A regional look at Oklahoma's failure to protect law

Oct. 30—While a Norman mother stands trial this week for the 2020 death of her son, Oklahoma isn't the only state in the region that implicates defendants in murders they didn't personally commit.

In Oklahoma, the state's failure to protect statute gives district attorneys the power to charge guardians with the same charge as the perpetrator. It's been most recently publicized in the case of Rebecca Hogue, who was charged in 2020 with first-degree murder in the death of her two-year-old son after he was found dead in her home. Police in the investigation issued a warrant for the arrest of her boyfriend, who was later found dead by suicide.

To Oklahoma's south, Texas has the "law of parties," which permits district attorneys to charge defendants with the same crimes as the actual perpetrators. To the east, Arkansas prosecutors may charge guardians with permitting abuse of a minor — a felony that, while not as severe as murder, still carries the possibility of significant prison time.

Police say the Cleveland County District Attorney's office did not accept the enabling charge they recommended for Hogue. District Attorney Greg Mashburn has argued Hogue failed to protect her son, while the defense has argued there is no evidence Hogue knew her son was at risk of harm from her boyfriend.

Hogue is the first to be charged under the law in Cleveland County in five years.

"It's just a reflection that parents have an inherent obligation that our kids aren't harmed," Cleveland County District Judge Thad Balkman, who isn't presiding over the trial, said of the law. "That's a Judeo-Christian principle that's been carried over since we were first a country."

While he declined to comment on Hogue's case, Balkman said the failure to protect statute is "factually intensive," allowing the prosecution discretion in the degree of charge based on the facts of the case.

But others, like National Coalition Against Domestic Violence CEO Ruth Glenn, said such laws fail to recognize the complexities of the defendants' situations. Glenn said most murders of children are caused by men who, more often than not, are also domestic abusers.

The coalition also cites the challenges of single parenting as a reason victims of domestic violence stay in their relationships.

"Failure to protect is very tricky and can be very, very complex, and I think, sometimes, we as a society use it to readily, as part of holding people accountable, particularly in child abuse, without understanding the dynamics of domestic violence, without knowing if the other party was doing the best they could to protect the child," Glenn said.

Regional differences

Adopted in 2002, Oklahoma's Failure to Protect law states any parent or guardian who knows their child is being abused and fails to protect them can be charged with a felony.

As in Hogue's case, a defendant can be charged with the same crime as the perpetrator is or would have been charged with, depending on the prosecutor's interpretation of the facts of the case.

It's broader than Arkansas' permitting abuse of a minor statute, which states the guardian can face up to 20 years in prison if they permit the child's death.

Arkansas' statute can be seen in the 2018 prosecution of Sierra Johnson, who is serving a state prison sentence on this charge and drug offenses after her then-boyfriend Tyree Williams beat her one-year-old daughter to death. Williams is serving a 40-year term for first-degree murder in the case.

Sebastian County, Arkansas Prosecutor Dan Shue, who filed the charges against Johnson, did not respond to request for comment on the case Thursday.

"Failure to protect could include crimes of omission, not just commission," Balkman said, noting the difference between the two states.

This concept runs parallel to Texas thanks to the state's law of parties, which covers more crimes than Arkansas' statute.

Robert Love, the district attorney in Randall County, Texas, said the guardian of a child killed by the other guardian could be charged with anything from failure to report suspected child abuse, a Class A misdemeanor, to capital murder under the state's law of parties.

Class A misdemeanors are punishable by up to a year in jail, while capital murder carries the possibility of the death penalty.

The law of parties could be applied in a similar fashion to Hogue's case, depending on the prosecution's interpretation of the facts. The state in 1997 convicted Kenneth Foster, who was in a vehicle when his codefendant killed a San Antonio man, of capital murder.

Foster has maintained for years he didn't know his codefendant was going to kill the man.