Oklahoma’s “Child Abuse” Law Doesn’t Protect Children — It Criminalizes Mothers

Karina had been looking forward to Christmas. In November, she had reunited with her 6-year-old daughter, who had been staying with Karina’s sister after Karina was evicted. That month, the family celebrated Karina’s younger daughter’s first birthday — complete with her first teetering steps.

Karina moved in with her father and, trying to save for her own apartment, had been working two full-time restaurant jobs, often going straight from one to another. Although she was an enrolled member of the Shawnee, she was too far from the tribal area to utilize their assistance.

Instead, she relied on her boyfriend to care for her 1-year-old. Although he was not the father of either child, Karina had no reason to distrust him. She had seen him with his sister’s children, with whom he spent every weekend, and, she told Truthout, “he was good with kids.” Karina called regularly to check on them. He always told her that everything was fine.

Karina’s daughters, ages six and one, sit together on her younger daughter's first birthday.
Karina’s daughters, ages six and one, sit together on her younger daughter’s first birthday.

On Christmas Eve, Karina woke up to find her baby no longer breathing. “She was already cold,” she recalled. Later, she learned that her boyfriend told police that he had choked the baby with a stuffed animal “because he would get frustrated due to her crying all the time.”

Ultimately, her boyfriend was convicted of child abuse and sentenced to 20 years in prison. He was released in 2019 and is serving the remaining 10 years on probation. Karina went to trial. She was convicted of child abuse and sentenced to 65 years in prison. She has served 18 years and remains in prison today. Truthout agreed not to publish her legal name in this article (Karina is a pseudonym) because women with child abuse convictions are often bullied in prison.

Karina’s case is not unusual — at least not in Oklahoma. The state has long held the dubious distinction of having the nation’s — and the world’s — highest incarceration rate for women. While it has now dropped to second place (behind Idaho), it nonetheless has more than double the national average.

“Since 2016, the women’s prison population has declined 30 percent,” Jasmine Sankofa, policy and research manager for FWD.us, which advocates for criminal justice reform, told Truthout. But, she added, “a lot of the gains from reforms have focused on nonviolent offenses, low-level property and drug offenses. It’s time for Oklahoma to shift and focus on other offenses that are really driving the women’s prison population.”

This includes the state’s child abuse and neglect statute, under which one in every six (or 16 percent of) incarcerated women in Oklahoma is imprisoned. The statute encompasses a broad range of circumstances, including living in poverty, experiencing domestic violence, and having a partner who injures or kills a child. The state classifies child abuse and neglect as a violent offense, regardless of the facts, which means that those convicted under the statute are not eligible to earn time off until they have served at least 85 percent of their sentence.

It is also the most common conviction for women in Oklahoma’s prisons.

Failing to Protect,” a new issue brief by FWD.us, details the ways in which Oklahoma’s child abuse and neglect statute unfairly punishes mothers and further endangers, rather than protects, children.

While every state prosecutes parents and caregivers for child abuse and child neglect, Oklahoma’s statutes are broad, vague and open to interpretation. For instance, state law defines child abuse as “willful or malicious harm or threatened harm or failure to protect from harm or threatened harm to the health, safety, or welfare of a child.” As the brief summarizes, the state defines child neglect as “‘the failure or omission to provide … adequate nurturance and affection, food, clothing, shelter, sanitation, hygiene, or appropriate education, medical, dental, or behavioral health care, supervision or appropriate caretakers, or special care made necessary by the physical or mental condition of the child’ in addition to abandonment and the ‘failure or omission to protect a child from exposure to’ illegal drugs, inappropriate content, and other illegal activities.” Both can carry up to a life sentence.

The statute also allows prosecutors to charge a parent or caregiver with enabling or permitting child abuse, more commonly known as “failure to protect.” The report found that over 300 people had been charged with failure to protect since 2009. In 13 Oklahoma counties, 93 percent of those convicted were women. Half had been abused by the person who had hurt their child, and one in every four women were sentenced to more time than the harm-doer.

Truthout heard from more than half a dozen people sentenced under this statute. Their crimes ranged from driving without a car seat, to having a newborn test positive for methamphetamine, to being unable to protect their children from an abusive partner’s violence, to injuring their children.

“The Oklahoma child abuse and neglect statute sets an expectation that mothers be all-knowing and that somehow harshly punishing them will keep kids safe in the future,” said Sankofa, who authored the issue brief. “If this were true, Oklahoma would be ranked the best in the country for childhood well-being, but that is not the case. Oklahoma ranks in the bottom as one of the least-healthiest states for women and children.”

Criminalized for Being Victims

Women of color are disproportionately impacted by both domestic violence and criminalization. In Oklahoma, Black women make up 7 percent of the state population while Indigenous women make up 8 percent. But in the state’s women’s prisons, 18 percent are Black and 17.5 percent are Indigenous.

Indigenous women are sentenced to prison 2.6 times more often, and Black women 1.9 times more often, than their white counterparts for child neglect.

At the same time, women of color are more likely to be killed by their intimate partners. In 2021, women in Oklahoma made up nearly 70 percent of victims of intimate partner homicides, and nearly one in four were Black and more than 1 in 10 were Indigenous.

