Volume XXIII

Victim Blaming: Failure to Protect Laws as a Legislative Attack on Mothers

by Amaris Mae Trozzo

A mother’s intuition is said to give mothers the innate ability to know exactly how to best care for their child. But what happens when a judge decides that a mother’s intuition was wrong? Failure to protect cases deal with harrowing facts: an abusive parent who harms the child they are supposed to care for, a non-abusive parent who stepped in too late. The statutes allow courts to charge the non-abusive parent with the abuser’s crime. The original purpose was to secure the child’s wellbeing and encourage non-abusive parents to leave dangerous situations. Instead, failure to protect laws disproportionally target non-abusive mothers, holding them to an impossibly high standard of care, and removing children from a loving parent in the process. The statutes allow for mothers—who are often facing insurmountable obstacles and doing the best they can for their children—to be deprived of the very thing they are seeking to protect: their motherhood.

This paper will review the history and application of failure to protect laws through a reproductive justice framework. Only by reviewing the totality of the mother’s experience, and not just the presupposed cultural narrative that surrounds her as a survivor of intimate partner violence, can the law begin to appreciate the mother’s legal rights as well as the child’s best interests. This paper will determine that parenting is a fundamental right under the 14th Amendment and argue that any laws infringing on such a right must be reviewed under strict scrutiny. Failure to protect laws falsely presume that removal is a narrowly tailored means to achieve the state’s interest in protecting the child, and therefore violate the 14th Amendment. The process of evaluating failure to protect laws must more adequately consider the mother’s legal rights as a parent as well as the child’s interest in remaining with a stable, loving mother. This paper seeks to reframe the narrative around failure to protect laws so that they can better prevent harm to children as they were intended to do. This paper will provide some suggestions and recommendations as to how the interests of the state, the mother, and the child can all be secured.

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