Failure to protect laws were designed to keep children safe by imposing a legal duty on parents to protect their children, but these laws have strayed from their original intent. Failure to protect laws are being used to punish women/mothers for failing to protect their children – poor women, women of color, and female victims of domestic abuse are disproportionately punished for failing to protect their children.
Federal legislation provides guidance to the States by identifying a minimum set of acts or behaviors that define child abuse and neglect.
The Federal Child Abuse Prevention and Treatment Act (CAPTA) (42 U.S.C.A. § 5106g) defines child abuse and neglect as, at minimum: any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation, or an act or failure to act which presents an imminent risk of serious harm.
This definition of child abuse and neglect refers specifically to parents and other caregivers. A “child” under this definition generally means a person who is younger than age 18, who is not an emancipated minor.1 All fifty states have enacted child abuse reporting statutes meeting the requirements of CAPTA – these statutes are divided into two categories: those that punish people who commit the act, “commission,” and those that punish people for failing to act/protect, “omission”.
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The first prosecution of a parent for failure to protect was in 1960, Palmer v. State. Barbara Ann Palmer was just 15 years old when she gave birth to her daughter Terry. Terry was 20 months old when she was beaten to death by Barbara Ann’s boyfriend, Eddie McCue, who was not Terry’s father. Palmer was charged and convicted of involuntary manslaughter in the death of her daughter. Her conviction was upheld by the Maryland Court of Appeals – they ruled that Palmer was criminally negligent and that her “failure to act” was the actual and proximate cause of her daughter’s death, despite determining that her boyfriend’s actions were the direct and immediate cause of Terry’s death.
The Child Abuse Prevention and Treatment Act states that parents owe a duty of care and protection to their children.1 In the 60 years since Palmer v. State, prosecutions against parents for failing to protect their children has significantly increased. On the surface, the failure to protect laws appear straightforward and gender neutral, yet, there are “varying focuses on the societal underpinnings of the failure to protect laws and their application (p1, Stanziani)”.
The mother is the parent typically prosecuted for failing to protect her children from abuse committed by her husband/boyfriend – courts have a history of applying different standards and expectations to mothers and fathers. Failure to protect laws criminalize women for failing to protect their children from abuse at the hands of husbands/boyfriends. It is rare that men are held legally accountable for not shielding their children from abuse committed by wives/girlfriends.
Consider the 1978 case of Ginger McLaughlin, a 21 year-old mother of three young children who was charged and convicted of criminal child neglect after she left her husband in care of their three small children for forty-five minutes, during which time, he beat and killed their two month old son. McLaughlin knew her husband had a violent temper, therefore the prosecutor argued that she should have foreseen that her husband would kill their newborn. Fortunately, the Oregon Court of Appeal reversed McLaughlin’s conviction for insufficient evidence. 5
Unfortunately, Ginger McLaughlin’s case is not unique. The courts (prosecutors, judges, and juries) typically construe mothers as someone with “superhuman powers to protect their children from all circumstances, no matter how dire, with the ability to foresee and forestall all potential harmful acts of her husband/boyfriend (p.3 Morrison)”.
The failure to protect laws also have shown an unmistakable pattern of class and race bias – women of low socio-economic status and color are disproportionately represented among the mothers prosecuted for failure to protect their children. While we want to believe that when we enter a courtroom, biases – conscious and unconscious – are left behind, unfortunately this is not the case. Poor and/or black women have historically been viewed as bad mothers by the court system.
Tressie Shaffer, a 31-year-old, white mother of six children, ranging in age from 6 months to seven was working her shift at Wendy’s in December 2016 when she was notified of an emergency at home involving her 6-month-old daughter. Her daughter, Zaylei suffered a brain injury while in the care of her father, Jason Scott. Scott has been charged with causing his daughter’s head trauma, he denies have anything to do with her injuries and is awaiting trial. Meanwhile, Shaffer, who was at work when the injury occurred was charged and found guilty of permitting child abuse by injury, a felony offense – she is serving an 18-month prison sentence, contrary to the life sentence asked for by the assistant district attorney. 9
According to the national public defender’s office, Still She Rises, which represented Shaffer, what happened to Shaffer would not have happened if she wasn’t poor.9 Still She Rises is the first public defender office in the country dedicated exclusively to the representation of mothers in the criminal justice system. They have found that mothers who are the sole breadwinners in their families, like Shaffer, face a choice: Do not go to work, or be willing to face swift imprisonment if anything happens while your children are in the care of your husbands/boyfriends.9 Ruth Hamilton, the attorney who represented Shaffer during her criminal trial stated, “if you are a mother living in poverty and anything happens to your kid, it is your fault that you were not wealthier and do not have more resources (p.3, Morrison).
