Children have the right to live in a safe environment, but millions of children around the world are abused either physically or emotionally. When the actions of the children's caregiver cause harm to children, the law treats that as child abuse. Physical, emotional, sexual, and verbal harm against a child constitutes child abuse. The results of child abuse can be an injury, death, or emotional instability. Cases of child abuse are widespread across the state of California, and they can happen in any social, ethnic, and income group.
If you are facing charges or are currently under investigation of child abuse charges under the California penal code 273d, it is imperative that you seek the help of a criminal defense attorney in Orange County, California. It is important to remember not to talk to the police or the agency involved in the investigation without a lawyer present. You can get in touch with our attorneys at Orange County Criminal Defense Attorney Law Firm for skilled representation of your case. We will expertly represent you and contest the prosecutor's case to ensure you avoid the harsh punishment connected to child abuse.
Child Abuse According to the California Law
The purpose of Child abuse laws is to protect children/minors from behaviors that may be damaging to their well-being. According to the California penal code 273d, child abuse is the willful infliction of either bodily punishment or any injury that results in a traumatic condition to persons under the age of 18.
A willful infliction is a situation in which a person knowingly causes or allows a child to suffer or go through an emotional/sexual/physical pain
Some of the corporal sentences warned by the law include:
- Severe beating a child
- Hitting a child
- Pushing a child
- Neglecting a child
The state of California under penal code -pen § 11164 warns against child neglect, which is also considered as a form of child abuse.
It is against the law in California to subject a child to abuse. Persons found to have willfully permitted children to undergo situations that cause them the pain will be arrested and charged for child abuse in a court of law.
California requires people to report child abuse crimes as specified in California’s mandatory laws. The laws from the penal code 11164 to 11174.3 of the child abuse and reporting act states that mandatory reporters should report cases of child abuse to the police or the agencies involved in child abuse cases.
The mandatory reporters are:
- A teacher
- A classified employee of the school
- A licensed employee of a public childcare
- An administrator/counselor at a child abuse program
- Medical examiner
- A child visitation officer
- A peace officer
- District attorney
- A social worker
- An officer of the county education department
The law requires that these mandatory reporters call the police or the child protective service immediately after suspecting a case of child abuse. They must also inform the agency or the police that they are mandated reporters as well as fill a form of verbal report. Unfortunately, a person might make false reporting that you are a child abuser, thereby getting you arrested. Thus, we as legal experts are well-versed with these scenarios and will cross-examine witnesses to ensure no false statements are admitted in court.
Types of Child Abuse
Physical child abuse is the physically harming/injuring a minor. Beating/pulling or twisting a child to the point of causing injuries is not permitted according to the law on child abuse. Spanking, as a form of discipline, is considered legal in the state of California. However, the punishment itself must fall into the category of what is regarded as reasonable.
Emotional abuse is when a child's caregiver intentional hurts a child's emotions to shame them or humiliate them.
Behavior that is considered sexual abuse includes when a child's caregiver or those close to the child have sexual intercourse with them. The sexual abuser may threaten or bribe the child with money, gifts, or tricks.
Unlike physical abuse, psychological abuse has no visible signs. It affects a person's mental state. In children, psychological abuse refers to when a caregiver exposes a child to behavior that may negatively affect a child's mental state.
Child endangerment is a failure to act or actions that place a child in harm's way. It can be charged as either a misdemeanor or a felony.
Elements of Sexual Child Abuse
According to the California penal code, child abuse can take different forms. One of which is sexual assault. Sexual assault on a minor is conduct that violates:
- The criminal code 261PC on rape
- Section 285 of the criminal code on incest
- Penal code 261.5 pc on statutory rape
- California penal code 286 pc on sodomy
- California penal code 288a on oral copulation
- California penal code section 647a on a lewd act on a minor below the age of 18
- Criminal code 288 on sexual penetration or child molestation.
The California law defines sexual assault against children as acts such as:
- Any form of penetration on the opening of the pubic organs of a child by a person. It doesn't matter whether or not there was ejaculation.
- Any form of oral contact to the genitals, or anal openings of a child.
- Any form of invasion, except performed by a medical practitioner on the sexual organs of a child.
- Deliberate touching of the sexual organs of a minor for the motive of sexual gratification except the acts done by a valid medical practitioner.
- Deliberate touching of a minor's sexual organs in an attempt to arouse sexual feelings. The organs include breast, genitals, or buttocks.
- Masturbating intentionally in front of a minor
- California law on child abuse also warns against sexual exploitation and commercial sexual exploitation, which refers to:
- Any conduct in violation of section 311 of the penal code involving the matter of subjecting a minor to pornography.
