Failure to Protect Laws: Who is Actually Being Protected?

By: Sari Richmond

Edited by: Clark mahoney and Lauren Levinson

In the early 2000s, a new set of laws began to emerge in multiple states across the U.S. allegedly aimed at furthering protection for children at risk of domestic abuse. These laws, known as “Failure to Protect” (FTP) laws, state that parents or caretakers may be charged with a criminal or civil penalty, or both, if found that they did not prevent the abuse of a child under their care. While the legislation is written with gender-neutral diction, those being prosecuted under FTP laws are overwhelmingly female.[1] As of 2015, 48 states have some form of FTP laws, some even identifying the offense as a felony—leading to equivalent or sometimes greater sentencing compared to penalties enacted on the abuser. In a few states, the law even extends to the prosecution of parents or caretakers that “allow” a child to watch a parent suffer abuse. Supporters of these sets of laws argue that FTP legislation will increase the rate of reporting in abuse cases, therefore driving down the overall rate of abuse against children. However, most FTP laws blatantly disregard financial and social factors, as well as a mother’s status as a victim, in assessing negligence that qualifies as FTP. Courts only examine whether abuse was stopped and reported to the authorities, often failing to acknowledge the lack of realistic ability a mother had to do so.[2] Critics note that for FTP laws to truly be beneficial, the existing framework must be reworked. [1] In order to ensure that these laws do not unfairly impact women, legislation should clearly outline what constitutes the duty of caring for a child in an abusive situation and what steps should be taken once abuse is discovered. Finally, defense clauses for persons who feared for their own or their childrens’ safety should excuse caretakers that were unable to stand up to an abuser. Without changes being made to existing FTP policy, the legislation will  be more damaging than beneficial for families rampaged by abuse and perpetuate a system unfairly harsh on mothers.

A prime example of the harmful effects of vague, unrealistic FTP policy that fails to recognize situational factors of abusive households is the prosecution of Kerry King. A resident of Oklahoma, King is currently serving 30 years of jail time after being charged with FTP—compared to the 18 years that John Purdy, her boyfriend, is serving for physically abusing both King and her children.[3] 

Purdy had a history of abusing King and forcing her to take heroin before King discovered in January 2015 he had begun beating her then 4-year-old daughter, Lilah. Two days after discovering bruises on her daughter’s body, King woke up to find Purdy choking Lilah – and was slammed violently against the wall when she tried to intervene. Purdy insisted Lilah needed to be spanked and ordered King to hold her daughter down, which she did in hopes that the beating would end faster. When it became apparent how harsh Purdy’s blows to Lilah were, King shielded Lilah’s body with her own, causing Purdy to drag her by her hair back into the master bedroom and threaten to kill her. Purdy took King’s cell phone then proceeded to reenter Lilah’s room, which he kept locked until he re-emerged around 6 a.m. the next morning. A day later, a contractor visited the house and King’s housemate snuck out and asked him to contact authorities. Police arrived and found Lilah in a locked room covered in gashes and bruises with chunks of her own hair strewn around her; Purdy was arrested and King assisted authorities in taking her daughter to the hospital.

Only a few days later, King would be arrested for child neglect and permitting child abuse, handcuffed outside her home by officers who wanted to know why she did not call police or—in the eyes of the law—try to help her daughter. Oklahoma’s FTP laws require parents to protect their children from physical harm; and, they are interpreted with the assumption that mothers should inherently know what to do to protect their child or should know from the beginning that abuse is taking place. Compared to other states, Oklahoma’s punishment for FTP is particularly harsh with a maximum life sentence in prison, even if a mother is being abused herself. As found by Samantha Michaels and Ryan Little, hundreds of people, 90% of them women, have been charged on the grounds of Oklahoma’s FTP laws in the past decade.[4] Furthermore, women of color and low socioeconomic status are even more likely to be charged with FTP, as dependency on an abusive partner is statistically higher in these groups.[4]

As King was interrogated by police and attempted to explain the circumstances that barred her from contacting authorities, she was met with stubborn ignorance. Officers told her “you should have ran for help” and “your job as the mom is to protect your child and you failed” as she tried to describe the fear and danger she felt while in the abusive environment. King suffered from sexual abuse as a child, then later physical abuse at the hand of her first husband (Lilah’s father) Ali Jordan Lalehparvaram.

