CHILD ABUSE, NEGLECT & ENDANGERMENT

Child Abuse, Neglect & Endangerment can carry harsh punishments depending on the type of abuse, the intensity of the abuse, and the age of the child..

What is the legal definition of Child Abuse, Neglect & Endangerment?

Child Abuse, Neglect & Endangerment is defined in NRS 200.508:

  1. A person who willfully causes a child who is less than 18 years of age to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect or to be placed in a situation where the child may suffer physical pain or mental harm results to the child:
    1. If substantial bodily or mental harm results to the child;
      1. If the child is less than 14 years of age and the harm is the result of sexual abuse or exploitation, is guilty of a category A felony and shall be punished by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 15 years has been served; or
      2. In all other such cases to which subparagraph (1) does not apply, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years; or
    2. If substantial bodily or mental harm does not result to the child:
      1. If the person has not previously been convicted of a violation of this section or of a violation of the law of any other jurisdiction that prohibits the same or similar conduct, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years; or
      2. If the person has previously been convicted of a violation of this section or of a violation of the law of any other jurisdiction that prohibits the same or similar conduct, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years,
      • Unless a more severe penalty is prescribed by law for an act or omission that brings about the abuse or neglect.
  2. A person who is responsible for the safety or welfare of a child and who permits or allows that child to suffer unjustifiable physical pain or mental as a result of abuse or neglect or to be placed in a situation where the child may suffer physical pain or mental suffering as the result of abuse or neglect:
    1. If substantial bodily or mental harm results to the child:
      1. If the child is less than 14 years of age and the harm is the result of sexual abuse or exploitation, is guilty of a category A felony and shall be punished by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or
      2. In all other such cases to which subparagraph (1) does not apply, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years; or
    2. If substantial bodily or mental harm does not result to the child:
      1. If the person has not previously been convicted of a violation of this section or of a violation of the law of any other jurisdiction that prohibits the same or similar conduct, is guilty of a gross misdemeanor; or
      2. If the person has previously been convicted of a violation of the law of any other jurisdiction that prohibits the same or similar conduct, is guilty of a category C felony and shall be punished as provided in NRS 193.130;
  • an act or omission that brings about the abuse or neglect.
  1. A person does not commit a violation of subsection 1 or 2 by virtue of the sole fact that the person delivers or allows the delivery of a child to a provider of emergency services pursuant to NRS 432B.630.
  2. As used in this section:
    1. “Abuse or neglect” means physical or mental injury of a nonaccidental nature, sexual abuse, sexual exploitation, negligent treatment of maltreatment of a child under the age of 18 years, as set forth in paragraph (d) and NRS 432B.070, 432B.100, 432B.110, 432B.140, and 432B.150, under circumstances which indicate that the child’s health or welfare is harmed or threatened with harm.
    2. “Allow” means to do nothing to prevent or stop the abuse or neglect of a child in circumstances where the person knows or has reason to know that the child is abused or neglected.
    3. “Permit” means permission that a reasonable person would not grant and which amounts to a neglect of responsibility attending the care, custody and control of a minor child.
    4. “Physical injury” means:
      1. Permanent or temporary disfigurement; or
      2. Impairment of any bodily function or organ of the body.
    5. “Substantial mental harm” means an injury to the intellectual or psychological capacity or the emotional condition of a child as evidenced by an observable and substantial impairment of the ability of the child to function within his or her normal range of performance or behavior.

So what is the simple definition of Child Abuse?

The first thing that must be understood when dealing with Child Abuse charges, is the definition of a “child” in Nevada.

The simple definition is that anyone under 18 years of age is a “child.” However, in Nevada the term is further broken into two categories: Under 14, and between 14 and 18. Generally speaking, any child abuse charges will carry harsher penalties if the child is under the age of 14.

Okay, then what other factors determine the punishment for child abuse?

Aside from the age of the child, there are two other factors that determine the harshness of the punishment: They form of the abuse, and the intensity of the abuse.

“Child Abuse” encompasses many different forms of “abuse.” All of the forms are vague in definition because the Nevada Legislature has determined that prosecutors should have wide latitude in determining when to charge someone with Child Abuse.

