus, even when the promotion of voluntary caregiving motivates the treatment on account of familial status is an under-inclusive (and, at times, over-inclusive) mechanism to distribute the criminal law’s tangible and expressive benefits. 11 There are some exceptions – largely those associated with incest and obligations to pay parental support – which we discuss. See discussion infra Part II.C. 2008] PUNISHING FAMILY STATUS 1333 establishment of a family ties burden, such burdens are unjustified if there are alternative and equally effective means of achieving the goal without resort to the criminal justice system and its particular power to infringe upon citizens’ liberties. With these principles in mind, Part III rethinks the family ties burdens we identify in Part I, in light of the normative framework developed in Part II. We hope to show why some of the burdens do not pass muster and how others can be preserved in some form, if they are reconstructed to avoid the substantial costs of using family status alone to distribute burdens. While we do not make the constitutional claim that family status should be a suspect classification worthy of strict scrutiny, we do believe that, as a policy matter, the government should be skeptical of the use of family status. In other words, to use the language of equal protection analysis without making the constitutional claim, the objective of the government should be at least “important” and perhaps “compelling,” and the means adopted to pursue that objective should be “narrowly tailored” to achieve that objective, looking especially to see if alternative measures might be just as effective. We also believe that impairment of liberties (including those associated with sexual autonomy) by pain of criminal sanction on the basis of family status needs to survive heightened – if not strict – scrutiny as a matter of policy.12 One important caveat: there are many wonderful studies on how the criminal justice system causes devastation to families and communities, especially in light of its mass incarceration practices.13 There is no doubt that many criminal law policies and practices disadvantage families in various ways – and without attention to this sort of disparate impact on families, policy designers risk tearing our social fabric at the seams.14 We agree that this lens is critically important in evaluating criminal justice policies. Nevertheless, this lens tends to track indirect results of other policies. For example, although lengthy sentences for minor drug crimes result in too many children growing up without access to a parent, surely the primary objective behind drug sentencing laws is not to separate children and their parents.15 Our focus here is different and has yet to be sufficiently addressed by the community of scholars interested in how the criminal law pressures families. Here, we examine those distinctively purposeful practices that consciously 12 We recognize this stands at odds with current constitutional doctrine that permits promiscuous use of severe criminal sanctions. See generally Sherry F. Colb, Freedom from Incarceration: Why Is This Right Different from All Other Rights?, 69 N.Y.U. L. REV. 781 (1994); Douglas Husak, The Criminal Law as Last Resort, 24 OXFORD J. LEGAL STUD. 207 (2004). 13 E.g., DONALD BRAMAN, DOING TIME ON THE OUTSIDE: INCARCERATION AND FAMILY LIFE IN URBAN AMERICA 30-35 (2004). 14 See id. 15 We recognize, however, that some judges might view these harsh drug laws as a means by which they can separate children from parents involved with dangerous drugs for the good of the child. 1334 BOSTON UNIVERSITY LAW REVIEW [Vol. 88:1327 target members of families for special burdens on account of their familial status. Scholars have been successful in analyzing the effects of certain criminal justice policies and practices on the family.16 But, most scholars have not recognized the panoply of laws expressly written to disadvantage persons based on family status alone. It seems important and necessary to pause and think through how and why our laws intentionally punish family status, and how in some cases the underlying goals of such a choice might be better served through other means. This Article hopes to clear that ground. In defining our focus this way, we do not intend to suggest that the particular liabilities addressed in this Article are necessarily guided by the intent of hurting or burdening family life. Indeed, it may be that many burdens on family status are “remedial” or intended to benefit family life even if they penalize particular defendants on account of their familial status. But in this context, it is worth remembering that at one time many laws disadvantaged women, for example, in the name of “protecting” them.17 Our purpose here is to excavate the family ties burdens currently directly imposed by the criminal justice system and to assess their desirability both now and as they could be. I. AN OVERVIEW OF FAMILY STATUS AND CRIMINAL JUSTICE BURDENS Certain crimes permit prosecution of a defendant for conduct that would otherwise be lawful in the absence of the defendant’s familial connection to the crime. Incest statutes generally proscribe sexual conduct even between mature, consenting individuals, and other statutes impose criminal liability for the nonpayment of child support, even though we do not ordinarily criminalize a failure to satisfy a private debt. We focus on statutes for certain omissions and parental responsibility liability, incest, bigamy, adultery, and nonpayment of child and parental support. In all these examples, state-determined familial status alters the blameworthiness the criminal justice system assigns to the underlying conduct.18 Although these examples are not necessarily exhaustive, we believe they are the most frequently found examples of the criminal justice system’s decision to criminalize certain conduct on the basis of family status.19 In what follows, we provide an overview of the doctrine associated with these 16 E.g., BRAMAN, supra note 13, at 5. 17 See Frontiero v. Richardson, 411 U.S. 677, 684 (1973); LINDA K. KERBER, WOMEN OF THE REPUBLIC: INTELLECT AND IDEOLOGY IN REVOLUTIONARY AMERICA 138-55 (1980). 