“Failure to Protect” and the Concept of the Battered Mother

CONTENT WARNINGS: mentions of suicide, depression, death and anxiety. discussions of sexism. descriptions of domestic abuse, violence and death.

Victoria Phanhtharath lied about her daughter’s death.

When three-year-old Alexis arrived at the emergency room of the Children’s Hospital at the University of Oklahoma, she was pronounced dead by skull fracture and blunt force trauma. Phanhtharath told the police that she caused the fatal injury when she pushed her daughter out of frustration and she hit her head on a bedpost.

In a jail interview a few weeks later, she came clean. She admitted that she lied to cover for her husband, Freddy Mendez, who repeatedly kicked the toddler, picked her up by the neck, and slammed her to the ground, causing her death. He also abused Phanhtharath regularly. He tried to drown her in the family pool, beat her in front of her children, and locked her in her closet, only freeing her to make him a sandwich. He told her, “you’re my slave”. Phanhtharath, who experienced domestic violence in a previous relationship, said she was too embarrassed to tell anyone.

Even though she wasn’t offered a plea deal, Phanhtharath testified against her husband and plead guilty to murder by permitting child abuse. She was sentenced to 35 years.

Unfortunately, her story isn’t unique. Nor is her sentence.

Since the 1990s, “failure to protect” laws have been indicting perpetrators of crime by omission. Among these “criminals”, are battered women who have endured  physical, emotional, and psychological abuse, who are often become targets of victim blaming. Following the tragedies of their children, these women are denied an opportunity for closure; instead, they are often subjected to biased prosecution, public shame, and exorbitant punishment, with some receiving life sentences or harsher punishments than the actual perpetrators. On the other hand, most fathers in situations where the mother is the abuser, are not charged with “failure to protect”. One advocate said, “In the 16 years I’ve worked in the courts, I have never seen a father charged with failure to protect when the mom is the abuser. Yet, in virtually every case where Dad is the abuser, we charge Mom with failure to protect.”  In a Florida case in which a boy was killed by his stepmother, his father was told to forget and “get on with his life”.

On the surface, the problem lies in that judges and jurors are quick to blame mothers for their assumed incompetence. Many argue that if they were in the position of the abused, they would have done anything to save their children. In one case, a judge told a battered mother “There is no way that I could take that kind of abuse from them. Therefore, since I wouldn’t let that happen to me, I can’t believe that it happened to you.” Had she actually been in her position, the judge would have experienced the severe psychological repercussions of domestic abuse: depression, anxiety, social withdrawal, and even suicidal thoughts. The problem isn’t just that judges and jurors can’t put themselves in the positions of the victims. It is our society’s own inability to empathize with women or recognize them as human beings outside the rigid mold of the mother.

Moreover, the victim blaming of the “failure to protect” law is a complex, exclusively female problem, mired in sexism, racism, classism, among all the “-isms” and denominations we assign to issues in our society—and to ourselves. In our country, where one-in-three women have experienced domestic violence and more than half of female victim homicides are committed by intimate partners, the statistics on these occurrences are still ambiguous to pinpoint. However, these women are not just the products of an exceptional oversight in our legal system. Domestic violence is a universal problem that transcends all demographics—it persists in our own neighborhoods. Our ultimate goal should be preventing domestic violence as a whole. In acting on this daunting process, however, we need to recognize that we all have a stake in bringing justice to the victims. When we have a better understanding of how our system criminalizes the battered women, we can finally move forward.

Although this is not the case for many battered mothers, there was a happy ending for Phanhtharath. A year after her verdict, a judge suspended her sentence after reviewing her case, earning many praises and criticisms. Still, in the wake of her release, there’s a public debate in whether this was the right decision. A Change.com petition advocates that Phanhtharath should get a life sentence, claiming that by failing to protect her daughter, she “delivered the final blow that ended Alexis's life.” The roles of mothers in domestic violence cases will always be controversial. Their prison sentences should not be.

by EUNICE YUNKYO KIM