  • Physical Abuse – This is probably the easiest, and most obvious form of abuse. It is what most of us think about when we hear the term “abuse.” It essentially refers to any conduct or action that cause unjustifiable pain. This could be as obvious as punching, kicking, strangling, or throwing something at a child, and could be as vague as repeatedly and unjustifiably sending your child to bed without dinner.
  • Emotional Abuse – Emotional abuse is often difficult to determine, and often more difficult to prove because it involves the effect that your conduct has on the child. Any behavior that can injure a child’s intellectual, psychological, or emotional capacity can be considered emotional abuse. Generally speaking, emotional abuse requires more than just isolated incidents, it requires a pattern of conduct that has a negative effect because of its cumulative nature. Some possible examples include:
    • Constantly telling the child that he or she is worthless, or stupid, or any other form of insult;
    • Name-calling;
    • Humiliation;
    • Isolating, ignoring, or excluding;
    • Threats and intimidation.
  • Sexual Abuse and Exploitation – Clearly, any form of sexual assault or rape is considered abuse. However, lewdness (flashing, or other indecent exposure) can also be charged as sexual assault. Moreover, many times charges of sexual abuse of a child stem from prostitution or solicitation. When the sexual abuse of a child takes place within the context of prostitution, then it is referred to as sexual exploitation.
  • Neglect – Although this was already touched on above as a form of emotional abuse, Neglect is also a broader type of abuse in that it can have both physical and emotional effects. Where the above types of abuse stem from some kind of action, Neglect arises from a failure to act. When someone is responsible for the care and welfare of a child and chooses to leave that child without proper supervision, food, shelter, or other necessary care (such as medicine, or clothing), Child Neglect will apply. Also, if the child is involved in an accident that requires immediate medical attention, and the guardian or responsible person delays too long in seeking such attention, then child neglect may apply.

Please Note: Failure to provide medical care for a child because of religious reasons, or because of personal beliefs in other forms of treatment, is not child neglect. However, the other forms of treatment must be recognized as suitable alternatives by the state of Nevada.

  • Child Endangerment – Once again, this is a somewhat vague term. Generally speaking, anytime someone chooses to put a child in a situation where the child is likely to be injured, either physically or emotionally, then Child Endangerment will apply. Some common examples include:
    • Leaving the child in the care or custody of a person who you have reason to believe is abusive;
    • Bringing the child into an environment where drugs are made and/or sold;
    • Having guns not locked up and left within reach of children.

As already noted, all of these forms of child abuse are left intentionally vague so that prosecutors can make a decision about whether or not to charge someone based on all of the surrounding factors.

Is there anything else I should know?

Yes, Child Abuse, Neglect & Endangerment laws often linked to other crimes that involve abuse against children. These crimes include:

  • Shaken Baby Syndrome
  • Sexual Assault
  • Homicide
  • Abuse or Death to an Unborn Child

Generally speaking, these crimes are not charged as Child Abuse, but rather as other, more serious crimes. The alleged abuser cannot be convicted of both violation of Child Abuse, Neglect & Endangerment and one of the above crimes, unless they are two separate occurrences. This is because of the Constitutional prohibition against double jeopardy, which prohibits convicting someone twice for the same specific conduct.

So, I can’t be charged with one of these crimes and with Child Abuse?

Unfortunately, double jeopardy does not mean that you cannot be charged with two crimes, it only means that you cannot be convicted for two crimes arising out of one situation.

There are two ways that a prosecutor can charge you with both crimes:

  • Lesser Included Offense – All four of the above-listed crimes require conduct that would be considered Child Abuse plus some other factor. For example, Shaken Baby Syndrome requires child abuse that creates severe head trauma. So, the Prosecutor may charge someone with attempted murder by means of Shaken Baby Syndrome and Child Abuse, knowing that the child abuse is clear, but that the jury may not find enough facts to support Shaken Baby Syndrome. Because all of the above-listed crimes require both abuse and something else, Child Abuse can be treated as a “lesser included offense” to the other, more serious crime.
  • Separate Crimes – Double jeopardy only applies when the convictions arise out of the same set of facts. In other words, if a child were to die after a severe beating, then that specific beating could only result in a conviction for either Homicide or Child Abuse. However, if a child suffers through years of physical abuse and then dies after a particularly severe beating, then the beating that led to the child’s death could lead to a homicide conviction, while all of the other beatings could lead to individual child abuse convictions.

Isn’t Shaken Baby Syndrome just a form of Child Abuse?

