This story was originally published by Mother Jones Magazine.
Failure-to-protect laws sprang from changes to child abuse protocols in the 1960s, as doctors became obligated to report signs of mistreatment. The idea was to compel parents who witnessed violence to take action. But the provisions didn’t become commonplace until after a high-profile child abuse case in the late ’80s led to a media frenzy and one of New York’s first televised trials.
In 1987, according to court records, 6-year-old Lisa Steinberg died in New York City after Joel Steinberg, an attorney who had illegally adopted her, beat her unconscious. His girlfriend, Hedda Nussbaum, a former Random House editor who helped care for Lisa, remained with the dying girl for about 12 hours without calling the police; Steinberg meanwhile freebased crack cocaine in their Greenwich Village apartment. Nussbaum, also high, said she believed Steinberg had supernatural healing powers. Only when Lisa stopped breathing did Nussbaum finally urge Steinberg to dial 911.
Prosecutors initially charged them both but dropped the charges against Nussbaum when the abuse she’d endured became evident, both by her deeply misshapen face and by X-rays and exams that revealed her to be anemic and malnourished, with broken bones and chronic infections. Doctors and other witnesses testified that years of beatings from Steinberg had left Nussbaum traumatized and physically incapable of wounding Lisa, or of intervening to protect the girl.
After watching Nussbaum testify, the evidence of her abuse clearly on display, the public became deeply divided. Some saw her as a victim, but others viewed her as a co-conspirator. A People magazine cover showed an image of young Lisa and the question “How could any mother, no matter how battered, fail to help her dying child?” Nussbaum’s critics wondered why she had covered up Steinberg’s violence, and why she hadn’t cried when the police arrived at their brownstone for Lisa. In court, she even testified that she “loved Joel more than ever” while Lisa lay dying.
“Why was Hedda Nussbaum given a walk?” Washington Post columnist Richard Cohen wrote. She was “a mother who did nothing as her daughter was brutalized—who put up with the most incredible indignities herself and who, even as Lisa was taken to the hospital in a terminal coma, attempted to provide Steinberg with an alibi.”
The public backlash against Nussbaum likely helped spur lawmakers and prosecutors to ramp up passing and enforcing failure-to-protect laws, says Karla Fischer, an attorney and expert witness in Illinois who has assisted the defense of women in dozens of these cases around the country. Fischer believes prosecutors are especially hard on these mothers because of political pressure, perceived or real.
Oklahoma approved its first failure-to-protect law in 2000. It’s one of several states, including Texas, West Virginia, and South Carolina, that allow maximum sentences of life in prison for the offense. But these prosecutions are not just a red-state phenomenon. They’re “a problem nationally,” says Colby Lenz of the nonprofit Survived & Punished, who points to California and Illinois as two Democratic-leaning states where parents are often imprisoned for similar crimes. I found recent cases across the country, from Massachusetts to Michigan to North Dakota to New York.
Today, at least 29 states have laws that explicitly criminalize parents for failure to protect against abuse. In many places that don’t, prosecutors take similar actions under more general laws—like charging a woman with murder even if her boyfriend killed the child, and then using legal theories about failure to protect to convict her. Some prosecutors are now extending similar logic to fetuses, charging women who self-abort. “There seems to be a strange obsession with our lawmakers when it comes to asserting control over women’s lives,” says Wright, the women’s rights activist.
And it is almost always women who are held responsible. Alexandra Chambers, an adjunct professor at Vanderbilt who is tracking these cases in Tennessee, sees a religious underpinning of these prosecutions—springing from the Christian myth of Eve, who was blamed for the fall of Eden, and sexist traditions that dictate women be the “moral center” who rein in men’s worst impulses. “Women are judged by what their partner does in a way that men aren’t,” she says. “And it can be seen as a moral failing that she didn’t have the moderating influence” to stop the abuse.
“It becomes insurmountable, the number of things [women] have to do in order to be in compliance with what we think is a good mother,” Colleen McCarty, an attorney who worked on commutations in these cases, told Tulsa People in 2019. Clorinda Archuleta, an Oklahoma mother who’s serving a life sentence for neglect and permitting abuse while her boyfriend serves 25 years for the same charges, believes she was punished so harshly because she didn’t appear sorry enough; according to a local news organization, the prosecutor described her emotional demeanor as “flat.”
Juries are also much more likely to deem Black women as bad mothers, reflecting a structurally racist legal system. Black women face higher incarceration rates than white, Hispanic, and Asian women, and they’re more likely to experience domestic violence and poverty. Black parents also face stricter scrutiny from the child welfare system, which investigates more than half of all Black kids nationally, according to a 2017 study in the American Journal of Public Health. “Black families get scrutiny that white families don’t get,” says Cindene Pezzell, the legal director of the National Clearinghouse for the Defense of Battered Women.
On top of all this, failure-to-protect laws ignore how often abuse of a child overlaps with abuse of a parent. One 2006 study sponsored by the Justice Department found that kids are more likely to face mistreatment by either parent if the mother is being beaten by her partner. A survey of 6,000 American families found that half of men who frequently assaulted their wives also frequently harmed their children. So it’s not surprising that so many mothers locked in prison for failure to protect are also victims themselves: In Oklahoma, roughly half of the women convicted under the law between 2009 and 2018 were experiencing intimate partner violence, according to an ACLU analysis of 13 of the state’s counties. “The law should treat someone who’s a co-victim as a co-victim, as someone who is in need of support and resources, and not as a co-defendant, as someone who is in need of prosecution and incarceration,” says the ACLU’s Lambert.
Only a handful of states make exceptions for domestic violence survivors. “We weren’t thinking about domestic violence,” former Oklahoma state Rep. Jari Askins, who wrote the state’s failure-to-protect law, told BuzzFeed News in 2014. Askins argued that women in abusive relationships could tell the court about that history to receive leniency. In reality, such history is often used against them, as prosecutors convince juries that suffering through years of abuse without leaving is a sign of bad parenting.
“It’s hard for people who are on the outside looking in to understand how someone could harm their kids or submit to an abuser’s demand to do that, but survivors know what the consequence of each choice is,” says Pezzell. A mother, for instance, might follow orders to hold her daughter down or even hit her child because she believes that obeying his commands will keep him from going harder against the kid. And for these women, dialing 911 can be dangerous. “If the police don’t believe her and send her home, then she feels he’s gonna kill [her]. And if she’s dead, he has unfettered access to the child,” says Fischer, the attorney in Illinois. “Battered women are forced into a position where they think differently about what’s safe and what’s not.”
King says society has unrealistic expectations. “They think we’re supposed to be like he-man women, like super strong and able to beat men down whenever they come at us,” she says. “It doesn’t make any sense to me, how you could expect us to be able to take down a man.” (When survivors do kill their abusers, they frequently end up in prison.)
Courts often don’t consider the catch-22 that such moms find themselves in. In 2015, a man in Frederick, Oklahoma, fractured a toddler’s skull, and the boy later died. The jurors convicted the man and recommended a 17-year prison sentence. Another jury recommended that his girlfriend, who was the boy’s mother and had been asleep during the injury, go to prison for life. “A lot of the disproportionate treatment is rooted to our psyche in this state: We tend to get madder at the woman who we felt like didn’t protect the kid than we do the man who abused the kid,” says Tim Laughlin, executive director of the Oklahoma Indigent Defense System, which defended the mother in Frederick. “It seems to be part of our collective consciousness,” he adds. In Oklahoma, at least 15 women accused of failure to protect received longer sentences than their male partners who were accused of abuse. On average, these women got 20 years of prison or probation, while the men got less than eight.
Next: In Part 5, King heads to trial.