A First Offense Child Abuse Conviction Could Lead to Prison
Video Transcribed: Is child abuse, a felony in Oklahoma? I’m Tulsa attorney James Wirth, and that is the question that we’ve got today is, is child abuse a felony in Oklahoma? The answer is, yes. It’s not just a felony, it’s a very serious felony.
And that can be somewhat concerning because obviously, it sounds like a serious crime, but the way it’s defined under the law actually makes it quite broad. So sometimes it’s a little scary how sentencing… or how tough the sentencing can be on child abuse under Oklahoma law. So let me just read what the statute says as far as punishment.
And this is title 21, section 843.5, and that is the child abuse statute. And what it says is that “any parent or other person who shall willfully or maliciously engage in child abuse, shall upon conviction be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections, not exceeding life imprisonment.”
So yes, a first offense child abuse conviction, not only a felony but has the potential of life imprisonment. Now I want to look at some of the other words in here, because it sounds really bad, as only the worst of the worst type of cases may fall under child abuse and get that felony or have potential life hanging over you, but I can show you in the law, how these things are broadened to make actually more people at risk.
So it talks about willfully and maliciously engaging in child abuse. That sounds pretty bad. They willfully and maliciously, they intended to with an evil mind. But when we look at the jury instructions, which include that, a person in order…
Well, let me back up a little bit. So if we have a trial going on and the jury has to determine whether somebody committed the offense, they’ve got instructions that are given to them to review to follow the law.
And they have to make sure that each element of the crime is proven beyond a reasonable doubt. And those elements for child abuse, or at least this particular type, is first, “A person willfully and maliciously,” second, “harmed or threatened to harm the health, safety, or welfare of a child under the age of 18.” That’s what’s required to be proven.
So the first element is willfully and maliciously, which sounds like they intended it. Malicious meaning that they had an evil act. However, it’s defined by case law to actually be much less than that. And this is from the jury instruction comment notes.
And what it says is, “In Fairchild v. State 1999, OK CR 49, the Oklahoma Court of Criminal Appeals decided that the men’s rea,” that means the mental intent requirement of the statute, “for felony murder of a child under 210S701.7C was a general intent to commit the act, which causes the injury rather than specific intent.” Now, this Fairchild case was a felony murder, where it actually involved the death of a child.
However, the courts are applying this rule regarding it being general intent rather than specific intent to all child abuse cases, at least the ones that I have seen in recent years, which means, let’s say that you’re playing baseball, with your son. You throw the ball and he misses it, hits him in the face, breaks his nose. Okay, well, that’s an accident. That’s not child abuse.
However, based on this, it’s a general intent. Did you intend to commit the act that caused the injury, i.e., did you intend to throw the ball at your son, rather than specific intent, did you intend to cause the injury? So when you apply the general intent, it makes a lot of things that are somewhat innocuous, suddenly felony crimes with the potential of life imprisonment. So that’s very concerning from a libertarian point of view.
But that’s not all, because also in that definition, it talked about harm or threatened harm. And that’s right, child abuse is defined by statute. This is title 10A, section 1-5-105. It says, “Abuse means the harm to the health, safety or welfare of a child.” So that’s pretty broad in the first place. Health, safety, or welfare.
But then beyond that, it doesn’t just say abuse means harm, it can mean threatened harm. So threatening child abuse is child abuse. So it’s another way that you broaden it. And then you talk about it doesn’t have to be an injury. It could just be harm to the health or to the safety or harm to the welfare, which makes it very broad.
So from a defense attorney’s perspective, this is very concerning because we have a huge potential of a large sentence because you’ve got a potential life sentence for child abuse. So if you make the allegation…
But then you have a statute that’s very broad where many things could be construed as child abuse, which means the state can file a weak case as child abuse and then hang this potential sentence of life imprisonment over a defendant’s head in order to compel them to take a plea deal in the case where maybe they’re not even guilty, because they don’t want to risk rolling the dice and losing their life by getting a life sentence.
So it does put a lot of pressure on defendants, and that is concerning from a defense perspective. But you can see how that plays out in the statutes here, where we have the definition of child abuse continually made broader.
Meanwhile, the accusation of child abuse still has that same sting and that same potential sentence of life imprisonment. So if you’ve got any questions about any of this, child abuse allegations, mens rea, or some of the broadening of these definitions, criminal defense, then you’re going to want to talk to an attorney about your specific circumstances. Don’t just take this general advice. Schedule a consultation confidentially. You can do that by going online to makelaweasy.com.