California Penal Code 273d PC defines the crime of child abuse as willfully inflicting on a child “cruel or inhuman corporal punishment or an injury resulting in a traumatic condition.” The offense can be charged as a misdemeanor or a felony and is punishable by up to 6 years in jail or prison.
Examples of child abuse include:
- slapping a child hard enough to leave a mark
- punching a teenage boy for behavioral problems and a poor school performance
- hitting a child with a belt harder than is reasonable in order to discipline her
California’s mandatory reporting laws require that certain professions – such as teachers, pediatricians and other child health care workers, child care workers and caregivers, and social service providers – take the initiative to report suspected cases of child abuse, neglect, and unlawful sexual activity.
Punishment for child abuse in California
Corporal injury on a child can be charged as either a misdemeanor or a felony:
| Misdemeanor child abuse |
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| Felony child abuse |
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Probation typically includes a protective order that prohibits further violence or threats against the victim (and may prohibit the defendant from any contact with the victim) as well as successful completion of a child abuser’s treatment program.5
The judge may also order random drug testing if the offense was committed while the defendant was under the influence of drugs or alcohol. 6
Legal defenses
Common legal defenses include taking the position that:
- The allegations are false,
- The minor’s injuries were caused by something other than abuse,
- The defendant was acting within his/her legal right to discipline the child, and/or
- The injury was the result of an accident.
Offenses commonly charged along with child abuse
Corporal injury is often charged along with other crimes against children. Related offenses that are commonly charged include:
- Penal Code 273a PC, California’s child endangerment law, and
- Penal Code 270 PC, California’s child neglect law.
We discuss these and other related offenses in more detail in Section 6, below.
Below our California criminal defense attorneys discuss what you need to know about child abuse laws. Click on a topic to jump to that section.
Slapping may be a form of abuse in California if it injures the child.
1. Definition
Penal Code 273d PC sets forth the California crime of child abuse. It defines “child abuse” as the willful infliction of either of the following on a minor under 18:7
- Any cruel or inhuman corporal (bodily) punishment, or
- An injury that results in a “traumatic condition.”8
Meaning of terms
“Corporal punishment” is simply physical (as opposed to emotional) punishment.9
A “traumatic condition” is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force.10
And an injury is inflicted “willfully” if the act causing the injury is done on purpose. It is not necessary that the person intend to break the law or injure the child.11
Example: Carla’s teenage daughter stays out past her curfew. When she comes home, Carla slaps her to make the point that she is scared and angry. Unfortunately, the daughter’s head strikes the edge of the door. Carla has to take her to the emergency room for stitches. Carla did not intend to injure her daughter or damage her well-being. But because she intended to slap her she can be charged with child abuse.
But…
Let’s say that Carla was only intending to smack her hand against the wall. In her anger, she missed and accidentally slapped her daughter instead. Because she did not intend to slap her, she is not guilty under Penal Code 273d.
Examples of child abuse
Acts that are often considered abusive in California include:
- Hitting,
- Punching,
- Slapping,
- Kicking,
- Pushing,
- Shaking,
- Choking,
- Burning, or
- Throwing a child or throwing an object at a child.
This list is by no means complete. Any act that injures a minor can be considered abuse if it causes a traumatic condition or is “cruel and inhuman.”
The term “cruel and inhuman” is not specifically defined under California law. But a jury will give the words their ordinary meaning.
This gives juries a great deal of power to determine whether an act that does not cause an injury is abusive.
Is spanking considered child abuse in California?
Spanking is not considered child abuse in California if:
- It is for disciplinary purposes, and
- It is not excessive under the circumstances. 12
These exceptions apply to both:
- Spanking with a bare hand, and
- Spanking with an object (such as a belt or paddle).13
But keep in mind that this is a controversial area.14 What is considered acceptable by today’s standards may well change in the future.
And a jury could decide that spanking — whether with a bare hand or an object — was excessive.
Spanking a child with a belt is legal in California only if reasonable and not excessive.
