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Passive Misconduct

Prosecutions for homicides that arise out of “passive” misconduct have their own special problems. “Passive” misconduct involves failure to take action when such action is needed and required to avoid some harmful result. Parental inaction that results in the death of a child is a frequent basis for a criminal prosecution. In People v. Lewis, 953 N.E.2d 760 (N.Y. 2011) a mother left her 8 year-old child with an abusive boyfriend, who had a history of abusing both the child and the mother. When the child died from that abuse, the mother was charged with both involuntary manslaughter and child endangerment under New York law.

Can she be convicted of either or both of these charges?

What are the tests used?

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