by Kim Brooks
“No. No. I was not aware of that.”
I heard papers shuffling, a hand over a receiver, something muffled. “Looks like it was issued back in May of last year. About a year ago. I’m just doing some housekeeping here, following up on open files. So do you know what this is in regard to? Can you tell me a little bit about what happened?”
It occurred to me for the first time that I was talking to the police. Never talk to the police without a lawyer, I remembered my father telling me. Or was it a character on Homicide who’d said this? “I’m sorry,” I said, my voice hardly more than a whisper. “I need to have my lawyer call you back.”
“Oh, I doubt that’s necessary. Up to you of course, but I’m just trying to gather information here, to follow up.”
“I’ll have my lawyer call you.”
I hung up the phone. I tried to put it back in my pocket, but there was an empty juice box in my pocket. Pete, I thought. I have to call Pete. My fingers were shaking as I dialed. I don’t remember if I was crying or screaming when he answered, only that he was saying he couldn’t understand me, that I needed to calm down, to tell him what happened.
“There’s a warrant out for my arrest in Virginia,” I said. And then something happened that I wasn’t expecting. I started laughing. I was crying and I was laughing and I was still sitting on the sidewalk with my purse and my computer bag beside me on the ground. A woman walked by with her poodle. A man rode by on his bike. People were getting out of cars, talking on cell phones. But no one stopped. No one slowed down. They looked, and then they looked away, seeing this woman unraveling, sprawled out on the sidewalk, laughing and crying. I don’t blame them for averting their gazes. I would have done the same.
* * *
Where do our fears come from? How do we decide, as a culture, as a country, as an individual, what we’re going to worry about? When do we wring our hands and take every precaution, and when do we throw up our arms and say, “What can you do?”
At some point very early in my life, it was impressed upon me that the worst thing a human being could endure was the loss of a child, that there is no cost too high to pay if it protects one’s child from harm. I never questioned or doubted this assertion. But what happens when this same way of thinking is used to shape policy and law? A number of legal experts I spoke to pointed out to me how frequently legislators and advocates of various stripes will say things such as, “There should be no cost too high to pay if paying it will save even one child.” It sounds obvious. It sounds like the kind of statement no humane person could challenge. The only problem with such a statement is that of course it’s not true. We, as a society, decide that the cost is too high to save people all the time. In 2015, 35,992 people died in car crashes, and 938 of them were children under the age of thirteen. We could reduce moving-car fatalities to almost zero if we reduced all speed limits to ten miles per hour. But we don’t do it. In 2008, the CDC found that there were 234,094 nonfatal bathroom injuries treated in hospital emergency rooms for people older than fifteen. Many people suffer serious or even fatal injuries falling in the shower. We could reduce this to almost zero by making protective headgear a part of our bath routine. Drowning is one of the leading causes of death for children. We could save so many if we never let children near water. But we don’t resort to these measures; we don’t take these precautions. The cost is too high, the benefits too great to forfeit.
This kind of cost-benefit analysis is unavoidable. It’s simply a part of being a person with a functioning prefrontal cortex living in a dangerous and unpredictable world. But what I began to see after talking to Sarnecka and Bloom was that something had happened in recent decades to weigh the analysis toward the side of risk, away from the benefits, especially when it came to children.
In the five years since I’d become a mother, I’d heard about or read about or watched news segments about babies who’d stopped breathing in their cribs, who’d developed horrible, incurable, degenerative diseases, who’d been hit by cars or fallen out of windows or stumbled down stairs or choked on checkers, who’d been maimed by a family dog, scalded by a cup of instant noodles, drowned in the backyard swimming pool when a parent turned away for just one minute. One day my father said to me, “Want to hear a horror story?” He told me about a malpractice lawsuit one of the doctors at his hospital was facing. A two-year-old had been brought into the emergency room with loss of appetite, stomach pain, and vomiting. “Gastroenteritis,” the attending concluded. “Stomach flu’s going around.” The parents were sent home. The symptoms worsened. A day or two later they returned to the hospital. X-rays were ordered. A small, flat round object was visible inside his intestine. A penny, they thought. “Happens all the time,” they said. “He’ll pass it.” A few days later they returned when the child began vomiting blood. They took him into surgery. It wasn’t a penny but a lithium battery. It was leaking acid into the child. He died a few hours later.
