This story was originally published by Mother Jones Magazine.
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In a parallel universe, you could imagine the police leaving King in the care of a women’s shelter. But the detectives did not view her as a victim. That’s because of Oklahoma’s “failure to protect” law, which requires parents to shield their kids from physical harm if they’re aware or “reasonably” should have known that another adult was abusing or might abuse the child. Because of this law and how it’s interpreted, King was blamed for what happened to Lilah.
The law is “inherently problematic,” says Megan Lambert, the legal director of the ACLU of Oklahoma, who studies these cases. “A lot of times, motherhood is used as the grounds that they ‘should have known,’ simply because they are the child’s mother.” And mothers in violent relationships are especially vulnerable to prosecution: If they were abused by their partners, juries often believe they should have realized their children might be in harm’s way too. “Folks who are charged often haven’t actually engaged in any harmful behavior,” says Lambert. “They were put in impossible situations and were not able to act fast enough.”
Most states have similar laws, opening the door to anywhere from a few years to decades behind bars as a punishment. But Oklahoma, which incarcerates more women for all crimes than almost any other state, has one of the harshest penalties: Moms can be sent to prison for life for their supposed failure to protect, with no exception for women who were abused themselves. The ACLU estimates that Oklahomans convicted of the offense receive an average sentence of about a decade behind bars.
These types of laws aren’t talked about very much, but they are used to punish parents nearly every week. Last year, I found local news reports of 53 people across 29 states who were, within the span of just three months, arrested, prosecuted, or convicted for similar crimes. Many more cases go under the radar. There are no national data sets to show how many parents have been convicted of failure to protect—in part because their convictions are often labeled as “child abuse” or “child neglect,” making them difficult to track down. But if Oklahoma is any indication, an enormous number of families have been ripped apart. When my colleague Ryan Little and I conducted a groundbreaking review of the state’s court records, we identified hundreds of people who were charged under the law since 2009, when a new version of the statute went into effect.
While the language of these laws refers to parents, prosecutors overwhelmingly target mothers, not fathers. Since 2009, at least 90 percent of the people incarcerated for the offense in Oklahoma were women. Attorneys in multiple states who specialize in this area of law tell me they have never seen a man prosecuted for failing to stop someone else’s violence against a child; Mother Jones found relatively few examples. “It’s sexism,” says Lambert. “It’s the assumption that women are responsible for all the goings-on in the home.” In Oklahoma, the vast majority of women convicted for failure to protect had no prior felony record.
Women of color are disproportionately prosecuted. Black people make up 8 percent of Oklahoma’s total population but 19 percent of those found guilty under the statute since 2009. These types of laws are “really enforced in a racist and classist way,” says Stacey Wright, a women’s rights activist who has also studied these cases.
Not only are the laws used to prosecute women who, like King, are themselves victims of abuse, but there’s no proof these laws are successful in protecting kids. Separated from their mothers, children affected by failure-to-protect convictions sometimes end up in foster care or with abusive guardians, according to several attorneys who are familiar with the statutes.
These laws also create an impossible dynamic that makes survivors less likely to report what’s happening to police. When someone calls 911 after being abused by a partner, some cops open a child welfare investigation if there are kids in the family. So if a mother calls 911, she risks losing her kids; if she doesn’t, she risks being prosecuted for failure to protect. As one legal expert suggests, there’s no way to win. “It creates another barrier for domestic violence victims to seek help, because now they are also threatened with criminalization and incarceration, which also means losing their children,” says Lambert.
In essence, the criminal justice system makes these mothers ultra-culpable, blaming them for things that are largely outside their control. Mothers are punished not only for their partners’ violence, but for the violence that has been inflicted upon them—for the sexism that leads to domestic abuse, for the poverty that makes it hard to escape, for the racist policing systems that don’t protect them, for the circumstances that leave them with few options. As an untold number of women sit in prisons for these supposed crimes, their kids in someone else’s care, maybe the real question we should be asking ourselves is: Who is failing to protect whom?
At the police station, the detectives reprimanded King. During the videotaped interrogation, a female officer brought up the moment when Purdy locked the door to Lilah’s room. “You should have went and got help,” another female officer told her.
“You guys don’t understand,” King said, her voice quivering. “I was so scared myself.” She ran her fingers through her hair, near the scar on the back of her head where another man—her ex-husband and the father of her three older kids—once hit her with the butt of a gun. She had another scar from him over her eyebrow. And another near her wrist, where Purdy had cut her. “I didn’t know what to do,” she told the detectives. “I wanted to get in there and grab her away from him and hold my baby.”
“The problem is, you already held her once…while he whipped the shit out of her,” the first officer said calmly. “You should have ran for help.”
“That’s why you’re going to jail today,” the second officer said. “Because of the things you didn’t do. Your job as the mom is to protect your child.”
“And you failed,” both detectives said in unison.
They handcuffed her and prepared to lead her away. “I love my kids,” King said, crying. “I’m not a bad mom. I’m not.”
Next: In Part 3, we learn how King first fell in love with Purdy, and what traumas she endured leading up to that relationship.
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