2. Proof
To prove a defendant is guilty of child abuse, the prosecutor must prove certain facts (“elements of the crime”). Each element must be proved beyond a reasonable doubt.
The elements of the crime of child abuse
To establish its case, the prosecutor must prove that:
- The defendant willfully inflicted cruel or inhuman physical punishment and/or an injury on a minor;
- The punishment and/or injury inflicted by the defendant caused a traumatic physical condition; and
- When the defendant acted, he/she was not reasonably disciplining the minor.15
Can prior acts of child abuse be used against the defendant?
Prior acts of corporal injury are admissible in a child abuse prosecution. Such acts are admissible even if they did not result in a conviction.16
This is an exception to a general California rule of evidence.
The usual rule is that prior convictions may not be introduced to convict someone of a crime. Such evidence is normally considered overly “prejudicial.” 17
But in cases of alleged abuse against a minor, prior convictions can be used to show that the defendant has a tendency toward violence.
The good news is that the judge must first hold a hearing to decide whether its value outweighs the likelihood of prejudice.
Hearing re: prior child abuse evidence
Before the prosecutor can introduce evidence of prior acts of alleged child abuse, s/he will conduct a hearing. At the hearing the judge will consider:
- Whether the proposed evidence will unduly prejudice the jury,
- Whether there is any corroborating evidence for the earlier allegations, and
- How much time has elapsed between the prior acts and the current charges.18
In general, the prosecutor may not introduce such evidence if the alleged act(s) occurred more than ten (10) years ago.
In such a case, the evidence will only be allowed if the judge rules that it is in the interest of justice.19
Can prior acts of domestic violence be used as evidence?
In some cases, the prosecutor may be able to introduce evidence of prior acts of domestic violence to help prove allegations of abuse against a minor.20
The prosecutor may do so only if both of the following are true:
- The current allegation is for abuse against:
- The defendant’s child,
- A minor who regularly lives with the defendant, or
- A minor who used to regularly live with the defendant,21
AND
- The domestic violence allegations were for acts within the five preceding years and involved:
- A spouse,
- A live-in girlfriend/boyfriend,
- The parent of the defendant’s child, or
- Someone the defendant was seriously dating.22
Hearing re: prior domestic abuse evidence
As with evidence of past child abuse, the judge will hold a hearing to determine if evidence of prior domestic abuse is appropriate.23
The judge will be looking to see:
- Whether such evidence is overly prejudicial, or
- Whether it tends to show a “propensity” toward violence in general.24
Example: Joanne is charged with hitting her live-in boyfriend’s young children. Two years earlier, Joanne was arrested for domestic battery (Penal Code 243e1) against her then-husband. The charges were then dropped after the couple (briefly) reconciled.
After a hearing, the judge in Joanne’s current case decides to admit the alleged battery into evidence. He rules that there was reasonable evidence that Joanne hit her then-husband and that it won’t unduly prejudice the jury.
Note that prior acts are not enough by themselves to prove a defendant guilty in the current proceeding. They are simply additional evidence the jury may consider.25
Evidence of prior domestic violence is sometimes admissible in a California Penal Code 273d child abuse case.
3. Penalties
Penal Code 273d child abuse is a so-called California “wobbler” offense.26
This means that the prosecutor has the discretion to charge the offense as either a misdemeanor or a felony. The choice will depend on:
- The circumstances of the alleged offense, and
- The defendant’s criminal history (and, possibly, evidence of prior domestic or child abuse).
A minor first offense will usually be charged as a misdemeanor. Felony charges are more likely when:
- The act was particularly cruel,
- The injury to the child was very serious, and/or
- The defendant has one or more prior convictions for child abuse or related offenses.
Misdemeanor penalties
As a misdemeanor, this section can be punished by:
Up to one (1) year in county jail, and/or
- A fine of up to six thousand dollars ($6,000).27
- For felony child abuse, penalties may include
Or the judge might sentence the defendant to misdemeanor (summary) probation (discussed below).
