Failure-to-Protect: Who is Failing Whom?

Despite attempting to protect her child from her violent husband Alonzo Turner (right), Arlena Lindley (left) was charged with "injury to child by omission." (Courtesy of YourNation)

Despite attempting to protect her child from her violent husband Alonzo Turner (right), Arlena Lindley (left) was charged with "injury to child by omission." (Courtesy of YourNation)

“And then when she was about to go get her baby, she was grabbing for her baby … [but] he snatched the baby up from her and slammed the door.”

The woman is Arlena Lindley. The man is her boyfriend, Alonzo Turner, a 6’2”, 220-pound factor worker. According to court transcripts, Turner was abusing Arlena’s 3-year-old son Titches; on that day in particular, Turner whipped Titches, threw Titches against a wall, ordered Titches around, pressed his foot into Titches’ chest, pushed Titches’ face into the toilet and flushed. The medical examiner ultimately testified to fractured ribs, lacerations on Titches’ liver, and bruises on the child’s lungs, pancreas and skull.

Because Arlena Lindley is being charged with injury to a child by omission, one might suppose that she stood idly by as she watched her boyfriend abuse her child. Because her sentence is 45 years in prison, one may even begin to wonder if she was an accomplice to the abuse.

Nothing could be further from the truth. As Arlena reached to protect her son, Turner blocked her, threatening to kill her if she tried to save Titches. These were not threats that Arlena could have been expected to take lightly. After all, Turner’s police records refer to his abuse of ex-girlfriends as “aggravated kidnapping” and “unlawful restraint.” And once, when Arlena tried to run away, Turner threw her into his car trunk and threatened to kill her family.

Despite this, Arlena took the first opportunity to escape with her son. Turner, however, chased her down, took Titches away, and threw Arlena out of the house. With Arlena locked out, unable to protect her child, Titches died from the beatings.

Then, why was Arlena sentenced as an accessory to her son’s death? Was this a one-time fluke, quietly mocking the justice system? On the contrary, journalists have found a slew of similar cases, where the killer gets a life sentence, and the mother might as well—despite evidence that the mother had tried to defend her child. In one criminal case, the mother received a longer sentence than the man who raped her son. In yet another, the mother got a sentence 15 times longer than the abuser’s.

These charges, generally called “failure-to-protect,” arise when a parent fails to prevent the abuse of his or her children. The implication is that a parent’s failure to prevent the abuse translates to consent thereof. In theory, it is a way for attorneys to combat child abuse: it allows lawmakers to charge parents for failing to do what they should have done. In practice, the ambiguities surrounding failure-to-protect laws have allowed courts to overreach, resulting in convictions almost exclusively of women.

The fact that women are more likely to have custody of their children and thus, are more likely to be held to these “duty-to-protect” laws accounts for some of the gender gap. Single mothers head over 80% of one-parent households. These demographics seemingly suggest that women face a higher probability of being charged. However, it does not begin to explain how it is possible for mothers to get a longer sentence than the abuser. Nor does it explain why men and women charged for failing to protect under similar circumstances can receive different convictions.

These gendered verdicts reflect persisting stereotypes of women having a greater capacity and duty to protect her children. Prosecutors have played with this sexism by suggesting any bruise on a child demonstrates a mother’s negligence. To them, a mother can be faulted regardless of how hard she tried. They have argued that women should be able to discern, just by the looks of indiscriminate bruises, whether her partner is lying about the causes of the injuries. They have also dismissed a woman’s inability to leave the abuser; the prosecutor might even claim the woman to be more liable since knowledge of her abuser’s violent nature should have warned her about child abuse. And even when the mother acts against the abuse, the prosecution has successfully convicted by simply calling her actions “inconsistent” or “ineffectual.”

Oftentimes, these stereotypes are accepted by a judiciary that disproportionately belongs to a different socioeconomic class. For example, in Tenn. Dep’t of Human Services v. Tate, the court dismissed the mother’s fear of her husband’s threats to kill her if she intervened as an affirmative defense, despite evidence showing the husband had already murdered at least two women:

“The Court find that even animals protect their young … now, [the defendant] may have well been afraid of her husband. There were times when he was gone and even if she was afraid if she had the natural maternal instinct that any mother should have, that maternal instinct should have overcome her fear if she is to be a fit mother and she failed to do that.”

Perhaps their willingness to ignore the nuances of domestic abuse cases is rooted in their inability to place themselves in the same situation. One judge, in their decision wrote:

“The reason I don’t believe [you] is because I don’t believe anything like this could happen to me … There is no way that I could take that kind of abuse from them. Therefore, since I wouldn’t let that happen to me, I can’t believe that it happened to you.”

But the fundamental fact is that convictions are different for men and women: while being absent during the abuse has proven to be a successful defense for men, it has not been the case for women (as in Arlena’s case).

The lengths to which the judiciary has pushed their discretionary powers can be attributed to the general lack of attention paid to these cases. In particular, the Supreme Court has given limited interpretation on the burden of proof required to establish a failure-to-protect. The general standard for being an accessory to a crime was set by Judge Learned Hand in U.S. v. Peoni, which requires accomplices to “associate [themselves] with the venture, that [they] participate in it as in something that [they wish] to bring about, that [they] seek by [their] action to make it succeed.” This purposeful intent holds a higher burden of proof than the mere knowledge of the principal actor’s actions. This is because failure-to-protect should—and must—be interpreted as different from trying-and-failing to protect. Unfortunately, Courts are willing to blur the distinction even when the abused and the abuser share no common purpose.

Failure-to-protect laws create victims in the process of protecting others: they fail to protect the women who are often as beaten as their children. A correction of the current legal interpretation and increased public outrage at these backwards conviction can reform this flawed attempt at addressing domestic abuse.

Evelyn Cai is a second-year in the College majoring in Economics and Philosophy.