“Failure to protect” charges are criminal prosecutions where one parent is accused of allowing another parent, or spouse, to abuse a child. For many, such as Deborah Albin, they may also be survivors of abuse but are unable to raise that within their defense.
Albin’s significant other, Andrew Oaks, is facing second-degree murder charges for their daughter Opal’s death. Andrew had previously threatened to kill Deborah and was accused by Albin of physically assaulting her. Despite this, courts are not allowing Albin to bring these incidents in her defense. This is part of a larger pattern of prosecutions against women using “failure to protect” laws.
Kaylee Tornay is an investigative reporter with Investigate West and has been following Deborah Albin’s case. She joins us to share more.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. What happens when someone who’s accused of not doing enough to protect a child from abuse says that they were subject to abuse from the same perpetrator? The question is at the heart of a trial that’s happening in Benton County right now. Deborah Albin is facing criminal mistreatment and manslaughter charges for the 2023 death of her baby Opal. She says she was abused by the father of her child, Andrew Oaks, who is facing second degree murder charges. Kaylee Tornay is an investigative reporter with Investigate West. She’s been following the case and she joins us now. It’s great to have you back on the show.
Kaylee Tornay: Thanks, Dave. Glad to be here.
Miller: Before we start, I should say, in case it’s not obvious from my intro that we are going to be talking about allegations of child abuse and domestic violence, so listeners should beware. I want to start with the big picture here, which is sort of the broader focus of your reporting. Can you describe what are known as “failure to protect” laws?
Tornay: Sure, so these are laws that establish the duty of parents or sometimes other caregivers to provide for children and other dependent people’s basic needs. But often when we say failure to protect, that’s shorthand for a specific type of alleged failure involving the abuse of the child by another person where the offending parent is accused of failing to stop it.
Miller: How common are these laws, these specific laws around the country?
Tornay: They’re very common. A majority of states have an explicit failure to protect law, some form of that, regarding child abuse, and most of the rest have a more general law under which parents can be charged for essentially the same conduct.
Miller: Oregon does not have a specific failure to protect law. So what laws do prosecutors rely on here for these kinds of cases?
Tornay: Yeah, we found that the statute in Oregon that’s commonly used is called criminal mistreatment, and it covers a very wide range of violations of someone’s legal duty to provide care. So in addition to this theory of failure to provide protection from abuse, it includes failures to provide adequate and necessary medical care, not just to children, but it can also apply to someone in charge of caring for an elderly person or a dependent adult. It can include leaving a child or a dependent person unattended in a way that endangers them, even hiding or stealing their money. So it’s a very broad statute in Oregon.
Miller: So this gets us to the particular case that you wrote about and have been covering. It centers on the death of a two-month old baby named Opal Oaks. How much is known publicly about the circumstances surrounding her death?
Tornay: Yeah, so as you noted earlier, Opal died in February of 2023, and there’s sort of a lot we know and a lot that we don’t know. We know that on the day that she died, she was found to have multiple broken ribs in different stages of healing, and because she was two months old and therefore not mobile, that raised red flags immediately from the care team that saw her in the emergency room when she stopped breathing on that Sunday afternoon, that raised their red flags for abuse.
And so an autopsy was ordered and that established the cause of her death as complications from those broken ribs. She basically had gotten an infection and pneumonia, and then an additional cause, a significant condition was acute methamphetamine toxicity. Law enforcement and prosecutors have pretty consistently offered the theory based on evidence, including the parents’ text messages that Opal’s father physically abused her and used drugs around her while her mother was aware and failed to remove her from that environment.
Miller: So what have prosecutors said about the role that her mother, Deborah Albin, played in her death?
Tornay: Yes, so as you mentioned, she’s facing a manslaughter charge and two criminal mistreatment charges. The theories underlying both the manslaughter charge and one of those criminal mistreatment charges, the first theory is that she knowingly withheld needed medical care from Opal related to those conditions that ultimately killed her, and the last criminal mistreatment charge is a theory that she failed to provide protection from abuse.
Miller: What’s Deborah’s defense?