Yes. Sort of. Of course, as noted above, Shaken Baby Syndrome is likely to be charged as a more serious crime, such as attempted homicide or homicide (if the child actually dies). Proving Shaken Baby Syndrome is difficult, however, because without the child stating that he or she was actually shaken, the only way to prove the charge is through showing that certain symptoms exist. Generally, this means showing that the child has some brain damage or hemorrhages (bleeding in or on the brain), or retinal hemorrhages (bleeding behind the eyes). However, as these symptoms can be caused by any trauma that causes the brain to shake violently within the child’s head, cases involving Shaken Baby Syndrome can be difficult to prosecute. As a result, prosecutors will also often seek a conviction on Child Abuse charges as a sort of “back up plan” in case the jury doesn’t believe the evidence proves Shaken Baby Syndrome.

Didn’t you already say that sexual assault is a form of abuse?

Yes. However, in this context, it is important to understand that where the sexual assault of a minor is involved, prosecutors have the discretion to charge either sexual assault or child abuse. (While it is possible for the prosecutor to charge you with both crimes at the same time, if they seek both crimes arising from one situation, you can only be convicted of one or the other). Generally speaking, the prosecutor will seek both and allow the jury to decide which to convict of.

If there is a pattern of conduct including circumstances of abuse, and others of sexual abuse, then the prosecutor will likely seek sexual abuse and child abuse, allowing the jury to convict for sexual abuse on the most egregious acts and for the lesser charge of child abuse on the less egregious acts.

Isn’t Homicide just murder?

Yes. Homicide is murder. Often in child abuse cases, the prosecutor will charge the alleged abuser with Homicide or Attempted Homicide because of how severe the abuse was. If the child dies as the result of physical abuse, the prosecutor has the discretion to charge the accused with 1st Degree Murder.

However, Nevada makes the distinction that when a child dies as a result of neglect, then the accused cannot be charged with murder.

As with Shaken Baby Syndrome and Sexual Assault, if a child dies as a result of abuse, then the prosecutor may charge both Homicide and Child Abuse, but the accused can only be convicted of one or the other. If there is an ongoing pattern of abuse, and the child ultimately dies from a particularly severe instance, then the accused can be convicted of homicide or child abuse for the final instance, but can also be convicted of child abuse for all of the abuse leading up to the child’s death.

I understand the laws about abortion, so what do you mean by Abuse or Death to an Unborn Child?

Abuse or Death to an Unborn Child refers to conduct that is not considered a legal abortion. In general, it refers to:

  • When someone other than the pregnant woman injures the mother in such a way that it causes the death of the unborn child and that person will be charged with manslaughter. Nevada law is unclear about the specific point at which a “fetus” becomes an unborn “quick” child, but it generally is meant as the point at which the mother can feel the child move.

Please Note: If the mother is ingesting illegal substances that then transfer to the unborn child, the mother cannot be charged with Child Abuse.

What are the possible penalties?

As with the rest of the laws relating to Child Abuse, the penalties vary depending on the situations. There are 5 factors that are used to determine the penalty for a conviction of Child Abuse:

  • Willful – If a person willfully, or intentionally, physically harms a child, then the Courts will view that more harshly than someone who allows someone else to harm a child. As an example, the mother who allows her husband to beat their children is not likely to face as harsh a penalty as the father who is actually beating the children.
  • The Child’s Age – Generally speaking, children 13 and younger are seen as more defenseless than children 14 and older. Consequently, if the child was younger than 14 at the time of the abuse, the penalties will be harsher.
  • Substantial Harm – If the mental or physical harm done to the child was substantial, then the penalties will be harsher than if the harm was not substantial. Substantial physical harm means temporary or permanent disfigurement or impairment, while substantial mental harm occurs when the harm causes observable intellectual, psychological or emotional damage that does not allow the child to function normally.
  • Sexual Harm – Whether or not penetration occurs, any abuse that is sexual in nature will carry harsher penalties than abuse that is not sexual in nature.
  • Prior Offenses – If the accused has at least one prior conviction for child abuse, then the penalties will increase with every conviction.