- Any action by a person against a minor in the intent of encouraging a minor to engage in any sexual conduct to prepare a film or any pictorial depiction.
- Any action of developing printing or downloading or accessing digital media in which a minor is involved in any explicit sexual act except for those activities involving authorities.
- Possibly Involving a minor in sexual trafficking.
- Offering a minor payment in the form of money, food, shelter in the exchange of sexual intercourse.
Criminal Process on Child Abuse in California
A mandated reporter makes files a report with the law enforcement agency involved with cases of child abuse and neglect. The agency will then analyze the facts and determine whether indeed there is/was a crime. The police will then question any present witnesses and also the accused and later recommend to the prosecutor to file charges against the accused.
Based on the prosecutor’s discretion, he/she will determine whether the police have enough evidence to charge the accused. If not, the prosecutor will ask the police to go back and gather more evidence. As soon as the officers collect sufficient evidence, the case will be forwarded to the district attorney. The district attorney will either, file charges against you or decide to end the investigation without filing any charges. He/she may determine that there is no evidence to take the case to court.
An accused's defense attorney will negotiate with the district attorney for lesser charges such as a misdemeanor or dismiss the charges. The charges will be based on the evidence they have on the accused.
The defense attorney will also protect his/her client against questioning by the police because talking to the police without the attorney present may jeopardize the accused's freedom. Any comment that you make as an accused will be used against you irrespective of whether or not it was intended.
When sufficient evidence has been collected and approved by the district attorney, a warrant for your arrest will be signed by the judge, and the police will come for you. While making the arrest, the arresting officer will read your rights, these include:
The Right to Remain Silent
This means the information you might have given before the rights were read to you will be deemed invalid in a court of law.
Whatever you say will be used against you in a court of law.
- The right to have an attorney during questioning
- The government will provide you with a lawyer if you can’t afford one
- The prosecutor will make claims that you willfully inflicted injuries or neglected a child
Once arrested, you will be taken into custody awaiting arraignment. In the meantime, your defense attorney may ask for a bail hearing. When a bail request is approved, you will be released on the promise that you will appear in court on a given date. You may plead guilty or not guilty during an arraignment. Your defense attorney might also request the court to schedule your hearing for a later date.
Burden of Proof
The United States Constitution provides protection for those accused of criminal charges. If a person is charged with child abuse, the state recognizes the accused as innocent until proven guilty. Therefore, the prosecution must collect enough evidence and witness testimony to prove that the accused is indeed guilty. This is called the burden of proof.
The burden of proof in any child abuse/neglect case rests with the prosecutor. If the government fails to prove that the accused committed all the crimes brought against him/her beyond a reasonable doubt, the jury will find the defendant not guilty. Beyond a reasonable doubt means that the evidence provided by the prosecutor should be so convincing such that no one can deny that the defendant is indeed guilty.
The burden of proof means the defendant has to prove or say nothing in his defense before a court. The weight is entirely on the prosecutor to show that there is sufficient evidence that the defendant is guilty of the charges brought against him.
When the government fails to prove beyond a reasonable doubt that the defendant is guilty, the charges brought forth should be dropped. This means the defendant is found to be not guilty of the crimes set forth against him/her. When acquitted, under the rules of double jeopardy, the defendant will not be retried for the same crimes that he/she was found not guilty.
The role of a criminal defense attorney is to protect the defendant from being wrongfully convicted by disproving the facts of the prosecutor and show that the state has not fulfilled its burden.
The United States fifth amendment on double jeopardy clause has been adopted in the California penal code 687, and it means:
- The defendant will not be charged again for the same crimes
- The defendant shall not be double convicted for the same offense
- The defendant shall not be punished multiply for the same crime
In a child abuse/neglect case, the most crucial thing the prosecutor has to prove is, intent. Intent in a criminal case means, the defendant had a motive to commit the crimes. If the state fails to show intent during a child abuse trial, the accused will be released, and the case dismissed.
Penalties and Sentencing of all Child Abusers
If found guilty at trial for charges brought against you, the judge will enforce a sentence. He/she may either put you on probation, ask you to pay a fine or send you to jail. It all depends on the type of charge the prosecutor brought against you and the evidence supporting the claims.
There is always the assumption of guilt related to crimes against children by the law enforcers and the public at large; therefore; these crimes carry hefty penalties. Prosecuting agencies rarely offer little or no jail term for persons charged with child abuse and neglect. In California, persons found guilty of sexual abuse, and neglect usually gets severer and harsher punishment than those accused of murder.