Felony child abuse penalties in California
Consequences of a felony child abuse conviction can include:
- A jail sentence of two (2), four (4) or six (6) years, and/or
- A fine of up to six thousand dollars ($6,000).28
It is also possible that the defendant will be sentenced to felony (formal) probation instead of all or a portion of his/her jail sentence.
Increase in jail time for prior convictions
The jail sentence increases by four (4) years if the defendant has a prior child abuse conviction unless:
- The defendant finished serving any prison term for each prior conviction more than ten (10) years ago, AND
- The defendant has not served time for any other felony offense in the last ten (10) years.29
Probation instead of jail
People convicted of child abuse in California are often sentenced to probation instead of jail time. The judge can sentence the defendant to probation regardless of whether the abuse was charged as
- a misdemeanor or
- a felony.
But probation comes with certain conditions. Some of these are mandatory, some are optional.
Common conditions of child abuse probation
Common probation conditions for child abuse in California include:
- Regular reports to a probation officer,
- A minimum probation term of three (3) years,
- A criminal court protective order for the victim, including, if appropriate, a residence exclusion and/or stay away order,
- A mandatory one-year child abuser’s treatment counseling program lasting at least one (1) year, and
- If the defendant was under the influence of drugs and/or alcohol at the time of the offense, random drug tests.30
What happens if the defendant violates a condition of probation?
Failure to comply with any of these probation requirements may result in the judge revoking probation. The judge can then issue a California bench warrant and send the defendant to jail.
Or the judge can let the non-compliance slide or issue new (usually harsher) terms of probation.
Is early termination of probation possible?
If the defendant complies with all the terms of his/her probation, the court may grant an early termination of probation. 31
Usually, this requires demonstrating a year or two of compliance.
A request for early termination is often made along with:
- A petition to reduce a “wobbler” felony to a misdemeanor, and
- A petition for expungement of the criminal conviction.
Is child abuse a “strike” under California’s “Three Strikes” law?
A felony child abuse conviction sometimes counts as a “strike” under California’s “Three Strikes” law. This occurs when the minor suffered “great bodily injury” as a result of the abuse.32
One strike on a defendant’s record means the defendant will receive a doubled sentence for any subsequent felony conviction. 33
And once a defendant has convictions for three so-called “strike offenses,” he/she will serve a mandatory minimum sentence of 25 years to life in California state prison.34
4. Defenses
Legal defenses to Penal Code 273d charges often include common California legal defenses (such as mistaken identification or police misconduct).
But defenses to charges of corporal injury to a child may also include taking one or more of the following positions:
- The defendant was the victim of false allegations;
- The injuries were caused by something other than abuse;
- The defendant was lawfully disciplining his/her child; or
- The injury was caused by an accident.
Let’s take a closer look at each of these defenses.
The defendant was the victim of false allegations
Unfortunately, false allegations are not uncommon in all types of child abuse cases.
The allegations sometimes arise out of family or domestic conflict. Motives for false allegations can include:
- Anger,
- Jealousy,
- Revenge,
- A desire to be in control,
- A desire to “punish” a current or former romantic partner, or
- An attempt to gain the upper hand in a custody battle.
San Bernardino criminal defense lawyer Michael Scafiddi35 explains one such situation:
“Child abuse accusations are often made against a step-parent or a parent’s new boyfriend or girlfriend. The accusations are made by the parent who doesn’t have custody. Sometimes they are even made by a child who is upset that a parent has a new romantic partner.”
Jealous children sometimes make false allegations of physical abuse and other child maltreatment.
The injuries were caused by something other than abuse
Sometimes a child will get injured by something that may not be evident to a parent. Perhaps the injuries resulted from bullying and the child is too scared to tell.
Or the child simply had an accident or got into a fight at school.
This can lead to a well-meaning person making a complaint to the authorities. And in some cases, such a report may be required.
