Despite her circumstances, Kerry King, a 35-year-old Black woman, was excited to make the holidays special for her children. One day, a week before Christmas, she got up, braided her hair, donned her orange jumpsuit, and went out into the Oklahoma prison visitation room to meet with three of her children. Though she had an enjoyable time frosting graham crackers for their gingerbread house, King knew this moment couldn’t last forever. Mother Jones of August 9, 2022, explains, King couldn’t spend Christmas with her family because six years earlier, she caught her ex-boyfriend choking her four-year-old daughter in the middle of the night. When King tried to intervene, her ex physically assaulted and threatened to kill her. Despite this, King flung herself over her daughter and took the blows for her. But to the two white officers that responded to the scene, that wasn’t enough. NPR from August 17, 2022, clarifies, King was arrested for child neglect and permitting child abuse under Oklahoma’s “failure to protect” law, which requires parents to shield their kids from physical harm if they’re aware another adult might abuse their child. BBC News from February 12, 2022, furthers that despite only 13% of child abuse cases violating “failure to protect laws,” 93% of people convicted were women who received tougher sentences than the actual abuser. This has led to countless women—from King in Oklahoma to others like her in states across the U.S.—serving decades-long sentences for crimes they didn’t even commit. So today, we must examine causes, effects, and solutions to address whom these laws are really failing to protect: mothers and children.

Tondalao Hall was only 19 when she was sentenced to thirty years in prison for failing to report her boyfriend’s abuse. Her boyfriend, on the other hand, only received a 10-year suspended sentence and was released early on probation—despite leaving one of their children with several broken bones. Hall’s story highlights our two causes: punitive excess and sexist domestic abuse policies. First, the Brennan Center for Justice conducted a 25 article study concluding in April 2022 critiquing the current environment of punitive excess, or excessive judicial punishment. Child abuse related crimes are not an exception, as lawmakers want to seem tough on child abuse, even though failure to protect laws are status crimes rather than overt criminal action. This leads to the creation of inflexible laws that fail to catch the overlapping nuances between domestic abuse victimhood and domestic abuse prevention. CBS News from June 7, 2020 states that every state has laws designed to protect children, but some—including Oklahoma, Missouri, Nebraska, Nevada, South Carolina and West Virginia—have failure-to-protect laws or similar child abuse statutes that carry possible life sentences, and Texas’ equivalent carries a maximum 99-year term. Excessive punishments target individuals who never actively committed abuse, and were usually victims themselves.

Second, sexist domestic abuse policies. AP News from September 2018 notes, 321 people have been charged with failure to protect in Oklahoma since 2009, and 90% of those who served prison time were women. The criminal justice system makes 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. Even the landmark legislation enacted in 1994, the Violence Against Women Act, failed to ensure women weren’t over prosecuted. The original VAWA was the first federal legislation to provide community resources to combat domestic violence and sexual assault, such as landmark housing protections and advocacy for survivors. However, these resources only come into play after the unfair criminalization that has disproportionately targeted women.

Latagia Copeland-Tyronce was 26 years old when she discovered that her daughters’ father was sexually abusing her three eldest girls. She contacted child services and left her children’s father immediately, but Lucas County child protective services claimed she had known about the abuse. Her children were then seized by the state, and adopted to other families. Copeland-Tyronce’s case unveils two grave effects: perpetual victimhood and a cycle of re-abuse for children. First, Megan Lambert, the legal director of the ACLU of Oklahoma, stated on August 9, 2022, “[The failure to protect law] creates another barrier for domestic violence victims to seek help, because now they are threatened with criminalization and incarceration, which also means losing their children.” Therefore, survivors are less likely to report abuse to police. The National Coalition Against Domestic Violence furthers, about 70% of domestic violence is never reported. 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 the 2007 Journal of Forensics Nursing suggests: there is nowhere for these women to turn; do they risk punitive measures from the legal system? Or do they risk confronting their child’s abuser on their own?

Second, a cycle of re-abuse for children. The U.S. Center for American Progress from October 25, 2019 explains, “about 90% of kids affected by domestic violence will view the abuse firsthand, often by one parent against another.” This first cycle of abuse leads to the next, as children who grow up in a stressful environment often experience not just physical, but mental trauma. A 2019 edition of Frontiers in Neuroscience illustrates, “Childhood trauma is associated with impaired working memory, executive function, verbal learning, and attention in schizophrenia patients, including those at ultra-high risk to develop psychosis.” For children who have already been devastated by trauma, removing them from a loving parent who never harmed them only exacerbates trauma and re-victimizes survivors, potentially trapping them in a lifetime of psychological distress.

King was sentenced to thirty years in prison, twelve more than her ex-boyfriend himself. But, she never “failed” to be a good mother. Rather, the state failed to take her side and protect her. To combat this injustice, we must explore two solutions: affirmative defense statutes and better support. First, a 2019 Case Western Reserve School of Law journal notes that some states include affirmative defenses in their child endangerment statutes. These statutes protect an abused parent by specifying the conditions where they may claim their own abuse as an explanation for their inaction. If conditions for an affirmative defense are made, judges, before sentencing, can consider the mother’s psychological state, history of being abused, and her means to remove herself and the child from the environment. This serves as a necessary first step to preventing punitive excess, and helps prevent undue punishment for people who are victims themselves.

Second, better support for child welfare agencies. Because child welfare systems are so overwhelmed, intricacies of specific cases are often overlooked, making child removal the default action. However, organizations like Prevent Child Abuse America present a better model: one that requires child welfare programs to make a genuine effort to keep families together. Since 1976, PCA America is the nation’s largest organization committed to preventing child abuse before it happens, with locations in 46 states. The central issues they work on are childhood experiences, abusive trauma, and child neglect. Considering how much influence PCA America has over national policy, we should work to add protection against failure to protect laws as a central tenet to their platform. To do so, please scan this QR code to visit PCA America’s endorsement of the 2022 Jackie Walorski Act, with guidelines for expressing support for protection against failure to protect. Let’s support the 66,000 families and counting PCA America already protects, and better assist victims: parent, or child.

So today, we examined causes, effects, and solutions to address the unfair criminalization of mothers under failure to protect laws. Mothers like Kerry King, Tondalao Hall, Latagia Copeland-Tyronce are now spending time behind bars, when they should be spending time at home, with their children.