Punishment for child abuse varies depending on the type of crime. Section 290 states that, after being released from prison, all offenders must immediately register as sex offenders and give out their names and addresses or else risk an arrest. The law also states that sexual offenders must annually update the registration and give out their addresses if they had moved or risk being fined or imprisoned.
Child Molestation and Lewd Acts
Offenders of these crimes are charged with felonies and get a jail term of between three to sixteen years. Offenders are also required to register themselves sex offender and pay for all the medical treatments of the victim.
Child Molestation Through Force
These crimes are also considered felonies and carry a jail term of up to ten years in state prison.
Child Abuse and Endangerment
Child abuse and endearment crimes can be charged as either a misdemeanor or a felony. For misconduct, an offender is likely to get a jail term of up to a year. If charged as a felony, the offender will get a maximum of six years.
Child abuse in a Physical Manner
These crimes are also charged in either a misdemeanor or felony and can take a maximum of one year for misdemeanor and six years or a felony.
Same like the other crimes, child pornography can be charged as either a misdemeanor or a felony. If found guilty of a misdemeanor, an offender will face a jail term of a maximum of one year, and for felony and offender will get a maximum of three years. The law also requires the offender to register as a sex offender for life.
As a misdemeanor which is charged when an offender engages in sexual activity with a minor who is three years younger, the offender will get a maximum of three years in county jail. As a felony, which is charged when an offender engages in intercourse with a minor who is way younger than him, the offender will get a maximum of four years' jail term. The law also requires the offender to register for life as a sex offender.
Molesting a Minor
The crimes are usually charged as a misdemeanor in California. However, when it involves a repeat offender, the charge will be a felony. An offender gets a maximum of six years' jail term and will be required to register as a sex offender for life.
Possible Defenses in Child Abuse Cases
Successful child abuse defense can be challenging to assert because of the nature of criminal charges. A child witness testimony can be damning to the person charged with child abuse. The person accused may face a difficult task trying to fight the allegations, as people tend to be more sympathetic to children.
In California, a person charged with child abuse and neglect has the right to due process and to defend themselves before a judge and jury of his/her peers. Due process provides an avenue for the accused to defend himself reasonably. Below are some of the defenses an accused can use in a court.
A False Accusation
What many people don't know is that children can fabricate stories, especially when manipulated or when stressed. For example, in dysfunctional families, one parent may manipulate a child to make false accusations against the other parent in an attempt to destroy the other person's credibility to win a child custody case. However, a skilled defense attorney will take note of this and uncover all the information and defend his client to prove his/her innocence.
An Unfortunate Accident
Children can get themselves into unfortunate accidents when engaging in extracurricular activities. It is not uncommon to hear children get hurt because of carelessness and accidents. Injuries that are as a result of accidents are not considered as child abuse. The prosecutor has to prove that the claims are based on actual negligence on the part of the accused.
Punishment by a Parent/Caregiver
Some injuries may result from a parent or any other caregiver disciplining the child. When a child gets hurt under the care of other people, or if a child gets hurt under the supervision of the parents, the defense attorney will use the parental privilege as a defense. Unfortunately, this defense may fail to work if the child suffers a significant injury as a result of the punishments.
In states that offer a religious belief exemption, a defense attorney may use religious belief to defend his/her client. A parent/caregiver may plead this defense if, for example, he/she failed to take a child for immunization based on breaching a religious belief.
When the accused is charged with child abuse, the defense may use a medical condition as a defense. Because there are children who suffer from certain medical conditions such a brittle bones that may make them prone to injuries. To prove this, the defense attorney will have to call expert witnesses such as a psychological or medical expert.
A defendant may also use affirmative defenses in a child abuse/neglect case. Examples of affirmative defenses are entrapment, self-defense, insanity duress, a mistake. By choosing an affirmative defense in a child abuse/neglect case, it means that you plead guilty of the charges brought against you based on either insanity, self-defense, or entrapment.
Find a Orange County Criminal Lawyer Near Me
It can be nerve-wracking when you have been arrested and charged for child abuse/ neglect. The prosecutor has to prove that there was an intent and that the crime took place.
For this reason, it is imperative that you seek the help of a criminal defense attorney. A lawyer who is highly trained and experienced in matters of child abuse will be the best fit for your case. That's why an attorney at the Orange County Criminal Defense Attorney Law Firm will be the right fit for your case. You can easily reach our attorneys by calling this number 714-740-7848 to understand the charges you are facing.