Felony Child Abuse
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UPDATED: Feb 20, 2013
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Felony child abuse encompasses the abuse or assault of any child. When a child is negligently, recklessly, intentionally, or knowingly injured by an act or omission by any person, then that person can be charged with felony child abuse. Even if the charge could be considered a misdemeanor family violence charge, most states will allow a higher charge of felony child abuse (or injury to a child) to be filed because of a general policy interest to protect children.
Felony Child Abuse Elements
A person can be charged with felony child abuse when he is involved in an injury to a child. To support a felony child abuse charge, law enforcement must develop some evidence of an appropriate mental state. Mental state refers to a person’s intentions or thought processes which lead to the eventual injury of a child. The level of a felony child abuse charge will increase as the mental state increases. For example, if a person is charged with only negligent acts, he will usually be charged with a lower level felony, as opposed to a defendant who intentionally tries to hurt a child. The different mental states used in a felony child abuse charge are: negligence, recklessness, knowingly, or intentionally.
The next major elements of a felony child abuse charge are child and injury. State penal codes define who is considered a child for the purposes of a felony abuse charge. Some states will consider any child under the age of 17, while others limit the application of this charge to any child under fifteen years of age. The definition of injury also varies by state, but usually requires some proof of pain. Even though pain is frequently accompanied by bruising or scars, a physical mark is not required to prove injury — only that the child experienced pain or discomfort as a result of the act. Some states do not limit injuries to physical pain. Texas, for example, includes serious mental impairment as an injury in a felony child abuse allegation.
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Felony Child Abuse Through Omissions
Most felony child abuse charges stem from a direct act by a defendant. This usually is in the context of an assault where a defendent either intentionally or recklessly cause some contact with a child that results in an injury. However, felony child abuse also applies to omissions or things that a person failed to do. Child abuse is one of the few felony offenses where a person is punished for not doing something.
Felony child abuse charges from omissions only apply to a parent or another person who has taken over the parenting or caretaking function, like a nanny or babysitter. Because of extreme parenting punishment techniques involving the deprivation of food or water, parents have been charged with causing injuries to their children by failing to provide adequate nourishment. Others have been charged for failing to obtain proper medical treatment for their child, even when the denial of treatment is based on religious beliefs. Some states build religious exceptions into their abuse statutes. Other defenses turn on the injuries and the intent of the defendant.
Defenses to Felony Child Abuse
Felony child abuse statutes are extremely broad and cover a wide range of activities. Fortunately, many states also build in additional defenses that are not usually available in a generic assault family violence context. For example, in Texas, if a defendant can show that the injury was the result of reasonable discipline, then a defendant is allowed to submit an affirmative defense. If a parent spanked his child with a belt and left minimal red marks after the spanking, he will probably be able to beat a felony child abuse charge. The main focus is the reasonableness of the discipline. A head-to-toe spanking with a metal studded belt that lasted for an extensive period of time will not qualify as reasonable.
A second defensive theory involves challenging the nature or extent of injuries. Essentially, the argument is that the injury is so minimal that it really does not constitute an injury. For example, if a defendant spanked the child one time with a belt and no marks were left, the challenge is not just the parenting defense, but also the minimal nature of the injury.
A third related theory is causation. This defensive theory focuses on how the injury occurred. Essentially the idea is that children play, run, and fall on a regular basis and it’s impossible to differentiate the normal play injuries from any alleged injuries inflicted by the defendant. This defense tends to work best in cases where injuries are minimal. This theory does not work as well in cases where the injuries are so extensive as to preclude the possibility that they stemmed from a mere accident. Even if a direct defense is not available, several options are available for dealing with the punishment side of a felony child abuse charge.
Consequences of a Felony Child Abuse Conviction
Again, because of the nature of this charge, many states actually have a variety of potential options available to a defendant charged with felony child abuse. The first option is to work out a program that results in a dismissal of charges. Even if a person is guilty, some jurisdictions will offer diversion or counseling programs to parents who have engaged in lower level incidents of child abuse. If a defendant completes the counseling and can demonstrate through the home inspection that the counseling has resulted in an improvement in his parenting skills, some states will drop or defer charges to preserve the family unity and earning capacity of the offender.
The second option is to try to negotiate a lower charge. As mentioned, felony child abuse is frequently related to assault family violence charges which are misdemeanor level offenses. Instead of trying to beat the charges, a defendant may want to try to negotiate the lesser charge of assault family violence or straight assault. The lesser charge means a shorter probation, lower fines, and fewer restrictions.
If a defendant cannot divert the charge with one of the two prior options, he is stuck with deciding how to handle a felony level offense. The punishment for a felony child abuse case ranges from two years to twenty years for minor, non-life threatening injuries. Some states significantly increase the punishment range up to ninety-nine years when the injuries are serious, permanent, and intentional. If a defendant qualifies for probation, the court can impose conditions specifically related to a defendant’s interaction with child and the safety of the child victim.
Common conditions include limiting the defendant’s interaction with the child, requiring the defendant to attend parenting or anger/management classes, and attending victim impact panels. Defendants can be placed on probation for two to ten years, depending on the safety or rehab needs identified through the plea bargaining process.
In addition to the general criminal punishments, many defendants find themselves involved in a contemporaneous civil suit regarding the custody of their children. A defendant charged with a severe case of felony child abuse can lose custody or access to his child as a result of a felony child abuse charge. This is one of the few charges which can result in a termination of a defendant’s parental rights. If a defendant’s rights are not terminated, then they can be limited or supervised. If child protective services are not involved, the other parent can file her own civil suit to accomplish the same objectives. Before accepting a felony child abuse plea bargain, a defendant should always consult with a family law attorney about any potential effects on their parental rights.