d
Follow us

Aggravated Child Abuse Charge

Bodiford Law Note:  an aggravated child abuse charge is different from child abuse, contributing to the delinquency of a child, and child neglect.  Click on these terms to be taken to those jury instructions. These instructions have been slightly modified by Board Certified Criminal Defense Lawyer Joe Bodiford for ease of reading.


16.1 AGGRAVATED CHILD ABUSE CHARGE

16.3 CHILD ABUSE

§ 827.03(2)(c), Fla. Stat.

To prove the crime of Child Abuse, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) knowingly or willfully abused (victim) by:

Give as applicable.

a. intentionally inflicting [physical] [or] [mental] injury upon (victim).

b. committing an intentional act that could reasonably be expected to result in [physical] [or] [mental] injury to (victim).

c. actively encouraging another person to commit an act that resulted in or could reasonably have been expected to result in [physical] [or] [mental] injury to (victim).

2. (Victim) was under the age of 18 years.

Parental affirmative defense. Give if applicable. See Raford v. State, 828 So. 2d 1012 (Fla. 2002). See § 39.01(49), Florida Statutes, if the defendant’s status as a parent is at issue.

§ 827.03 Fla. Stat., and case law are silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on affirmative defenses by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction.  See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

It is not a crime for [a parent] [a person who is acting in place of a parent] of a child to impose reasonable physical discipline on a child for misbehavior under the circumstances even though physical injury resulted from the discipline.

If burden of persuasion is on the defendant:   

If you find that defendant proved (insert appropriate burden of persuasion) that [he] [she] was [a parent] [a person acting in place of a parent] of (victim) and that [he] [she] imposed reasonable physical discipline on (victim) for misbehavior under the circumstances, you should find [him] [her] not guilty.

If the defendant did not prove (insert appropriate burden of persuasion) that [he] [she] was [a parent] [a person acting in place of a parent] of (victim) or if you find that the defendant did not prove (insert appropriate burden of persuasion) that [he] [she] imposed reasonable physical discipline on (victim) for misbehavior under the circumstances, you should find [him] [her] guilty, if all the elements of the charge have been proven beyond a reasonable doubt.  

If burden of persuasion is on the State:

If you find that the State proved (insert appropriate burden of persuasion) that the defendant was not [a parent] [a person acting in place of a parent] of (victim) or if you find that the State proved (insert appropriate burden of persuasion) that the defendant’s physical discipline on (victim) was not reasonable for misbehavior under the circumstances, you should find [him] [her] guilty, if all of the elements of the charge have been proven beyond a reasonable doubt. 

Definitions, give as applicable.

“Willfully” means intentionally and purposely.

§ 827.03(1)(d), Fla. Stat.

“Mental injury” means an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior as supported by expert testimony.

Lesser Included Offenses

CHILD ABUSE — 827.03(2)(c)

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

None

Contributing to the dependency of a minor

827.04(1)

16.4

Battery; only under certain circumstances. See Kama v. State, 507 So. 2d 154 (Fla. 1st DCA 1987)

784.03

8.3

Attempt

777.04(1)

5.1

Comments

See Raford v. State, 828 So. 2d 1012 (Fla. 2002) and Dufresne v. State, 826 So. 2d 272 (Fla. 2002) for authority to incorporate definitions from Chapter 39, Florida Statutes.

This instruction was adopted in 1981 and amended in 1985, 1989, 2002 [824 So. 2d 881], 2011 [75 So. 3d 207], 2013 [122 So. 3d 263], 2014 [152 So. 3d 475], and 2016.

To prove an Aggravated Child Abuse Charge, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant)

Give as applicable.

a. committed aggravated battery upon (victim).

b. willfully tortured (victim).

c. maliciously punished (victim).

d. willfully and unlawfully caged (victim).

e. knowingly or willfully committed child abuse upon (victim) and in so doing caused great bodily harm, permanent disability, or permanent disfigurement to (victim).

2. (Victim) was under the age of 18 years.

Give if element 1a is alleged.

In order to prove that an aggravated battery was committed, the State must prove the following:

1. (Defendant) intentionally

      Give as applicable.

a. touched or struck (victim) against the will of (victim).

b. caused bodily harm to (victim).

             Give as applicable.

2. a.   In so doing, (defendant) intentionally or knowingly caused [great

           bodily harm] [permanent disability] [permanent disfigurement]

           [or] [used a deadly weapon].

b.   At the time, (victim) was pregnant and (defendant) knew or

           should have known (victim) was pregnant.

Give if applicable.

A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Give if element 1b, 1d, or 1e is alleged.

“Willfully” means intentionally and purposely.

Give if element 1c is alleged. § 827.03(c), Fla. Stat.

“Maliciously” means wrongfully, intentionally, and without legal justification or excuse.  Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury.

Give if element 1e is alleged. § 827.03(1)(b), Fla. Stat.

“Child Abuse” means [the intentional infliction of physical or mental injury upon a child] [an intentional act that could reasonably be expected to result in physical or mental injury to a child] [active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child].

          Give if applicable. § 827.03(1)(d), Fla. Stat.

          “Mental injury” means injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability of the child to function within the normal range of performance and behavior as supported by expert testimony.

Parental affirmative defense. Give if applicable. See Raford v. State, 828 So. 2d 1012 (Fla. 2002).  See § 39.01(49), Florida Statutes, if the defendant’s status as a parent is at issue.

§ 827.03, Fla. Stat., and case law are silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on affirmative defenses by a preponderance of the evidence. The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinions in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

It is not a crime for [a parent] [a person who is acting in place of a parent] of a child to impose reasonable physical discipline on a child for misbehavior under the circumstances even though physical injury resulted from the discipline.

If burden of persuasion is on the defendant:   

If you find that the defendant proved (insert appropriate burden of persuasion) that [he] [she] was [a parent] [a person acting in place of a parent] of (victim) and that [he] [she] imposed reasonable physical discipline on (victim) for misbehavior under the circumstances, you should find [him] [her] not guilty.

If the defendant did not prove (insert appropriate burden of persuasion) that [he] [she] was [a parent] [a person acting in place of a parent] of (victim) or if the defendant did not prove that [he] [she] imposed reasonable physical discipline on (victim) for misbehavior under the circumstances, you should find [him] [her] guilty, if all the elements of the charge have been proven beyond a reasonable doubt.  

If burden of persuasion is on the State:

If you find that the State proved (insert appropriate burden of persuasion) that the defendant was not [a parent] [a person acting in place of a parent] of (victim) or if you find that the State proved (insert appropriate burden of persuasion) that the defendant’s physical discipline on (victim) was not reasonable for misbehavior under the circumstances, you should find [him] [her] guilty, if all of the elements of the charge have been proven beyond a reasonable doubt. 

Lesser Included Offenses

AGGRAVATED CHILD ABUSE — 827.03(2)(a)

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

Aggravated Battery; if element 1a is charged

784.045

8.4, 8.4(a)

Felony Battery; if element 1a is charged

784.041

8.5

Battery; if element 1a is charged and only under certain circumstances. See Kama v. State, 507 So. 2d 154 (Fla. 2d DCA 1987)

784.03

8.3

 Child Abuse; if element 1e is charged

827.03(2)(c)

16.3

Attempt

777.04(1)

5.1

Comment

This instruction was adopted in 1981 and amended in 2002 [824 So. 2d 881], 2005 [911 So. 2d 766], 2013 [122 So. 3d 263], 2014 [152 So. 3d 475], and 2016.