For instance, under California’s “Child Abuse and Neglect Reporting Act” many professionals are required to report suspected child abuse.36
This list of mandated reporters includes:
- Doctors,
- Teachers,
- Social workers,
- Nurses,
- School administrators, and
- Clergy.37
Mandated reporters who don’t make a required report are guilty of a misdemeanor. They may even serve time in jail.38 Thus they are under strong pressure to report even the slightest suspicion of child abuse.
An experienced California criminal defense lawyer will have a doctor and/or forensic medical examiner independently evaluate the alleged injuries. Such an exam may well show that the defendant is being unfairly prosecuted based on misleading evidence.
The defendant was lawfully disciplining his/her child
Parents have the right to discipline their children using “corporal punishment.” They can even use an object (such as a belt or paddle) as long as:
- The discipline is reasonable, and
- The spanking causes no bodily injury.39
Unfortunately, spankings can sometimes result in abuse charges. Perhaps a mandated reporter noticed redness on a child and overreacted. Or a jealous partner used the spanking as an excuse to make a false allegation.
Whatever the reason, as long as a jury determines the punishment was reasonable under the circumstances, the defendant should be found “not guilty.”
Accidentally hitting a child too hard during a contact sport is not child abuse in California.
The injury was caused by an accident
In order to be convicted under PC 273d, a defendant must have acted “willfully.”40 This means that the legal defense of accident applies to California’s child abuse statute.
Injuries that are accidental should not, therefore, result in a conviction. An exception might be if the defendant behaved recklessly or was unnecessarily aggressive.
Examples of accidents include:
- Practicing a baseball swing and not realizing that a child has entered the swing radius.
- Slamming a car door and not realizing that a toddler’s hand is in the door jam.
- Swinging a youngster by his arms to make him laugh and accidentally pulling the arm out of its socket.
- Accidentally hitting a minor too hard while helping her practice karate.
But being over-aggressive during otherwise acceptable play could result in a legitimate child abuse conviction.
Example: Warren is practicing karate with his 10-year old daughter. He thinks she isn’t hitting hard enough. So he hits her really hard to demonstrate what a proper punch is like. If the jury thinks the punch was excessive, Warren could be convicted under Penal Code 273d.
An experienced California criminal lawyer will present the defendant’s side of the story to the jury to show that the injury resulted from an accident.
5. Related crimes
Certain other crimes are frequently charged along with or instead of child abuse.
These charges often fall broadly into the categories of domestic violence or California assault and battery.
The following are some of the most common charges:
Child endangerment – Penal Code 273a PC
California Penal Code 273a PC punishes intentional harm to a child. Confusingly, this crime is sometimes also referred to as “child abuse.”
Unlike child abuse, child endangerment doesn’t require a physical injury or harm. It can be charged when a minor is placed in a situation in which he/she or his/her health may be endangered.41
Example: Pauline knows that her brother Frank has a history of substance abuse and violence. But she leaves her son with him one day when has to work and has no other childcare options. Frank gets high and hits Pauline’s son, requiring a trip to the emergency room.
The prosecutor charges Frank under PC 273d. She also charges Pauline with PC 273a child endangerment for putting her son into a situation in which he was likely to be injured.
California child endangerment is a “wobbler.” The potential penalties are the same as those for child abuse.42
Battery – Penal Code 242 PC
Penal Code 242 PC battery punishes the willful use of force or violence on another person. It does not matter how slight such force or violence is.43
A defendant may be convicted of battery instead of child abuse when the physical force inflicted on a minor did not:
- Rise to the level of “cruel or inhuman” punishment, or
- Result in a “traumatic condition.”
Example: During a medical check-up, Jo slaps her teenage daughter for being rude to the nurse. The nurse (as a mandated reporter) reports the incident to the state. The prosecutor charges Josephine with both child abuse and battery. The jury finds that Jo slapped (battered) her daughter, but that it did not cause an injury. They convict Jo of battery but not of PC 273d.
