How Laws Meant to Keep Children Safe are Resulting in Further Harm

Did you know that mothers can be punished for their own abuse?

The Unintended Consequences of Failure to Protect Legislation

Failure to protect legislation often results in unintended consequences for abused women and children. Failure to protect (FTP) is defined as “failure to take reasonable action to remedy or prevent child abuse," and under CAPTA, the Child Abuse Prevention and Treatment Act, failure to act is considered a form of child abuse and neglect. Standards vary from state to state, but some states “allow for the prosecution of a parent who “allows” a child to watch that parent suffer abuse” (Mahoney, 2019). Prosecution on these grounds is justifiable under the law because exposure to interpersonal violence (IPV) is also considered a form of child maltreatment, even if the child never directly observed the violence (Wathen & Macmillan, 2013). The enforcement of FTP legislation under these broad, overlapping definitions unfairly penalizes the non-abusive parent and often brings more harm upon children, as FTP charges can become the basis for permanently removing children from their homes (Brico, 2019). Despite optimistic intentions, FTP legislation perpetuates the cycle of violence by re-victimizing women and children.

The Gap Between Intent and Reality

Although exposure to IPV can increase a child’s risk for social and emotional maladaptation (Wathen & Macmillan, 2013), and FTP legislation is meant to encourage greater reporting of abuse and IPV, removing a child from the non-offending parent’s care under FTP allegations can put the victim and child in more danger. According to a 2019 law review, “family separation inflicts profound and irreparable damage on children”, and safety interventions often create risks and unintended consequences for a child’s wellbeing (Sankaran, Church & Mitchell, 2019). Because removal processes designed to protect children have been shown to directly cause trauma to them, a user manual published by the U.S. Department of Health and Human Services (USDHHS) regarding child protection in domestic violence situations states that “every effort should be made to keep children in the care of the non-offending parent” (Bragg, 2003). Further, a report funded by the U.S. Department of Justice revealed that, in 50% of cases with a single IPV perpetrator, professional psychologists and custody evaluators recommended “the victim receive sole physical and legal custody,” and in 39% of cases, the victim receive “primary physical custody” (Saunders, Faller & Tolman, 2012).

“in some cases, post-separation contacts end in the homicide of a mother and/or her children”

Failing to Acknowledge the Nuance of Interpersonal Violence

Convictions of IPV victims under FTP statutes perpetuate harm by failing to acknowledge the nuanced reality of IPV situations. FTP legislation often overlooks the physical, emotional and economic barriers to leaving an abusive relationship, as well as a mother’s consideration of these factors when trying to best protect her children. Perpetrators of IPV use threats and intimidation to maintain control over their partners and children. Some tactics include: “threatening acts of homicide, suicide or injury and instilling fear by threatening to kidnap the children” (Bragg, 2003). Victims also know that taking action to report abuse or flee the relationship can “incite more severe violence from the abuser,” (Miller & Perrin, 2007). For example, “in some cases, post-separation contacts end in the homicide of a mother and/or her children,” so victims must weigh these risks when determining which decisions will result in the least harm to them and their child (Saunders et al., 2012).

Financial constraints and economic coercion are other barriers FTP statutes seldom account for. Economic coercion can include: “preventing the victim from obtaining employment or an education, forcing the victim to hand over any income, stealing money or withholding money and prohibiting access to family income” (Bragg, 2003). Without adequate financial resources, women cannot easily leave IPV situations. If they do leave, they are faced with the possibility of not being able to provide their children with stable housing, education or basic necessities as a result. For example, in New York City, battered mothers who access a shelter “will automatically be moved to a different borough, meaning a change in school district for their children and loss of support networks or trusted child care, lack of which can easily become another maltreatment charge” (Brico, 2019).

"despite the distress of abuse, many victims remain supportive, nurturing parents who mediate the impact of their children’s exposure to violence"

Protective Strategies and Weighing Risk

FTP convictions assume the abused parent did not take reasonable action to shield their child from harm, yet, despite the distress of abuse, many victims remain “supportive, nurturing parents who mediate the impact of their children’s exposure to violence” (Bragg, 2003). According to the U.S. DHHS, victims develop unique protective strategies based on their experience of what is effective and what previously caused retaliatory harm, then “after careful consideration, [they] decide whether to use, adapt, replace or discard certain approaches given the risks they believe it will pose to them and their children” (Bragg, 2003). Unfortunately, many analytical strategies used by victims to deescalate their partner’s abusive behavior and protect their children, such as “complying, placating, or colluding with the perpetrator” do not fit neatly within the generally accepted framework of protective strategies (Bragg, 2003).

