Equalizing Positive and Negative Obligations

Society imposes on all of its members certain negative obligations—

that is, obligations to refrain from certain conduct. Close personal

relationships also create positive obligations—that is, obligations to

affirmatively perform tasks. These positive obligations are recognized

social norms and are enshrined in modern laws. Treating stranger violence

211. Davis & Smith, supra note 107, at 178–79.

212. See Simon, Sex Offender Legislation, supra note 6, at 493–94 (“Family offenses such as child sexual abuse . . . caus[e] victims irreparable harm due to the betrayal of a trusted relationship.”). 213. U.S. SENTENCING GUIDELINES MANUAL § 3B1.3 (2006) (“If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.”).

214. U.S. SENTENCING GUIDELINES MANUAL § 3B1.3 cmt. n.1 (2006) (“‘Public or private trust’ refers to a position of public or private trust characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference).”). Other jurisdictions do not appear to have such limitations. For example, California considers whether “[t]he defendant took advantage of a position of trust or confidence to commit the offense” to be an aggravating factor for all crimes. CAL. R. CT. 4.421(a)(11).

215. See, e.g., Elizabeth Rapaport, Capital Murder and the Domestic Discount: A Study of Capital

Domestic Murder in the Post-Furman Era, 49S.M.U. L. REV. 1507, 1542 (1996) (arguing that “[a]ll

domestic violence exploits the vulnerability and trust which accompany intimacy”).

216. See ONTARIO WOMEN’S DIRECTORATE, BREACH OF TRUST IN SEXUAL ASSAULT: STATEMENT OF THE PROBLEM 3 (1992) (noting that in sexual assault cases “judges often fail to recognize a breach of trust, although it is a standard aggravating factor in sentencing guidelines,” and that in cases where the offender is “a father; paternal figure (e.g., the mother’s common-law partner); relative of the victim; friend of child victim’s parent, or parent of the child victim’s friend . . . a trust relationship may be presumed to exist”).

as more serious than violence occurring within close personal relationships

is in tension with this system of positive obligations. Just as close personal

relationships create positive obligations, they should also mandate strict

observance of negative obligations.

Marriage and filial relationships both give rise to legally enforceable

obligations. At common law, a man had a duty to financially support his

wife.

_{Nowadays the obligations of support apply to both spouses: “most}

states have enacted a variety of family expense statutes that codify the

spousal duty of support and statutes that impose criminal sanctions for

non-support. Family expenses and criminal non-support statutes also apply

to an equal, and sometimes greater, extent to child support.”

_{Like the bi-}

directional duty of spousal support, some states have enacted statutes that

require adult children to support their elderly parents.

Financial duties are not the only positive obligations within families.

Parents have the obligation to provide their children with certain

necessities (e.g., food, water, and medical care), the obligation to supervise

their children, and the obligation to intervene to protect their children from

abuse or neglect by another.

_{While an individual ordinarily has no legal}

duty to come to the aid of another citizen, a parent can be found criminally

liable for failing to perform these obligations.

Other close personal relationships, such as those between siblings and

close friends, may also create positive legal obligations. In Texas, for

example, courts have held that a close, personal relationship may give rise

217. That obligation could be enforced by the wife. See Robert Coleman Brown, The Duty of the

Husband to Support the Wife, 18 VA. L. REV. 823, 846–47 (1932) (noting that courts permitted a “direct action by the wife to have support decreed to her” without requiring her to first seek a divorce or a judicial separation, but the wife did have to show justification for living apart from her husband). Alternatively, the obligation could be enforced by third parties who had sold necessary goods to the wife. See id. at 843 (“The conception of the common law judges was that the duty [of a husband to support his wife] was to be enforced through the merchants or other outside parties who have furnished the wife with necessities.”); JOHN DE WITT GREGORY, PETER N. SWISHER & SHERYL L. WOLF, UNDERSTANDING FAMILY LAW § 3.10 (3d ed. 2005) (“[Under the doctrine of necessaries] the wife and children could purchase any essential goods or services, including food, clothing, shelter, and medical and legal services, on the husband’s credit and the husband became directly liable to the provider of these necessary items. Unlike agency law principles, the doctrine of necessaries held the husband responsible regardless of his consent to, or knowledge of, the purchases”).

218. GREGORY ET AL., supra note 217, § 3.12.

219. A “majority of states have enacted relative responsibility statutes . . . requiring adult children to contribute to the support of needy parent. Some states also have statutes that create a crime of failure to support a parent in need.” GREGORY ET AL., supra note 217, § 3.14; see also Ann Britton,

America’s Best Kept Secret: An Adult Child’s Duty to Support Aged Parents, 26 CAL. W. L. REV. 351

(1990); Walton Garrett, Filial Responsibility Laws, 28 J. FAM. L. 793 (1980).

220. Jennifer M. Collins, Crime and Parenthood: The Uneasy Case for Prosecuting Negligent

Parents, 100 NW. U. L. REV. 807, 818 (2006).

to an “informal” fiduciary relationship.

_{Similarly, some (though not all)}

courts have held that “friendship may be a relevant factor in establishing a

party’s right to rely on representations” or in assessing a duty to deal

fairly.

There is an inherent conflict between positive and negative obligations

in a regime that treats stranger violence more seriously than violence in

close personal relationships. For example, a mother who strikes and kills

her child may receive a lighter sentence than a stranger who strikes and

kills a child. If, however, the mother watched the stranger strike and kill

her child, and if she did nothing to protect the child, both she and the

stranger would be punished: the stranger would be punished for killing the

child, and the mother would be punished for failing to protect her child. A

regime that punishes more harshly the stranger who kills the child than the

mother who kills the child attaches less value to the mother’s negative

obligation not to harm the child than to the stranger’s negative obligation

not to harm the child. And such a regime completely fails to account for

the mother’s positive obligation to protect her child. The stranger has a

duty not to hurt the child, while the mother has both an obligation not to

hurt the child and an obligation to protect him.