The Adult Survivors Act: The End to a Year of Record-Breaking Sexual Assault Suits

By: Sarah Wejman

Edited by: Jack Pacconi and Angie Chung

The day after Thanksgiving marked the end of one of the most influential state sexual assault laws to date. The Adult Survivors Act (ASA), put into effect from November 24, 2022, to the end of the year, was an amendment to New York’s Civil Practice Law and Rules. The ASA essentially created a one-year period to allow victims whose statute of limitations expired to sue their abusers.[1] This period has caused a surge of over 3,000 sexual abuse civil suits.[2] 

The ASA led to many high-profile lawsuits, including those against actor Jamie Foxx, former New York Governor Andrew Cuomo, New York Mayor Eric Adams, and former President Donald Trump. There were also “at least 479 suits for charges of abuse at Rikers Island,”[3] a  prison infamous for a culture infiltrated with mismanagement, perpetual violence, and an increasing number of jail deaths. Former hospital patients accounted for a handful of other cases, several of which were against a former Columbia University gynecologist, Robert Hadden.[4] 

In years before the ASA’s extension, New York passed a couple of progressive but less expansive sexual assault and abuse laws. In 2019, the state extended the statute of limitations to 20 years for individuals filing civil suits for certain sex crimes, and in the same year, they passed the Child Victims Act, which created a “look back period” so that people who were sexually abused as children could file suit as adults.[5] 

The passing of such laws sparked a national debate on whether this type of legislation was beneficial. Several Democratic lawmakers strongly vouched for its extension and called for a permanent version of it. Most notably, Sen. Brad Holman-Sigal of Manhattan stated that “statutes of limitations only serve to protect the perpetrators.”[6] Liz Roberts, the CEO of Safe Horizon, a New York organization to support victims of violence, echoed his sentiments in a recent statement, explaining that “what we have learned is that trauma takes time” and, as evidenced by many of the recent cases, it is harder to confront sexual assault committed by a person of higher authority and power.[7] On the other hand, others claimed that the statute of limitations extension, aside from for children and prisoners, may potentially endanger the defendant's rights due to a lack of evidence and witnesses. As Harvard Law Professor Emeritus Alan Dershowitz stated many years ago, “[h]ow do you expect people to remember details of something that happened or didn’t happen?”[8] In years to come, sexual assault victims might have increasingly different rights depending on their state. Being a states’ rights issue, it will be interesting to see how other states will react and whether or not they will take similar measures to New York. 

Notes:

1. Adult Survivors Act, S66 §214-j (2022) 

2. Hurubie Meko, “A Final Wave of Sex-Abuse Lawsuits as One-Year Window Closes in New York,” The New York Times, November 27, 2023, https://www.nytimes.com/2023/11/27/nyregion/adult-survivors-act-lawsuits.html.

3. Hurubie Meko, “A Final Wave.” 

4. Corinne Ramey and Erin Ailworth, “The Law That Brought to Light a Flurry of Sexual-Assault Allegations,” The Wall Street Journal, November 28, 2023, https://www.wsj.com/us-news/new-york-law-sexual-assault-accusations-60daa 252?page=1.

5. Corinne Ramey and Erin Ailworth, “The Law That.” 

6. Betsy McCaughey, “No, New York Shouldn’t Extend the Adult Survivors Act,” New York Post, December 4, 2023, https://nypost.com/2023/12/04/opinion/no-new-york-shouldnt-extend-the-adult -survivors-act/. 

7. Hurubie Meko, “A Final Wave.” 

8. Hurubie Meko, “A Final Wave.”

Bibliography:

Adult Survivors Act, S66 §214-j (2022) 

McCaughey, Betsy. “No, New York Shouldn’t Extend the Adult Survivors Act.” New York Post, December 4, 2023. https://nypost.com/2023/12/04/opinion/no-new-york-shouldnt-extend-the-adult-survivors -act/. 

Meko, Hurubie. “A Final Wave of Sex-Abuse Lawsuits as One-Year Window Closes in New York.” The New York Times, November 27, 2023. https://www.nytimes.com/2023/11/27/nyregion/adult-survivors-act-lawsuits.html. 

Ramey, Corinne, and Erin Ailworth. “The Law That Brought to Light a Flurry of Sexual-Assault Allegations.” The Wall Street Journal, November 28, 2023. https://www.wsj.com/us-news/new-york-law-sexual-assault-accusations-60daa252?page= 1.

