Virginia's Court of Appeals overturned the child abuse and neglect conviction of a woman whose five-year-old went outside while she was sleeping and at some point drowned in a septic tank, saying the law
does not impose criminal liability on parents who fail to take positive action to ferret out every potential hazard to ensure the premises are safe. ... Over a century ago, Supreme Court Justice Harlan observed that “it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.” ... The tragic death of a young child is a hard case. When the child’s body is found in a septic tank after four days of searching, the case is even harder. But it would not benefit the general good of the community to expand Code § 18.2-371.1’s requirement of “willful” conduct to include a parent’s failure to protect a child from an undiscovered and unknown danger. Septic tanks are common in many areas of this Commonwealth. As tragic as the facts of this case are, to affirm this conviction would be to hold that Code § 18.2-371.1 requires a parent to search out potential dangers and continuously supervise his or her child. A parent could be subject to a felony conviction if he or she failed to recognize the danger posed by the unsecured tank cover, the unlatched gate, the rotted board, the unfenced pond, or any other hazard that, in hindsight, could have been corrected.
After driving her husband to work, the mother took a prescription suboxone -- a drug used to cure opioid addiction -- and fell asleep. She woke up to find her infant crying, the front door open, and her five-year-old son missing. Neighbors, the landlord, police and even the FBI searched for her son. One of them "lightly kicked" a septic tank lid, which popped off. He and another officer poked around in the tank's contents with a metal rod and felt nothing. Over the next few days, police officers and an FBI agent took the lid on and off several times, but at least two of them did not "secure" it "on the opening". Four days later the tank was drained and the boy's body was found in it. When it was drained there was only one screw in the lid, and no others were found anywhere nearby.
The trial court found that the mother knew about the septic tank; she knew her son loved to play near it, and that toys were typically left all over the yard and some had been found inside it the previous year, but the appeals court notes that there was no evidence of a reason for the mother to think the child had dropped them into it, rather than flushing them down the toilet, nor indeed that he was able to open the lid. Once, a month or two earlier, he had stood on the lid, and the mother had told him to get off it and never to stand on it again. The trial court took this as evidence that the mother knew of the danger of falling in the tank, but the Court of Appeals sees it as prudent and caring. And "no evidence suggested White knew of subsequent occasions when her son played on or near the lid, or engaged in dangerous activity in the yard."
The mother knew that her son liked to play outside in the fenced-in backyard, and that he had sometimes unlocked the door and gone outside on his own. But "is not sufficient to find that White was advertent to the likelihood that lack of supervision would result in serious injury. The Commonwealth was also required to show that White knew of a heightened risk in the yard such that the son would likely be injured if he played there unsupervised."
No evidence was presented from which the trial court could have inferred that the mother knew the lid could be opened easily. “Inferences must be based on facts and not upon other inferences or mere speculation.”
The mother told a lie which may have been unrelated to her son's death but, the Court says, played a major role in her conviction. When she took her husband to work, she left the five-year-old and the infant home alone. She initially told police she had taken them along, then admitted she left them home. That negligence was not criminal, the Court says, because it played no role in the boy's later disappearance, but it did legitimately affect her credibility.
The Court overturns the conviction because there was no proven willful act or omission, as required by the criminal statute, that caused the death.
Code § 18.2-371.1(A) provides, in part, “Any parent, guardian, or other person responsible for the care of a child under the age of 18 who by willful act or willful omission . . . causes or permits serious injury to the life or health of such child is guilty of a Class 4 felony.” The word [willful] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when ‐ 7 - used in a criminal statute it generally means an act done with a bad purpose; without justifiable excuse; stubbornly, obstinately, perversely[.] The word is also employed to characterize a thing done without ground for believing it is lawful.
The standard for willfulness in this context depends on an awareness of a particular danger, the Court says, combining the standards set out in Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d 453 (1999), where there was no known danger, and Barrett v. Commonwealth, 268 Va. 170, 597 S.E.2d 104 (2004), where there was. Continuing, with citations omitted:
"The term willful is stronger than voluntary or intentional; it is traditionally the equivalent of malicious, evil or corrupt.” “The term ‘willful act’ imports knowledge and consciousness that injury will result from the act done. The act done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury.” The terms “bad purpose” or “without justifiable excuse” necessarily imply knowledge that particular conduct will likely result in injury or illegality. “In other words, the defendant must have been aware that [the] [omission] was likely to result in serious injury.” “[S]omething more than negligence must be proved beyond a reasonable doubt to support [a] conviction ... the parent “must have been advertent to the likelihood that the conduct [omission] in question would cause or permit serious injury.” "The statute punishes willful omissions, which requires an awareness that the conduct would cause or permit serious injury. It proscribes advertence, not inadvertence. "
All this raises two major factual issues, which were more or less ignored:
1. How do we know that the mother was not lying when she said her son disappeared while she was sleeping, instead of while she was gone? After all, she initially lied about having left the children home alone while she took her husband to work. Then again, if she were lying about that, and the disappearance happened while she was away, would that be enough for a conviction, considering that it was the five-year-old, not the infant, who came to harm?
2. The appeals court notes that there was no proof that the child's possibly playing on the tank lid had anything to do with his death, but they don't come out and talk about what must have happened if that didn't happen, so I will:
A searcher initially found the septic tank with the lid ON. That means one of three things:
- The child jumped into the tank and put the lid on it from the inside. He was not found in the first search of the tank because it was not thorough enough.
- The child did not go into the tank when he first disappeared, but later, at some point when one of the searchers had left the lid off. (If indeed they ever did; the opinion is unclear, saying only that at one point it was not "secured" on the tank.) That is why was not found when the tank was first discovered, because he was hiding somewhere else at that time.
- Someone else put the child in the tank, alive or dead, and closed the lid. They may have done this after the first search of the tank, which would explain why the child was not found in the first search.
Postscript: By the time the appeal was decided, the mother had already served the 23 months of her sentence that had not been suspended.
White v. Commonwealth, 9/19/17