Child Abuse

The State respects the rights of a parent to discipline and raise their child as they deem fit. At the same time, the state has an obligation to protect children hence the need for child abuse laws that seek to protect minors from harm. In general, child abuse happens when a guardian, caretaker, or even a parent emotionally, physically, or sexually assaults, abandons, or neglects a minor.

Incidences of child abuse are very common in the United States than most people think. According to some reports, three million cases are reported each year, involving about six million minors in the U.S.

The laws on child abuse vary from one state to the next and jurisdiction. Below is a summary overview of laws on child abuse in California, what reporting requirements are there, and what you stand to face should you fail to report.

The definition of child abuse according to the state of California is when another person inflicts physical harm or injury on a child, sexual assault as well as emotional abuse. On the other hand, neglect is defined as negligent abandonment that threatens the health and or welfare of a child. The various forms of abuse on children and neglect can be grouped as follows:

• Sexual abuse – this is when a child is victimized through sexual activities like rape, indecent exposure, incest, molestation, and fondling.
• Physical Abuse – any kind of bodily harm or injury inflicted on a child by an adult willingly and is not accidental is categorized as physical abuse. It may include unjustified punishment, willful cruelty, and corporal punishment.
• Emotional Abuse – this includes mistreatment that is not physical that may result in a behavioral change that is disturbing like excessive withdrawal. It also includes willfully and inflicting mental torment and suffering or endangerment of the well-being of the child emotionally.
• General neglect – this is mostly committed by guardians, parents, or caretakers that abandon their duty to provide sufficient food, clothing, shelter, or health care to a minor.
• Severe Neglect – this is based on situations where the health of a minor is endangered. Not taking a child to the hospital when sick or malnourished are categorized as forms of severe neglect.
• Exploitation – this happens when a child is coerced or forced to do things or activities beyond their capability, degrading, and illegal activities, including sexual exploitation.

After a report of child abuse or neglect is made, some steps are followed as an element of resolution. They involve the Child Welfare Services system as well as the juvenile dependency process of California.

The county welfare departments are mandated with the running of the CWS system that investigates reported cases, comes up with case management to the minors and their families, in addition to support services. The four components of the CWS program are:

• Emergency Response – this is the first thing that is done under this program. A social worker is expected to immediately respond to the report and determine if there is a need for an in-person investigation.
• Family Maintenance – this type of support aims at preventing further abuse or neglect with the child still remaining at their home. The services include emergency shelter if needed, counseling, and training of parents and in-home care, which in most cases is temporary.
• Family Reunification – the support, in this case, is given to the family while the minor is in foster care. These services will include; training on homemaking skills, provision of emergency shelter, training of parents, and counseling.
• Permanent Placement – children that are placed under foster care and cannot be returned to their families are offered support under this program.

When children are served in the CWS system, automatically their cases are placed in the juvenile court that may make a decision to have the child made a dependent of the juvenile court. This process involves case reviews and several hearings that may result in various outcomes like placing the child under foster care or recommending adoption. If an agreement between the CWS and the family is concluded voluntarily, it may not be necessary to involve the juvenile dependency process.

The state of California has very strict penalties and punishments for any person found guilty of child abuse or neglect. The different kinds of child abuse offenses, as discussed earlier, carry different punishments or penalties. Here, we examine each one of them in detail, what the law states on each particular case, what the prosecutor must prove, possible defense strategies, as well as the expected punishment or penalties, should you be convicted of any of the crimes.

It is also termed as “Corporal Injury on a Child.” This section of the penal code makes it a criminal offense to inflict physical injuries or punishment that is cruel on a minor.