School Segregation in the Wake of Brown v. Board

By: Morgan Dreher

edited by: Isabel Gortner and Isabel Niemer

Brown v. Board of Education: the landmark case that ruled “separate but equal” was inherently unequal, and solved school segregation in the United States, right? [1] Not quite. In modern times, about one in five public school students attend “racially isolated” schools and disadvantaged districts receive $4,200 less per student annually than wealthier, neighboring districts. [2] There is no shortage of research demonstrating that racially and economically integrated schools improve the academic and emotional outcomes of students across all backgrounds, [3] so why are Black students today still as segregated as they were in the 1960s? [4]

To understand the issue of modern school segregation, one must first comprehend the enforcement of Brown v. Board, and the subsequent legal proceedings. The public possesses a general understanding of what it means to be “separate” but inherently unequal, [5] but the confusion arises around how this was implemented. While the first decision in the Brown case declared that school segregation violated the Equal Protection Clause of the Fourteenth Amendment, Brown II delegated oversight to the lower courts, to be conducted with “all deliberate speed.” [7] The ambiguous nature of this decision meant states were not under any time constraint to facilitate integration, allowing them to create their own timeline. [8] 

In addition, if segregation was not a direct product of policy, courts had minimal ability to enforce integration. [9] Largely contributing to this limited power was the 1974 case, Milliken v. Bradley. The Supreme Court ruled that if Michigan suburbs contributing to high segregation in Detroit were not actively hurting Detroit students, they could not be held to active desegregation efforts either, further limiting the courts’ capacities to enforce desegregation. [10] In the decision, Justice Thurgood Marshall foresaw that “the very evil that Brown was aimed at will not be cured but will be perpetuated.” [11] In short, the courts began to only consider if the intent was segregation, dismissing other policies and actions creating segregation, [12] and moving further away from their commitment to integration. [13]

Furthermore, housing segregation is so intrinsically tied to school segregation that its history must be mentioned. The practice of “redlining” was a collection of racist housing policies created by the Federal Housing Administration, which categorized people of color as high risk and forced them into segregated neighborhoods. [14] Although the 1986 Fair Housing Act made race-based housing discrimination illegal, the legacy of redlining persists. [15] This has direct implications for school segregation because district zoning maps do not take neighborhood segregation into account when drawing their boundaries. [16] As a result of redlining and the Milliken decision, today’s school segregation pertains more to districts than individual schools. [17] Because school funding is derived from property taxes, entire districts are often disadvantaged, with about one-third less money per student than their wealthier counterparts. [18] 

So, is the current lack of integration caused by legal proceedings or the continued ramifications of housing segregation? The answer is both, with the addition of several external factors. Another commonly cited source of school segregation is district secession, where schools separate from their district with the intent of more concentrated control. [19] These new schools contribute to resegregation because they are often comprised of wealthier white and Asian students, with fewer Hispanic and Black students, and less representation from students of lower socioeconomic status. [20] An additional cause of segregation is a lack of public and political support for integration efforts, such as those involving funding. Although former President Obama allotted federal grants for “Opening Doors, Expanding Opportunities,” intended to fund efforts for public school integration, the Trump administration pulled these grants, moving integration efforts backwards. [21] Other factors include direct opposition to integration and separation of students based on ability and testing, which often involves racial bias. [22][23] Ultimately, because segregation is no longer codified into law after Brown v. Board, racial inequality is reproduced and spread across many systems, [24] and the United States will require comprehensive reform to desegregate fully. [25]

While comprehensive reform is not yet on the table, certain districts and cities can be analyzed as case studies to direct future, widespread efforts. For example, Cambridge, Massachusetts has adopted a “controlled choice” model, where parents rank their top choices for schools, and the district makes final decisions that reflect its socioeconomic distributions. [26] Integration efforts by race can be difficult to achieve based on legal precedent, so this district utilizes income as a “powerful equalizer.” [27] On the contrary, areas like San Antonio have less diversity within their districts, so they are instead focused on developing high-quality schools with substantial resources and opportunities. [28] These schools prioritize in-district students, but also attract out-of-district students of higher socioeconomic status, thus facilitating diversity. [29]

School districts across the country must continue to pursue integration. An article from JJ Packer of Reading Partners discusses how students in integrated schools have more academic success, including more likelihood of attending college and less likelihood of dropping out. [30] These same students have proven to have emotional benefits, including less anxiety and fewer biases. [31] Ultimately, efforts to integrate schools will improve the educational experience of students, [32] and for Brown v. Board of Education to see its true objective manifest in modern times, widespread reform must occur across the various systems that perpetuate racial segregation and inequality.