“Battery” is a misdemeanor crime in California. Potential penalties include:
- A fine of up to two thousand dollars ($2,000), and/or
- Up to six (6) months in county jail.44
Domestic violence
California domestic violence law encompasses various acts of violence or neglect committed against:
- Children,
- The elderly, and/or
- Current or former romantic partners.
Commonly charged crimes of domestic violence include:
- Penal Code 273.5 PC “corporal injury to a spouse or cohabitant,”
- Penal Code 243(e)(1) “domestic battery,” and
- Penal Code 368 PC “elder abuse.”
These crimes are typically “wobbler” offenses. They can be charged as either misdemeanors or felonies.
Child neglect – Penal Code 270 PC
Penal Code 270 PC is California’s law on “failure to provide care.” Violation of the law is commonly referred to as “child neglect.”
Failure to provide care consists of willfully failing to provide necessities to one’s minor child. “Necessities” include items such as food, shelter, clothing and necessary medical care.45
Violation of Penal Code 270 is usually a misdemeanor. It can be punished by:
- Up to one (1) year in jail, and/or
- A fine of up to $2,000.46
But if either a civil or a criminal court has previously made a finding of neglect, PC 270 becomes a “wobbler.”
If charged as a felony, jail time increases to 16 months, 2 years, or 3 years.47
For additional help…
Contact us 24/7 to speak with an experienced California child abuse attorney in your area.
We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
We also have Las Vegas and Reno offices with attorneys who are experienced in fighting Nevada’s child abuse laws.
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Helpful Links:
- California Department of Social Services, Office of Child Abuse Prevention
- Los Angeles Community College District’s Guide to the Child Abuse and Neglect Reporting Act
- Local Child Protective Services – Department of Social Services
- Prevent Child Abuse America
- Childhelp National Child Abuse Hotline – 800-4-a-child
- Child Abuse and Neglect – Centers for Disease Control and Prevention (CDC.gov)
- Adverse Childhood Experiences (ACEs) – CDC
- What is Children’s Mental Health – CDC
- Childhood Maltreatment among Children with Disabilities – CDC
- Children’s Bureau of the U.S. Department of Health and Human Services
- Child Abuse and Neglect – American Academy of Pediatrics
- Report Child Abuse and Neglect – Child Welfare Information Gateway
- Identification of Emotional Abuse – Child Welfare Information Gateway
- Reporting Child Sexual Abuse – Stop it Now!
- Childhood Emotional Neglect – Healthline
- Child Emotional and Psychological Abuse – Healthline
- Sexual Exploitation of Children – Office of Juvenile Justice and Delinquency Prevention
- Risk Factors for Child Abuse and Neglect – CASA
Legal references:
- California Penal Code 273d:
(a) Any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, four, or six years, or in a county jail for not more than one year, by a fine of up to six thousand dollars ($6,000), or by both that imprisonment and fine. (b) Any person who is found guilty of violating subdivision (a) shall receive a four-year enhancement for a prior conviction of that offense provided that no additional term shall be imposed under this subdivision for any prison term or term imposed under the provisions of subdivision (h) of Section 1170 served prior to a period of 10 years in which the defendant remained free of both the commission of an offense that results in a felony conviction and prison custody or custody in a county jail under the provisions of subdivision (h) of Section 1170. (c) If a person is convicted of violating this section and probation is granted, the court shall require the following minimum conditions of probation: (1) A mandatory minimum period of probation of 36 months. (2) A criminal court protective order protecting the victim from further acts of violence or threats, and, if appropriate, residence exclusion or stay-away conditions. (3) (A) Successful completion of no less than one year of a child abuser’s treatment counseling program. The defendant shall be ordered to begin participation in the program immediately upon the grant of probation. The counseling program shall meet the criteria specified in Section 273.1. The defendant shall produce documentation of program enrollment to the court within 30 days of enrollment, along with quarterly progress reports. (B) The terms of probation for offenders shall not be lifted until all reasonable fees due to the counseling program have been paid in full, but in no case shall probation be extended beyond the term provided in subdivision (a) of Section 1203.1. If the court finds that the defendant does not have the ability to pay the fees based on the defendant’s changed circumstances, the court may reduce or waive the fees. (4) If the offense was committed while the defendant was under the influence of drugs or alcohol, the defendant shall abstain from the use of drugs or alcohol during the period of probation and shall be subject to random drug testing by his or her probation officer. (5) The court may waive any of the above minimum conditions of probation upon a finding that the condition would not be in the best interests of justice. The court shall state on the record its reasons for any waiver.
