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California Penal Code section 273(d) covers the crime of inflicting physical punishment on a child and is generally referred to as child abuse.  Child abuse is an extremely serious offense and is treated very unforgivingly within the justice system.  In order to be convicted you must have acted willfully and intentionally to harm a child.  Additionally, you must have actually harmed the child, causing him or her trauma, and the harm that you inflicted has to have been done in a manner that was not a part of reasonable discipline of the child.  Spanking your child is not illegal; even spanking your child with an object can also not be considered illegal.  However, spanking your child with or without an object is not legal if the spanking was not reasonable discipline.  Also, if you spank your child with or without an object - for no reason - you are not within your rights to discipline your child.  It is these differences that separate discipline from child abuse under Penal Code section 273(d).

In order for someone to be convicted of child abuse, the prosecution has to be able to prove each and every element of the crime beyond a reasonable doubt.

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Elements of Child Abuse

  1. The person willfully inflicted cruel or inhuman corporal (physical) punishment or injury on a child,
  1. The infliction of the punishment or injury resulted in a traumatic condition to the child.

Willfully - This means that the person did the act intentionally or on purpose.  Even if you didn’t mean to break the law or cause injury to a child, as long as you purposely committed the act you can be convicted of child abuse.  Carolyn is 12 years old. She comes home from school five minutes late and her stepmother becomes extremely angry. She throws her backpack out of the car and it strikes Carolyn leaving a bruise on her arm. Her stepmother has willfully committed the act because while she may not have intended to strike Carolyn she did intend to throw her backpack. 

Child – For the purpose of this code section a child is any person under the age of 18 years. As soon as his or her 18th birthday begins he is no longer considered a “child”.  Don't be fooled by size though! The under 18 rule holds true even if a parent or stepparent is smaller in size than the minor child.

Traumatic ConditionWhat is the meaning of a traumatic condition?  Penal Code section 273(d) defines a traumatic condition as a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force.  The injury causes a traumatic condition if the traumatic condition is the natural and probable consequence of the injury, if the injury was a direct and substantial factor in causing the condition, and if the condition would not have occurred without the injury. 

Be aware in assessing whether or not a traumatic condition has resulted that there doesn’t have to be a major wound or scarring as the word trauma might insinuate.  In fact, any condition as minor as a cut or a scratch rises to the level of traumatic condition for the purpose of this statute.

Cruel or Inhuman Corporal PunishmentAny type of physical punishment such as choking, pushing, hitting, kicking, slapping, punching, shaking, or throwing something at a child can be considered cruel and inhuman punishment. Reasonable spanking to discipline is different.

Prior Acts of Child Abuse May Be Admissible - When you are being prosecuted for the crime of child abuse under Penal Code section 273(d), the prosecutor may seek to introduce prior accusations that you committed child abuse - even if you were never actually convicted of such crime.  The prosecutor can even try to admit prior domestic violence accusations or charges to show that you have a propensity towards violence! This is a very narrow exception to the general rule that prior acts evidence is not admissible in a current criminal case because it can be too prejudicial for the jury. Before such evidence is allowed in, however, the judge will consider how prejudicial such information might be to the jury and how long ago the alleged prior act occurred. It is extremely crucial that you have an experienced attorney at this juncture of your case to convince the judge not to allow such evidence. 

Penalties for Child Abuse

The crime of child abuse under Penal Code section 273(d) is considered a wobbler.  This means that you can be charged with either a misdemeanor or a felony child abuse crime depending on the seriousness of the case and whether or not you have a prior criminal history. This decision is made at the prosecutor’s discretion.  Whether charged as a misdemeanor or felony, child abuse is a serious offense and is treated as such within the justice system. If convicted of misdemeanor child abuse you are facing a maximum of one year in county jail and a maximum fine of $6,000.  If convicted of child abuse as a felony, you can receive get a maximum sentence of two four, or six years in county jail.  There is also a maximum fine of $6,000.  Furthermore, if you are convicted of child abuse wherein the child suffered a very serious injury, you will now have a strike on your record.