Notes:

1. Earl Warren and Supreme Court Of The United States,  U.S. Reports: Brown v. Board of Education, 349 U.S. 294, 1954, Periodical. https://www.loc.gov/item/usrep349294/.

2. Elissa Nadworny and Cory Turner, “Milliken v. Bradley: Supreme Court Case Has Helped Keep Schools Segregated,” NPR, 2019. https://www.npr.org/2019/07/25/739493839/this-supreme-court-case-made-school-district-lines-a-tool-for-segregation.

3. JJ Packer, “Why American school segregation didn't end with Brown v. Board of Education - Reading Partners,” Reading Partners 2023. https://readingpartners.org/blog/why-american-school-segregation-didnt-end-with-brown-v-board-of-education/.

4. Cassidy Foley, "School Segregation: A Modern Issue," Celebration of Learning, 2018.https://digitalcommons.augustana.edu/celebrationoflearning/2018/presentations/21

5. G. R. López and R. Burciaga, “The Troublesome Legacy of Brown v. Board of Education,” Educational Administration Quarterly 50 (5): 796-811, 2014. https://doi.org/10.1177/0013161X14551410.

6. López and Burciaga, “The Troublesome Legacy of Brown v. Board of Education.”

7. López and Burciaga, “The Troublesome Legacy of Brown v. Board of Education.”

8. López and Burciaga, “The Troublesome Legacy of Brown v. Board of Education.”

9. Packer, “Why American school segregation didn't end with Brown v. Board of Education - Reading Partners.”

10. Nadworny and Turner, “Milliken v. Bradley: Supreme Court Case Has Helped Keep Schools Segregated.”

11. Nadworny and Turner, “Milliken v. Bradley: Supreme Court Case Has Helped Keep Schools Segregated.”

12. López and Burciaga, “The Troublesome Legacy of Brown v. Board of Education.”

13. J. R. Feagin & B. M. N. Barnett, “Success and Failure: How Systemic Racism Trumped the Brown v. Board of Education Decision,” University of Illinois Law Review, 2004(5), 1099-1130, 2004. https://illinoislawreview.org/print/volume-2004-issue-5/success-and-failure-how-systemic-racism-trumped-the-brown-v-board-of-education-decision/

14. López and Burciaga, “The Troublesome Legacy of Brown v. Board of Education.”

15. Sequoia Carrillo and Pooja Salhotra, “U.S. schools remain highly segregated, government report finds,” NPR, 2022. https://www.npr.org/2022/07/14/1111060299/school-segregation-report.

16. Carly Berwick, “3 Promising Models of School Integration,” Edutopia, 2018. https://www.edutopia.org/article/3-promising-models-school-integration/.

17. Packer, “Why American school segregation didn't end with Brown v. Board of Education - Reading Partners.”

18. Nadworny and Turner, “Milliken v. Bradley: Supreme Court Case Has Helped Keep Schools Segregated.”

19. Carrillo and Salhotra, “U.S. schools remain highly segregated, government report finds.”

20. Carrillo and Salhotra, “U.S. schools remain highly segregated, government report finds.”

21. Janel George and Linda Darling-Hammond, “Brown at 67: Segregation, Resegregation, and the Promise of Federal Policy,” Learning Policy Institute, 2021. https://learningpolicyinstitute.org/blog/brown-67-segregation-resegregation-and-promise-of-federal-policy.

22. Packer, “Why American school segregation didn't end with Brown v. Board of Education - Reading Partners.”

23. Feagin and Barnett, “Success and Failure: How Systemic Racism Trumped the Brown v. Board of Education Decision.”

24. Andrea Dyrness, “Cultural Exclusion and Critique In the Era of Good Intentions: Using Participatory Research to Transform Parent Roles in Urban School Reform,” Social Justice, 36(4 (118)), 36–53, 2009.  http://www.jstor.org/stable/29768560

25. Foley, "School Segregation: A Modern Issue.”

26.  Berwick, “3 Promising Models of School Integration.”

27. Berwick, “3 Promising Models of School Integration.”

28. Berwick, “3 Promising Models of School Integration.”

29. Berwick, “3 Promising Models of School Integration.”

30. Packer, “Why American school segregation didn't end with Brown v. Board of Education - Reading Partners.”

31. Packer, “Why American school segregation didn't end with Brown v. Board of Education - Reading Partners.”

32. Packer, “Why American school segregation didn't end with Brown v. Board of Education - Reading Partners.”

Bibliography:

Berwick, Carly. 2018. “3 Promising Models of School Integration.” Edutopia. https://www.edutopia.org/article/3-promising-models-school-integration/.

