On June 3, 2005, Maureen Faibish’s son Nicholas Faibish was brutally killed by one of the family pit bulls. Mrs. Faibish had left him alone in the basement for hours, with a shovel to barricade himself against her raging pit bull, which had bitten the boy that same day. When she left the house, it was not to borrow some rice from the neighbor across the street, but to attend a carnival for a few hours with her daughter.
The San Francisco District Attorney’s Office filed felony child endangerment charges against Maureen Faibish. The trial took place in 2006. Every day in court, Mrs. Faibish cried. She could not look at the photos. Proceedings were halted repeatedly when she had to be let outside for air. When it came time for the jury to make a decision, only two voted guilty. The judge declared a mistrial, and Mrs. Faibish moved to another state.
The San Francisco District Attorney’s Office had the right to try Mrs. Faibish again, on the same charges. However, it dropped the case. The prosecuting attorney told the trial judge that there was nothing new to present in a second trial, and suggested “a possibility, perhaps even a likelihood” that a new jury would also deadlock.
This is the same district attorney’s office that obtained the second degree murder conviction of Marjorie Knoller in the Diane Whipple case. Why did they drop the Faibish prosecution?
A close look at a number of canine-inflicted homicides suggests that it is practically unheard-of for parents or grandparents to be convicted of crimes when their children or grandkids are mauled to death by the family dog. In this context, the Faibish prosecution was hardly a half-hearted gesture, but a rare attempt to bring the real guilty party to justice. As they say, punish the deed, not the breed.
A comparison of two Bay Area killings sharply illustrates the deferential treatment that prosecutors give to parents and grandparents. Within a few weeks of Diane Whipple’s death, a 6-year-old girl was killed by dogs in the San Francisco Bay area. The circumstances of these maulings were very similar. Both victims were killed by two dogs that worked together. The breeds were known to be dangerous: Presa Canarios in the Whipple case, Rottweilers in the case of the little girl. In both cases the dog owners were just a couple of feet away, but somehow did not prevent the maulings. And the dog owners in both cases had exceptional knowledge about the dangerous propensities of the breed of dog that did the killing.
There also were significant differences between the two attacks. Whipple was a grown woman; the other victim was a child. The dog owners in Whipple’s case were neighbors; in the child’s case, it was her grandmother. The Whipple defendants went on the offensive, making accusations against the deceased victim, while the grandmother was grief-stricken.
Prosecutors treated these two cases as different as night and day. Both of the Presa owners were charged with serious felonies, and both were convicted; one owner was convicted even though he was not present when Whipple died, and the other was convicted of murder (the case is being appealed). But no charges of any kind were filed against the owner of the dogs that killed the little girl.
Why not? What was at the heart of the decision to file murder charges in connection with Whipple’s death, and totally drop the ball in the other case?
The answer to this question probably lies in a nasty cultural bias. There is an almost universal belief that parents are entitled to wide latitude in raising their children. Recall that, in a not so long ago time, children and wives actually were the property of a man, and he could do with them just about whatever he wanted. In the law, this became the doctrine of parental immunity, which stated that a child had no recourse against his parents for any act or inaction which resulted in the young one’s injury or damage. One court stated:
It would impose a fetter on parental judgment and discretion [to allow a child to have recourse against his parents]….Some parents might choose to be highly protective, others might accept that their children will get hurt, or hurt themselves, as a necessary part of the child’s development. (Holodook v Spencer 36 NY 2d 35, 329 (1974).)
The doctrine of parental immunity has been abandoned or at least modified in many American states. Children can now make claims against parents under a range of circumstances. Exposing a child to a strong and obvious danger can result in civil liability. Gibson v. Gibson (1971) 3 Cal. 3d 914, 921. The proper test of a parent’s conduct is what an ordinarily reasonable and prudent parent whould have done in similar circumstances. Gibson, ibid. The usual rules of negligence are modified when the issue is the parent’s liability to his child for injury to that child.
Nevertheless, in the absence of something obviously harmful, the courts and our culture take a very hands-off attitude when it comes to the treatment of children by their parents. “Supervision is uniquely a matter for the exercise of judgement. For this reason parents have always had the right to determine how much independence, supervision and control a child should have….” Holodook v Spencer 36 NY 2d 35, 346 (1974). “The parent is clearly in the best position to know the limitation and capabilities of his or her own children. These intangibles cannot be adequately conveyed within the formal atmosphere of a courtroom. Nor do we believe that a court or a jury can evaluate these highly subjective factors…” Foldi v Jeffries 93 N.J. 533, 461 A.2d 1145 (1983).
Accordingly, when a parent or grandparent appears to be genuinely sorry for the death of a child under their care, people give them every benefit of the doubt. Misdeeds and negligence which would be intolerable from a neighbor are judged in the softest and most gentle light when parents engage in them. Bluntly, parents and grandparents appear to be able to get away with murder, if only it looks like they were trying their best, and they show an appropriate amount of grief.
The Faibish prosecution bowed to those deep-seated beliefs that excuse the crime of a parent against a child, as long as the act is loosely within the wide, wide scope of parental discretion, and the parent shows grief. The tears of Maureen Faibish won the day — over the blood of her son and, some would say, over common sense.