Frequently recommended protective strategies include “contacting the police, obtaining a restraining order, or seeking refuge at a friend’s home or a shelter” (Bragg, 2003). In FTP cases, these actions are preferred by authorities because they are “concrete and observable” and reassure the court that the victim is “taking steps to address the abuse and be safe” (Bragg 2003). Unfortunately, these strategies “can be unrealistic and even dangerous options for some victims.” For example, “obtaining a restraining order can be useful in deterring some perpetrators, but it can cause other perpetrators to become increasingly abusive and threatening (Bragg, 2003). Further, exposure to IPV is typically not the only harm IPV victims must protect their children from, often weighing “perpetrator-generated risks versus life-generated risks” such as housing challenges. Faced with this reality, a woman might “refuse/ not follow through with services to avoid angering the abuser” (Bragg, 2003), or “stay in the relationship because she believes it is the best way to protect her children” (Saunders et al., 2012). Ultimately, courts fail to acknowledge these nuances and victims’ experience-driven attempts to protect their children are overridden by their child’s exposure to their victimization.

"one in four women sentenced for failure to protect received a harsher sentence than the actual abuser"

Perpetuating Harm by Criminalizing Abused Women

Criminalizing IPV victims under failure to protect statutes incites additional harm by supporting patriarchal constructs of motherhood and perpetuating unfair expectations of women. According to research from the Journal of Law-Medicine, society primarily looks at preventing child abuse as a mother’s responsibility, not a father’s, and “when a male’s actions were abusive toward a child, it’s viewed as the mother’s fault for leaving her child with the wrong person” (Mahoney, 2019). Not only have women historically taken the blame for ‘allowing’ child abuse, but they often receive harsher sentences than the men who actively commit the abuse. For example, data from Oklahoma’s district attorney revealed that, “one in four women sentenced for failure to protect received a harsher sentence than the actual abuser” (Alfonsi, 2020). Further, FTP laws are not being consistently enforced. In Oklahoma, there were “41 women in prison for FTP, but just 16 men, even though government statistics show women and men abuse children at nearly the same rate” (Alfonsi, 2020). A publication from the New York University Law Review posits that “the unequal numbers of women facing such charges can be explained by the higher expectations that women face in the realm of parenting and child care” (Fugate, 2001).

Gender-Bias in Courts: Legitimizing Patriarchal Standards

The prevalence of “gender-bias in courts, as revealed by many gender-bias commissions,” has a disproportionate impact on women and children, who suffer “increased risk in the context of custody determinations,” especially when “sole or joint custody of children is awarded to a violent parent rather than a non-violent one” (Saunders et al., 2012). Even when women do follow the ideal course of action by reporting abuse to police, evidence shows a “tendency to disbelieve or minimize women’s reports of abuse, or to disregard evidence for it” (Saunders et al., 2012). For example, Karen Dalton, who reported her husband to police despite his threats “to kill the children (once holding their child outside of a third floor window) or to kidnap them if she left”, lost her parental rights, as the court disregarded her attempts to seek help (Mahoney, 2019). When courts unfairly implicate abused women, they legitimize damaging patriarchal standards, which re-victimizes women and increases instability in children’s lives.

Child Removal and Foster Care: Collateral Damage and Complex Trauma

One of the most devastating sources of instability FTP laws can bring about is the removal of a child from their home and their non-offending parent’s care. “This intervention, which is intended to mitigate serious, imminent harm, has the potential to cause its own serious, imminent harm” (Sankaran et al., 2019). Removing children from their home negatively impacts their psychological well-being and can cause “relational losses, disenfranchised grief, and complex trauma” (Sankaran et al., 2019). Complex trauma is especially prominent when children experience multiple family placements over their time in foster care, which is not uncommon. Complex trauma leads to “body dysregulation, difficulty managing emotions, dissociation, poor self-regulation and self-concept, cognitive impairment, and multiple long-term health consequences” (Sankaran et al., 2019). For example, when children are separated from their caregivers, there is a “monsoon of cortisol stress hormones flooding the brain and body,” and when cortisol levels are high, they begin to damage brain cells. According to research, “unlike other areas in the body, most cells in the brain cannot renew or repair themselves” (Sankaran et al., 2019).