- Same.
- Penal Code 273d(b): “Any person who is found guilty of violating subdivision (a) shall receive a four-year enhancement for a prior conviction of that offense provided that no additional term shall be imposed under this subdivision for any prison term or term imposed under the provisions of subdivision (h) of Section 1170 served prior to a period of 10 years in which the defendant remained free of both the commission of an offense that results in a felony conviction and prison custody or custody in a county jail under the provisions of subdivision (h) of Section 1170.”
- Penal Code 273d(a).
- Penal Code 273d(c).
- Penal Code 273d(c)(4).
- See California Criminal Jury Instructions (CALCRIM) 822. Inflicting Physical Punishment on Child: “A child is any person under the age of 18 years.” See also In re Harris (1993) 5 Cal.4th 813. See also People v. Thomas (1976) 65 Cal.App.3d 854.
- Penal Code 273d(a). See also People v. Whitehurst (1992) 9 Cal.App.4th 1045.
- See the definition of “corporal” at Dictionary.com.
- CALCRIM 822.
- Penal Code 7 PC, subsection (1). See People v. Lara (1996) 44 Cal.App.4th 102. See People v. Atkins (1975) 53 Cal.App.3d 348.
- 80 Ops.Cal.Atty.Gen. 203 (1997). People v. Lofink (1988) 206 Cal.App.3d 161.
- Same.
- See, e.g., Sheree L. Toth, “When does spanking become abuse?”, CNN.com, November 11, 2011.
- CALCRIM 822.
- Evidence Code 1109 EC.
- Evidence Code 1101 EC.
- Evidence Code 1109 EC.
- Same.
- Same, subsection (a).
- See Family Code 6211 and 6209 FC.
- See same. See also Evidence Code 1109 EC (for 5-year limitation on prior acts).
- Evidence Code 1109 EC.
- People v. Dallas (2008) 165 Cal.App.4th 940.
- California Jury Instructions – Criminal (“CALJIC”) 2.50.04.
- Penal Code 273d(a), endnote 1.
- Same.
- Same.
- Penal Code 273d(b), endnote 3.
- Penal Code 273d(c).
- Penal Code 1203.3 PC.
- Penal Code 667.5(c) PC (defining a “violent felony”). See also Penal Code 1192.7(c) PC (defining a “serious felony”).
- Penal Code 667(e)(1) PC.
- Penal Code 667(e)(2) PC.
- San Bernardino criminal defense lawyer Michael Scafiddi is a former law enforcement officer who now uses that inside knowledge to help defend clients accused of violating California domestic violence and child abuse laws. He practices criminal defense primarily in San Bernardino and Riverside Counties, and makes appearances at the Murrieta Southwest Justice Center and in Banning, Fontana, Joshua Tree, Barstow, and Victorville.
- Penal Code 11165 PC et seq. See also California Department of Social Services, “The California Child Abuse & Neglect Reporting Law: Issues & Answers for Mandated Reporters.”
- See same.
- Penal Code 11166 PC.
- See endnote 12. See also CALJIC 4.80 – Parent’s Right to Discipline Child.
- Penal Code 273d(a) PC.
- Penal Code 273a PC.
- Same.
- Penal Code 242 PC: “A battery is any willful and unlawful use of force or violence upon the person of another.”
- Penal Code 243 PC. See also People v. Sargent (1999) 19 Cal.4th 1206; see also People v. Stewart (1961) 188 Cal.App.2d 88.
- Penal Code 270 PC.
- Same.
- Same.