Carrillo, Sequoia, and Pooja Salhotra. 2022. “U.S. schools remain highly segregated, government report finds.” NPR. https://www.npr.org/2022/07/14/1111060299/school-segregation-report.

Dyrness, A. (2009). “Cultural Exclusion and Critique In the Era of Good Intentions: Using Participatory Research to Transform Parent Roles in Urban School Reform.” Social Justice, 36(4 (118)), 36–53. http://www.jstor.org/stable/29768560

Feagin, J. R., & Barnett, B. M. N. (2004). “Success and Failure: How Systemic Racism Trumped the Brown v. Board of Education Decision.” University of Illinois Law Review, 2004(5), 1099-1130. https://illinoislawreview.org/print/volume-2004-issue-5/success-and-failure-how-systemic-racism-trumped-the-brown-v-board-of-education-decision/

Foley, Cassidy. (2018) "School Segregation: A Modern Issue." Celebration of Learning.

https://digitalcommons.augustana.edu/celebrationoflearning/2018/presentations/21

George, Janel, and Linda Darling-Hammond. 2021. “Brown at 67: Segregation, Resegregation, and the Promise of Federal Policy.” Learning Policy Institute. https://learningpolicyinstitute.org/blog/brown-67-segregation-resegregation-and-promise-of-federal-policy.

López, G. R., and R. Burciaga. 2014. “The Troublesome Legacy of Brown v. Board of Education.” Educational Administration Quarterly 50 (5): 796-811. https://doi.org/10.1177/0013161X14551410.

Nadworny, Elissa and Corey Turner. 2019. “Milliken v. Bradley: Supreme Court Case Has Helped Keep Schools Segregated.” NPR. https://www.npr.org/2019/07/25/739493839/this-supreme-court-case-made-school-district-lines-a-tool-for-segregation.

Packer, JJ. 2023. “Why American school segregation didn't end with Brown v. Board of Education - Reading Partners.” Reading Partners. https://readingpartners.org/blog/why-american-school-segregation-didnt-end-with-brown-v-board-of-education/.

Warren, Earl, and Supreme Court Of The United States. U.S. Reports: Brown v. Board of Education, 349 U.S. 294. 1954. Periodical. https://www.loc.gov/item/usrep349294/.

Environmental Law: A Vital Mechanism to Address the Climate Crisis

By: Eliana Aemro Selassie

Edited by: Regan Cornelius and Eleanor Bergstein

Climate change has been a growing issue of concern among governments and citizens alike in the last few years. As the climate crisis worsens, environmental law has become increasingly important to implement effective environmental legislation and address the crisis. Environmental law focuses specifically on managing natural resources, preventing the degradation of the environment, and regulating pollution and emissions through policies and legislation focused on managing air and water quality, protecting endangered species, limiting pollution, and addressing the impacts of environmental disasters, at both the national and international levels. [1] The implementation of environmental law is increasingly important to mitigate the deterioration of the environment past irreversible levels, but this poses several challenges given the number of stakeholders involved and the complexities associated with national and international climate policy.

Environmental law has evolved significantly over the last 50 years in the United States. The rise of major environmental disasters and declining air, land, and water resources across the nation in the 1960s increased public concern about environmental issues. The evolution of environmental law was largely funneled by the creation of the Environmental Protection Agency (EPA), established in 1970 under the Nixon administration. [2] Today, the EPA has the power to set air and water quality standards, conduct research on environmental hazards, and ensure environmental legislation is implemented to maintain environmental resources and stewardship. [3] 

However, the EPA’s powers have been recently thwarted through the 2022 Supreme Court case West Virginia vs EPA, which restricts the EPA’s ability to limit carbon emissions, arguing that it is the jurisdiction of Congress, rather than the EPA, to do so. The ruling stated that the EPA would be overreaching if it were to create emission caps on generation shifting, the process of shifting from fossil fuels to renewable energy sources. [4] The decision was based on the recent “major questions doctrine” framework, which states that it is the responsibility of government agencies like the EPA to enact “the will of Congress” and elected officials, rather than to decide on those matters themselves. [5] As a result of the doctrine, the Supreme Court argued determining emission caps specifically for fossil fuel corporations would be an infringement of the EPA’s abilities as an agency.

