ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Monday, April 8, 1996 TAG: 9604080104
SECTION: VIRGINIA PAGE: C-2 EDITION: NEW RIVER VALLEY
DATELINE: WINCHESTER
SOURCE: Associated Press
MEMO: NOTE: Shorter version ran in Metro edition.
SEVERAL STATES HAVE PASSED laws allowing a murder charge when a parent or guardian does not act to stop fatal child abuse.
Wanda Smelser stands accused of allowing her boyfriend to inflict horrifying and fatal abuse on her child. If convicted, she could face life in prison.
If Laura Zimmerman's relatives are right, she, too, allowed a boyfriend to beat and kill her child. She is not charged with any crime.
The circumstances of the two deaths in Winchester and Manassas last year are different. But the cases illustrate a dilemma facing prosecutors nationwide: Are mothers who place their children within reach of abusive men criminals themselves?
``There's a legal interpretation, and there's also a moral and ethical interpretation,'' said Michael Kharfen, spokesman for the federal Department of Health and Human Services.
The department's National Center on Child Abuse and Neglect released figures last week showing 80 percent of child abuse and neglect comes at the hands of parents.
``A parent, an adult's responsibility is to protect and provide a safe secure and nurturing environment for children,'' Kharfen said. ``If they're failing, if they're ignoring that responsibility, then in my opinion they would be as complicit as those who are doing the actual abuse.''
In both the Smelser and Zimmerman cases, the boyfriends pleaded guilty but blamed the children's mothers for most of the abuse. Prosecutors in both cases say they are sure the fatal abuse was delivered by the accused men.
The situation is a common one, although few abuse cases escalate to a child's death, said Daniel Armagh, a senior attorney at the National Center for Prosecution of Child Abuse.
Prosecutors face a number of hurdles in cases such as the Smelser and Zimmerman deaths, among them the tendency of mothers to cover for their boyfriends, Armagh said.
The woman's testimony against the primary abuser may also be crucial, so prosecutors must weigh whether to cut a deal with her, prosecutors in both cases said.
Valerie Smelser, 12, was pummeled and kicked and her head smashed through a wall in the hours before her death in January 1995. The fatal blows probably followed several weeks of escalating violence, an autopsy report showed.
The child was starved, denied use of the family bathroom and sometimes chained to a basement door overnight, a police report found. The basement where Valerie was imprisoned her final weeks was strewn with feces, police said.
Norman Hoverter is serving a life prison term after pleading no contest to first-degree murder.
``Generally in the law, witnessing a crime is not a crime,'' said Lawrence Ambrogi, the Frederick County prosecutor in the Smelser case. ``But in these cases where it's been going on for so long and it's your natural child and you do nothing to stop it, that's a different duty.''
Kevin Zimmerman, an energetic 20-month-old, was tied up, punched and burned shortly before his death in a Manassas warehouse in August, an autopsy showed.
``It's almost easier to point out parts of the child's body which were not bruised than to categorize the bruises,'' said Prince William County Assistant Commonwealth's Attorney Mary Grace O'Brien.
Christopher Pilenzo pleaded guilty last week to felony murder., a form of second-degree murder. Outside the courtroom, he blamed his girlfriend, Laura Zimmerman, with whom he lived for about six weeks.
Some of Zimmerman's relatives accuse her of looking the other way while Pilenzo abused the child. She fled the courtroom in tears last week and hurried past several hecklers.
``He's dead, all because you allowed it,'' shouted Pauline Lane, the victim's great-aunt.
Zimmerman still could be charged in her child's death, but O'Brien said that is unlikely.
``First and foremost, [prosecutors] believe Chris Pilenzo beat this child to death,'' O'Brien said. ``It is our perception that she was covering for him.''
Substantiated cases of abuse or neglect increased 27 percent during the five-year period beginning in 1990 and stand just above 1 million, the federal report issued this week shows.
The report is based on 1994 statistics gathered from 47 states and the District of Columbia.
Child abuse itself is increasing, and so is the reporting of crimes against children, Kharfen said.
Several states have passed laws in the past five years specifically allowing a murder charge when a mother or other responsible adult does not act to stop fatal abuse, Armagh said.
In Virginia and other states without such a specific statute, prosecutors are left to decide when a murder charge is warranted, O'Brien said.
``This is a tough case for us, because we have a biological parent who at best must have seen the condition of her child and yet did not seek medical attention for him, or leave the situation,'' said Prince William County Assistant Commonwealth's Attorney Mary Grace O'Brien. ``I understand why some of her family feels the way they do.''
LENGTH: Long : 101 lines ILLUSTRATION: PHOTO: AP. Wanda Smelser has been charged in her daughter'sby CNBmurder for not stopping her abusive boyfriend.