18 Statutes criminalizing polygamy raise similar problems as those prohibiting incest between consenting and competent adults. In the absence of a marital connection to a third person, X may marry Y. In states prohibiting polygamy, X may not marry Y on account of the prior relationship X entered into with Z. 19 In addition to creating criminal liability, family status is used in some jurisdictions as a basis for inferring a breach of trust that serves as an aggravating factor at sentencing. See, e.g., R. v. Gladue, [1999] 1 S.C.R. 688, 740-41 (Can.) (“[T]he offence involved domestic violence and a breach of the trust inherent in a spousal relationship. That aggravating factor must be taken into account in the sentencing . . . .”). 2008] PUNISHING FAMILY STATUS 1335 family ties burdens. In Part III, we discuss and critique the rationales provided for them. A. Omissions Liability for Failure to Rescue In June 2002, prosecutors charged Shavon Greene, a twenty-one-year-old mother, with aggravated manslaughter after her boyfriend allegedly beat her twenty-one-month-old daughter to death. The prosecutor did not allege Greene was even present during the beating; instead, the prosecutor alleged she had disregarded warnings from a social services investigator not to leave the child alone with her boyfriend. Greene eventually pled guilty to culpable negligence.20 At a high level of generality, the general rule in American criminal justice (as well as tort law) systems is that citizens are under no obligation to rescue each other.21 In other words, even if the failure to help another person in distress would constitute a moral failing, the criminal justice system does not generally impose liability on those who keep on walking.22 The exceptions to the general rule are well known. As the D.C. Circuit famously stated in Jones v. United States: There are at least four situations in which the failure to act may constitute breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntary assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.23 In addition, one bears liability if one created the conditions of the victim’s peril or if one bears responsibility for the cause of the conditions of peril to the victim (for example, parents of children who pose peril to the victim).24 There are limits, however, to when liability will be imposed. First, liability will not 20 Diana Marrero & Shana Gruskin, Mom Arrested in Child’s Death; Police: Woman Ignored Danger by Leaving Daughter with Boyfriend, SUN-SENTINEL (Fort Lauderdale), June 21, 2002, at 1B. One of the fascinating aspects of this case is that the boyfriend was eventually acquitted in the child’s death, so only the mother’s omission was punished. Susannah Nesmith, 3 Years Later, Man Cleared in Baby’s Death, MIAMI HERALD, Feb. 11, 2006, at B4. 21 See 1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.2 (2d ed. 2003); David A. Hyman, Rescue Without Law: An Empirical Perspective on the Duty to Rescue, 84 TEX. L. REV. 653, 655 (2006). 22 A very small number of states have adopted so-called “Good Samaritan” statutes, imposing criminal liability in limited circumstances upon those who fail to rescue persons in emergency situations. E.g., R.I. GEN. LAWS § 11-56-1 (2002); VT. STAT. ANN. tit. 12, § 519 (2002). 23 Jones v. United States, 308 F.2d 307, 310 (D.C. Cir. 1962) (footnotes omitted). 24 JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 115 (4th ed. 2006). 1336 BOSTON UNIVERSITY LAW REVIEW [Vol. 88:1327 be imposed when rescue requires the defendant to make an undue sacrifice or when the defendant cannot physically perform the rescue.25 Second, no liability is imposed unless “the defendant’s failure to act . . . [is] accompanied by whatever mens rea the crime requires for its commission.”26 Of special interest here are the triggering conditions for omissions liability based on family status. The relationship of spouse-to-spouse and parent-to- child are paradigmatic examples of status relationships in which one owes a duty to rescue sufficient to trigger criminal responsibility (rather than mere tort liability).27 Thus, if a defendant “realizes (or culpably fails to realize) his wife is in danger, realizes (or culpably fails to realize) that he can rescue her with minimal risk and/or sacrifice, and realizes (or culpably fails to realize) that she is his wife,” then he can be criminally liable for homicide “if he is aware of the existence of the three elements (wife’s peril, his ability to rescue with low risk/effort, and wife’s identity).”28 In the parent-child context, parents have been held criminally liable for neglect for failing to protect a child from being sexually abused by another individual,29 and for manslaughter for failing to protect a child from fatal physical abuse inflicted by another.30 These prosecutions exemplify the family ties burden phenomenon in which persons in certain family relationships are held accountable for harms to family members even when another individual inflicted those harms. Trying to understand who precisely faces omissions liability based on the status of spouse or parent can be difficult since courts sometimes define these categories with sensitivity to differing circumstances. With respect to spouses or spouse-like relationships, courts have been leery of recognizing the 25 Id. at 113; see also State v. Walden, 293 S.E.2d 780, 786 (N.C. 1982) (denying “that parents have the legal duty to place themselves in danger of death or great bodily harm in coming to the aid of their children”); Andrew Ashworth, The Scope of Criminal Liability for Omissions, 105 LAW Q. REV. 424, 432-33 (1989) (discussing the requirement that the rescue must be an easy one). 26 Larry Alexander, Criminal Liability for Omissions: An Inventory of Issues, in CRIMINAL LAW THEORY: DOCTRINES OF THE GENERAL PART 121, 122 (Stephen Shute & A. P. Simester eds., 2002); see, e.g., R. v. Conde, (1867) 10 Cox Crim. 547, 549 (Cent. Crim. Ct.) (requiring a mens rea of “willfully” for conviction of murder and “negligently” for conviction of manslaughter in a case involving parents whose child starved to death after they did not give him food). 27 At common law, other status relationships could trigger a duty to rescue, such as the duty of a ship captain to the passengers. See generally State v. Mally, 366 P.2d 868 (Mont. 1961); LAFAVE, supra note 21, § 6.2(a). 28 See Alexander, supra note 26, at 139. 29 E.g., Muehe v. State, 646 N.E.2d 980, 982 (Ind. Ct. App. 1995); see also Michelle S. Jacobs, Requiring Battered Women Die: Murder Liability for Mothers Under Failure to Protect Statutes, 88 J. CRIM. L. & CRIMINOLOGY 579, 586-88 (1998). 30 E.g., Smith v. State, 408 N.E.2d 614, 616-17 (Ind. Ct. App. 1980); State v. Schultz, 457 N.E.2d 336, 336-38 (Ohio Ct. App. 1982).