However, limiting the EPA’s ability to enact carbon emission caps in the current state of the climate crisis poses major threats to the capacity of the United States to meet its carbon emissions targets. In Justice Elena Kagan’s dissent, she emphasized that restricting the EPA’s power is particularly harmful, stating that “If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean.” [4] Kagan’s dissent highlights how restricting the jurisdiction of agencies like the EPA that are responsible for creating environmental policies poses risks to the likelihood that these policies will be enacted to mitigate the effects of the climate crisis. 

Similarly, at the international level, environmental law has become particularly precarious and difficult to enact. International environmental law and policy focuses on geopolitical agreements to mitigate climate change, protect wildlife, and manage ozone depletion. [6] In the past, environmental law was primarily focused on settling disputes over shared environmental resources like bodies of water. Today, it is predominantly focused on sustainable development, ensuring that resources are effectively managed today for future use. [7] Despite improvements to global climate policy, it remains mostly ineffective, since it requires the coordination and consideration of hundreds of nations, their leaders, the concerns of the public, and the interests of energy and fuel corporations. Coordinating this many stakeholders and considering their interests, particularly when diverging views arise, has proven to be challenging.

One of the few examples of effective international climate legislation is the Montreal Protocol, a multilateral agreement that placed international restrictions on the production and use of ozone-depleting substances, helping to resolve the hole in the ozone layer. Implemented in 1987, the protocol is one of the very few agreements to “achieve universal ratification.” [8] Today, the ozone layer is on track to fully recover as a result of the Montreal Protocol. [9]  This is a rare example of how effective environmental legislation can be at the global level, especially when a universal consensus is reached. Going forward, environmental legislation would benefit from taking a similar approach, considering a major environmental issue and proposing solutions that target and consider stakeholders of all levels. 

However, this is unlikely given the growing inefficacy of climate agreements. The 28th annual Conference of Parties Climate Summit, COP 28, was held in Dubai from November 30 to December 12, 2023, and raised concerns among environmentalists about the growing inefficacy of world leaders in addressing the issue of climate change. [10] The goals of the conference are to speed up the rate of the energy transition, increase the inclusivity of environmental policy, and take action concerning climate finance. [11] However, from ambiguous wording on climate goals to a lack of representation of the world’s largest emitters, the conference resulted in inefficient outcomes. President Biden and President Xi Jinping both chose not to attend the climate summit, sparking concerns that the United States and China will continue to delay agreeing to environmental legislation. Criticism of the two countries is especially high given that they are the world’s largest emitters, yet the burden of climate change typically falls onto poorer nations who are among the smallest emitters. [12] This further illustrates that environmental policy requires a complex framework, one that will hold large emitters responsible while also considering the implications of climate change on a global scale. 

The future of the climate crisis remains uncertain, given the continued failures of governments and international organizations to address the crisis. Environmental law is particularly complex and requires a multifaceted approach, one that considers how it will impact people on a myriad of levels. Going forward, the government of the United States needs to address its failure to reduce emissions and expand the authority of agencies like the EPA to hold fossil fuel corporations accountable for their large emissions. At the global level, world leaders must consider that the impacts of large carbon emissions will continue to be detrimental to the environment, to the point where climate change and its impacts become irreversible.

Notes:

1. “What is Environmental Law - and Why Does it Matter | American Public University.” American Public University, https://www.apu.apus.edu/area-of-study/security-and-global-studies/resources/what-is-environmental-law/. Accessed 8 December 2023.

2. “The Origins of EPA | US EPA.” Environmental Protection Agency, 5 June 2023, https://www.epa.gov/history/origins-epa. Accessed 8 December 2023.

3. “Our Mission and What We Do | US EPA.” Environmental Protection Agency, 23 May 2023, https://www.epa.gov/aboutepa/our-mission-and-what-we-do. Accessed 8 December 2023.

4. "West Virginia v. Environmental Protection Agency." Oyez, www.oyez.org/cases/2021/20-1530. Accessed 8 Dec. 2023.

