Failure to Protect

Charlotte Shane

In the late 1970s and early 1980s, middle-class American women began to speak publicly about incest. They were encouraged to share their trauma, to ‘break the cycle’ by ‘breaking the silence’, and the nation’s insatiable curiosity passed for support. Then, after a few years, the media moved on.

‘It was not our intention merely to start a long conversation,’ Louise Armstrong wrote in 1988, ten years after the publication of her book Kiss Daddy Goodnight: A Speak Out on Incest. ‘Nor did we intend simply to offer up one more topic for talk shows … We hoped to raise hell … What we raised, it would seem, was discourse.’ Incest survivors ‘have become a population of stories that carry no larger meaning, that imply no social issue’, she wrote in Rocking the Cradle of Sexual Politics (1994), around the time her ambivalence about this storytelling assumed a central role in her work. When personal suffering becomes the focus, she argued, political interpretations are turned into ‘a competing worldview, one perceived as somehow out to deny individual anguish’.

Worse than the reduction of incest to a sideshow, she realised, was the punitive bureaucratic response. As conversations about incest and other forms of domestic abuse became more prevalent, sexual violence was characterised as a dysfunction of the entire family unit, not a violation of one family member by another. The child psychologist Richard Gardner claimed to observe symptoms of ‘parental alienation syndrome’ in children who had supposedly been pitted against one parent by the other. Without substantiating data, he claimed mothers lied about abuse 60 to 90 per cent of the time – which meant that mothers who alleged abuse by the father were probably the dangerous, untrustworthy caretaker in the equation.

Other ‘experts’ proposed that an abusive father’s actions were in fact the fault of the mother, who had driven him to it with her frigidity, or her criticisms, or her general failure to act as a happy, loving partner. Redirecting blame from husband to wife was more satisfying than dismissing the harm altogether because it meant the father could be reframed as a victim, too.

To accuse a father of incest or other forms of abuse proved disastrous for most mothers and children. Beyond the omnipresent influence of pre-existing, internalised sexism, new family court judges were sometimes explicitly advised by more seasoned colleagues not to believe women. Mothers were faulted for appearing angry or emotional, while a father’s even temper was proof of his innocence (and his anger showed how deeply he cared). With incest seen as a family problem not fit for criminal proceedings, custody battles became the primary method of redress, and they came with the imperative to keep the father in the child’s life at almost any cost. Women who denied their exes court-ordered access to children could be fined or even jailed, as in the highly publicised case of Elizabeth Morgan, who was imprisoned for two years in the late 1980s when she refused to disclose her daughter’s whereabouts to the father she accused of sexual abuse.

Revelations of ongoing incest slotted neatly into the expanding application of ‘failure to protect’ laws. In the 1960s and 1970s, every US state passed legislation to encourage paediatricians and teachers, who might spot visible injuries on a child, to report anything suspicious. (Ever vigilant, many states instituted penalties for making false reports, too.) These laws became a tool for punishing women in terrible situations by holding them liable for their child’s abuse. Senator Walter Mondale, who wrote the 1974 federal Child Abuse Prevention Treatment Act, was inspired by the recent death of a two-month-old child beaten to death by her father, Keith Volk, because she was crying at night. The maximum sentence in Virginia then was one year, and Volk received it, as did his 19-year-old wife, who had not harmed the baby. On the stand, Volk admitted he had a history of hitting his wife, too. Nothing about the CAPTA, which has been renewed repeatedly since its first enactment, remedied this.

Instead, women, often poor and often abused themselves, faced severe punishment for their children’s injuries. In 1984, a New York County court found a mother guilty of the sexual abuse her daughter experienced at the hands of her stepfather. Though the judge believed the mother was ignorant of the violations, he claimed she should have known because ‘she knew her husband was a dangerous, violent man’ who ‘had threatened, on more than one occasion, to kill the entire family’. When Karen Dalton, a Wisconsin woman who had been turned away by the police when she tried to report her children’s abuse, was stripped of her parental rights, one reason cited was that she had remained with her husband, a man who had threatened to kidnap and kill their children if she left.

