Turning Victims Into Violators? Failure To Protect Laws And Their Effect On Women

This series will take part across three entries, each focusing on the various components that have led to and influenced the sometimes-controversial punishment of victims.

By Dr. Marissa Stanziani
This is the first article in a series of three.
Part 1 (here) | Part 2 | Part 3

Several years ago, I read (of all things) a Buzzfeed article that knocked me off my feet. At the forefront of that article, “Battered, Bereaved, and Behind Bars,” is the harrowing story of a young woman sentenced to 45 years in prison for failing to protect her child from her abusive partner. However, the not-so-subtle undertones highlighted the sometimes-harmful consequences of societal expectations regarding how women, particularly mothers, should behave. I became pretty impassioned by the topic, and it led to a whole lot of research. What I found was that this very notion is not particularly new and was driven by a fundamental change in how we, as a society, conceptualize and deal with child abuse.

This series will take part across three entries, each focusing on the various components that have led to and influenced the sometimes-controversial punishment of victims. This month’s blog focuses on how child abuse and the protection of children came under national recognition and how states sought to identify, prevent, and punish child abuse and neglect.

In 1962, C. Henry Kempe and his colleagues published “The Battered Child Syndrome” that detailed hundreds of medical records of child abuse in the United States and provided physicians with the resources to identify and report the suspected abuse of a child. Kempe’s research transformed the discourse on child protection and brought the topic to the forefront of legislative initiatives. Led by Kempe, the U.S. Department of Health and Human Services Children’s Bureau enacted legislation mandating physicians report suspicion of child abuse to the police or the appropriate child welfare agency; by 1967, every state had mandatory reporting laws. As a result, by 1974, approximately 60,000 instances of child abuse were reported throughout the United States.

In 1974, the United States Congress enacted the Child Abuse Prevention and Treatment Act (CAPTA) allocating financial resources to agencies charged with the protection of children. For the first time, CAPTA provided a definition of child abuse, stating “[a]t a minimum, any recent act or set of acts 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” (42 U.S.C. § 5101 note; emphasis added). The federal funding and resources provided to states to prevent child abuse, also resulted in many states strengthening both civil and criminal laws regarding abuse and neglect (Jacobs, 1998). These criminal statutes served to protect children from abuse by criminalizing perpetrated acts of violence; however, as early as 1960 (see Palmer v. State, 1960) prosecutors were using the statutes to establish parental responsibility of the non-abusing parent that failed to act on behalf of the child.

On the state level, 49 states have specific criminal statues regarding child abuse and neglect (Child Welfare Information Gateway, 2019). These statutes include not only acts of commission (which is typical of most criminal statutes) but acts of omission as well. Stemming from the common law of duty of care and protection, parents are legally bound to protect their child and do whatever may be necessary for that child's care, maintenance, and preservation. Case law has consistently demonstrated the legal duties of parents, duties that require affirmative performance (see Commonwealth v. Howard, 1979; Palmer v. State, 1960; People v. Peters, 1991; State v. Walden, 1982; Walker v. Superior Court, 1988). Thus, when these legal duties are breached, such as failing to protect a child from physical abuse or fatality, the parent may be held criminally liable.

Criminal prosecution of parents who fail to protect their children from abuse occurs under several different legal standards (Fugate, 2001; Liang & Macfarlane, 1999). While some states have laws that explicitly criminalize parents’ failure to protect their children from abuse at the hands of a third party (e.g., “injury to child by omission,” Texas Penal Code § 22.04; “enabling child abuse” Oklahoma Penal Code § 843.5), in the states without specific failure to protect legislation, prosecutors may use more general laws to prosecute criminal negligence while caring for a child or placing a child in a dangerous situation. Generally, the passive parent faces possible liability in the form of “failing to protect” the child, insofar “(1) the defendant had a legal duty to protect the child, (2) the defendant had actual or constructive notice of the foreseeability of abuse, (3) the child was exposed to such abuse, and (4) the defendant failed to prevent such abuse” (Fugate, 2001, p.279).

These laws and their applications have been controversial as scholars and advocates have debated the efficacy of these policies (Weisz &Wiersma, 2011). While advocates of these laws maintain that it protects children from the adverse effects of witnessing or being subject to domestic violence (e.g., Bedi & Goddard, 2007), given the well-established relationship between child abuse and intimate partner violence (IPV; Dunlap, 2004), opponents of these laws view them as a way to prosecute victims of domestic violence (Nixon et al., 2007).

Taken together, national alarm about child abuse is still a relatively new concern, pioneered by doctors and providers in the 1960s and 1970s. Although new, these concerns have had significant impact on legislative initiatives, government agencies, financial allocation, the conduct of healthcare workers, and, more generally, parenting. Undoubtedly created with the best of intentions, these laws and their consequences have, like most things, the power to be morphed into something that turns victim into violator. In next month’s blog, we explore gender biases in the legal system, and set the stage to understand how failure to protect laws may, at times, do more harm than good. 

Want to talk to someone about this? 
Contact drmarissa@kkjpsych.com. or call 919-493-1975.

If you or someone you love is currently at risk of harm due to intimate partner violence, please call 800.799.SAFE (7233) or visit https://www.thehotline.org/ to speak to a professional. If you are an attorney working with a client dealing with these issues, please contact us for help with evaluations or consulting.

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