Tornay: So she’s pleading not guilty. Her trial is happening right now. I’m actually speaking with you during a lunch break. Court filings and her attorney’s opening statement indicate that she plans to explain how abuse that she also experienced by the father affected her judgment and decision making, and I think also inject some uncertainty into what she knew about Opal’s condition and how she responded to what she knew.
Miller: How much has the defense been able to talk about the abuse that Deborah endured?
Tornay: Not a lot yet, and that’s because so far until this morning when the prosecution rested, we’ve only been hearing from prosecutors and the witnesses they’ve called because they make their case first. And so [the] defense just began calling witnesses today, but we know that one of their expected witnesses is a psychologist who will testify about how she diagnosed Deborah, the mother, with complex post-traumatic stress disorder and explain how the abuse that she experienced affected her judgment and decision making during Opal’s life.
Miller: You talked to Josh Marquis, the former Clatsop County district attorney who is now prosecuting homicide cases in Albany. He said this to you, “It’s almost impossible for me to imagine a situation where the non-offending parent sees abuse happening and is legitimately afraid, but has absolutely no other option than to just remain in the situation. There are so many things that they can do. They can leave. They can anonymously report it to the police or other authorities.” What did you hear in response to this?
Tornay: Well, of course, every situation is different and has unique circumstances, but the experts in domestic violence and family law who I talked to, who have experience with these situations, say it’s just often not so simple for mothers. And I’ll just pause here and note that it is mostly mothers, overwhelmingly mothers, who are prosecuted for failure to protect over fathers. And it’s just, those experts told me, it’s not so simple for them to remove themselves from relationships where they’re being abused or controlled.
Sometimes a victim’s attempts to leave are the most dangerous times when the violence against them can escalate. Reports to friends, family, or police can spark retaliatory violence, not even just against the victim, but against the children or other loved ones. If they leave with their children they might find themselves on the receiving end of a petition for full custody from the other parent or an attempt to press charges for custodial interference. So, those are some of the caveats that those experts shared with me that they’ve seen that complicate this idea of “you always can just leave.”
Miller: One of the central ideas, as I understand it, of these failure to protect laws or similar sorts of prosecutions is that they’re supposed to provide an extra incentive to interrupt abuse. What did you hear about that from people who work with survivors of domestic abuse?
Tornay: A few things come to mind that experts told me. One is that the mothers that they’ve worked with were already thinking of their children, and their decisions were often driven by calculating how they could best ensure their children’s safety, even while they themselves were dealing with trauma and the psychological impact of the abuse cycle. Compared to crimes involving specific acts – like we might think of theft, for example – you take something and that’s an act that you do.
These are crimes of omission where it’s what you didn’t do and why you didn’t do it that gets scrutinized very closely, and people don’t always know that they can be prosecuted for that. And I just also want to note, Dave, when we hear these stories, they involve mothers sometimes who have regularly been beaten, sometimes for years, who were shoved into car trunks or closets, who were choked, or who were living in physical danger basically every day. And the experts I talked with pointed out that the threat of prosecution doesn’t necessarily make it safer. It doesn’t provide a way for someone to leave just because you might be prosecuted for not leaving.
Miller: How common are cases like this where someone who’s accused of not doing more to protect a child from abuse says that they themselves were subject to abuse from the same person?
Tornay: It’s a good question and it’s not one that has been very robustly explored, I think, compared to maybe other questions in the criminal justice system. While doing my own research and reporting, I found that in Oregon, it’s difficult to say how commonly these types of prosecutions happen because the crime with which people are charged is so broad, as I mentioned at the top.
And even nationwide, I could only find a few different analyses of cases to establish trends in who was charged and what the underlying circumstances were. Probably one of the best examples that I found though was a 2014 BuzzFeed News analysis of cases in 24 states, which found that the women accused had been abused in nearly 40% of cases. So that’s something, at least a little bit of insight. And sometimes women who are battered and are convicted of failing to protect their children get more prison time than the parent who abused the child.
Miller: Meanwhile, where does Andrew Oaks’s murder charge stand right now?
Tornay: So his case is ongoing in Benton County. He doesn’t have a trial date yet, and we’re continuing to see motions around evidence and sort of pretrial discussions around what might happen at trial.
Miller: Kaylee, thanks very much.
Tornay: Thank you.
Miller: Kaylee Tornay is an investigative reporter at Investigate West.
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