When Policy Goals Collide: Pitting Women Against Children in Failure-to-Protect Laws

Background and Purpose:

In most states, the definition of child abuse and neglect includes not only behaviors that directly harm children, but the failure to protect children from harm. These “failure to protect” statutes have been used to prosecute survivors of intimate partner violence (IPV) either for failing to prevent abuse against their children, or for allowing their children to witness violence in the home. These laws--which can result in survivors facing criminal charges, losing custody of their children, or being added to child abuse registries—pits two vulnerable groups against each other.

Recognizing that many domestic violence survivors have been penalized as “passive perpetrators” under these statutes, a few states have begun to amend their child abuse laws and procedures to take IPV into account. This study objectives are to: (1) better understand how states are currently addressing failure-to-protect, (2) identify ways to protect IPV survivors from prosecution, and (3) articulate how social workers can support both women and their children by contributing to policy and practice reforms.

Methods

The researcher conducted a descriptive analysis of the child welfare laws in all 50 states. Failure-to-protect provisions were coded and categorized according whether and how they: (1) could be applied to IPV survivors, (2) could allow prosecution of IPV survivors where the child is abused, (3) could allow prosecution of IPV survivors where the child witnesses domestic violence, and (4) provide opportunities for IPV survivors to avoid conviction.

Results

Forty states include language that could be used to prosecute IPV survivors for failing to protect their minor children. Most involve permitting or failing to take action to prevent physical harm or injury to a child. Several, however, criminalize permitting a child to be placed in a situation that endangers the child’s welfare or health or mental health; these statutes could apply not only in cases where the child is abused, but also where a child witnesses domestic violence. Two states include language in their criminal statutes that could help exclude IPV survivors from prosecution: New Mexico requires that the failure to protect be without justifiable cause, while Wisconsin requires that the person be physically and emotionally capable of taking action to prevent harm to the child. Five states have affirmative defenses would cover IPV survivors who reasonably believed that acting to prevent the harm would result in substantial bodily harm to themselves or the child; Texas is the only state with an affirmative defense that explicitly references victims of family violence.

Conclusions and Implications

Pitting vulnerable children against parents who are themselves survivors of abuse is bad public policy. Only a few states have made strides in remedying the consequences of failure-to-protect laws. Social workers can advocate for statutory language that protects survivors of IPV; develop CPS protocols that recognize both the child and survivor as victims; train judges and prosecutors on the dynamics of IPV and the risks of fleeing abuse; and evaluate the impact of failure-to-protect statutes on the well-being of women and children.