In the dependency context “failure to protect” statutes are ones which allow CPS to allege neglect on the part of the victim-parent in a domestic violence situation. This occurs either because the child has witnessed the domestic violence occurring between the parent and another individual, or where one individual is directly abusing the child and the other party does not report it or take other measures to stop it. In dependency court this means that, at least in some states, a child can be removed from the care and custody of the victim-parent.
Twenty-nine states have specific failure to protect laws within their penal codes as well. Twenty-two states have more general provisions which allow for the interpretation of failure to protect as falling under the code sections. All but one of those states’ laws call for jail or prison time upon violation of the statutes. Six states’ laws call for life in prison, depending on the severity of the abuse. These six states are all rural: Nebraska, Missouri, Oklahoma, New Mexico, West Virginia, and North Carolina. Other states call for the equivalent, with sentences of fifty years or more. These are all also largely rural, with states such as Texas,Tennessee, Iowa, and Indiana, making up the list.
Oklahoma, noted above as allowing life imprisonment for “failure-to-protect,” has a fairly standard statute which states: “any parent or other person who shall willfully or maliciously engage in enabling child abuse shall, upon conviction, be punished by imprisonment in the custody of the Department of Corrections not exceeding life imprisonment.” It continues to explain that “failure to protect” a child from abuse, constitutes abuse under this statute:
Laws such as these, which allow for removal of children and penalization of victim-parents, are deeply flawed. They create more issues for children and parents than they solve. To start, removal of children from non-abusive parents in “marginal cases,” such as ones where the only issue is witnessing of domestic violence, creates severe medical, psychological, and sociological issues for the children. In the short term, family separation can cause developmental regression, difficulty sleeping, depression, and acute stress. In the long-term it can cause chronic health problems such as cardiovascular disease, hypertension, obesity, and decreased longevity.
Further, studies show that removal in such instances leads to higher rates of delinquency and teenage births, and lower earnings as adults for the children involved. Longitudinal studies have found that removal into foster care also leads to adult arrest rates two to three times higher for children in marginal cases than for those who remained with their families.
As to those children that are not removed from their families, researchers have shown in those cases that children have poorer short-term educational and medical outcomes. For instance, children exposed to domestic violence had worse attendance and lower math and reading comprehension levels than their non-affected peers. One U.S. study also found greater weight increases for infants aged 6-12 months among mothers whose violence had ended at 6 months than those whose violence continued. A follow-up study found an increased risk for obesity at age 5 for those same children. However, given these issues are short-term, and that removal causes a greater host of issues long-term and overall, as discussed above, removal, which occurs with “failure-to-protect” laws may not be the answer to the problem. Still proponents often ignore this and give the main reason for their support of the laws as the high correlation between domestic violence and (direct, non-accidental) child abuse.
Several legal and social issues arise with respect to these laws. One of the greatest issues with such laws is the chilling effect they have on domestic violence victims to report the abuse, and to seek legal or medical aid. Generally, “failure to protect” laws create mandatory reporters out of the police officers who are responding to domestic disturbance calls, the medical professionals treating a victim’s injuries, and the aid workers in shelters and counseling centers. This leaves victims with no one to go to, because they fear either having their children removed from them, or fear being arrested themselves. In rural areas, where medical, legal, and social resources are already depleted this further alienation of domestic violence victims creates even greater problems. If rural victims were already less likely to come forward, “failure to protect” laws make it completely unthinkable for them.
Another major issue with such laws is their discriminatory effect. On average, 1 in 4 women are victims of domestic violence, compared to 1 in 9 men. This means that more often than not, women are the ones being charged with or accused of “failure to protect.” This effect is particularly visible in Oklahoma, which imprisons more women per capita than any other state or country, while also ranking in the top five states for women experiencing the most extreme domestic violence from their partners. In fact, more than half of the incarcerated women’s population in Oklahoma Are survivors of domestic abuse.
A story that exemplifies many of the problems with failure-to-protect laws, is that of Tondalao Hall. Almost 20 years ago, Hall, who was about 20 at the time, was sentenced to 30 years in prison for failing to protect her children from abuse at the hands of her partner, Robert Braxton. Braxton testified in court that he had abused their 3-month old child, breaking her rib and femur, stating that he had grabbed her “too tightly” and “cranked” her leg. Later, hall testified that on top of abusing their child, Braxton had choked, punched, and grabbed her by the neck on several occasions. Despite the fact that enforcement officials conceded that Hall never abused the children herself, they stated that she allowed Braxton to watch the children, and that she took too long to report the abuse.
However, prosecutors failed to show any evidence that Hall knew of the abuse to her children, and they failed to consider the fact that she had actively been planning an escape from Braxton at the time the case arose. Braxton negotiated a plea deal, bringing his sentence down to 10 years total: 2 years in prison, and 8 years probation. But, Braxton got credit for time served the day he pleaded and walked free. Hall was released three years ago, at the end of 2019, only after a unanimous vote by the Oklahoma Parole and Probation Board. Her children were 15, 17, and 19 by the time of her release.
Worse still is that Tondaloa Hall is not an exception, she is the rule. As of three years ago, in Oklahoma alone, 41 women were imprisoned under failure-to-protect laws. Fourteen of them received greater sentences than the abuser themselves. It is imperative that all states, not just ones with greater rural populations, get rid of their “failure to protect” laws. On top of the issues discussed above, these laws blame victims, and therefore perpetuate a culture of leniency towards abusers as it is “not their fault,” they abuse. Further, these laws actively re-victimize the survivors of domestic violence, taking away any and all autonomy from them. In such states the survivors cannot seek aid when they want to, safely plan an escape, or support or raise their children. This is because, with everyone from whom they may seek aid being designated a mandated reporter under the laws, they cannot control their entrance into a new life, in the same way they cannot control their current one under the fist of an abusive partner.
