By Laney Flanagan

Failure to protect laws, which are enactedq in virtually every state, charge a parent for failing to report abuse against their children if the parent knows or suspects a child is being abused or neglected.[1] Many states include witnessing abuse as a form of child neglect. The goal of these laws is to encourage parents to remove their children from abusive households and ensure that child maltreatment does not go unreported.[2] While these laws are meant to protect children from abuse and neglect, they tend to hold extreme consequences for parents who are also victims of domestic abuse.[3] Failure to protect laws are often written vaguely and broadly, meaning that parents who are also suffering from abuse end up being punished for the actions of their abuser.[4] Under these laws, a parent who is being abused and is unable remove her children from the abusive household can be held criminally responsible for the abuse because she “failed to protect” her children from witnessing her own abuse.[5] There is a serious flaw in failure to protect laws that allows prosecutors to charge the non-abusive parent, who is often a victim herself, with a sentence equal, or in some cases more, to that of the abuser.[6]

The language of failure to protect laws refer to parents, but these laws tend to target mothers more than fathers.[7] In Oklahoma, which allows for life sentences under its failure to protect laws, 90 percent of people incarcerated for the offense are women.[8] Evidence of a mother’s own abuse is often used against her to prove that she knew or should have known that her child was also being abused.[9] Prosecutors also tend to offer evidence of “maternal instinct” to show that a mother was aware of the child abuse.[10] Virginia holds any parent, guardian, or other person responsible for the care of a child under 18 who by willful act or willful omission causes or permits serious injury to life or health of such child guilty of a Class 4 felony.[11] This directly criminalizes the status of being abused through the passive act of “permitting child abuse”.[12] While there is a just reason to criminalize non-victim parents who are allowing child abuse in their home, many victims of domestic abuse are incapable of leaving and protecting their children, with 99% of victims lacking financial resources to leave their abuser.[13]

There have been many suggestions on how to combat the injustice of these failure to protect laws.[14] Some have suggested safe harbor provisions, sentencing reform, strict scrutiny application to state laws, and affirmative defenses for battered parents.[15] Failure to Protect laws are mean to protect against abuse, but often end up causing further harm to victims of domestic violence. States need to amend these unjust laws in order to protect, not punish, all victims of abuse.

 

[1] Amanda Mahoney, How Failure to Protect Laws Punish the Vulnerable, 29 Health Matrix: The J. of Law-Med. 429, 431 (2019); see also Elizabeth Brico, State Laws Can Punish Parents Living in Abusive Households, Talk Poverty (Oct. 25, 2019), https://talkpoverty.org/2019/10/25/failure-protect-child-welfare/index.html.

[2] Amanda Mahoney, How Failure to Protect Laws Punish the Vulnerable, 29 Health Matrix: The J. of Law-Med. 429, 431 (2019); see also Elizabeth Brico, State Laws Can Punish Parents Living in Abusive Households, Talk Poverty (Oct. 25, 2019), https://talkpoverty.org/2019/10/25/failure-protect-child-welfare/index.html.

[3] Elizabeth Brico, State Laws Can Punish Parents Living in Abusive Households, Talk Poverty (Oct. 25, 2019), https://talkpoverty.org/2019/10/25/failure-protect-child-welfare/index.html. (discussing women who have lost custody for reporting their partner’s abuse while their abusers did not have any consequences); see also Tim Talley, Group Takes Aim at Oklahoma’s Failure-to-Protect Law, AP News (Sept. 29, 2018), https://apnews.com/article/45a6f24af72c4750ac141f3fe10b3bc9 (reporting on another woman who was sentenced to 30 years for failing to report abuse in the home while her abuser was sentenced to only two years).

[4] Elizabeth Brico, State Laws Can Punish Parents Living in Abusive Households, Talk Poverty (Oct. 25, 2019), https://talkpoverty.org/2019/10/25/failure-protect-child-welfare/index.html (discussing how a mother no longer trusts law enforcement after reporting her own abuse while pregnant caused her to lose custody of her child when he was born).

[5] Mahoney, supra note 1, at 431; see also Elizabeth Brico, State Laws Can Punish Parents Living in Abusive Households, Talk Poverty (Oct. 25, 2019), https://talkpoverty.org/2019/10/25/failure-protect-child-welfare/index.html.

[6] Amaris Mae Trozzo, Victim Blaming: Failure to Protect Laws as a Legislative Attack on Mothers, 23 The Geo. J. of Gender and the Law 79, 83 (2021).

[7] Samantha Michaels, She Never Hurt Her Kids. So Why Is a Mother Serving More Time Than the Man Who Abused Her Daughter?, Mother Jones (Aug. 9, 2022), https://www.motherjones.com/crime-justice/2022/08/failure-to-protect-domestic-abuse-child-oklahoma-women-inequality-prison/.

[8] Id.; see also Talley, supra note 3.

[9] Amanda Mahoney, How Failure to Protect Laws Punish the Vulnerable, 29 Health Matrix: The J. of Law-Med. 429, 431 (2019) (citing Jeanne A. Fugate, Who’s Failing Whom? A Critical Look at Failure-to-Protect Laws, 76 N.Y.U. L. REV. 273, 293 (2001)); see also Trozzo, supra note 6, at 93.

[10] Michaels, supra note 7.

[11] Va. Code § 18.2-371-1.

[12] Id.; see also Amaris Mae Trozzo, Victim Blaming: Failure to Protect Laws as a Legislative Attack on Mothers, 23 The Geo. J. of Gender and the Law 79, 91 (2021); see also Amanda Mahoney, How Failure to Protect Laws Punish the Vulnerable, 29 Health Matrix: The J. of Law-Med. 429, 450 (2019).

[13] Elizabeth Brico, State Laws Can Punish Parents Living in Abusive Households, Talk Poverty (Oct. 25, 2019), https://talkpoverty.org/2019/10/25/failure-protect-child-welfare/index.html (reporting a study that found 99 percent of survivors also suffered from financial abuse); see also Mahoney, supra note 12, at 431 (2019).

[14] Trozzo, supra note 12, at 91; see also Mahoney, supra note 12, at 450.

[15] Brico, supra note 13; see also Mahoney, supra note 12, at 455-459; see also Trozzo, supra note 12, at 109-111.