Child abuse allegations can be devastating upon the accused. Not only the person’s personal reputation, but also their livelihood can be severely and negatively affected. In addition, such an allegation will almost automatically require the intervention of the Department of Child and Family Services (DCFS), who will investigate the matter independently of law enforcement. Such intervention can include the minor being taken from the home or the minor’s parent or guardian being forced to leave the family home.
Also known as corporal injury on a child, the crime of child abuse (Penal Code section 273(d)) occurs when a person:
- willfully inflicts on a minor under 18 years of age
- cruel or inhuman punishment, or an injury that results in a traumatic condition, and
- was not reasonably disciplining the minor
The injury can be of a minor and temporary nature, but must result in a physical injury (versus emotional). Common examples of child abuse may include:
- hitting a minor child too hard, causing redness
- pushing a child to the ground, causing her scrapes and bruising
- using a belt, causing red welts
There are many defenses available to an allegation of child abuse. These include, but are not limited to:
- accidental or unintentional contact (the defendant tripped, causing the defendant to fall into the minor and knocking him down)
- factual innocence (the minor doesn’t like mom’s new boyfriend and self-inflicted the injury, blaming the boyfriend)
- lawful discipline (the defendant used the belt, only after calmly explaining to the unruly minor why the belt was to be used and applied moderate force)
How that initial, and any subsequent, interview with the minor is conducted by law enforcement is crucial to the accuracy and integrity of the information elicited from the minor. For example, was the minor made to feel mentally comfortable during the interview or did he/she appear afraid, were the questions posed to the minor done appropriately or were they “leading” (designed to get a specific response), did the officer’s take into account the minor’s age and any biases against the defendant, were there any discrepancies or contradictions in anything the minor said in the initial police report versus subsequent interviews or discussions with other people.
The point to be made is that a minor is impressionable and immature emotionally. For every allegation that a defendant committed child abuse, there may also exist a reasonable and valid explanation why the physical contact took place, if at all. Thus, “context” is particularly important and must be emphasized and discussed with the prosecutor. The results of such a conversation may affect not only the potential punishment, but moreover whether the client should even be held criminally responsible.
Child abuse violations can be charged as a misdemeanor or as a felony, depending on the circumstances of the case (the actual injury suffered, age of the child, defendant’s criminal history, past acts of violence, etc.). For misdemeanor convictions, the defendant can be sentenced to a period of years of informal probation (usually three years), up to one year of custody in county jail, attendance at parenting classes, fines/fees and restitution to the victim (if applicable). The prosecutor will also automatically request the judge to impose upon the defendant a criminal protective order.
For felony convictions, the defendant may either receive a term of formal probation (a probation officer is assigned to the defendant), up to one year of custody in county jail, attendance at parenting classes, fines/fees and restitution to the minor (if applicable). If probation is denied, then the defendant is facing confinement in state prison for 2 years, 4 years, or 6 years. Also, if the defendant has prior child abuse convictions, or causes “great bodily injury” or death to the minor, or has other aggravating factors, the punishment may increase dramatically. The prosecutor will also automatically request the judge to impose upon the defendant a criminal protective order.
Additionally, any felony child abuse conviction will result in a lifetime ban on owning or possessing a firearm. Moreover, any firearms that the defendant owns or has in his/her possession will have to be given up or confiscated. A misdemeanor child abuse conviction will not impose any ban on possessing a weapon.
As in any case involving violence against another person, especially a minor-child, there is much at stake. In addition to the criminal penalties, there are potential employment and immigration consequences, and not least of which, the loss of a person’s reputation. Given all of the ramifications of a child abuse allegation, it is extremely helpful to speak with an attorney to be well and properly advised, to make informed and intelligent decisions, and to develop an effective defense strategy.