Failure to Protect Injury to a Child

“Failure to Protect” and the Affirmative Defense for Domestic Violence Victims

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Failure to Protect Injury to a ChildIn Texas, our “failure to protect” statute is an omission statute—Injury to a Child by Omission—meaning it aims to encourage parents to remove their children from dangerous and violent environments. If a parent “fails to protect” their child from certain known dangers, that parent can be charged with Injury to a Child by Omission, a felony level offense in Texas. The statute also covers injury to an elderly or disabled individual. If the person charged with Injury to a Child by Omission is a domestic violence victim, it is important to be aware of the Affirmative Defense Texas provides.

Texas’ Injury to a Child by Omission Offense | Failure to Protect

Section 24.04 of the Texas Penal Code provides that a person commits an injury to a child if he recklessly by omission, causes to a child: (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily injury. Id. § 24.04(a).

An omission is conduct constituting an offense if: (1) the actor has a legal or statutory duty to act; or (2) the actor has assumed care, custody, or control of a child. PENAL § 24.04(b).

The Texas Family Code provides that a parent, guardian, conservator or foster parent of the child has the legal duty of care, control, and protection of the child. The State must prove that the defendant either intended or was aware that serious bodily injury would occur from their omissions. Patterson v. State, 46 S.W.3d 294.

Affirmative Defense to Prosecution for Domestic Violence Victims

In the early 90s, Texas established an affirmative defense for people charged with Injury to a Child by Omission. An affirmative defense is a complete and absolute legal defense. In the Failure to Protect scenario, a person can claim the affirmative defense if the following requirements are met:

  1. there be no evidence that the defendant had any knowledge of a previous injury to the child and that they failed to report the injury;
  2. the defendant “was a victim of family violence…committed by the same person “who is also charged with an offense against the child”; and
  3. the defendant reasonably believed, at the time they failed to act, that any attempt to prevent the person from hurting the child “would have an effect.”

TEX. PENAL CODE ANN. § 22.04(l)(2) (West 2011).

The Reality of Prosecution for Failure to Protect in Texas

Most often, mothers are the ones charged with Failure to Protect in Texas. In 2014, there were 19 women in Texas prisons serving time for Injury to a Child by Omission with sentences starting at ten years, all the way up to 45 years. Seven of these women were domestic violence victims. In fact, a Tarrant County woman who was also a victim to the violence of the man who injured her child is currently serving 40 years. Hopper v. State, 2013 WL 4679166 (Tex. App.—Fort Worth Aug. 29, 2013, pet. ref’d.) Furthermore, the woman serving 45 years was a case out of Dallas County where she was also a victim to the violence of the man who injured her child. It is unknown whether these women asserted the affirmative defense at trial.

As mentioned above, there are serious consequences attached to Injury to a Child by Omission and it is important to recognize all possible defense options. Many people do not know that the affirmative defense regarding domestic violence exists. If you are charged with an Injury to a Child by Omission and are also a victim of the abuser’s violence, this defense might apply to you. Contact our team today to find out what steps can be taken in your case. Regardless of whether this affirmative defense applies in your case, our attorneys will still fight hard to get your case dismissed or mitigated in any way they can.