ABUSE AND NEGLECT
OF CHILDREN AND
– VA. CODE 18.2-371.1
By Nichols & Green PLLC
December 09, 2015
Under Virginia, there are several ways a person can be charged with a felony for abusing a child. The most common non-sexual felony child abuse law is found under Va. Code 18.2-371.1.
This crime is a felony and comes with up to 5 years in prison. It stays on your criminal record forever and cannot be expunged unless the charges are dropped or dismissed.
If the defendant is not responsible for the care of the child victim in the case, then this statute doesn’t apply. If you beat or injured etc. a child whom you don’t have any responsibility for then you committed a different crime. For example: if a daycare worker beats and seriously injures one of the children at the daycare center she has violated this law, but if her boyfriend who doesn’t work at the center, beats and seriously injures one of the children then he has not committed this particular crime.
In order to be guilty of this crime, the Defendant’s acts or omission must either cause serious injury, put a child in danger of serious injury, or show a reckless disregard for human life. The terms “Serious injury” and “Reckless disregard for human life” are vague subjective terms.
Serious injury can include:
Reckless disregard for human life means that Defendant’s actions show an indifference for death or serious injury of the child, this can be when Defendant creates situations where death or serious injury are likely outcomes. Putting a loaded gun to a child’s head and playing Russian Roulette would be a textbook example of reckless disregard for human life. However, driving your car while extremely drunk with the kids in the back could potentially be another example.
One of the most common defenses to this crime is to argue and explain how the Defendant’s actions don’t rise to the level of “serious injury” or “reckless disregard”.
A common tactic to establishing injuries was not ‘serious’ is to point out that the police or Child Protective Services provided little or no medical treatment. So for example, if the police are called when a parent spanks their child to the point of causing welts and bruises, an effective defense is to point out that the police never called an ambulance, that the police never provided first aid to the child, that the child wasn’t taken to a doctor. Then we point out that the police are trained to always call Emergency Medical Services if a child is seriously injured. Then we can argue that the fact that the police and child protective services never sought any medical treatment for the child shows that the injuries were NOT serious enough to justify this felony charge.
The end of the statute carves out two exceptions: One exception is for parents who abandon the babies at a hospital or emergency room that is currently open and staffed with EMS personnel. The baby has to be less than 15 days old. The second exception is for parents who withhold medical treatment based solely on religious grounds.
“A. Any parent, guardian, or another person responsible for the care of a child under the age of 18 who by willful act or omission or refusal to provide any necessary care for the child’s health causes or permits serious injury to the life or health of such child is guilty of a Class 4 felony. For purposes of this subsection, “serious injury” includes but is not limited to (i) disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, (vi) forced ingestion of dangerous substances, and (vii) life-threatening internal injuries.
B. 1. Any parent, guardian, or other people responsible for the care of a child under the age of 18 whose willful act or omission in the care of such child was so gross, wanton, and culpable as to show a reckless disregard for human life is guilty of a Class 6 felony.
2. If a prosecution under this subsection is based solely on the accused parent has left the child at a hospital or emergency medical services agency, it shall be an affirmative defense to prosecution of a parent under this subsection that such parent safely delivered the child to a hospital that provides 24-hour emergency services or to an attended emergency medical services agency that employs emergency medical services personnel, within the first 14 days of the child’s life. In order for the affirmative defense to apply, the child shall be delivered in a manner reasonably calculated to ensure the child’s safety.
C. Any parent, guardian, or other person having care, custody, or control of a minor child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination shall not, for that reason alone, be considered in violation of this section.”