In Georgia there are three separate degrees of child cruelty. They are usually known by cruelty in the first, cruelty in the second, and cruelty in the third. This page is dedicated to providing information about cruelty in the second degree. Cruelty in the second is a very unique criminal statute in the State of Georgia because it criminalizes negligent conduct as opposed to intentional conduct like most criminal statutes.
The Law - O.C.G.A. § 16-5-70(c) - Cruelty to Children in the Second Degree
Any person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.
What Does the State Have to Prove?
Just like all crimes prosecutors must prove every single element of the crime beyond a reasonable doubt. For cruelty in the second we will start with "cruel or excessive physical or mental pain." Prosecutors must prove that a child suffered cruel or excessive physical or mental pain. Georgia law does not require expert testimony from a doctor (or anyone else for that matter) to establish the pain suffered by a child. It is up to the jury to make that determination.
For prosecutors to prove Cruelty in the Second Degree they must prove that the child suffered cruel or excessive physical or mental pain caused by the defendant's criminal negligence. Georgia lawmakers defined criminal negligence in O.C.G.A. § 16-2-1(b). Criminal negligence is defined as an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.
What is Cruelty in the Second?
Convictions for cruelty in the second have been upheld where the testimony was that a child drowned while under what was determined to be the criminally negligent supervision of an adult. Convictions have also been upheld where a child died of serious injuries while under the sole supervision of her parents and expert testimony was that the injuries could not have been accidental.
What Cruelty in the Second is Not.
In 2018 the Georgia Supreme Court reversed a man's convictions for cruelty in the second that were predicated upon him smoking marijuana around children. The supreme court said that the evidence in that case showed that smoking marijuana around the children was “not good” for them and created an increased risk of future negative health effects. That is not enough to meet the State's burden. Jones v. State, 304 Ga. 594 (2018).
Georgia also has created a unique murder charge, murder in the second degree. It provides that someone who causes the death of a child during the commission of cruelty in the second degree can be convicted of murder in the second degree. Read more about this crime on our Murder Defense page.
Penalties for Cruelty to Children in the Second Degree
Upon conviction for cruelty in the second the defendant is subject to a sentencing range of one year to ten years in prison. The parole board considers child cruelty a level VIII crime and typically defendants must serve 65% - 90% of their sentence before being granted parole.