Utah Child Abuse Criminal Defense Attorney

Child Abuse Lawyer in Salt Lake City

It has been said that it’s actually much easier defending a homicide charge than a child abuse one. This is because "child abuse" can be just about anything and everything. We suggest you call us immediately if you find yourself accused of this crime.

Here is the law:

76-5-109. Child abuse.

• (1) As used in this section:
• (a) "Child" means a human being who is under 18 years of age.
• (b) "Child abuse" means any offense described in Subsection (2) or (3), or in Section 76-5-109.1.
• (c) "Physical injury" means an injury to or condition of a child which impairs the physical condition of the child, including:
• (i) a bruise or other contusion of the skin;
• (ii) a minor laceration or abrasion;
• (iii) failure to thrive or malnutrition; or
• (iv) any other condition which imperils the child’s health or welfare and which is not a serious physical injury as defined in Subsection (1)(d).
• (d) (i) "Serious physical injury" means any physical injury or set of injuries that:
• (A) seriously impairs the child’s health;
• (B) involves physical torture;
• (C) causes serious emotional harm to the child; or
• (D) involves a substantial risk of death to the child.
• (ii) "Serious physical injury" includes:
• (A) fracture of any bone or bones;
• (B) intracranial bleeding, swelling or contusion of the brain, whether caused by blows, shaking, or causing the child’s head to impact with an object or surface;
• (C) any burn, including burns inflicted by hot water, or those caused by placing a hot object upon the skin or body of the child;
• (D) any injury caused by use of a dangerous weapon as defined in Section 76-1-601;
• (E) any combination of two or more physical injuries inflicted by the same person, either at the same time or on different occasions;
• (F) any damage to internal organs of the body;
• (G) any conduct toward a child that results in severe emotional harm, severe developmental delay or retardation, or severe impairment of the child’s ability to function;
• (H) any injury that creates a permanent disfigurement or protracted loss or impairment of the function of a bodily member, limb, or organ;
• (I) any conduct that causes a child to cease breathing, even if resuscitation is successful following the conduct; or
• (J) any conduct that results in starvation or failure to thrive or malnutrition that jeopardizes the child’s life.
• (2) Any person who inflicts upon a child serious physical injury or, having the care or custody of such child, causes or permits another to inflict serious physical injury upon a child is guilty of an offense as follows:
• (a) if done intentionally or knowingly, the offense is a felony of the second degree;
• (b) if done recklessly, the offense is a felony of the third degree; or
• (c) if done with criminal negligence, the offense is a class A misdemeanor.
• (3) Any person who inflicts upon a child physical injury or, having the care or custody of such child, causes or permits another to inflict physical injury upon a child is guilty of an offense as follows:
• (a) if done intentionally or knowingly, the offense is a class A misdemeanor;
• (b) if done recklessly, the offense is a class B misdemeanor; or
• (c) if done with criminal negligence, the offense is a class C misdemeanor.
• (4) A parent or legal guardian who provides a child with treatment by spiritual means alone through prayer, in lieu of medical treatment, in accordance with the tenets and practices of an established church or religious denomination of which the parent or legal guardian is a member or adherent shall not, for that reason alone, be considered to have committed an offense under this section.
• (5) A parent or guardian of a child does not violate this section by selecting a treatment option for the medical condition of the child, if the treatment option is one that a reasonable parent or guardian would believe to be in the best interest of the child.
• (6) A person is not guilty of an offense under this section for conduct that constitutes:
• (a) reasonable discipline or management of a child, including withholding privileges;
• (b) conduct described in Section 76-2-401; or
• (c) the use of reasonable and necessary physical restraint or force on a child:
• (i) in self-defense;
• (ii) in defense of others;
• (iii) to protect the child; or
• (iv) to remove a weapon in the possession of a child for any of the reasons described in Subsections (6)(c)(i) through (iii).

Utah Code Ann. § 76-5-109 (Supp. 2009).  According to the Department of Human Services, Division of Child and Family Services, Child Protective Services, the definition of "child abuse" is as follows:

Abuse:

