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Are 'failure to protect' laws failing mothers?


Kerry King is a mother of four serving a 30-year prison sentence in Oklahoma. If you ask her kids why she's locked up...

UNIDENTIFIED PERSON #1: It's because, like, I kind of know why she's in jail, but I know she's not supposed to be in there.

UNIDENTIFIED PERSON #2: She's in prison because - I don't really know how to explain it.

SUMMERS: It's been hard for other grown-ups in their lives to explain it or understand it, too, but it comes down to a kind of law known as failure to protect. Kerry King said her ex-boyfriend beat her and her daughter in 2015. Her ex pled guilty to child abuse and neglect, but police charged King, too. They said she hadn't done enough to protect her child. So King wound up with a prison sentence 12 years longer than her ex's. The separation is heartbreaking for her.

KERRY KING: I mostly call them, but I do occasionally write letters trying to, you know, just give them some advice and just show them that I love them more than anything, no matter what their mom (inaudible).

SUMMERS: And she's not the only woman serving more time than her kids' alleged abuser in Oklahoma. Her story is laid out in a new investigation this month by reporter Samantha Michaels. She covers criminal justice for Mother Jones and joins me now. Welcome, Samantha.

SAMANTHA MICHAELS: Thanks for having me.

SUMMERS: And we should note that we will discuss details about domestic violence and child abuse in our conversation. Samantha, how did you first find out about Kerry King and what's been happening to her and her family?

MICHAELS: I first found out about Kerry King back in 2019. I was reading the news and I started reading about another woman named Tondalo Hall, who had been sent to prison because her boyfriend had abused her children and she hadn't known about it. And she had gotten 30 years in prison, and he had gotten two years in jail. And it made national news because she was getting out of prison. And I was outraged. And so I reached out to the ACLU of Oklahoma trying to learn more. And as I was talking with them, they told me that there actually were many, many other cases like this. And they started telling me about Kerry King.

SUMMERS: There's a short documentary that accompanies her story that includes interviews with King, as well as her family. We heard from her kids earlier, but I'd like to play a little bit of what King said about the night that she tried and ultimately failed to stop her ex, John Purdy, from hurting her daughter.

MICHAELS: I feel like I did everything I could with what I had available to me. I didn't have a way to run away. I know I couldn't fight him. I tried to do that. So I didn't see how I allowed him to hurt my child. That's just not what happened.

SUMMERS: Samantha, you have looked at hundreds of failure-to-protect cases. Is this a common refrain that you've observed?

MICHAELS: Yes. It's very common for the mother who is prosecuted for failure to protect to have also been a victim of domestic violence herself and to have, you know, tried her best to protect her kid but, you know, to have been unsuccessful.

SUMMERS: You worked with the American Civil Liberties Union to find at least 15 cases where women were given longer sentences than partners convicted of hurting their kids. Could there be more cases that are going under the radar?

MICHAELS: Yes. It's likely that there are more cases that are going under the radar in Oklahoma and, frankly, across the country. There aren't any national data sets to show how many women have been prosecuted for failure to protect. And it's really tricky, actually, to identify these cases because a lot of times, if you're looking at the charging documents, the failure to protect case is labeled simply as child abuse or child neglect. So you would never know the details of the fact that the woman didn't do anything to hurt her child. If you're just glancing at the court documents.

SUMMERS: You write that these sorts of laws are used to punish parents nearly every week and that an overwhelming number of those incarcerated are women. What have you heard from legal experts about why that's the case?

MICHAELS: It's basically sexism. Most of the legal experts that I talked with said that it comes down to a cultural expectation that women are responsible for what happens in the home. There's an expectation that they should be the moral center of the family, that they should reign in the man's worst impulses, and that they should do whatever they can to protect their child, even if it means, you know, sacrificing themselves.

SUMMERS: During the course of your reporting, did you speak to any child welfare experts about why laws like these remain on the books in dozens of states?

MICHAELS: Yes. Most of the experts that I talked to said that there's a lot of political pressure for lawmakers. Lawmakers don't want to appear like they're being weak on child abuse cases. They don't want to make it seem like they're allowing parents to harm their children. And so it's really, really tough to amend these laws or shorten sentences for women.

SUMMERS: Let's talk now about other possible reforms and solutions. What is happening in other states that could possibly help women who find themselves in situations like the one that Kerry King did?

MICHAELS: Well, for the most part, attempts to reform these laws in other states haven't gotten a lot of traction. It just hasn't been a priority for lawmakers during the pandemic. And as we talked about, there's this political pressure to not appear weak on child abuse cases. However, there are things that can be done. New York actually recently passed a law that allows courts to go back and shorten the sentences of women who are thrown in prison for lots of different types of crimes that were caused because they were victims of domestic violence. So they retroactively can go back and shorten their sentence.

And other states are starting to look at similar laws, including Oklahoma. There are some activists and attorneys in Oklahoma who want to try to replicate New York's law. And so if that were successful down the line, it's possible that Kerry King and other women under similar circumstances might be able to apply for relief.

SUMMERS: I want to end by asking you again about Kerry King and how she's doing now when you most recently spoke with her. What does she want people to understand about what has happened to her and what has happened to other women like her across the country?

MICHAELS: Kerry really wants people to understand that, first of all, she did not allow anyone to abuse her child. And she did everything in her power to try to protect her child. She also wants people to understand that she also was a victim of abuse. In recent phone calls that I've had with her, she's having a really tough time. Three of her children, after she went to prison, the state sent them to live with her ex-husband, a different man who had previously abused her. And the kids have been safe with him since then.

But in the last few months, he was actually arrested for gun-related felonies, and he hasn't been convicted yet. But if he is convicted, he might face jail time as well. So Kerry is just really, really worried about the safety of her kids. And she just wants to get out to be there for them.


SUMMERS: That's Samantha Michaels, a reporter for Mother Jones. Thank you so much for your reporting and for sharing it with us.

MICHAELS: Thanks for having me. Transcript provided by NPR, Copyright NPR.

Juana Summers is a political correspondent for NPR covering race, justice and politics. She has covered politics since 2010 for publications including Politico, CNN and The Associated Press. She got her start in public radio at KBIA in Columbia, Mo., and also previously covered Congress for NPR.
Gabe O'Connor
Ashley Brown is a senior editor for All Things Considered.