During trial, the prosecution took advantage of King’s complicated, abusive relationship with Purdy and painted a picture for the jury of King picking Purdy over her children. Because Oklahoma’s strict FTP laws require authorities to be contacted, King’s attempts at contacting her mother in the few seconds she could sneak onto a phone saying “help me” did not qualify as seeking help for her children. Under FTP laws, prosecution like this is common and successful: a strategy that protects children from abuse but criminalizes a nonabusive parent who is often a victim themselves. In King’s trial, the jury was convinced she did not perform her duty in protecting her child and found her guilty. It should be noted that the jury was not aware of Purdy’s sentencing – 12 years less than King’s – until after making their decision.[4]

Cases like King’s are not rare—it is becoming increasingly common for nonabusive caretakers to be sentenced to equal or greater jail time compared to abusers on the grounds of FTP laws. However, there is no indication that FTP laws are increasing the reporting rate of domestic abuse. Mothers are fearful of either being investigated for neglect after reporting abuse or being charged with FTP for reporting too late—resulting in abuse not being reported altogether. In addition to this, the innate bias of FTP legislation becomes increasingly clear as black mothers are found guilty by jury more frequently than white mothers, and mothers in general are the ones almost exclusively impacted by this law.[4] While King’s children did not face further abuse at the hands of Lalehparvaram after the trial, it should be recognized that nonabusive mothers losing custody of their children to an ex-partner or the foster care system due to imprisonment often puts the children at a higher risk of abuse. Though the purpose of FTP laws is to deter child abuse, the failure of legislators to acknowledge certain patterns in abuse within FTP laws has made FTP convictions racist and sexist in nature. In order to better the application of FTP laws, a clear outline of what steps can realistically be expected from a caretaker in an abusive situation should be produced. Furthermore, the statistic that half the men who harm their wives also harm their children should actively be recognized, as the law should account for the fact that mothers are frequently victims as well.[4] If FTP laws are properly modified, the current trend of unequal, damaging sentencing could be stalled, and will instead serve their intended purpose: protecting children from abusers.

Notes:

1.  Jeanne Fugate. 2023. “Who's Failing Whom? A Critical Look at Failure-to-Protect Laws.” NYU Law Review. 

2. “How Failure to Protect Laws Punish the Vulnerable.” Case Western Reserve University School of Law Scholarly Commons. 

3. Scanlan, Chip, Sue Ogrocki, SAMANTHA MICHAELS, and MARK HELENOWSKI. 2023. “How a reporter documented the failure of "failure-to-protect" laws.” Nieman Storyboard. 

4. Samantha Michaels, Mark Helenowski, et al. 2022. “She Never Hurt Her Kids. So Why Is a Mother Serving More Time Than the Man Who Abused Her Daughter? – Mother Jones.” Mother Jones.

Bibliography:

Fugate, Jeanne A. n.d. “Who's Failing Whom? A Critical Look at Failure-to-Protect Laws.” NYU Law Review. https://www.nyulawreview.org/issues/volume-76-number-1/whos-failing-whom-a-critical-look-at-failure-to-protect-laws/.

“How Failure to Protect Laws Punish the Vulnerable.” n.d. Case Western Reserve University School of Law Scholarly Commons. https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1641&context=healthmatrix.

Michaels, Samantha, Mark Helenowski, Ryan Little, Dorothy E. Roberts, Ruth Murai, Henry Carnell, Siri Chilukuri, and Oliver Milman. 2022. “She Never Hurt Her Kids. So Why Is a Mother Serving More Time Than the Man Who Abused Her Daughter? – Mother Jones.” Mother Jones. https://www.motherjones.com/crime-justice/2022/08/failure-to-protect-domestic-abuse-child-oklahoma-women-inequality-prison/.

Scanlan, Chip, Sue Ogrocki, Samantha Michaels, and Mark Helenowski. 2023. “How a reporter documented the failure of "failure-to-protect" laws.” Nieman Storyboard. https://niemanstoryboard.org/stories/investigate-narrative-failure-to-protect-laws-court-reporting-sex-and-race-discrimination/.