• 1. Child endangerment:
• a. Driving under the influence with children in the vehicle;
• b. Homes where there are lab paraphernalia, chemicals for manufacturing illegal drugs, access to illegal drugs, distribution of illegal drugs in the presence of a child, or loaded weapons within the reach of the child, or exposure to pornography;
• c. Giving children illegal drugs or substances, alcohol, tobacco or non-prescribed/not recommended medications for that child;
• d. Involving a child in the commission of crimes, such as shoplifting;
• e. Other circumstances endangering a child.
• 2. Domestic Violence Related Child Abuse:
• a. Potential for or actual injury to a child during a domestic violence episode;
• b. Violent physical and/or verbal altercation between adults, in the presence a child.
• 3. Emotional abuse:
• a. General emotional abuse, such as a pattern or severe isolated incident of:
• i. Demeaning or derogatory remarks about the child or other family member in the presence of the child;
• ii. Perception of or actual threatened harm;
• iii. Corrupting or exploiting the child;
• iv. Multiple false reports to CPS;
• v. Terrorizing;
• vi. Spurning (hostile rejecting);
• vii. Denying emotional responsiveness;
• viii. Isolating.
• 4. Material harmful to a child.
• 5. Physical abuse:
• a. Physical abuse, general, excluding any physical abuse as defined herein, including (but not limited to):
• i. Non-accidental injury to a child that may or may not be visible;
• ii. Unexplained injuries to an infant or toddler;
• iii. Unexplained injuries to a disabled or non-verbal child.
• 6. Fetal exposure to alcohol or other substances.
• 7. Fetal addiction to alcohol or other harmful substances.
• 8. Pediatric Condition Falsification (formerly known as Munchausen Syndrome by Proxy).

Rule R512-202-2 of the Utah Administrative Code. This definition is broadly interpreted, leaving spankings with the belt a thing of the past. Just about any conduct may be characterized as child abuse if a mark is left behind.

Meanwhile, if that wasn’t confusing enough, there is a Civil Code definition. 78A-6-105 provides:

• (a) "Abuse" means:
• (i) nonaccidental harm of a child;
• (ii) threatened harm of a child;
• (iii) sexual exploitation; or
• (iv) sexual abuse.
• (b) "Abuse" does not include:
• (i) reasonable discipline or management of a child, including withholding privileges;
• (ii) conduct described in Section 76-2-401; or
• (iii) the use of reasonable and necessary physical restraint or force on a child:
• (A) in self-defense;
• (B) in defense of others;
• (C) to protect the child; or
• (D) to remove a weapon in the possession of a child for any of the reasons described in Subsections (1)(b)(iii)(A) through (C).

Utah Code Ann. § 78A-6-105 (Supp. 2009).

In 2005, the Legislature amended the Criminal Code Child Abuse statute adding "(7) The Legislature recognizes that parents have a fundamental liberty interest in the care, custody, and management of their children, as protected by the 14th Amendment."  However, in 2006 that particular provision was removed. The added codification merely recognizes the existence of a defense for parents who believe they are acting reasonable concerning their children. An example of that is medical neglect or educational neglect.

The United States Supreme Court decision in Wisconsin v. Yoder, 406 U.S. 205 (1972) is a good example.  Three Amish students from three different families stopped attending New Glarus High School in the New Glarus, Wisconsin school district at the end of the eighth grade, all due to their parents’ religious beliefs.  The three families were represented by Jonas Yoder (one of the fathers involved in the case) when the case went to trial.  They were convicted in the Green County Court, and that ruling was upheld in the appeals court. Then the respondents petitioned the U.S. Supreme Court for a review. The Court voting 7 to 0 in favor of the Amish families, and ". . . sustained respondents’ claim that application of the compulsory school-attendance law to them violated their rights under the Free Exercise Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment."

In a more recent decisions closer to home are examples of other decisions directly affecting the direction future decision may be decided. In SSP v. State, 1999 UT App. 157; 981 P.2d 848, the Utah Court of Appeals refused to apply the child abuse definition in the Criminal statute, Utah Code Section 76-5-109, in a juvenile court proceeding.

In State v. Widdison, 2000 UT App. 185; 397 Utah Adv. Rep. 16, the Utah Court of Appeals upheld a conviction for child abuse against a father merely because he was present to the mother’s commission of the child abuse. The Court reasoning appears to be that the defendant father was also guilty of child abuse because he failed to protect the child from the mother.

In another conviction the Utah Court of Appeals upheld a conviction for child abuse because of the filthy condition of the mother’s house, in State v. Piep, 2004 UT App. 7, 491 Utah Adv. Rep. 3; 84 P.3d 850.  It makes you wonder if a "clean freak" can get charged with child abuse, too!

In Provo City v. Cannon, 1999 UT App. 344; 992 P.2d 206, the Utah Court of Appeals upheld a conviction for child abuse despite the absence of any physical injury. In that case, the Court opined that the crime was sufficiently committed when the defendant suspended the infant over the railing of a balcony by his arms because the defendant placed the child in peril.  This is what Michael Jackson did that caused such an alarm.

And in State v. Jones, 735 P.2d 599 (Utah Ct. App. 1987), the Utah Court of Appeals sustained a felony conviction for child abuse. The Court opined that multiple minor injuries over time will sustain a second degree felony.