Failure to Protect Laws: An Oversight of the Intersectional Realities of Abuse

The late 1800s and early 1900s brought about shifts in attitudes toward both domestic violence and child abuse. The formal child protection movement originated in 1875 with the formation of the New York Society for the Prevention of Cruelty to Children.[1] Soon after, the Battered Women’s movement took root in the social movements of the early twentieth century, following state-level legal protections in the 1870s which criminalized domestic assault by husbands against their wives.[2] Largely due to the social efforts by advocates during the 1900s, a series of legal protections for women and children were implemented in the 1970s and 1990s, characterizing a significant win in protections against familial violence.[3]

In 1974, Congress passed the Child Abuse Prevention and Treatment Act.[4] Through a number of key provisions, the Act sought to protect children from abuse and neglect – it established nationally applicable definitions for abuse, directed research and training goals, and outlined funding provisions for child protection.[5] Twenty years later, Congress passed the Violence Against Women Act, which committed funding toward domestic violence prevention groups and streamlined the ways for women to seek protection from rape and battering.[6] In tandem with these landmark pieces of legislation, societal understanding of the harm of both child abuse and domestic violence has become much more widespread, and legal protections have also increased for both children and battered women. However, there are significant legal gaps in existing legislation – in many cases, the safety of an abused mother is positioned against the safety of abused children. This gap in legal precedent is primarily exemplified by Failure to Protect Laws.

Under Failure to Protect Laws, caregivers may be prosecuted for knowing or suspecting that a child is being abused and for failing to report the abuse.[7] Under the child neglect legal theory, the purpose of Failure to Protect Laws is to protect children from experiencing or witnessing abuse by encouraging parents to report the abuse.[8] However, while the sentiment of the laws may be important in protecting children, the reality is that they create a significant legal barrier to safety for both mothers and children, failing to address the intersectional realities of abuse.

These laws originated as early as the 1960s. Since then, they have become well established in U.S. legal structures. In 2000, Oklahoma approved its failure to protect law, becoming one of several states to implement life imprisonment as maximum sentences for the crime.[9] Currently, twenty-nine states explicitly criminalize failure to protect from child abuse, allowing for the same charges to be brought against both the abuser and the non-abusive parent.[10] Other states allow prosecution of failure to protect through their neglect statutes, meaning that sentencing guidelines for the non-abusive guardian differ from guidelines for the abusive partner.[11] Regardless of the composition of the law, the underlying effect is clear: non-abusive parents may be held liable for the offenses committed by their partners, even if they are being abused themselves.

The gendered terminology of this article is reflective of the gendered reality of abuse. It is also reflective of the gendered reality of prosecution rates under Failure to Protect Laws. While they are written in gender-neutral terms, women are disproportionately prosecuted under Failure to Protect; according to journalist Samantha Michaels, ninety percent of the people incarcerated for the offense are women.[12] She additionally reports that multiple attorneys who specialize in this area of law reported to her that “they have never seen a man prosecuted for failing to stop someone else’s violence against a child.”[13] This fundamentally demonstrates how the legal framework of Failure to Protect places the safety of domestic violence victims and child abuse victims against each other. Often, women charged under Failure to Protect are forced to foreit their parental authority, even when they face abuse themselves.[14]

Failure to Protect Laws are part of a larger history of legal precedent for child negligence – a standard which has evolved over time and over geographical locations along gendered lines.[15] In a number of cases, the standard of child negligence has situated the blame on mothers for the abuse both their children and they themselves may experience. One critical example of this is In re Lonell J., a 1998 case which established a “strict liability” standard for an abused woman's inability to prevent herself from being the victim of abuse.[16] This case makes clear the victim blaming which is ingrained in law surrounding domestic abuse and child abuse – at the time, it set a precedent that women were responsible for escaping situations of abuse. However, it is now clear that, along with modern Failure to Protect Laws, this precedent ignores social realities, the capabilities of the mother, and the legal status of the abuse victim.[17] Instead of streamlining the process to remove both mothers and children from abuse, Failure to Protect Laws create institutional distrust and separate the safety of the mother from the safety of the child.[18]

In addition to their ineffectiveness in protecting victims of both kinds of familial violence, Failure to Protect Laws are not legally sound. In Robinson v. California (1962), a case dealing with the criminalization of narcotic addiction, the Supreme Court established that it is “cruel and unusual punishment” to criminalize someone for their status when they themselves have not committed criminal behavior.[19] While this case explicitly dealt with the criminalization of people with addiction, it set a clear precedent that pertains to Failure to Protect laws – a woman should not be punished for her status of being abused or failing to report abuse when there is no evidence that she abused her children.[20]

