OKPOLICY.ORG
Last week, the Senate Judiciary Committee — chaired by Sen. Brent Howard, R-Altus — held a three-hour interim study exploring Oklahoma’s “Failure to Protect” statutes. The study was led by Sen. Todd Gollihare, R-Bristow.
The Oklahoma statute, 22 O.S. 843.5, provides a parent or caretaker may be charged with child abuse or neglect, “enabling” child abuse or neglect, or both, even though they were not the person who abused the child.
This is based on the theory that they either knew or reasonably should have known about the abuse and had a duty to stop it. The statute provides the same maximum penalty for child abuse or neglect and “enabling” child abuse or neglect, which is up to life in prison.
The definitions of child abuse and enabling child abuse share significant areas of overlap:
- Included in the definition of child abuse is “…harm or threatened harm or failure to protect from harm or threatened harm to the health, safety or welfare of a child under eighteen (18) years of age…”
- Enabling child abuse is defined as “the causing, procuring or permitting of child abuse by a person responsible for a child’s health, safety or welfare.”
- “Permit” means to authorize or allow for the care of a child by an individual when the person authorizing or allowing such care knows or reasonably should know that the child will be placed at risk of the conduct or harm proscribed by this section.”
So, if a child is hurt or threatened to be hurt by an abuser, the parent or caretaker — which 90 percent of the time is the mother — can be charged with child abuse because she “failed to protect” from the abuse. Alternatively, she may be charged with enabling child abuse if she permitted another person access to the child under circumstances where it was reasonably foreseeable that the child would be placed at risk, a determination that relies on interpretation.
In a sense it doesn’t matter which she is charged with because both offenses carry the same penalty — up to life in prison.
When a child is abused, our normal reaction is shock and revulsion, and the worse the injury the more horrified we are, regardless of the situation. However, too often in attempting to protect the child, the mother has no good options. Trying to get herself and her children away from an abuser is fraught with coercive control, threats, or the reality of even worse violence toward the child or herself; threats she’ll never see her children again; financial dependence; and psychological trauma.
Oklahoma law subjects a mother to a life sentence, equal to that of the abuser, regardless of her circumstances – even if she sought help or reported the abuse. Authorities then claim she was too slow to act or unreasonably failed to recognize the situation.
The potential life sentence for the non-abuser is an outlier among our surrounding states. Only Texas has a similar maximum, but it is based on the degree of injury and mental state. The others distinguish between the abuser and failure to protect. Oklahoma law does not differentiate between serious injury or not injury at all. Putting women, many of whom have suffered great mental and physical trauma, in jeopardy of a life sentence for failure to protect creates tremendous leverage for prosecutors.
Fear of a life sentence effectively eliminates the opportunity for mothers to contest their guilt or explain their circumstances in a trial and forces women into accepting plea deals with prosecutors. This contributes to the over-incarceration of women that we see in Oklahoma. And it also chills reporting of child abuse, which means less protection for children.
No one argues that failure to protect should not be a serious offense. One option would be for the legislature to distinguish between abuse, neglect, and enabling those acts, assigning penalties proportional to the actions of the accused rather than treating all offenders equally.
