“Failure to Protect” Laws punish parents who fail to protect their children from abuse. Little is said about these laws, but they’re popping up across the country, and in some states, like Oklahoma, they’re associated with particularly harsh penalties.
In Oklahoma, failure to protect is the only charge of child abuse brought primarily against women, and it is disproportionately blamed on women of color. Those charged with the crime there are less likely to have prior criminal records than those charged in first-hand child abuse cases – a sign of how far more dangerous the abusers are than those charged with not to have opposed their abuses. Since 2009, when the latest version of the state law took effect, at least 139 women have been imprisoned solely for failing to protect themselves. At least 55 are still incarcerated.
It would be impossible to know any of this without the comprehensive review of Oklahoma court records that I undertook for Samantha Michaels’ groundbreaking investigation into the Unprotected State Act. I wrote computer programs that systematically reviewed all felony and felony cases available on each of the two state court websites, ultimately reviewing 1.5 million cases to identify 955 charges of permitting or authorized child abuse filed against 662 people in 612 cases in Oklahoma since 2009 Another “web scraper,” as the programs are commonly called, collected demographic information to every person incarcerated in the Oklahoma Department of Corrections Offender database.
But those numbers weren’t enough to say how common these cases are in Oklahoma. It is easier for prosecutors to prove protection failure than a blanket charge of child abuse, so prosecutors often charge abusers with both, making it difficult to screen such cases. Prosecutors often use various terms such as “permitting” and “permitting” child abuse to refer to the law of failure to protect. Charge information on case detail pages always includes a text description, but only sometimes includes a status number, which is needed to confirm the exact charge. In some cases, the law lists subsections, clear identifiers of the alleged conduct, but this does not always match the text.
On the advice of the ACLU of Oklahoma, we screened defendants with two types of characteristics to overcome these limitations:
- Defendants whose charges include subsections that refer only to “the possibility of abuse“ and who are not also accused of an enactment or law that alleges direct child abuse. Only 25% of loads fit this description.
- Defendants who are the only person in their case charged with failing to protect and who are not charged with direct abuse.
Of all Oklahomans charged with failing to protect, 2 out of 3 were women. Using only the cases we checked, we found that 9 out of 10 were female.
There are other limitations to our methodology. Typically, cases were discovered using search engines in Oklahoma State Courts Network and Court records on request. Search-generated lists of case detail page URLs were used to download each HTML page. Case numbers are usually sequential. We assumed that missing case numbers were not available after extensive testing to verify that all publicly available cases had been captured. Some cases from our database were cleared after we scraped them in November and February and are included in our tally. Cases redacted before are not.
We attempted to use sentencing data in the Offender Database to calculate sentencing results by case type, but several spot checks proved them to be unreliable for systematic analysis.