With all of that in mind, the possible penalties for child abuse include:

  • Not Willful, Regardless of Age, No Substantial or Sexual Harm, First Offense
    • Gross misdemeanor:
      • Up to 364 days in jail; and/or
      • Fines up to $2,000.
  • Not Willful, Regardless of Age, No Substantial or Sexual Harm, Repeat Offender:
    • Category C felony:
      • Between 1 and 5 years in Prison; and
      • Possible fines up to $10,000.
  • Not Willful, 14 or Older, Substantial Harm, but No Sexual Harm:
    • Category B Felony:
      • Between 2 and 20 years in Prison.
  • Not Willful, 14 or Older, Substantial Harm, Sexual Harm:
    • Category A felony:
      • Life in Prison, with possibility for parole after 10 years.
  • Willful, Regardless of Age, No Substantial Harm or Sexual Harm, First Offense:
    • Category B felony:
      • Between 1 and 6 years in Prison.
  • Willful, Regardless of Age, No Substantial Harm or Sexual Harm, Repeat Offender:
    • Category B felony:
      • Between 2 and 15 years in Prison.
  • Willful, Regardless of Age, Substantial Harm, Regardless of Sexual Harm:
    • Category B felony:
      • Between 2 and 20 years in Prison.
  • Willful, Under 14, Substantial Harm, Sexual Harm:
    • Category A felony:
      • Life in Prison, with possibility for parole after 15 years.

Are there any Defenses?

Yes, of course there are. Some of the possible defenses include:

  • Self-inflicted Injuries – As unbelievable as it may seem, there are children who will inflict injuries on themselves in order to claim that they are being abused. Generally, this behavior is attention-seeing, though it may also be a means to seek “revenge” against the parent for something they think the parent did wrong. If you can show that the wounds were self-inflicted, then the charges against you should be dropped or dismissed.
  • Vengefully Inflicted Injuries – Particularly during very spiteful divorces, one parent might injure the child, or children, in order to say that they other parent was actually the abuser. If there is evidence that the injuries were inflicted by someone other than you (like your spouse, significant other, or ex-), then the charges against you should be dropped or dismissed.
  • Accidental Injuries – As the saying goes, “accidents happen.” Because children are less likely to be careful about what they are doing, and more likely to be involved in sports or physical games, they are more likely to accidentally injure themselves. Unfortunately, an accidental injury and intentional child abuse look the same after-the-fact. Often, police or other officials mistake an accidental injury for signs of abuse. If there is no evidence that the injury was the result of intentional child abuse, or if the evidence that exists shows that the injury was accidental, then the charges against you should be dropped or dismissed.
  • Lack of Intent – This is somewhat related to Accidental Injuries. If you did not intend to injure a child, then you cannot be convicted of Child Abuse. However, if you did intend to act in such a way that a child was reasonably likely to be injured, then you can still be charged and convicted of child abuse.
  • Corporeal punishment – Nevada has decided to avoid dealing with the question of disciplining your child, for the most part. Yelling at your child, spanking them, or sending them to bed without dinner is not considered child abuse, so long as it is justified and is not a pattern of conduct that is harming the child’s mental and/or physical health and well-being. If the suspected abuse was, in fact, the result of isolated discipline, then there was likely no “abuse” and the charges should be dropped or dismissed. However, the discipline must still fall within the limits of what a reasonable person would feel is appropriate.
  • No Knowledge – One frequent type of abuse charge involves a parent leaving their child with an abusive relative or other caretaker. The abuse charges are valid, and can lead to a conviction, but only if the parent knew or had reason to know that the person was abusive, or was likely to harm the child. Otherwise, the charges should be dropped or dismissed.
  • Medical Treatment – Child abuse charges can arise when a parent or guardian fails to treat a child’s illness or injuries in a timely manner. However, if the child was misdiagnosed, and the parent or guardian has no reason to know that the illness or injury was serious, then the charges should be dropped or dismissed. Also, if the parent or guardian chooses to use non-medical treatments that are both acceptable alternatives, and done in good faith, then child abuse charges should not stand.
  • Self Defense – Self-defense is an acceptable defense so long as the physical force you use is in proportion to the physical force being used against you. Also, self-defense only applies when the force being used against you is imminent, or likely to occur almost immediately. If you can show that the child was attempting to injure you, and that you reasonably believed that you needed to use force to stop the threat of injury, then the charges against you should be dropped or dismissed.

What should I do if I’ve been charged with Child Abuse, Neglect & Endangerment?

As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.

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