5. Clifford, Catherine. “The Supreme Court limited the power of the EPA — so what happens now?” CNBC, 1 July 2022, https://www.cnbc.com/2022/07/01/the-supreme-court-limited-the-power-of-the-epa-so-what-happens-now.html. Accessed 8 December 2023.

6. Hunter, David. “GW Law Library: Library Guides: International Environmental Law: Getting Started.” Library, 21 November 2023, https://law.gwu.libguides.com/IEL. Accessed 8 December 2023.

7. Hunter, David. “International Environmental Law.” American Bar Association, 5 January 2021, https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-19/insights-vol--19---issue-1/international-environmental-law/. Accessed 8 December 2023.

8. “About Montreal Protocol.” UNEP, https://www.unep.org/ozonaction/who-we-are/about-montreal-protocol. Accessed 8 December 2023.

9. “Ozone layer recovery is on track, helping avoid global warming by 0.5°C.” UNEP, 9 January 2023, https://www.unep.org/news-and-stories/press-release/ozone-layer-recovery-track-helping-avoid-global-warming-05degc. Accessed 8 December 2023.

10. Horton, Helena, and Matthew Taylor. “Cop28: president says summit 'has already made history' as negotiations enter final days – as it happened.” The Guardian, 8 December 2023, https://www.theguardian.com/environment/live/2023/dec/08/cop-28-climate-environment-fossil-fuel-latest-news-updates-live. Accessed 8 December 2023.

11. “Event: 2023 UN Climate Change Conference (UNFCCC COP 28) | SDG Knowledge Hub | IISD.” SDG Knowledge Hub, 2023, https://sdg.iisd.org/events/2023-un-climate-change-conference-unfccc-cop-28/. Accessed 8 December 2023.

12. Joselow, Maxine. “Biden to skip world leaders' summit at COP28 climate talks in Dubai.” Washington Post, 26 November 2023, https://www.washingtonpost.com/climate-environment/2023/11/26/biden-cop28-climate-summit-dubai/. Accessed 8 December 2023.

Bibliography:

“About Montreal Protocol.” UNEP, https://www.unep.org/ozonaction/who-we-are/about-montreal-protocol. Accessed 8 December 2023.

Clifford, Catherine. “The Supreme Court limited the power of the EPA — so what happens now?” CNBC, 1 July 2022, https://www.cnbc.com/2022/07/01/the-supreme-court-limited-the-power-of-the-epa-so-what-happens-now.html. Accessed 8 December 2023.

“Event: 2023 UN Climate Change Conference (UNFCCC COP 28) | SDG Knowledge Hub | IISD.” SDG Knowledge Hub, 2023, https://sdg.iisd.org/events/2023-un-climate-change-conference-unfccc-cop-28/. Accessed 8 December 2023.

Horton, Helena, and Matthew Taylor. “Cop28: president says summit 'has already made history' as negotiations enter final days – as it happened.” The Guardian, 8 December 2023, https://www.theguardian.com/environment/live/2023/dec/08/cop-28-climate-environment-fossil-fuel-latest-news-updates-live. Accessed 8 December 2023.

Hunter, David. “GW Law Library: Library Guides: International Environmental Law: Getting Started.” Library, 21 November 2023, https://law.gwu.libguides.com/IEL. Accessed 8 December 2023.

Hunter, David. “International Environmental Law.” American Bar Association, 5 January 2021, https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-19/insights-vol--19---issue-1/international-environmental-law/. Accessed 8 December 2023.

Joselow, Maxine. “Biden to skip world leaders' summit at COP28 climate talks in Dubai.” Washington Post, 26 November 2023, https://www.washingtonpost.com/climate-environment/2023/11/26/biden-cop28-climate-summit-dubai/. Accessed 8 December 2023.

“The Origins of EPA | US EPA.” Environmental Protection Agency, 5 June 2023, https://www.epa.gov/history/origins-epa. Accessed 8 December 2023.

“Our Mission and What We Do | US EPA.” Environmental Protection Agency, 23 May 2023, https://www.epa.gov/aboutepa/our-mission-and-what-we-do. Accessed 8 December 2023.

“Ozone layer recovery is on track, helping avoid global warming by 0.5°C.” UNEP, 9 January 2023, https://www.unep.org/news-and-stories/press-release/ozone-layer-recovery-track-helping-avoid-global-warming-05degc. Accessed 8 December 2023.