Oklahoma, noted above as allowing life imprisonment for “failure-to-protect,” has a fairly standard statute which states: “any parent or other person who shall willfully or maliciously engage in enabling child abuse shall, upon conviction, be punished by imprisonment in the custody of the Department of Corrections not exceeding life imprisonment.” It continues to explain that “failure to protect” a child from abuse, constitutes abuse under this statute:
as used in this subsection, ‘child abuse’ means the willful or malicious harm or threatened harm or failure to protect from harm or threatened harm to the health, safety, or welfare of a child under eighteen (18) years of age by another, or the act of willfully or maliciously injuring, torturing or maiming a child under eighteen (18) years of age by another.
Laws such as these, which allow for removal of children and penalization of victim-parents, are deeply flawed. They create more issues for children and parents than they solve. To start, removal of children from non-abusive parents in “marginal cases,” such as ones where the only issue is witnessing of domestic violence, creates severe medical, psychological, and sociological issues for the children. In the short term, family separation can cause developmental regression, difficulty sleeping, depression, and acute stress. In the long-term it can cause chronic health problems such as cardiovascular disease, hypertension, obesity, and decreased longevity.
Further, studies show that removal in such instances leads to higher rates of delinquency and teenage births, and lower earnings as adults for the children involved. Longitudinal studies have found that removal into foster care also leads to adult arrest rates two to three times higher for children in marginal cases than for those who remained with their families.
As to those children that are not removed from their families, researchers have shown in those cases that children have poorer short-term educational and medical outcomes. For instance, children exposed to domestic violence had worse attendance and lower math and reading comprehension levels than their non-affected peers. One U.S. study also found greater weight increases for infants aged 6-12 months among mothers whose violence had ended at 6 months than those whose violence continued. A follow-up study found an increased risk for obesity at age 5 for those same children. However, given these issues are short-term, and that removal causes a greater host of issues long-term and overall, as discussed above, removal, which occurs with “failure-to-protect” laws may not be the answer to the problem. Still proponents often ignore this and give the main reason for their support of the laws as the high correlation between domestic violence and (direct, non-accidental) child abuse.
Several legal and social issues arise with respect to these laws. One of the greatest issues with such laws is the chilling effect they have on domestic violence victims to report the abuse, and to seek legal or medical aid. Generally, “failure to protect” laws create mandatory reporters out of the police officers who are responding to domestic disturbance calls, the medical professionals treating a victim’s injuries, and the aid workers in shelters and counseling centers. This leaves victims with no one to go to, because they fear either having their children removed from them, or fear being arrested themselves. In rural areas, where medical, legal, and social resources are already depleted this further alienation of domestic violence victims creates even greater problems. If rural victims were already less likely to come forward, “failure to protect” laws make it completely unthinkable for them.
Another major issue with such laws is their discriminatory effect. On average, 1 in 4 women are victims of domestic violence, compared to 1 in 9 men. This means that more often than not, women are the ones being charged with or accused of “failure to protect.” This effect is particularly visible in Oklahoma, which imprisons more women per capita than any other state or country, while also ranking in the top five states for women experiencing the most extreme domestic violence from their partners. In fact, more than half of the incarcerated women’s population in Oklahoma Are survivors of domestic abuse.
A story that exemplifies many of the problems with failure-to-protect laws, is that of Tondalao Hall. Almost 20 years ago, Hall, who was about 20 at the time, was sentenced to 30 years in prison for failing to protect her children from abuse at the hands of her partner, Robert Braxton. Braxton testified in court that he had abused their 3-month old child, breaking her rib and femur, stating that he had grabbed her “too tightly” and “cranked” her leg. Later, hall testified that on top of abusing their child, Braxton had choked, punched, and grabbed her by the neck on several occasions. Despite the fact that enforcement officials conceded that Hall never abused the children herself, they stated that she allowed Braxton to watch the children, and that she took too long to report the abuse.
However, prosecutors failed to show any evidence that Hall knew of the abuse to her children, and they failed to consider the fact that she had actively been planning an escape from Braxton at the time the case arose. Braxton negotiated a plea deal, bringing his sentence down to 10 years total: 2 years in prison, and 8 years probation. But, Braxton got credit for time served the day he pleaded and walked free. Hall was released three years ago, at the end of 2019, only after a unanimous vote by the Oklahoma Parole and Probation Board. Her children were 15, 17, and 19 by the time of her release.
Worse still is that Tondaloa Hall is not an exception, she is the rule. As of three years ago, in Oklahoma alone, 41 women were imprisoned under failure-to-protect laws. Fourteen of them received greater sentences than the abuser themselves. It is imperative that all states, not just ones with greater rural populations, get rid of their “failure to protect” laws. On top of the issues discussed above, these laws blame victims, and therefore perpetuate a culture of leniency towards abusers as it is “not their fault,” they abuse. Further, these laws actively re-victimize the survivors of domestic violence, taking away any and all autonomy from them. In such states the survivors cannot seek aid when they want to, safely plan an escape, or support or raise their children. This is because, with everyone from whom they may seek aid being designated a mandated reporter under the laws, they cannot control their entrance into a new life, in the same way they cannot control their current one under the fist of an abusive partner.
It is understandable that states want to be harsh on child abuse. If that is the goal, however, they should be harsh to the actual abusers, not on those who are also their victims.
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