What is the moral of such a story for a concerned parent? What is one supposed to learn? There is no moral. The moral is fear.
* * *
Over the course of the next week, I tried to figure out the best way to proceed. I spoke with the new lawyer, asked him how so much time could have passed, why I’d never been informed of the charges. He was flummoxed, said he didn’t understand it either, that perhaps it had to do with my living out of state, that maybe the Virginia police couldn’t find me.
“Couldn’t find me?” I yelled into the phone. “They called me on my cell phone. They showed up at my parents’ house when it happened. I’m not exactly hiding in a cave.”
He told me there was a particular prosecutor he wanted to approach about the case, someone with whom he had a good relationship, “a reasonable fellow,” he called him. But the next day, he told me the call hadn’t gone well. The prosecutor wasn’t as amenable as he’d expected because of the amount of time that had passed since the incident. “He wants to know why you didn’t come forward earlier. Why we’re dealing with this now, a year after the fact.”
I felt the situation spinning out from under me. This is how bad things happen, I thought. A speeding ticket goes unpaid, a court summons goes unanswered. Shit escalates. Incidents become ordeals. I tried to speak slowly, to keep my voice calm. “We’re dealing with this now because I was never notified about the charges, because when I emailed you about it a year ago, you told me no one was pursuing it.”
There was a long pause. I dropped my head onto the table.
“I don’t suppose you still have any of those emails?” he asked.
“You mean you don’t have them?” It occurred to me that I was definitely not on an episode of Homicide. I hurried home, dug the emails out of my inbox, and a few minutes later I forwarded them along.
“Now we’re in business,” he told me the next time we spoke. “This proves it; they’re the ones who dropped the ball on this, not us.”
“That’s terrific,” I said. “What now?”
“Now, we need to plan a time for you to come back to Virginia so you can self-report.”
Self-report. I imagined holding out my hands for cuffs, my fingers for prints. Then I instructed myself to stop imagining. I needed to keep myself rooted in reality if I was going to get through the next few weeks.
“And what does self-reporting entail?” I asked.
“Well,” he said, as though this were all the most common thing in the world. “It involves you coming back to Virginia to be arrested.”
* * *
A few weeks later, I stood in front of my closet, staring at the blouses and skirts I no longer wore now that I’d stopped teaching, wondering what one wears to be arrested. Nothing I owned seemed quite right; every outfit seemed too dowdy or too casual, ill-fitting or overly bright. I had one pair of taupe trousers, but buttoning them would result in broken blood vessels. My friend Beth, who was my kids’ occasional babysitter, sprawled across my bed and tried to comfort me.
“They must have
shrunk,” she suggested.
“Yes, everything is shrinking. I’m staying the same.” I stepped out of the pants, dropped them into my suitcase. “Do you think it’s still baby weight when the baby is almost three?” I asked her.
“Who cares what you wear? I think you’re overthinking this. It’s going to be like paying a speeding ticket.”
I hoped she was right; at the same time, I doubted it. It wasn’t only the warrant I had to see to, but my initial arraignment in court. Because I lived out of state, my lawyer arranged for it to happen in a single trip, a process that would normally take weeks. I would meet him at a local jail where the charge would be processed. Because I was self-reporting, because I didn’t pose any immediate threat to my victims, I’d be released without bond, given a time and day to appear in court for the arraignment, where my lawyer would present to the judge the agreement he’d made with the prosecutor. He’d told me about this agreement a few days before with a great deal of excitement. It was exactly what he’d hoped for.