"25% of foster care alumni were found to experience post-traumatic stress disorder, a rate which is nearly twice as high as the rate documented by U.S. war veterans"

Instability, Ambiguous Loss and PTSD

Because removal from the home is considered “the most drastic safety intervention utilized by child welfare agencies,” it is of critical importance for decision makers to “ensure that all efforts have been made to mitigate complex trauma by keeping families safe and together” (Sankaran et al., 2019). In fact, evidence of the harm due to separation is so prominent that Dr. Charles Nelson, a professor of Pediatrics at Harvard Medical School, stated: “There’s so much research on this that if people paid attention at all to the science, they would never do this." When children are suddenly moved into foster care, a process called “the apprehension transaction,” their understanding of themselves, their interpersonal relationships, and the safety of their world are all challenged and called into question. To the child, this process is often equated to the trauma of kidnapping (Sankaran et al., 2019).

Furthermore, “more than half of the children who enter foster care will be placed with people they have never met,” which leads to role ambiguity and the severe confusion and discomfort associated with acclimating to unfamiliar “family members” and unfamiliar environments. The ambiguous loss of a child’s biological parents also traumatizes children, “because they are grieving the loss of a family member who is not dead, but is out there somewhere” (Sankaran et al., 2019). Ambiguous loss creates “anxiety, confusion, despair and other negative mental health experiences” (Sankaran et al., 2019). In fact, “25% of foster care alumni were found to experience post-traumatic stress disorder, a rate which is nearly twice as high as the rate documented by U.S. war veterans” (Sankaran et al., 2019).

"IPV prevention initiatives would address the root of children’s exposure to violence and take the onus off of abused women, who want safety for their children just as much as the state."

So, what's next?

Unclear definitions of abuse, in the context of failure to protect, don’t take the complexity of IPV situations into account, leading to the re-victimization of abused caregivers and their children. If all states revised their FTP standards to reflect this complexity, re-victimization would lessen and children would not suffer extreme collateral damage associated with IPV exposure. Furthermore, public health research suggests that “child exposure to IPV is prevented best by preventing IPV,” so more research should be done in this area (Anderson & Van Ee, 2018). IPV prevention initiatives would address the root of children’s exposure to violence and take the onus off of abused women, who want safety for their children just as much as the state.

References

Alfonsi, S. (2020, June 7). Failure to protect: How an Oklahoma child abuse law treats women differently than men. CBS News. Retrieved from https://www.cbsnews.com/news/failure-to-protect-oklahoma-child-abuse-law-60-minutes-2020-06-07/

Anderson, K., & Van Ee, E. (2018). Mothers and Children Exposed to Intimate Partner Violence: A Review of Treatment Interventions.?International journal of environmental research and public health,?15(9), 1955. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6163939/

Bragg, H. Lien. (2003). Child Protection in Families Experiencing Domestic Violence. U.S Department of Health and Human Services. Child Abuse and Neglect User Manual Series. (pp. 1-102). Retrieved from https://www.childwelfare.gov/pubpdfs/domesticviolence.pdf

Brico, E. (2019, October 25) State laws can punish parents living in abusive households. Talk Poverty. Retrieved from https://talkpoverty.org/2019/10/25/failure-protect-child-welfare/

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Child abuse protection laws. Darkness to Light. (2020, November 24). Retrieved from https://www.d2l.org/get-help/reporting/protection-laws/

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Mahoney, A. (2019). How Failure to Protect Laws Punish the Vulnerable. Health Matrix: The Journal of Law-Medicine 29(1), 429–461. Retrieved from https://doi.org/https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1641&context=healthmatrix#:~:text=Failure%20to%20Protect%20(FTP)%20Laws,punish%20victims%20of%20domestic%20abuse.&text=In%20many%20cases%2C%20FTP%20laws,taken%20to%20protect%20her%20children

Miller-Perrin, C., & Perrin, R. (2007). Chapter 9: Controversial Issues in the Study of Child Maltreatment. In Child Maltreatment: An Introduction (pp. 289–328). SAGE Publications. Retrieved from https://in.sagepub.com/sites/default/files/upm-binaries/47855_ch_9.pdf

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Saunders, D., Faller, K., Tolman, R. (2012). Child Custody Evaluators’ Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody Visitation Recommendations. National Institute of Justice, U.S. Department of Justice. Retrieved from: https://www.ojp.gov/pdffiles1/nij/grants/238891.pdf

Singh S. (2021). Punishing Mothers for Men's Violence: Failure to Protect Legislation and the Criminalization of Abused Women.?Feminist Legal Studies,?29(2), 181–204. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8096629/

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