Is child abuse a felony? A defense attorney explains

The law in most states allows a prosecutor to charge the crime of child abuse as either a misdemeanor or a felony, depending on the circumstances.

Prosecutors are typically more prone to file felony charges when:

• the child suffers an injury,
• the abuse was particularly cruel or included sexual acts (for example, sexual assault), and/or
• you have one or more prior convictions for child abuse or related offenses.

If you do get charged with child abuse, you can contest it with a legal defense. A few common defenses include you showing that:

• you were falsely accused,
• the child victim was injured by accident, and
• you were acting within your parental rights to discipline your child.

1. Extent of Injuries

States are generally more likely to charge child abuse as a felony when the abuse results in physical injury to the child.

California

California law states that you would face misdemeanor child abuse charges if

• you abuse a child and
• the abuse results in physical pain or mental suffering to the child.¹

By contrast, California law says that a person would face felony child abuse charges if the person

“inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition“.²

Traumatic physical condition

A traumatic physical condition is

• a wound or other bodily injury,
• whether minor or serious,
• caused by the direct application of physical force.³

So California draws the line at injury – it becomes a felony if you inflict injury on the child, even a minor injury.

2. Nature of The Abuse

Prosecutors are more likely to file felony charges (and more serious felony charges) in those child abuse cases that involve:

• particularly cruel acts of abuse, or
• acts of abuse that rise to acts of sexual abuse.

Florida

Florida law treats aggravated child abuse as a felony of the first degree. “Aggravated child abuse” includes those instances when an abuser

• willfully tortures,
• maliciously punishes, or
• willfully and unlawfully cages a child.⁴

North Carolina

Under North Carolina law, you will face felony child abuse charges for committing, or allowing the commission of, any sexual act upon a child.⁵

3. Criminal Record of The Accused

The criminal laws of most states say this is also a significant factor. Repeat offenders with past child abuse convictions will generally see felony criminal charges in child abuse cases.

Illinois

Illinois law, for example, lists a few factors that will cause a prosecutor to file a felony charge in a child abuse case. One is if you had a prior conviction for child abuse. In these cases, child abuse is filed as a Class 4 felony.⁶

4. Penalties

The specific penalties for a child abuse conviction will likely depend on state law and the facts of the case.

Colorado

Colorado law, for example, sets forth the following rules:

• child abuse that results in the death of a child is a Class 2 felony punishable by up to 24 years in state prison,⁷
• child abuse that results in serious bodily injury to the child is a Class 3 felony punishable by 4 to 16 years in prison,⁸
• child abuse is charged as a Class 5 felony, punishable by up to 5 years in prison, if you have a prior conviction of child abuse,⁹ and
• most other instances of child abuse are charged as a misdemeanor offense punishable by up to one year in county jail.¹⁰

5. Defenses

Yes. Criminal defense attorneys draw upon several legal strategies to help you contest child abuse charges.

A few common defenses include you showing that:

1. The allegations are false – children are prone to lie.
2. The minor’s injuries were caused by something other than abuse – children are also prone to rough-house with other children.
3. Law enforcement arrested you without probable cause – police do not always get the whole story before making an arrest.
4. You were acting within your parental rights to discipline your child – parents of a child have the right to discipline their minor child provided that it is reasonable and does not produce bodily injury.¹¹
5. The injury was the result of an accident – “accidental” means that you did not abuse the child on purpose or with criminal negligence.

Further, note that while you can raise a legal defense in these cases, consultation with a criminal defense lawyer will help you determine the best defense.

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