Who’s Failing Whom? A Critical Look at Failure-to-Protect Laws
Jeanne A. Fugate
Parents or caretakers may be charged with a form of criminal or civil penalty called “failure to protect” when they do not prevent another person from abusing the children in their care. Although couched in gender-neutral terms, defendants charged with failure to protect are almost exclusively female. In this Note, Jeanne Fugate suggests that the unequal numbers of women facing such charges can be explained by the higher expectations that women face in the realm of parenting and child care. She then offers several changes that should be made to the content and enforcement of failure-to-protect statutes. First, she argues that, to ensure that recent expansions of the duty do not implicate unfairly women, laws and courts should define clearly what actions establish a duty to protect children. Second, to avoid unfair expectations of women’s responses to child abuse, failure-to-protect laws should delineate the steps persons must take when they become aware of abuse. Finally, Fugate concludes that every state should adopt an affirmative defense to excuse persons who fear for their safety or the safety of abused children.