I also found out what I was being charged with. This apparently had taken the authorities some time to determine—because there is no statute in Virginia (lots of other states too) for dealing with a case like mine. But you can’t just charge someone with misdemeanor Lousy Parenting or Behaving in a Way We Don’t Like. There needs to be an actual law on the books being violated. They went with contributing to the delinquency of a minor. The buying-beer-for-teens rap. It’s item 18.2 in the Code of Virginia. Part i pertains to anyone who “willfully contributes to, encourages, or causes any act, omission, or condition that renders a child delinquent, in need of services, in need of supervision.”
The prosecutor would agree not to pursue the charge of contributing to the delinquency of a minor if I completed one hundred hours of community service and twenty hours of parenting education over the course of nine months. I would be allowed to meet these terms in the State of Illinois. If I stayed out of trouble during this period and provided documentation of having met these requirements, it would demonstrate that I’d learned my lesson. The charge would be dropped. It would disappear, and I could put it all behind me.
As I listened to my lawyer describe the terms, I felt relief, but also awareness at the absurdity of it all, a feeling that I still didn’t fully understand the legal context of what was happening.
“I don’t get it,” I told him. “Contributing to the delinquency of a minor? It makes no sense.”
He told me it wasn’t so unusual. In 2007, the state had tried to pass an ordinance that would penalize civilians who left a child under six alone in a vehicle if the conditions within the vehicle, including temperature, or in the immediate vicinity of the vehicle presented a risk to the health or safety of the child, and make it a misdemeanor for multiple offenses. The penalty for a first offense would be a hundred-dollar civil penalty—in other words, a ticket. But the legislation didn’t go far and never came to pass; instead, the act of leaving a kid in a car would continue to fall into a legal gray area. The extent of this grayness became clear to me only later, when I spoke with other mothers who’d been charged with half a dozen different crimes for similar acts, everything from felony child neglect to misdemeanor child endangerment.
“Although historically a matter of state law, the child welfare system has become increasingly federalized through a series of statutes passed by Congress since 1974,” writes David Pimentel, a lawyer who has written about the legal issues of parents’ rights, in Fearing the Bogeyman.
In 1995, the Senate Committee on Labor and Human Resources issued a report finding that the rate of unsubstantiated reports of child abuse and neglect had skyrocketed and was “overwhelming an already overburdened child protective system.” Congress settled on language that is in effect today, defining child abuse and neglect as any “recent act or failure to act which presents an imminent risk of serious harm.” In this regard, I was lucky. Contributing to the delinquency of a minor was only a misdemeanor. It might keep me from getting another teaching job. It might prevent me from ever adopting a child, or it could be held against me should I ever be involved in a custody dispute, but at least it wasn’t a felony. My lawyer explained that the charge was a bit of a stretch given the offense, but technically “contributing to delinquency” included the act of “rendering a minor in need of services.”
“So for example,” he said, “if you’d left your son there and not come back, someone from social services would have needed to come, bring him in, make sure he was safe and such.”
“But I did come back. I came back after a few minutes.”
“A gray area,” he repeated. Then he went on to remind me that in my case, it wasn’t just that I’d left my son, but that someone had seen me do it and stood there and recorded it and called the cops and given them the video. In cases like these, the judgment of a stranger, a neighbor, any person passing by was as, if not more, important than the judgment of the parent.
“A Good Samaritan,” I said. “They couldn’t have just talked to me directly? Am I so intimidating?”
“Look,” he said. “Here’s how I see it. I’m glad we live in a world where people are watching out for kids. I’m glad that when a concerned someone thinks they’re seeing something wrong taking place, they get involved. No one wants the kid they pass by in a parking lot to end up on the six o’clock news. That’s a good thing. But in your case, what you did wasn’t malicious. It wasn’t neglectful. It was a temporary lapse in judgment. This is what we need to stress.”
“A concerned someone,” I repeated to the lawyer.
