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.