Gender & Sexuality Law Blog

Wednesday, a Brooklyn judge sentenced Nixzaliz Santiago to 43 years in prison for failing to protect her daughter, Nixzmary, from her step father’s violence. “You, Ms. Santiago, ignored these desperate calls,” said the judge at sentencing. “You may not have delivered the fatal blow, but the jury found it was in your power to prevent the effects of it. Were it not for your failure to act, Nixzmary Brown would have probably not died from that blow on that day.“

What happened to little Nixzmary is horrendous, abominable, unthinkable.

Yet, let’s think about the sentencing of her mother. She will serve up to 43 years in prison for a failure to intervene on her daughter’s behalf. Casar Rodriguez, Nixzmary’s step father and the one who tortured and killed Nixzmary, was convicted of manslaughter in a separate trial last month and received a sentenced of up to 29 years, twelve years less time than Nixzaliz Santiago got.

How can it be that Nixzmary’s mother received a substantially higher sentence than did the man who directly inflicted the abuse on his seven year old step daughter?

Many have defended the disparity of the sentencing. As one blogger has noted:

In the tragic case of Nixzmary Brown, the little girl’s death was the result of both of her parents’ actions. Despite looking at them equally in the eyes of the law as far as their guilt, Judge DiMango overwhelming felt that the child’s mother could have stopped the horrific event and ultimate death from happening. We can all agree to disagree on who is more culpable and argue that one parent’s actions were worse than the other’s, but there are a few things that cannot be disputed. Crimes against children are not tolerated at any level in New York and little Nixzmary Brown’s death was appalling, heartbreaking, and a blemish for us all.

But is this last observation something upon which we can all agree? I don’t think so. Nixzmary’s death generated tremendous public attention, not only for what happened, but for what didn’t happen. The NYC Adminstration for Children’s Services (ACS) had been notified on several occasions of the likely abuse of Nixzmary, and they did nothing, although they are legally obligated to investigate suspected child abuse and intervene, if necessary, to protect the child. So child abuse is tolerated in New York City, and, perhaps more remarkably, by the U.S. Supreme Court. In two important cases, deShaney v. Winnebago County and Gonzalez v. Castle Rock, the Supreme Court has held that the U.S. Constitution imposes no obligation on pubic agencies that are set up to protect children to actually provide that protection – even if they have ample evidence of abuse and even if the courts have issued a domestic violence restraining order against the people who are abusing them. (Columbia’s Human Rights and Sexuality and Gender Law Clinics just argued the Castle Rock case before the Inter-American Commission on Human Rights – see post below.)

So in a situation like that of poor Nixzmary Brown, the City of New York’s child welfare officials have no legal responsibility for Nixzmary’s death – even though that is what they exist to prevent – while her mother bears the brunt of the criminal responsibility for this tragedy, even though she was also being abused by the man who killed Nixzmary (including causing her to miscarry a pregnancy), and was unable to call the police to come to her and her daughter’s aid because Rodriquez had disconnected the phone, thereby isolating Nixzmary and her mother in the grip of this violent man.

I’ll repeat: What happened to little Nixzmary is horrendous, abominable, unthinkable. But seeing the problem as one that is best addressed exclusively with criminal law prosecutions is a tragedy as well. Particularly when the outcome of those prosecutions reinforces gendered stereotypes about men’s violence and women’s responsibility to protect their families from that violence. This is an old story – women civilizing men – and it has no place in our criminal justice system, or in further justifying the legal conclusion that no consciences were shocked when ACS failed to step in and help Nixzmary Brown.