When criminal proceedings commence, the passive parent is forced to choose the lesser of two evils: testify and risk self-incrimination or guard their constitutional right and risk the person who abused them and their child going free.The passive parent exists at a crossroads: defendant, parent, and victim. The main purpose of this Comment is to analyze this crossroads under a Fifth Amendment lens and propose a workable solution to allow these passive parents a way to better navigate these “two evils.” To be clear: this Comment’s purpose is not to assert whether a passive parent should be held culpable for failing to protect their child or to assert the validity of these laws. The culpability of a defendant does not impact their inalienable rights under the Fifth Amendment, and even the most heinous of defendants are allowed to invoke the right to be free of self-incrimination. When such a right is infringed upon, an analysis is warranted. This Comment strives to provide such an analysis and propose a solution to any infringement.
Maggie Butzen, A Parent’s Final Sacrifice: Self-Incrimination in Failure to Protect Cases, 51 J. Marshall L. Rev. 377 (2018)