THE BLOG
12/04/2014 10:12 am ET Updated Feb 03, 2015

'Failure to Protect' Laws Punish Victims of Domestic Violence

As a criminal defense attorney, some of the most horrific stories I see involve the abuse or neglect of children. When a child is starved, hurt, caged, or even beaten to death, we all scream out for justice. We want to make sure those who abuse children pay, and we as a society often push for the punishment of those who turn a blind eye to their children's suffering as well.

But at what cost, and in what circumstances, should these people be punished?

In Oklahoma, a state with some of the highest child abuse rates in the nation, enabling child abuse is a felony that carries the same penalties as active child abuse. In a lot of ways, this makes sense. After all, as parents, we are programmed to protect our children. A parent who doesn't intervene when someone harms her child, or who fails to leave her child's abuser, fails in that regard.

However, legislation that penalizes child abuse and "permitting child abuse" equally often fails to consider that the person who "allows" the abuse of a child is, in most cases, often the victim of domestic violence herself.

There's an interesting dichotomy we criminal defense lawyers see when handling domestic violence cases. I can tell you from experience that when violence occurs between a man and a woman, the man will almost always be seen as most culpable, even when there is mutual combat -- just ask suspended University of Oklahoma Sooners running back Joe Mixon. The young man was charged with a misdemeanor for "Acts Resulting in Gross Injury" after he punched a young woman who first uttered a racial epithet, pushed him, and slapped him. Amelia Molitor, the female, was not charged, even though she committed assault and battery against Mixon prior to being knocked out by a single punch.

In deciding to charge Mixon with a misdemeanor, Cleveland County District Attorney Greg Mashburn said, "In this particular case, I felt like this statute more fit what happened because now we don't have to talk about who the initial aggressor was. Was there gross injury? And there was. And was that against public morals? And I believe that anytime you punch a girl with that much force, even when she had hit you first, that it would be against public morals."

Bottom line: you just don't hit a girl.

But if you throw a child into the mix, the law holds both genders equally culpable, even if one commits abuse and another fails to intervene. Like I said, I get it; it makes sense. What doesn't make sense is that, in many cases, mothers who fail to protect their children from abuse get even longer prison sentences than the men who abused both the mother and the child.

In 2006, Robert Braxton, Jr., pled guilty to abusing his girlfriend's three-month-old daughter by breaking her ribs and femur. He was sentenced to two years in prison. The infant's mother, Tondalo Hall, was found guilty of failing to protect her daughter and given a sentence of 30 years in prison. Even though there was no evidence that Hall ever hurt her daughter, and even though there was significant evidence that Hall was abused by Braxton and feared him, her sentence was 15 times greater than his.

In a similar case, 21-year-old Arlena Lindley was sentenced to 45 years in prison after her boyfriend, Alonzo Turner, beat her three-year-old son to death. The mother's lengthy sentence came despite a witness's testimony that she had seen Turner threaten to kill Lindley if she intervened. The witness said that, despite the threat, Lindley grabbed her son and ran outside, but Turner dragged them back in and locked the door behind him.

Interestingly, Oklahoma's child endangerment laws make exceptions for intervening in a situation if one feels it might result in his or her own personal harm:

... it is an affirmative defense to this paragraph if the person had a reasonable apprehension that any action to stop the physical or sexual abuse or deny permission for the child to be in the vehicle with an intoxicated person would result in substantial bodily harm to the person or the child" (21 O.S. §852.1).

But is this exception used in practice?

Some judges are now considering the circumstances of a domestic abuse victim's failure, or inability, to protect her child. Victoria Phanhtharath pled guilty to enabling child abuse in the death of her three-year-old daughter at the hands of Phanhtharath's abusive boyfriend, Freddy Mendez. Oklahoma County Judge Kenneth Watson accepted the agreed plea and sentenced the young mother to life in prison, requiring that she serve at least 35 years.

However, when Judge Watson heard her testimony at Mendez's trial, he was shocked, and he modified her sentence, allowing her release after two years. I've practiced in front of Judge Watson on many occasions, and I think he made the right call.

Regardless, the issue is difficult to process. If a person has never been in an abusive relationship, it is all too easy to take the moral high road and guess at his or her reaction to a certain circumstance. But it is impossible to fully understand the fear, the manipulation, and the intimidation under which a victim of domestic violence operates.

A person may fear that the violence which would follow an attempt to leave or intervene would be far worse than any violence she or her children would endure by staying in the relationship... and honestly, that is fear with merit. Statistics show that three out of four women killed in intimate partner homicides are killed while attempting to leave their abuser or shortly after they leave the relationship.

In other words, women are at a 75 percent greater risk of being killed if they leave than if they stay.

Do mothers have a duty to protect their children? Absolutely. If parents sit idly by and permit the abuse of their children, should they face legal consequences? Certainly. But if a person is also the victim of violence and intimidation, the law gives an affirmative defense -- a defense which is largely ignored by the courts in "failure to protect" cases.

Should this defense be utilized in more cases? I think so.

True justice is not measured by what we think we would do in a similar situation; it is measured by the law and how the law applies to certain facts. It is time to stop using the law to blame the victims, and instead find solutions that truly protect our nation's children from violence and abuse.