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Failure-To-Protect Laws May Lead To Jail Time For Abuse Victims

30 June 2015 by Diana Butler

About one in four women and one and seven men are, or have been, victims of intimate partner violence. While there are laws that help protect domestic abuse victims from perpetrators, sometimes those laws are used to further persecute sufferers. Case in point, some prosecutors use failure-to-protect laws to put parents in jail for abuse committed unto children by intimate partners, even though the parents may not have participated in the abuse. Here's more information about this problem.

About Failure-to-Protect Laws

Failure-to-protect laws are typically encased in the wording of other laws written to address children's' rights and parental responsibilities. For example, in Florida, the child neglect law includes the failure of a parent or caregiver to protect a child from abuse or neglect caused by another person among its definitions.

The laws serve two purposes. First, failure-to-protect laws are designed to hold parents accountable for not preventing their children from being abused or taking steps to stop the abuse when it occurs. For instance, a woman was arrested in 2009 for allowing her boyfriend to harm her two young children on multiple occasions and not reporting the incidents or making any reasonable effort to protect the kids.

The second purpose is to make it easier for state child protection agencies to remove children from the parents' care to prevent the children from being further victimized.

In most cases, failure-to-protect is charged as a felony. However, the type of felony charged may vary depending on how egregious the offense was. For instance, in Delaware, a person will be charged with a class G felony if the child is seriously harmed, but it will be upgraded to a class E felony if the child dies. Almost all of these charges call for jail or prison time for defendants found guilty.

How Abuse Survivors are Victimized by the Court System

While the reasons behind failure-to-protect laws are noble and helpful in many situations, the laws have been used to further hurt victims of domestic violence. When abusers are reported to authorities, an unfortunate side effect is prosecutors sometimes decide to also charge the domestic abuse victim with child abuse or neglect based on the failure-to-protect aspect of the associated law, even if the parent or caretaker doesn't participate in the abuse.

For instance, an Oklahoma woman was sentenced to 20 years in prison after her son reported his stepfather for sexual abuse. The prosecution argued the woman was just as responsible for the abuse as the perpetrator because she allegedly knew about the molestation—having caught her husband in the act—but  did not leave the relationship or report the crime.

Unfortunately, in this case and many like it, the prosecution doesn't always consider the bigger picture. Domestic abuse victims are typically terrorized by their abusers and may be subjected to physical violence if they do anything that the abuser doesn't like. The victim may be too scared to go to authorities or may not have the resources, such as a phone or car, needed to seek help.

Another issue is the abuse may cause physiological damage that affects the victim's mental health and capacity. For example, a June 2015 article in the Huffington Post highlighted the reality that many women in abusive relationships suffer from traumatic brain injuries that can have a negative impact on their physical and mental health.

Abuse victims may also suffer from post-traumatic stress disorder, which can affect their ability to accurately recall events or respond appropriately to things that happen to them and their loved ones. This can result in the victim acting in counterproductive ways such as remaining in an abusive relationship and not taking steps to protect children from abusers.

Defending Against the Charges

Fending off a failure-to-protect charge can be challenging. A few states allow parents to sidestep a conviction if they can prove they feared they would be harmed or killed if they stepped in to prevent or stop abusers from hurting their intended victims. It may also be possible to convince the court that the victim was not able or capable of taking action due to mental incapacity or environmental restrictions such as being denied access to communication devices (e.g. phone, computer).

As many domestic abuse victims have found, however, the courts aren't always sympathetic to their plight. One woman was sentenced to 45 years in jail when her boyfriend killed her 3-year-old son, even though she attempted to rescue the boy from harm despite the man's threat to kill her if she tried to do so.

If you find yourself in this type of situation, it's essential that you consult with a criminal defense attorney when your spouse is arrested for abuse. A lawyer can develop a strategy that protects your rights and may help you avoid being punished for a crime committed by someone else.

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