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 third article in a series of three.
Part 1 | Part 2 | Part 3 (here)
In the last two installments, we have taken a close look at failure to protect laws, which stemmed from the early 1960’s new focus on protecting our nation’s children from abuse. Part of this focus included the establishment of criminal and civil statutes regarding the non-abusing parent that failed to act on behalf of the child; also known as, failure to protect laws. Our second installment focused on how the legal system, both in general and regarding failure to protect laws, often operates through a gender biased lens. Although, in many cases, women are sometimes provided leniency in criminal settings, this same leniency has not extended to the expectations regarding parenting abilities. In the final installment, we explore the relationship between intimate partner violence and child abuse, and how this places women, and victims of all genders in a precarious legal place on top of their already difficult reality. Which often begs the question, are we turning victims into violators?
Domestic Violence and Child Abuse
The correlation between intimate partner violence and child abuse is well established; in fact, some estimates suggest 45 to 70% of children growing up in a home with domestic violence are likely to be physically abused as well (Dunlap, 2004). Likewise, the CAPTA Reauthorization Act of 2010 acknowledged that “child maltreatment and domestic violence occur in up to 60 percent of the families in which either is present.” While data suggest IPV may occur within all types of couples, research suggests people typically perceive men as the abusers and women as the abused (Kubicek, McNeeley, & Collins, 2015). Thus, in failure to protect cases, evidence of prior IPV may be viewed as an aggravating factor such that the courts hold that a battered woman is aware of her partner’s abusive tendencies and therefore conscious that her child is at risk (Fugate, 2001). Terrance, Plumm, and Little (2008) examined the effects of domestic violence and severity of child abuse on perceptions of maternal culpability in father perpetrated physical child abuse. Utilizing a 2x2 factorial design (history of wife abuse: present vs. not present; severity of child abuse: hospitalization vs. death), participants rated their perceptions of father and mother responsibility after reading one of four vignettes detailing violence perpetrated against a child. Overall, the father was held highly (and most) responsible, however, mothers were also assigned moderate levels of culpability across conditions. Further, greater maternal culpability was assigned when a history of domestic abuse was present, and this effect was especially true for male participants.
This highlights the common but misguided question: “why didn’t she leave?” Despite studies that suggest that violence increases when mothers leave the home (Bancroft & Silverman, 2004), mothers who fail to remove their children from violent homes are considered deviant and unfit. In a public opinion survey, Weisz and Wiersma (2011) solicited attitudes of 630 Michigan residents regarding intimate partner violence via telephone and online surveys. While 95% of participants believed that domestic violence victims who sought outside help should not have their children removed from the home, 62% of respondents believed that a mother was neglectful to her child(ren) if she was victimized more than once and did not immediately find a way to stop the violence.
Taken together, failure to protect laws straddle a very difficult line. Proponents of the law argue failure to protect statutes help to hold parents accountable and make “passive parenting,” (parents who refuse to acknowledge, report, or intervene on behalf of their child(ren) who is being abused) illegal. One of the fundamental jobs of a parent is to protect their child(ren) - in fact this job is an affirmative legal duty in all 50 states. However, the waters are muddied when the parent is expected to protect their child(ren) from their own abuser; particularly when seeking help often results in provoking more severe violence from the abusive partner, the relinquishing of parental rights, and further marginalization (Nixon et al., 2007). While it would be disingenuous to suggest all victims of IPV should be exculpated of any responsibility, the legal system’s failure to address the difficulties faced by battered parents within these statutes engender an environment in which failure to protect statutes may actually be most successful in prosecuting victims of IPV as opposed to those who sit by, unwilling to protect their child(ren).
Some states have enacted statutory affirmative defenses to prosecution for failure to protect , which allows a defendant to show that he/she had “reasonable apprehension that acting to stop or prevent the neglect or endangerment would result in substantial bodily harm to the defendant or the child in retaliation” (see Minnesota Statute § 609.378). However, many are narrowly defined and applied (Raeder, 2014). In fact, only one state (see Iowa Code § 726.6) explicitly allows for this defense in the face of “continued” abuse. These data suggest the need for nationwide statutory affirmative defense clauses in order to better protect victims of IPV and their children. Furthermore, as recognized by the CAPTA Reauthorization Act of 2010, “because both child maltreatment and domestic violence occur in up to 60 percent of the families in which either is present, States and communities should adopt assessments and intervention procedures aimed at enhancing the safety both of children and victims of domestic violence” (pg. 124).
Intimate partner violence is undeniably a public health crisis, with one in four women and one in nine men experiencing severe intimate partner physical violence, intimate partner contact sexual violence, and/or intimate partner stalking with impacts such as injury, fearfulness, post-traumatic stress disorder, use of victim services, contraction of sexually transmitted diseases, etc. Directly addressing this is likely to also aid in directly addressing rates of child abuse. It appears that tackling both intimate partner violence and child abuse, and perhaps seeing them as different versions of the same problem, can lead to more effective and long-lasting change.
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