Little has changed in the decades since. Michelle S. Jacobs, a law professor who has worked extensively on ‘failure to protect’ laws, found that ‘as awareness of the abuse increases, so does the likelihood of prosecution for the mother.’ In 2019, a study by George Washington Law School found that ‘courts are excessively sceptical’ of child abuse claims, ‘overly sceptical’ of domestic violence claims and ‘sometimes award custody to known abusers.’ Violent ex-partners may seize on mediation, divorce, custody and visitation arrangements to maintain control over family members who try to pull away. In 2018, Tennessee became the first state to pass legislation that tried to address the problem of abusive litigation, following the incessant filings by Fred Auston Wortman, an incarcerated former lawyer, against his ex-wife, Staci Jones, whom he’d tried to murder three times.

Liberal feminists have been criticised for seeking progress through the courts, which would have been anathema to the women who opened the first rape counselling lines and women’s shelters, and who routinely urged victims not to go to the police. It isn’t simply a question of disagreement about the most effective means to a shared end. The legal system in the US, as elsewhere, is less likely to offer women legal redress than to injure them further.

The verdict in Depp v. Heard was an inescapable reminder of this propensity to inflict harm. Amber Heard’s case looked strong on paper. She had a restraining order against Johnny Depp, photos of her injuries, witness statements, text messages, a recorded 911 call and years’ worth of documentation. When she spoke in public about the violence she had experienced, she did so obliquely and with unusual delicacy. In the ghostwritten Washington Post piece for which Depp sued her (and which nowhere includes his name), she is identified simply as ‘a public figure representing domestic abuse’, which she was. And she is wealthy, and white, which ought to have worked in her favour (but instead provided cover for Depp’s supporters, whose misogyny masqueraded as a progressive, privilege-rebuking stance). None of this held much sway with the five men and two women of the jury, several of whom reportedly fell asleep during the proceedings. The judge declined to sequester them.

Anita Hill may have received an apology from Joe Biden for the way she was treated by the Senate Judiciary Committee (over which he presided) in 1991, but Brett Kavanaugh was still confirmed to the Supreme Court to sit alongside Clarence Thomas. TV companies and streaming services make widely praised documentaries about the apathy that met the victims of R. Kelly and Larry Nasser and the Catholic Church, yet in recent weeks social media influencers have made thousands of dollars mocking Heard’s accounts of being punched, kicked and violated with a bottle. It seems nothing has been gained by encouraging women to disclose their abuse, and yet women keep disclosing it, usually in the hope of helping others.

‘There were now two doors marked Exit,’ Armstrong wrote in 1994. Women could either report abuse to the police or seek protective custody of their children through divorce. ‘But on the other side of both doors was a sheer drop.’ That sheer drop now includes defamation proceedings, and not only in the US. Since 2018, thirteen Swedish women have been found guilty of defamation after publicly naming their attackers (all spoke out as part of the MeToo movement). Defamation of public figures can be difficult to prove in American courts, but that hasn’t stopped Marilyn Manson, Nelly, Dr Luke and a slew of politicians and businessmen from going after women who accuse them of sexual harassment or violence.

Since few survivors are invited to contribute to magazines or documentaries, alleged abusers instead sue women for reporting their assaults to colleagues or to the police, for posting about it on social media or sharing it in a Google doc. In 2018, four Indiana policemen sued a female probation officer who had accused them of racial profiling and excessive force in their treatment of a female suspect. In 2019, two policemen sued a journalist for reporting on a rape case they had mishandled that ended with the victim’s suicide. In 2021, a billionaire with ties to Jeffrey Epstein sued a model who accused him of abuse when she tweeted about it using the hashtag #MeToo. The list goes on and will keep going. ‘Could we have foreseen this?’ Armstrong asked of the merciless backlash that followed incest survivors’ moment of united speaking out. ‘Yes, I suppose we could have.’