Legal scholars have also argued that Failure to Protect Laws should be struck down under the strict scrutiny standard of the Fourteenth Amendment. While this argument does not question why survivor safety must be encompassed by a rights-based framework rather than an instinct of care for victims, it is still important to consider. In Meyer v. Nebraska (1923), the Court established that the freedoms guaranteed by the Fourteenth Amendment include the right to “establish a home and bring up children.”[21] Because the right to parenting can be interpreted as fundamental, Failure to Protect laws should be struck down under a strict scrutiny standard of review – they are not narrowly tailored to furthering a compelling state interest. While the government has a compelling interest in protecting children, it is clear that Failure to Protect Laws are not narrowly tailored per this interest.[22] Criminalizing the non-abusive parent is not the least restrictive means for child protection – it, in fact, may endanger the child while wrongfully punishing the mother. The application of the strict scrutiny standards suggests the need for more holistic protections that further the goal of child protection while protecting the rights and safety of the mother.

Failure to Protect laws reflect a significant problem within our legal system – a punitive instinct that creates gaps in the ability to achieve intersectional safety for mothers and children. Though the laws were created to protect children from abuse, they fail to consider the safety of abused mothers, encouraging incarceration rather than the provision of resources to help women escape from abuse. The implications of these laws also have the most impact on families of color and indigenous families. Children of color experience the highest rates of abuse and neglect.[23] There are also disparities in the help that is afforded to survivors – Black survivors of violence are less likely to be believed and supported when abuse occurs.[24] Thus, these laws disproportionately affect the safety of women and children of color, threatening equality within systems of justice.

In a 2008 Congressional finding, one of the central goals was that “states and communities should adopt assessments and intervention procedures aimed at enhancing the safety of both children and victims of domestic violence.”[25] Failure to Protect laws make navigating the system of violence interventions much more complex, threatening safety for both women and children. With intersectional legislation that addresses the needs of whole family units, and with resources available to domestic violence survivors, the U.S. may take a first step in directly protecting survivor safety.

[1] John Myers, “A Short History of Child Protection in America,” Family Law Quarterly vol. 42 no. 3 (2008), at 49-63.

[2] Sydney Hyer, “History of the Battered Women’s Movement,” Delaware Coalition Against Domestic Violence, https://dcadv.org/blog/history-of-the-battered-womens-movement.html.

[3] Ibid.

[4] S.1191 - 93rd Congress (1973-1974)

[5] Ibid.

[6] History of VAWA, Legal Momentum, https://www.legalmomentum.org/history-vawa.

[7] Jeanne A. Fugate, “Who’s Failing Whom? A Critical Look at Failure-to-Protect Laws,” NYU L.J. 76 (April 2001), https://www.nyulawreview.org/issues/volume-76-number-1/whos-failing-whom-a-critical-look-at-failure-to-protect-laws/

[8] Amaris Mae Trozzo, Victim Blaming: Failure to Protect Laws as a Legislative Attack on Mothers, XXIII:79 Georgetown L.R. (2021).

[9] Samantha Michaels, Why is a mother serving more time than the man who abused her daughter?, Mother Jones (2022), https://www.motherjones.com/criminal-justice/2022/08/failure-to-protect-domestic-abuse-child-oklahoma-women-inequality-prison/

[10] Trozzo, supra Note 8.

[11] Ibid.

[12] Michaels, supra Note 9.

[13] Ibid.

[14] Amanda Mahoney, How Failure to Protect Laws Punish the Vulnerable, 29 Health Matrix: The Journal of Law-Medicine (2019).

[15] Trozzo, supra Note 8.

[16] Ibid.

[17] Mahoney, supra Note 14.

[18] Ibid.

[19] Robinson v. California (1962)

[20] Mahoney, supra Note 14.

[21] Trozzo, supra Note 8.

[22] Ibid.

[23] S.1191 - 93rd Congress (1973-1974).

[24] Maya Finoh; Jasmine Sankofa, The Legal System Has Failed Black Girls, Women, and Non-Binary Survivors of Violence, American Civil Liberties Union (2019), https://www.aclu.org/news/racial-justice/legal-system-has-failed-black-girls-women-and-non.

[25] S.1191 - 93rd Congress (1973-1974).