I picture this concerned someone standing beside my car, inches from my child, holding a phone to the window, recording him as he played his game on the iPad. I imagined the person backing away as I came out of the store, watching me return to the car, recording it all, not stopping me, not saying anything, but standing there and dialing 911 as I drove away. Bye, now. At this point, almost a year had passed since it happened. I could hear my lawyer shuffling papers. I looked down and saw that my hands were shaking. My hands were shaking, but unlike before, I wasn’t afraid. I thought of Lenore Skenazy: It’s not rooted in any true change or any real danger.
“I don’t know,” I said. “It doesn’t sound to me like I committed the crime I’m being charged with. I didn’t render him in need of services. He was fine. He was perfectly safe in that car for a few minutes. Maybe I should go to trial.”
The lawyer’s response was instant and unequivocal. “I don’t think you want to do that. This is going to be handled in juvenile court, and the juvenile courts are notorious for erring on the side of protecting the child. I would strongly advise not taking any risk.”
I can’t remember if he said it or only implied it, but either way, the warning took root. You don’t want to lose your kids over this. It was the first time the idea had skulked out of the darkest, most anxious corners of my mind. My lawyer and I said we’d talk later. I thought I was going to be sick.
* * *
For my day in juvenile court, I finally decided on a pair of tailored trousers and a shapeless, lavender blouse. I wanted to look composed but not businesslike, educated but not urbane, feminine but not sexy; in other words, I wanted to embody the almost unsexed softness of motherhood. In conservative, rural-suburban central Virginia, this is how a good mother was supposed to look. The good mothers I had grown up with were quiet, gentle-mannered Christian women. In the winter, they wore sweaters with reindeer on them. In summer, they wore loose, floral blouses. They wore Mary Kay lipstick and permed their hair and rolled hot dogs in crescent buns on special occasions and deferred to their husbands. My household was different. My mother, a loving, frenetic New York Jew with wild mood swings and a poorly calibrated social sensor, was a different story. She would be of no use in helping me dress for court.
“You ready, Kimmy?” my father called from down the hallway, the same way he called for years to make sure I was awake and dressing for school. I was staying
with my parents for my self-reporting visit. My dad had taken the day off from work to take me to the Chesterfield County Jail, where the lawyer would meet us.
“Ready,” I called back, applying the lightest shade of lipstick I could find.
My father was wearing one of his work suits—gray, wool; he already looked uncomfortable in the summer heat even before we’d stepped out of the house. When he asked the day before if I wanted him to come with me, I’d said he didn’t have to, that I’d be fine on my own. Then a few minutes later I realized how much I needed him. Nothing too terrible was going to happen to me if my father was there beside me. I recognized this way of thinking as a holdover from my childhood—but at that moment I experienced it once again as fact. I remembered Felix’s self-assured words: I think it’s your fault. I remembered the car accident I’d been in as a child, the thought that my mother shouldn’t have let us get hurt. I remembered an Israeli friend whose brother had died in an accident in the desert at the age of sixteen. She’d been twelve at the time, and she told me the hardest part of the grieving process was trying to convince her parents that it was not their fault, that they were not omnipotent. “I was just a kid,” she told me. “I wasn’t ready to learn that lesson, but I had to.” How awful it is, this realization we all must come to, that our parents are not, in fact, gods; that try as they might, there are times when they can’t protect us.
* * *
We drove across town (if you can call the expanse of unconnected suburban developments a town) to the courthouse. It was a beautiful day. Sunny. Clear. I’d lived in Chesterfield County for the first eighteen years of my life. I’d been to its schools, its parks, its hospitals, its malls, but I’d never been to its jail. Growing up, I was the kid who didn’t go out with friends to a party until we’d designated a driver. If my friends were smoking pot, I wouldn’t inhale for fear it would irritate my asthma. The one time I was caught by a local cop making out in the back seat of a car with my boyfriend, I appeared so mortified and stricken that the officer tried to comfort me and told me it wasn’t that big a deal. Now here I was, almost thirty-four years old, pulling into the sprawling suburban complex that included the Chesterfield County Jail. I’m not sure what I expected a jailhouse to look like, but it wasn’t this.