“What is Environmental Law - and Why Does it Matter | American Public University.” American Public University, https://www.apu.apus.edu/area-of-study/security-and-global-studies/resources/what-is-environmental-law/. Accessed 8 December 2023.

"West Virginia v. Environmental Protection Agency." Oyez, www.oyez.org/cases/2021/20-1530. Accessed 8 Dec. 2023.

Failure to Protect Laws: Who is Actually Being Protected?

By: Sari Richmond

Edited by: Clark mahoney and Lauren Levinson

In the early 2000s, a new set of laws began to emerge in multiple states across the U.S. allegedly aimed at furthering protection for children at risk of domestic abuse. These laws, known as “Failure to Protect” (FTP) laws, state that parents or caretakers may be charged with a criminal or civil penalty, or both, if found that they did not prevent the abuse of a child under their care. While the legislation is written with gender-neutral diction, those being prosecuted under FTP laws are overwhelmingly female.[1] As of 2015, 48 states have some form of FTP laws, some even identifying the offense as a felony—leading to equivalent or sometimes greater sentencing compared to penalties enacted on the abuser. In a few states, the law even extends to the prosecution of parents or caretakers that “allow” a child to watch a parent suffer abuse. Supporters of these sets of laws argue that FTP legislation will increase the rate of reporting in abuse cases, therefore driving down the overall rate of abuse against children. However, most FTP laws blatantly disregard financial and social factors, as well as a mother’s status as a victim, in assessing negligence that qualifies as FTP. Courts only examine whether abuse was stopped and reported to the authorities, often failing to acknowledge the lack of realistic ability a mother had to do so.[2] Critics note that for FTP laws to truly be beneficial, the existing framework must be reworked. [1] In order to ensure that these laws do not unfairly impact women, legislation should clearly outline what constitutes the duty of caring for a child in an abusive situation and what steps should be taken once abuse is discovered. Finally, defense clauses for persons who feared for their own or their childrens’ safety should excuse caretakers that were unable to stand up to an abuser. Without changes being made to existing FTP policy, the legislation will  be more damaging than beneficial for families rampaged by abuse and perpetuate a system unfairly harsh on mothers.

A prime example of the harmful effects of vague, unrealistic FTP policy that fails to recognize situational factors of abusive households is the prosecution of Kerry King. A resident of Oklahoma, King is currently serving 30 years of jail time after being charged with FTP—compared to the 18 years that John Purdy, her boyfriend, is serving for physically abusing both King and her children.[3] 

Purdy had a history of abusing King and forcing her to take heroin before King discovered in January 2015 he had begun beating her then 4-year-old daughter, Lilah. Two days after discovering bruises on her daughter’s body, King woke up to find Purdy choking Lilah – and was slammed violently against the wall when she tried to intervene. Purdy insisted Lilah needed to be spanked and ordered King to hold her daughter down, which she did in hopes that the beating would end faster. When it became apparent how harsh Purdy’s blows to Lilah were, King shielded Lilah’s body with her own, causing Purdy to drag her by her hair back into the master bedroom and threaten to kill her. Purdy took King’s cell phone then proceeded to reenter Lilah’s room, which he kept locked until he re-emerged around 6 a.m. the next morning. A day later, a contractor visited the house and King’s housemate snuck out and asked him to contact authorities. Police arrived and found Lilah in a locked room covered in gashes and bruises with chunks of her own hair strewn around her; Purdy was arrested and King assisted authorities in taking her daughter to the hospital.

Only a few days later, King would be arrested for child neglect and permitting child abuse, handcuffed outside her home by officers who wanted to know why she did not call police or—in the eyes of the law—try to help her daughter. Oklahoma’s FTP laws require parents to protect their children from physical harm; and, they are interpreted with the assumption that mothers should inherently know what to do to protect their child or should know from the beginning that abuse is taking place. Compared to other states, Oklahoma’s punishment for FTP is particularly harsh with a maximum life sentence in prison, even if a mother is being abused herself. As found by Samantha Michaels and Ryan Little, hundreds of people, 90% of them women, have been charged on the grounds of Oklahoma’s FTP laws in the past decade.[4] Furthermore, women of color and low socioeconomic status are even more likely to be charged with FTP, as dependency on an abusive partner is statistically higher in these groups.[4]

As King was interrogated by police and attempted to explain the circumstances that barred her from contacting authorities, she was met with stubborn ignorance. Officers told her “you should have ran for help” and “your job as the mom is to protect your child and you failed” as she tried to describe the fear and danger she felt while in the abusive environment. King suffered from sexual abuse as a child, then later physical abuse at the hand of her first husband (Lilah’s father) Ali Jordan Lalehparvaram.

