Child Abuse

(Penal Code Sections 273a and 273d)

It is unlawful to willfully inflict “cruel or inhuman corporal punishment or an injury resulting in a “traumatic condition” upon a person under the age of 18. (Penal Code section 273d.) A "traumatic condition" is "a condition of the body, such as a wound or external or internal injury, whether of a minor or a serious nature, caused by a physical force." (People v. Gutierrez (1985) 171 Cal.App.3d 944, 951–953.) Physical abuse may include hitting, kicking, slapping, or any other act that causes physical harm to a child.

Unlawful child abuse may also be charged when a person responsible for a child’s care willfully causes or permits the child to suffer unjustified physical pain, injury, or mental suffering. (Penal Code section 273a.) The law applies to parents, guardians, caregivers, and anyone who has the responsibility of caring for a child. To be found guilty under this law, the defendant must have acted with criminal negligence. Criminal negligence is a term of art as defined by California law it is negligence that “involves more than ordinary carelessness, inattention, or mistake in judgment.” (CALCRIM 253.)

Charges of child abuse can be fraught with emotion and ambiguity. An experienced child abuse defense attorney will be able to sort out the salient facts and determine the best defense based on how the evidence supports or lacks support to prove the elements of the offense.

Examples

John is very angry at his 14-year-old daughter because she stayed out all night in Huntington Beach with her boyfriend. He hits her across her leg once with his belt. The area where he hit his daughter causes a large welt. While the discipline might be reasonably necessary, it was also excessive and caused a traumatic injury, even if somewhat minor. John could be charged with child abuse.

Mary is babysitting three siblings in San Clemente while their parents are out to dinner. The siblings get in a fight and the older boy hits his younger sister with a baseball bat, the force of which caused severe bruising. Mary made every effort to stop the boy from swinging the bat, but she lost control of the situation. Mary would not be guilty of placing the child in danger of abuse because she did not act with criminal negligence.

The example of Thelma presents a different circumstance. Thelma, a single working mom, got a last-minute call from her usual babysitter telling her that she would not be able to baby sit that morning. Thelma, desperate to find alternative care for her infant daughter called her bother who lives down the street from her in Stanton and asked him to watch her daughter even though Thelma knew her brother often beat his children. When Thelma returned home, she found her daughter had a broken arm and several large bruises. Her brother claimed that the baby fell from her crib. Thelma strongly suspected that her brother caused the injury. When she took the child to the pediatrician, she told the doctor what she believed happened. The doctor, as a mandated reporter under California’s Child Abuse and Neglect Act (CANRA), reported the injury to the authorities as possible child abuse. Thelma could be charged with child abuse even though she did not directly inflict the abuse but because she intentionally permitted the baby to be placed in a situation where the child’s health may be endangered. Thelma, of course, did not intend her child to be harmed but she knew that letting her brother care for the child could be potentially dangerous.

Elements

• A direct act of child abuse must be done willfully. This does not mean that there must be knowledge that the child abuse act is unlawful, but only that the act was done on purpose (in other words, not by mistake).
• The physical pain or mental suffering inflicted must be unjustifiable. Whether the pain or mental suffering is “unjustified” becomes a question of fact but as defined is an act that is “not reasonably necessary or excessive under the circumstances.” For example, spanking, even with an object other than the hand, if for disciplinary purposes is not unlawful as long as the punishment is necessary and not excessive under the circumstances. (80 Ops.Cal.Atty.Gen. 203 (1997).)
• Felony child abuse under Penal Code section 273d must be committed “under circumstances or conditions likely to produce great bodily harm or death.” (People v. Smith (1984) 35 Cal.3d 798, 806.) “Great bodily harm” means a significant or substantial injury. However, the child does not have to actually suffer actual great bodily harm, only placed in a condition where this is likely.
• The act of child abuse requires the general intent to inflict the injury, not the intent to cause a traumatic injury (note that a traumatic injury, as defined under the law, can be minor). For example, if you intended to spank a child but did not intend that the spanking would cause a welt, but the spanking does end up causing a welt, it is not a defense to say you did not intend to cause a welt.

Defenses

The act was not intentional. Even causing a severe injury to a child that is entirely by accident is not a violation of the child abuse law. However, if the injury is an accident but the circumstances leading up to the accident were dangerous, this defense may not be available.

The act was lawful discipline. In the example above, if John hit his daughter with a belt, but did not cause any visible injury, it would be a defense to say that his discipline was reasonable and because there was no physical injury, he did not commit child abuse.

False allegation. It is not uncommon for a child or teen to allege child abuse against their parent or a step-parent or other family member in spite. Sometimes child abuse will be alleged during a custody dispute. Unfortunate, and often baseless as it may be, the allegations will likely result in a visit from child protective services and can set an investigation in motion. Even when no criminal charges are levied, it is important to consult a child abuse defense attorney in such situations. Child abuse allegations often have serious and unanticipated consequences.

Penalties

Penal Code section 273d, which prohibits the direct and willful infliction of abuse, is always a felony. A conviction of this offense can result in a sentence of up to six years in prison. An individual who has a prior conviction for child abuse is subject to a four-year enhancement to the sentence received. Felony probation may be offered in lieu of a sentence involving jail or prison custody. If convicted of child abuse, having an experienced child abuse defense attorney as your advocate, can mean the difference between a sentence of jail or prison time and a grant of felony probation instead. Under a grant of probation, the defendant will be required to attend a child abuser’s treatment program and abide by other restrictive terms.

A conviction on Penal Code section 273a, placing a child in a circumstance likely to cause abuse to the child, may be charged as a misdemeanor or a felony (wobbler). If the circumstances are likely to produce great bodily harm or death, it may be punished by up to six years in prison. In other cases, this offense is charged as a misdemeanor and while a conviction can carry a jail sentence, the defendant is usually granted a minimum of 48 months misdemeanor probation. Under the terms of probation, the defendant will be ordered to successfully complete a minimum of one-year in a child abuse treatment program.

Have You Been Charged with Child Abuse?
ORANGE COUNTY CHILD ABUSE DEFENSE ATTORNEY WILLIAM WEINBERG CAN HELP!

A conviction on any child abuse offense not only carries criminal penalties but affects the convicted abuser in other areas of life. The charges, even misdemeanor charges, can be serious.

For example, a child abuse conviction may prohibit you from certain jobs or volunteer opportunities, may prohibit you from adoption or foster parenting, may result in you being put on the Child Abuse Registry, and threatens an ever-present social stigma.

If you are being investigated for child abuse, you should contact a defense lawyer for consultation – even in cases where you are not charged with the crime. If you are charged with a child abuse crime, it is important to get advice from an attorney with the experience and capability needed to fight these charges hard.

Attorney William Weinberg has successfully defended individuals charged with child abuse crimes for over 30 years. His goal is always to obtain the best outcome for his clients under the circumstances presented. He invites you to contact him for a free consultation to review the specifics of your case. He will offer his honest assessment of your potential defenses and options. He may be reached at his Irvine office at (949) 474-8008 or by email at bill@williamweinberg.com.

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