Probation can be imposed for either misdemeanor or felony charges.  This can be instead of the other penalties or in addition to them. Probation will likely be for a minimum of three years with the requirement that you attend a minimum 52-week counseling program for child abuse.  The judge may also order a criminal protective order which means that you will have to stay away from the alleged child victim.

The judge will also take into consideration whether or not you were previously convicted of California Penal Code 273(d).  If you have any priors that occurred less than ten years ago or if you served jail time for any other felony crime in the past ten years you can receive a sentence enhancement of an additional 4 years.

Defenses for Child Abuse

Your reputation, freedom, family life and professional career are all on the line when you are convicted of a child abuse crime.  Child abuse charges require both urgency and sensitivity because aside from the penalties, having your child taken away from you is nothing short of devastating.  It is therefore crucial that you have a competent and compassionate defense attorney as your voice.  Leah Naparstek of the Criminal Law Office of Leah Legal is not only an attorney; she is a mother, confidante, and advocate for you and your child’s rights during the case proceedings. Here are several common defenses that can be utlized:

Injury Caused by Something Other Than Abuse - If the injury detailed within the allegation of child abuse was a result of something other than child abuse you cannot be charged with a violation of Penal Code section 273(d).  If this is the case Attorney Leah Naparstek can present evidence of it being an accident to the prosecutor and judge.  Children play and fall and wrestle with one another and are constantly getting hurt. Example: Samantha and Emily were at the park playing on the jungle gym. Samantha jumped onto Emily’s back and Emily fell into the jungle gym hitting her eye.  The next morning she woke up with a black eye.  At school the teacher asked her what happened and she told her the story.  The teacher sent her to the counselor where Emily explained the story again.  Both the teacher and counselor thought the story was untrue and they called child protective services.  A social worker came and determined that Emily was unsafe; she was placed in a foster home and her stepfather was arrested. Her stepfather did nothing wrong, and the story that Emily told the teacher, counselor, and the social worker was disregarded. Emily’s stepfather cannot be convicted of child abuse because Emily’s injuries came from an accident on the playground not him.  A good lawyer must find the evidence to prove his innocence by questioning relevant witnesses and by thoroughly investigating the incident.

Injury Was an AccidentThis defense applies when a parent causes an injury to a child but the act was not willful, rather it was the result of an accident caused by the parent.  The accident, however, can not have occurred because of extremely aggressive behavior on the part of the parent. Example: Toby and his mother were at the playground. Toby was going down the slide over and over, running to the top of the slide and throwing himself down it.  At the top of the slide he lost his balance and fell down the slide. Toby’s mom grabbed him so he wouldn’t fall and accidently scratched him.  This is not a case of child abuse, Toby’s mother did not intend on injuring him. It was simply an accident.

False Accusations - Being falsely accused of child abuse under Penal Code section 273(d) is very common – especially in cases where there are divorce and custody issues.  Jealousy, anger and even revenge can precipitate a charge of child abuse.  If you did not inflict abuse upon a child and the allegations were made falsely, your attorney can present the actual facts in order to prove your innocence.

Parent Discipline - If you are acting within your rights to discipline your child, you cannot be convicted of child abuse. Child abuse only exists when the punishments are cruel or unusual.  When Daniel is throwing a temper tantrum at the store, his mother grabbed him by his arm and smacked him lightly on his rear end telling him to stop.  Daniel squirmed around trying to get his arm out of his mother’s grasp.  The next day at school Daniels teacher asked him how he got the bruise on his arm and he tells her his mom did it.  Child protective services were called and his mother was charged. She cannot be convicted of child abuse because it is not illegal to spank your child and the bruise was a result of Daniels squirming trying to get away from his mother. His mother was within her rights to discipline him.