During trial, the prosecution took advantage of King’s complicated, abusive relationship with Purdy and painted a picture for the jury of King picking Purdy over her children. Because Oklahoma’s strict FTP laws require authorities to be contacted, King’s attempts at contacting her mother in the few seconds she could sneak onto a phone saying “help me” did not qualify as seeking help for her children. Under FTP laws, prosecution like this is common and successful: a strategy that protects children from abuse but criminalizes a nonabusive parent who is often a victim themselves. In King’s trial, the jury was convinced she did not perform her duty in protecting her child and found her guilty. It should be noted that the jury was not aware of Purdy’s sentencing – 12 years less than King’s – until after making their decision.[4]

Cases like King’s are not rare—it is becoming increasingly common for nonabusive caretakers to be sentenced to equal or greater jail time compared to abusers on the grounds of FTP laws. However, there is no indication that FTP laws are increasing the reporting rate of domestic abuse. Mothers are fearful of either being investigated for neglect after reporting abuse or being charged with FTP for reporting too late—resulting in abuse not being reported altogether. In addition to this, the innate bias of FTP legislation becomes increasingly clear as black mothers are found guilty by jury more frequently than white mothers, and mothers in general are the ones almost exclusively impacted by this law.[4] While King’s children did not face further abuse at the hands of Lalehparvaram after the trial, it should be recognized that nonabusive mothers losing custody of their children to an ex-partner or the foster care system due to imprisonment often puts the children at a higher risk of abuse. Though the purpose of FTP laws is to deter child abuse, the failure of legislators to acknowledge certain patterns in abuse within FTP laws has made FTP convictions racist and sexist in nature. In order to better the application of FTP laws, a clear outline of what steps can realistically be expected from a caretaker in an abusive situation should be produced. Furthermore, the statistic that half the men who harm their wives also harm their children should actively be recognized, as the law should account for the fact that mothers are frequently victims as well.[4] If FTP laws are properly modified, the current trend of unequal, damaging sentencing could be stalled, and will instead serve their intended purpose: protecting children from abusers.

Notes:

1.  Jeanne Fugate. 2023. “Who's Failing Whom? A Critical Look at Failure-to-Protect Laws.” NYU Law Review. 

2. “How Failure to Protect Laws Punish the Vulnerable.” Case Western Reserve University School of Law Scholarly Commons. 

3. Scanlan, Chip, Sue Ogrocki, SAMANTHA MICHAELS, and MARK HELENOWSKI. 2023. “How a reporter documented the failure of "failure-to-protect" laws.” Nieman Storyboard. 

4. Samantha Michaels, Mark Helenowski, et al. 2022. “She Never Hurt Her Kids. So Why Is a Mother Serving More Time Than the Man Who Abused Her Daughter? – Mother Jones.” Mother Jones.

Bibliography:

Fugate, Jeanne A. n.d. “Who's Failing Whom? A Critical Look at Failure-to-Protect Laws.” NYU Law Review. https://www.nyulawreview.org/issues/volume-76-number-1/whos-failing-whom-a-critical-look-at-failure-to-protect-laws/.

“How Failure to Protect Laws Punish the Vulnerable.” n.d. Case Western Reserve University School of Law Scholarly Commons. https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1641&context=healthmatrix.

Michaels, Samantha, Mark Helenowski, Ryan Little, Dorothy E. Roberts, Ruth Murai, Henry Carnell, Siri Chilukuri, and Oliver Milman. 2022. “She Never Hurt Her Kids. So Why Is a Mother Serving More Time Than the Man Who Abused Her Daughter? – Mother Jones.” Mother Jones. https://www.motherjones.com/crime-justice/2022/08/failure-to-protect-domestic-abuse-child-oklahoma-women-inequality-prison/.

Scanlan, Chip, Sue Ogrocki, Samantha Michaels, and Mark Helenowski. 2023. “How a reporter documented the failure of "failure-to-protect" laws.” Nieman Storyboard. https://niemanstoryboard.org/stories/investigate-narrative-failure-to-protect-laws-court-reporting-sex-and-race-discrimination/.