Some common examples of abuse are:

• Slapping a minor hard enough to leave an imprint
• Punching a teenager for getting home late
• Using a belt and hitting a child excessively as a form of discipline

Corporal injury on a minor in California is also referred to as a wobbler offense. This is because a prosecutor can choose to charge it as either a felony or a misdemeanor based on:

• Facts presented regarding the allegation and
• The criminal background of the defendant should there be

If prosecuted as a misdemeanor, PEN 273d, the defendant may face:

• Serving time in a county jail for up to a year
• Be charged a fine not exceeding $6,000

Felony punishments or penalties

If prosecuted as a felony, the defendant can face:

• Jail time of two, four or six years but if with a prior conviction on child abuse, a further four hears may be added to their sentence in addition to or
• Find not exceeding $6,000.

In some cases, a judge may opt to give probation to a defendant as opposed to jail time. These sentences can be for a felony otherwise known as formal probation or for a misdemeanor, also known as summary probation where applicable.

Based on the law, any probation sentence for physical child abuse has conditions to fulfill unless the judge feels it may not be of interest to serving justice.

• A compulsory probation time not less than 3 years
• Protective order barring more violence towards the victim and in some cases may bar the defendant from having contact directly or indirectly with the minor and
• The defendant must successfully complete treatment for a child abuse program that would last for a year.

In the case the offense was committed while intoxicated, the judge may order drug and alcohol testing to be done randomly on the defendant.

Some of the common defenses lawyers’ advice their clients are maintaining:

• Allegations are based on falsehoods
• Injuries on the child were not caused by physical abuse but by something else
• The defendant was within their right as a legal guardian to discipline the minor
• An accident happened that resulted in the injury

Other offenses that can be charged alongside PEN273d

Physical abuse charges are often prosecuted alongside other crimes committed against minors. Some of the related offenses include:

• PEN 273a PC, this is on the law that focuses on the endangerment of a child
• PEN 270 PC, this is the law against child abandonment

Once the defendant is charged with physically abusing a minor, the prosecutor must prove that the defendant is guilty. This can only be done through proving certain elements or facts regarding the crime beyond any shred of doubt. The elements that the prosecutor must prove include:

1. That the defendant willingly inflicted inhuman or cruel physical injury on the child
2. That the alleged injury the defendant caused any traumatic physical injury
3. That the defendant was nor reasonably disciplining the child

The state of California also allows prior acts that lead to physical injury to be submitted during a current prosecution on a child abuse case. This is expected to show that the defendant’s tendency to inflict physical injury.

Lewd acts crime is defined as when a person knowingly commits lewd acts on a child or with a child’s body that is below the age of 14 with the intention to arouse, appeal to seek gratification for their lust, sexual desires, passions of the child or the person. This person is charged with a felony, and if found guilty, he must be punished by imprisonment for a period of 3, 6, or 8 years.

According to PEN 288, a lewd act is defined as either:

• Sexually touching a child for sexual gratification
• Making a child fondle themselves or another person for purposes of sex

This applies when the victim is below the age of 16, but since most prosecutions in this section are on children below 14, this kind of crime is commonly referred to as:

• Lewd acts with a minor below 14
• Lewd acts on a minor below 14
• Lascivious and lewd acts

Prosecutions on this kind of a criminal offense are based on the accusations that:

• There were touching and fondling of a minor’s sexual organs
• Sexual molestation on a child tool place

A defendant will be prosecuted on lewd acts regardless of

• The fondling and touching not being on sexual organs
• The fondling being done while the child was dressed
• The child was the one doing the touching at the urging of the defendant.

Examples of lewd acts or sexual acts on a minor

• When a man takes the hand of a child and places it on his crotch
• A teacher groping the breasts of a student while dressed
• A babysitter kissing the thighs of a child she is taking care of for her sexual gratification

Punishments and penalties for the crime of child molestation vary and depend on a combination of various factors that may include:

• The child’s age
• If the act was done by force, threats, duress or violence
• If there exists a pattern of lewd acts

The following is a summary showing various punishments and penalties under PEN 288

If charged with a lewd act against a minor, there are many different defenses that a defendant can use with the most common being:

• To the point at which contact was made, it was by accident
• In as much as contact occurred, there was no intention for sexual arousal
• The blame is being placed on the wrong person by the child.
• Mistaken identity by the accuser or he/she is not telling the truth

It is very difficult to prove intent in a criminal proceeding. Regardless if the defendant acted with intent, it is up to the jury to decide. The jury will consider the following facts

• In what context did the touching occur
• Are the victim and defendant known to each other
• What kind of touching was it
• Lack of an explanation that seems innocent

When a person allows for a child or causes a minor to suffer mental anguish is what is defined as emotional abuse.

