OKPOLICY.ORG
Last week, Senate President Pro Tempore Lonnie Paxton, R-Tuttle, announced that senators had requested 90 interim studies to be conducted while the legislature is out of session. In the Senate, interim studies are assigned to various standing committees, and the decision whether and when to conduct a study rests with the committee chair.
The list of requests always provides insight into the wide range of topics legislators are interested in, the issues they see affecting the people in their districts and the state, and what they hope to accomplish in the next or future sessions.
One request that caught my attention is by Senator Todd Gollihare, R-Kellyville, who wants to study “the legal framework, prosecutorial practices, and real-world implications surrounding the various ‘failure to protect’ laws involving child sexual abuse, child abuse, and child neglect. The study will outline Oklahoma’s statutes and criminal charges that may apply when a parent, guardian, or caregiver fails to prevent harm to a child, despite having a legal duty to do so. It will differentiate among the charges using real Oklahoma cases, and analyze how these are investigated, enforced, and prosecuted across the state.”
It will be interesting to see how this study develops. The primary statute used to prosecute child abuse and neglect cases as well as so called “failure to protect,” or enabling child abuse and neglect, is Title 21, Section 843.5. It is a convoluted statute that contains eight separate felonies – some overlapping – all of which carry a maximum sentence of life in prison, regardless of the degree of culpability of the person charged.
Under the statute, enabling child abuse is a separate crime. Yet the definition of “child abuse” includes “failure to protect from harm or threatened harm.” Moreover, the statute adopts the definition of “neglect” from Title 10A, which is used in child welfare cases to determine if a child should be removed from the home – applying the same definition to impose a criminal penalty up to life in prison.
A mother who is often being physically, sexually, and emotionally abused and terrorized by the same person who is abusing her child can face the same life sentence as the abuser because she “failed to protect” the child. The statute is based on the false premise that a mother is always able to control a dangerous situation or get help.
Prosecutors like the statute because it gives them the threat of a life sentence to pressure the mother into testifying truthfully. Also, failure to protect is easier to prove because, when more than one person has access to the child, the issue is often which person committed the abuse. But with failure to protect, the mother is the mother. The issue is not who committed the abuse; it’s whether the abuse occurred and she failed to protect the injured child.
Numerous cases exist where in the end the person who abused the child receives a substantially lighter sentence than the mother who “failed to protect.”
There’s no doubt it’s helpful for prosecutors to have the leverage they need to try to make the mother come clean with the truth. But, oh if it were only that simple. For all kinds of reasons, the prosecutor may not be satisfied with her testimony. Perhaps she is still terrified or controlled by the abuser, afraid for her or her child’s life – especially since there is no guarantee he will remain in jail. Or perhaps she’s just not a very good witness for reasons outside her control.
Given the intense emotions surrounding child abuse cases, this statute is a breeding ground for injustice.
It is rare in law for one person to be held criminally liable for failing to stop another person from committing a crime. Perhaps it is justified in the case of child abuse. But hopefully this interim study will provide an opportunity to examine this statue with an eye toward providing more accurate degrees of culpability – and incentives to uncover the truth that don’t cause further harm to women and children already in crisis.