Furthermore, state law does not allow an affirmative defense, which would allow them to introduce evidence of the mother’s own victimization.

That’s what Tondalao Hall learned. Hall, then age 20 and a Black mother of three, had been trying to end her relationship with her abusive boyfriend, Robert Braxton. He choked her, punched her, threw objects at her and verbally abused her.

In 2004, she returned home to find that Braxton had injured her two youngest children. She brought them to the hospital where her 3-month-old daughter was diagnosed with broken ribs and a broken femur.

“At the hospital, I didn’t say anything because he had already threatened me,” Hall told Truthout.

Both adults were arrested for child abuse. Even after she was taken to the police precinct and later booked at the local jail, Hall remained afraid of Braxton. “He was threatening me through letters,” she recalled. “He sent me a [picture of a] hand and said, ‘Slap yourself, bitch.’”

Hall knew nothing about the legal system. When she first heard that she was charged with permitting child abuse, she recalled that she didn’t know what the word “permitting” meant. In 2006, two years after she brought her children to the hospital, she pled guilty to that charge. The judge sentenced her to 30 years in prison.

That same year, Braxton, who had spent the past two years in jail, pled guilty. He received a 10-year suspended sentence and was released from jail.

“There are so many stories about mothers who did not cause the abuse,” Sankofa told Truthout. But prosecutors proffer the theory that moms should be all-knowing “and that they should have done any and everything to shield their children from potential abuse and neglect. This idea that moms are somehow responsible, even more so when their children is harmed, is why moms ultimately end up getting lengthier prison terms.”

An Absence of Seat Belts Equated With “Beating and Injury”

While women of color are disproportionately affected by both domestic violence and criminalization, the statute has also ensnared white women whom the legal system punishes for their co-parent’s transgressions.

In 2002, Geneva Phillips, a white mother of three, had separated from her children’s father. He proposed that, despite their separation, she and their children, then ages 8, 4 and 3, continue their family tradition of celebrating July 4 at Lake Tenkiller. Phillips agreed.

After the weekend, her ex agreed to drive them back to Tulsa, where Phillips was living with a relative. They piled into his car which he had been in the process of restoring. Sometime in that process, he removed the seat belts in the back seat.

Not long after they began the hour-and-a-half drive, they encountered a police roadblock.

Because her ex-partner was driving on a suspended license, the police searched the car and took the children to foster care. (Later, the children were released to their great-aunt.) Both parents were arrested and, although no child was hurt, charged with permitting child abuse for allowing the children to ride in a car without seatbelts.

“I sat in jail three weeks,” Phillips told Truthout. “I had never been away from my children before.”

It was the third week of July before Phillips was brought to court for a hearing. When she realized that her next court date would not be until October, she pled guilty. “There was no way the kids’ great-aunt would be able to keep them for three months! Three weeks was pushing it!” she explained.

That conviction appeared on background checks when she applied for jobs, housing and even supplemental Social Security. “It is so shameful,” she recalled. “Even knowing why I have that felony and what actually happened as opposed to the charge itself, it is still so shaming when people ask you to explain why you have a conviction for ‘the beating or injury of a child.’ Every time I explain, it is the underlying knowledge that people believe what the background check says, often over the truth.”

“Somebody Really Needs to Change That Law”

Tondalao Hall spent 15 years in prison. During that time, she met many other women who received sentences exceeding those of the abusive partners responsible for injuring or killing their children.

After a spate of articles highlighted the injustice of her prosecution and sentence, the state’s pardon board recommended that the governor commute, or shorten, her prison sentence. He did and, in 2019, after spending 15 years behind bars, Hall walked out of prison and rejoined her family. By then, her children were adults — ages, 23, 19 and 18 years old. She also had two grandchildren whose births she had missed.

“We can’t get that time back,” Hall reflected. “Somebody really needs to change that law and make it retroactive because there are so many women in there who should not be there.”

State legislators have made some attempts with bills that allow abuse survivors to present an affirmative defense, and, more recently, separate child neglect from child abuse and create maximum sentences (rather than potential life sentences) for both. None of these bills passed.

Karina remains in prison. In 2009, she reached out to an attorney, who helped file an application for commutation. The detective who investigated her daughter’s death sent a letter of support, stating that he had initially filed charges only against Karina’s boyfriend. Then, according to his letter, then-district attorney (Wes Lane of Oklahoma County) “very strongly” requested that he file charges against Karina for allowing the child abuse to occur.

“I personally felt that the charge against [her] was not warranted, and I also felt that I was forced to file that charge against her,” he wrote. “This case has bothered me from the get-go and even more so when it was learned that [she] received 65 years for the charge.… I have had restless days/nights thinking about the injustice of the sentence. I feel that [she] should not be in prison and should be released.”

The state’s pardon and parole board refused to consider her case for commutation. Without a commutation or a change in law, Karina must serve at least 85 percent (or 55 years and three months) of her 65-year sentence before becoming eligible for parole. By then, she will be 78 years old.