Cruelty to Children Defense in the First Degree Defense
Under Georgia law there are three separate levels of child cruelty. They are better known as cruelty in the first, cruelty in the second, and cruelty in the third. The difference in degree for these crimes is massive. Cruelty in the third is even a misdemeanor whereas cruelty in the first carries up to twenty years in the prison system. Because of the vast difference in consequences for each degree of child cruelty, we will talk about each individual degree separately.
The Law - Cruelty to Children in First Degree - O.C.G.A. §§ 16-5-70(a)-(b)
Legally, cruelty in the first can be committed in either of two ways:
(a) A parent, guardian, or other person supervising the welfare of or having immediate charge or custody of a child under the age of 18 commits the offense of cruelty to children in the first degree when such person willfully deprives the child of necessary sustenance to the extent that the child's health or well-being is jeopardized.
(b) Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.
The Law Explained
Deprivation of Necessary Sustenance
We need to break down these laws piece by piece. We will start with the first way someone can commit cruelty in the first.
Under this provision, the first things prosecutors will have to prove to convict someone of cruelty in the first is that the defendant as a parent, guardian, someone supervising the immediate welfare of the child, or having immediate charge or custody of the child.
The second thing that prosecutors must prove under this provision is that the person willfully deprived the child of necessary sustenance to the extent that the child's health or well-being is jeopardized.
There is a lot here. First, any of the alleged conduct must be willful. It cannot be an accident or the result of negligence.
Next, it must be proven that the defendant willfully deprived the child of necessary sustenance. So, what is "necessary sustenance?" Georgia courts have decided that which supports life -- food, victuals, provisions. So, food and drink which is sufficient to support life and maintain health.
Furthermore, to convict someone of cruelty to children in the first under this particular section of the law, prosecutors must also prove beyond a reasonable doubt that this willful deprivation of necessary sustenance was so extensive that the child's health or well-being is in jeopardy.
As you know, to be convicted of a crime in this country, the government must prove your guilt beyond a reasonable doubt. Let's recap what all prosecutors must prove to convict someone of cruelty in the first under a deprivation of necessary sustenance theory.
The government must prove the following beyond a reasonable doubt:
- Defendant is the parent, a guardian, someone supervising the immediate welfare of the child, or has immediate charge or custody of the child; and
- The defendant committed the acts that they are accused of willfully; and
- The defendant deprived the child of necessary sustenance; and
- The child's health or welfare was in jeopardy because of this willful deprivation of necessary sustenance.
As you can tell that is quite a bit for the government to prove.
Cruel or Excessive Physical or Mental Pain
The previous cruelty to children provision we discussed was quite narrow and requires a fairly specific set of facts. this particular provision is more broad and allows the government, through its prosecutors, more latitude in their prosecutions.
There is less to break down in this portion of the statute. The government must prove two primary elements to convict someone of this crime. 1) defendant acted maliciously; and 2) defendant caused cruel or excessive physical or mental pain.
Prosecutors can basically allege that any conduct caused a child cruel or excessive mental or physical pain. At that point, it is up to the jury to determine if the alleged conduct was cruel or excessive. Which means that some jurors could say that the conduct was cruel or excessive and some other jurors could disagree and that would be a legally permissible result. Of course, if not all twelve jurors agree then you cannot be convicted by a jury because the law requires a unanimous verdict.
There are a multitude of fact patterns that prosecutors have used to convict people of cruelty in the first under Georgia law. Some examples:
- In Clayton County a woman was convicted for cruelty to children in the first degree after she learned that her boyfriend was sexually abusing her children and did nothing to stop the behavior (other than tell her daughter's to lock the door) and by failing to report the abuse to anyone. Adorno v. State, 314 Ga. App. 509 (2012).
- Defendant convicted where his actions caused victim's grades to drop, victim could not pay attention in school, victim began stealing things from classmates, and became aggressive toward her sister. Bunn v. State, 307 Ga. App. 381 (2010).
- Evidence was sufficient to convict the defendant of cruelty to children in the first degree because the defendant's conduct of raping and molesting the victim hurt the victim, made the victim feel awful, caused the victim to feel depressed, and gave the victim nightmares. Hunt v. State, 336 Ga. App. 821 (2016).
There are some major takeaways from these three examples. First, there is a wide variety of behavior that can be excessive mental pain. Second, if someone is accused of a sexual abuse of a minor then they may very likely be charged with cruelty to children in the first. Finally, and perhaps most importantly, is the first case where a mother was charged and convicted of cruelty in the first for failing to report sexual abuse that she had been made aware of.
Penalties for Cruelty to Children in the First Degree
The sentencing range for cruelty in the first degree is five years to twenty years. As far as parole goes, cruelty to children is considered by the Board of Pardons and Parole to be a level VIII crime. What that means is that someone convicted typically must serve between 65 and 90 percent of their sentence.
Of course, the parole board is a mysterious entity and ultimately decisions are up to them. It is impossible to exactly what they will do, but the guidelines they provide state that a conviction will result in someone serving 65% to 90% of their sentence.