Nasty, Brutish & Short

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Still MORE on Brenda Nesselroad-Slaby

September 9, 2007 09:56 AM

Kudos to Dan Horn and the Enquirer for writing a story about the Brenda Nesselroad-Slaby case that actually explains the legal issues involved.  Newspapers rarely look at these matters in depth, and it's definitely unusual to see the popular press analyze mental states and what they mean under criminal law.  Oh sure, Dan doesn't throw out the Latin, so I will:

Actus non facit reum nisi mens sit rea.

It means "the act does not make a person guilty unless the mind is also guilty."  There are different mens rea (i.e. mental states) and culpability is based on whether the offending party possessed the mental state that comports with a particular crime.  In the Nesselroad-Slaby case, the necessary mental state is recklessness, and to prove that, you need to show that the offending party perversely disregarded a known risk.  That is different than forgetting something.  As the Prosecutor explained:

"Here's my challenge to anyone who thinks she should have been charged: Do you believe she left her child in there on purpose?" White said. "That's what I have to believe as prosecutor to charge her. That's what the law is."

The law he's referring to is child endangering, which in Ohio requires a parent or guardian to act recklessly by disregarding a substantial risk.

To many, there is little doubt the mother was reckless. But the legal definition of reckless requires proof the mother perversely disregarded a known risk.

"When people hear the word reckless, they say, 'Well, certainly this person was reckless,' " Piper said. "But the legal definition of reckless is way, way higher than the definition we use every day."

White decided the evidence supported Nesselroad-Slaby's claim she forgot her child was in the car. Once he made that decision, criminal charges were out of the question.

If the mother forgot, White said, she could not have disregarded a risk because she didn't know the child was there.

That is why this is completely different than cases where someone leaves a baby in the car while running errands.  In those cases, they haven't forgotten the baby.  They're just leaving it the car, and assuming (wrongly) that nothing is going to happen to it.  When someone does that, they are perversely disregarding a known risk, and they can be charged with child endangering.

One other quick legal point: The purpose of criminal law is two-fold.  It is designed to punish the offending party, and to deter future conduct (either the offending party's future conduct, or someone else's).  In this case, prosecuting Brenda Nesselroad-Slaby would not have a deterrent effect on her or anyone else.  There's zero chance she'll leave a baby in a hot car again.  And as for members of the public, no one is more likely to leave their baby in a hot car just because Brenda Nesselroad-Slaby wasn't prosecuted.  If anything, people are going to look at this tragic situation and be more cautious about their kids, not less.

And as for punishing her, I have to say that the people who think she needs to be punished more are just creepy.  I can think of no worse a punishment than having your child die and have it all be your fault.  The idea that something more should be piled on top of that is just vile.  People need to keep their blood lust in check.  And, they need to watch out for bad karma when they demand that someone else be prosecuted for what was obviously an accident.  It's not something you would want to have happen to you. 

Comments

I'm sure glad Brenda Nesselroad-Slaby isn't my Mom. Aren't you?

Mike   ·  September 10, 2007 01:46 PM

Of course she should have been charged with a crime. What she did was totally reckless, and no one could ever prove that she didn't do it on purpose. Mothers kill their babies every day of the week. This poor child was tortured and murdered, if she had done this to a dog, she would be in jail now. But dead children can't vote and animal rights activists can. This will become the way to legally kill a child if she gets away with this.

Mary   ·  September 10, 2007 09:08 PM

Brenda Nesselroad Slaby is a disgusting fat pig, who remembered donuts and forgot her suffering, dying child. She should rot in jail and then rot in hell.

Barbara   ·  September 10, 2007 09:10 PM

Geez people. I'm not saying she should be nominated for Mother of the Year. I just don't think she should have been prosecuted.

Nasty, Brutish and Short   ·  September 10, 2007 11:49 PM

Ok I understand most people's opinion on this matter. Had this been a one time incident, then yes I can say accident. HOWEVER, this had not been the first time she had been warned not to leave her child in the vehicle. I am sorry but for most of the logical world it would only take one time before as a mother I would constantly be in a panic and double checking my vehicle. There is at least one police report, as well as an incident where a parent became concered and another where the school administrator had to warn her. To me that is a repeat offender and in this case yes she should have been charged. To me, MOM'S DO NOT FORGET THEIR KIDS!

Yvonne   ·  September 19, 2007 08:13 AM

I think the Assistant Principal should be let go from her job. Do parents really want this woman to care for their children as she cared for her own.

What an outrage. She should be strapped in a 100 degree car for eight hours to experience what this little helpless child went through. To donuts for a meeting but to forget your child...is senseless.

E   ·  September 25, 2007 09:11 AM

After a warning What usally happens?It seems that the police were doing their job and bring fair while giving BNS only a warning.This is probebly why the Police asked for charges,this being the second time.I know that Dan White had this info.He should NOT be allowed to judge people.One MAN should not have such power.BNS left CECE in the car all the time.That is why she was forgotten.If Dan had turned this info over to proper channels BNS would now would not be allowed to collect from School.Thanks Dan.Good job.Now even more children lose.

Jan   ·  October 12, 2007 05:41 AM

You idiot. The only ones that are creepy are those who put the mother's interests ahead of the child. So what if a person runs a stop sign that they "accidently" didn't see and hit a child that they "accidently" didn't notice, say, because they were preoccupied with the donuts in the front seat of the car and were concerned that they would fall in the floor? Should a person not be charged in such a hypothetical incident? How is this woman's actions any less negligent? The reason she wasn't charged was because of the laws in Ohio that need to be changed. I have a feeling if that's fixed, somehow these parents won't be so irresponsible and uncaring as to leave their children to bake in hot cars. You are disturbed, confused and actually downright stupid.

JMC   ·  October 26, 2007 09:39 AM