Caring for a child can be one of the most rewarding experiences in life. It can also land you in serious trouble with law enforcement if things go wrong. What may seem as a simple mistake to a parent or caregiver may be interpreted as child abuse by law enforcement or medical personnel. And in some instances, legitimate child rearing (such as spanking) can land you in court.
If you’ve been charged with (or are being investigated for) child abuse, take some time to review the information below. Then call BenGlassLaw to schedule a free consultation with Northern Virginia Criminal Defense Attorney James Abrenio. A Child Abuse charge can have long term consequences, so there’s no time to wait.
What is considered Child Abuse in Virginia?
The term “child abuse” means many things in Virginia criminal law. Addressed here are some of the must frequent situations child abuse charges are issued. (Note - This Article does not discuss all types of child abuse allegations, including sexual abuse. Those will be covered in other articles, given the complexity that may arise from those charges.)
A parent (or other caregiver) left a child unattended at home or other location for an extended period of time.
Leaving a small child at home alone or otherwise unattended can be very dangerous. When law enforcement finds that this has happened, they generally bring one of two possible charges:
Abuse and Neglect of Children in Violation of Virginia Code Section 18.2 – 371.1
This code provides that a caregiver for a child is guilty when he/she, by “willful act or omission or refusal to provide necessary care for the child’s health,” causes or permits serious injury to the child. In that case, the caregiver is guilty a Class 4 Felony.
The code also provides that if the child is not harmed, but the caregiver by “willful act or omission” in the care of the child demonstrated acts “so gross, wanton, and capable as to show reckless disregard for human life,” he or she will be guilty of a Class 6 Felony.
Cruelty and Injuries to Children in Violation of Virginia Code Section 40.1-103
This code is very similar to 18.2-371.1. It provides that a caregiver is guilty when he/she “willfully or negligently” causes or permits the life of a child “to be endangered or the health of such child to be injured, or willfully or negligently” causes or permits such child to be in a situation that its “life, health or morals may be endangered” or to cause or permit such child “to be overworked, tortured, tormented, mutilated, beaten or cruelty treated." A violation of this code is a Class 6 Felony.
What do these laws mean?
Both code sections are very serious felonies. Both can also be confusing in instructing what constitutes a crime. To better understand the charges, we’ll take a look at how Court’s have interpreted them in the past.
In Ellis v. Commonwealth, 29 Va. App. 548 (1999), the Virginia Court of appeals overturned a mother’s conviction for child abuse when she left her two young children (ages 2 and 4) alone in her apartment while she went to a nearby neighbors to visit. Unfortunately, before she left, she turned on the gas stove to light a cigarette and forgot to turn it off when she left, which caused a fire. Evidence at trial demonstrated she had left for fifteen minutes.
In overturning her conviction, the Court stated:
"Here, no evidence establishes that she left the apartment with the intent to injure her children; nor does the evidence support the conclusion that she acted with knowledge or consciousness that her children would be injured as a likely result of her departure to visit a neighbor for a short period of time in another residential building."
Another case that provides additional guidance on Virginia Child Abuse and Neglect is Morris v. Commonwealth, 272 Va. 732 (2006), in which the defendant’s child abuse conviction was also overturned. There, a mother of two boys (five and two years old) was confronted by law enforcement when her children were found in the woods playing by themselves, one of them naked. The evidence at trial revealed that the mother had fallen asleep for several hours and the boys had left their residence and were unsupervised for several hours.
While the case clearly concerned the Court, it ultimately over turned her conviction because her actions were not so “gross, wanton, and culpable as to show a reckless disregard for their lives.”
While these cases show that not all child abuse charges result in a conviction, there are certainly cases where the Courts seem to set a lower threshold for guilt. For instance, the Court in Carosi v.Commonwealth, 280 Va. 545 (2010) found that child endangerment can be “established solely upon the fact that a parent or other custodian knowingly permitted a child to be present in a home where illegal drugs where kept unsecured in an area accessible to the child.” In Barnes v. Commonwealth, 47 Va. App. 105 (2005) the Court also upheld a child abuse conviction when a mother left her two year old and four year old children in an unlocked apartment to pick up groceries.
As you can see, what constitutes child abuse is not a clear and bright line. And these cases do not provide scientific answers. What they do is provide some framework of how a court will analyze charges.
While spanking (“Corporal Punishment”) is legal in Virginia, the line of just how far is too far is becoming less clear. If you’ve been charged with a child abuse offense based upon spanking, you need to understand exactly what the Court will look at to determine if you’ve crossed the line. In fact, a Model Jury Instruction provides us guidance:
Parents may administer such reasonable and timely punishment as may be necessary to correct faults in a growing child. However, the right cannot be used as a cloak for the exercise of uncontrolled passion. A person may be criminally liable for assault and battery if he inflicts corporal punishment which exceeds the bounds of due moderation. In determining whether punishment is moderate or excessive, the jury should consider the attending circumstances, considering the age, size and conduct of the child, the nature of the misconduct, and the kinds of marks or wounds inflicted on the body of the child.
What this means is there is not a specific, clear-cut test to determine if a particular spanking is a crime. What is also means is that if you’ve been charged, you need to speak with an attorney immediately to be advised of your particular case. Given that these types of charges are very fact specific, a trial may very well be in your future. Therefore, your attorney will need as much time as possible to prepare.
If you’ve got questions about your Virginia Child Abuse charge, call BenGlassLaw to schedule a free consultation with James S. Abrenio right away.