The bias against women of color in regards to the failure to protect laws is glaringly apparent in the Debra Harrell case (2014). Harrell, an African-American mother was arrested for unlawful conduct towards a child, a felony punishable up to ten years in prison for leaving her nine-year-old daughter playing in the park while she worked her shift a ½ mile away at McDonald’s.
Harrell admitted to police that she left her daughter at the park while she worked. Harrell explained that her daughter had a cell phone and a house key (they lived just a six-minute walk from the park). Harrell felt comfortable leaving her daughter at the park, because her daughter was responsible and the park was safe – in the past Harrell brought her daughter to work, where she would use the free Wi-Fi and play on the family laptop, but the laptop was recently stolen so she thought it was better for her daughter to play at the park than sit bored at McDonald’s.
Following her arrest, Harrell lost both custody of her daughter and her job at McDonald’s. Harrell’s attorney, Robert Verner Phillips took the case pro bono because it “struck a nerve” with him. Phillips said, “this is an African-American working mom living on minimum wage, this never would have happened to a privileged mom living in an affluent neighborhood” (p.1, Wallace). Within weeks, Harrell regained custody of her daughter and was back working at McDonald’s. The charges against Harrell were eventually dropped but the media portrayal of Harrell and the backlash she received cannot be undone.
Unfortunately, child abuse commonly accompanies interpersonal/domestic abuse, with the failure to protect laws frequently used to prosecute mothers who, like their children are also victims of the abuser – with their own abuse then used against them in court.
In 2006, Tondalo Hall’s boyfriend, Robert Braxton, Jr. plead guilty to abusing her three-month-old daughter, he broke her ribs and femur. Braxton was sentenced to two years in prison. Hall, just nineteen-years-old was also a victim of Braxton’s abuse, court documents show that Braxton frequently choked and punched Hall, he was verbally abusive and kept her isolated from friends and family. Although Hall did not cause her daughter’s injuries, nor did the prosecution present any evidence to show that Hall was aware that Braxton was abusing her children, Hall was convicted of failing to protect her daughter, and she was sentenced to 30 years in prison. Hall suffered the same abuse at the hands of Braxton, as her children, and she lived in fear of him, yet, her penalty was fifteen times greater than his.
Braxton currently is on probation following his release from prison after serving only two years. He lives with minimal consequences for his violent crimes. Hall, however, remains behind bars at a maximum security prison in Oklahoma, she was denied parole in 2015, leaving her with another fifteen more years in prison. In 2018, The American Civil Liberties Union of Oklahoma filed an application seeking the release of Hall (finding is pending) – they claim she has been abused and denied justice, “as long as Braxton is free, any claim that her sentence was about justice or protecting children rings hollow” (P.3, Lambert).
These cases tell us a great deal about the unfair and unrealistic expectations the failure to protect laws place on mothers, as well as, exemplify the ways in which mothers are seen as uniquely responsible for their children’s well-being. The cases also provide a look at how social factors are ignored by the judicial system in favor of vilifying and convicting a mother.3 Unfortunately, cases similar to Palmer, McLaughlin, Shaffer, Harrell, and Hall are great in number.
The rationale behind the failure to protect laws is to protect children who cannot protect themselves – the laws are being misapplied. The law’s indifference to societal factors, such as gender, poverty, race, and domestic violence needs to change in order for the failure to protect laws to work for their intended purpose – protecting children. The criminal justice system and society as a whole imply that a mother “should protect her children with everything she has” (p.3, Fentiman). Without considering the circumstances and posing the question, what if she did? – maybe that was all she had!