State guidelines on what is considered to be emotional abuse:

• When parents or guardians omit to do things that may cause cognitive, behavioral, mental, or emotional disorders
• Acts that will not leave evidence but are harmful to the minor and need to be reported like locking a minor in the basement or closet all day as a punishment
• When there is any other kind of child abuse, emotional abuse is usually part of it

Some forms of emotional abuse will include

• Sarcasm
• Threatening
• Rejection
• Humiliation
• Belittling
• Prohibiting the child from socializing
• Withholding affection and love intentionally among others

In the state of California, emotional abuse is not considered a criminal offense, but the state recognizes it as a result of verbal and physical abuse and neglect. It is much easier for social workers to recognize emotional abuse. The signs they look for include withdrawal, bursts of anger, depression, substance abuse, self-abuse, eating disorders, picking fights, among others. Most accusations are usually accompanied by physical and sexual abuse.

As much as it is easier to identify emotional abuse, it is much harder to prove it. The prosecutor is expected to produce facts on how the victim has been emotionally abused, not by just saying when they see it, they can know it. Some of the things a prosecutor must prove include:

• Based on what context did emotional abuse occur
• Are both the victim and defendant known to each other
• What is the state of mind of the defendant and the victim

Some of the common defenses during emotional abuse cases include:

• Showing that the victim or accuser had no reason to fear
• There are other issues in the accuser’s life resulting in the emotional trauma but not from the alleged abuse.

This penal code states that should a parent or guardian willingly fail to provide clothing, shelter, medical care, food, or other necessary needs to a minor, this particular parent is guilty of a misdemeanor that carries a penalty of a fine not exceeding $2,000, jail time not more than a year, or both. A parent is found in violation of the law by:

• Neglecting to provide necessary physical needs for their child with no legally binding excuse.

Child neglect is charged as a misdemeanor. The punishment may be:

• Jail time of up to a year
• Fine not exceeding $2,000

In some rare instances, child neglect can be punished as a felony. This happens if the parent continuously neglects their responsibilities even after the court has determined that they are the parent. Punishment as a felony include:

• Jail time of up to a year
• A year plus day imprisonment in state prison
• Fine not exceeding $2,000

A judge in such cases can also sentence the offender to probation time either as a felony or misdemeanor probation. However, to get probation, the parent is expected to go for counseling and attend parenting classes. If the parent violates the probation terms, a probation hearing for violation may be scheduled, and if found guilty, a judge can change the sentence to jail time by revoking the probation.

Some of the common defenses on child neglect include:

• False accusations
• The defendant and the minor do not have a legal relationship of child and parent
• The defendant did not commit the offense willingly
• The parent has been facing financial constraints making it difficult to meet the obligations

What The Prosecutor Must Prove

The prosecutor, when charging must prove that:

• The defendant is the legal parent or guardian of the minor
• That the defendant neglected their obligations willingly
• When the alleged neglect happened.

The state of California has very strict laws that protect children. Anything that violates the rights of a child or endangers a child is punished harshly. Should you get convicted, the punishment can completely change your life, and in some cases, you can lose custody of your child.

Should you find yourself or your loved one accused of any of these crimes, you must find a qualified San Jose Criminal Attorney Law Firm. With a team of qualified, dedicated and compassionate lawyers, we will work hard to get you the best legal representation you deserve that may lead to an acquittal or if convicted, get the most lenient punishment possible. Call us at 408-622-0204 and our team of lawyers are readily available to offer legal counsel and defense for anyone accused of Child Abuse.