Criminal defense attorneys in Florida often struggle to answer questions related to what is and what is not considered child abuse in the State of Florida. The reason is that the child abuse statute is so very broad and covers such a wide array of actions, some of which do not even include physically touching a child. That statute often runs up against the age old adage that a parent has the right to raise their child as they see fit.
Ask ten different people and you will get ten different answers on how a child should be punished for different behaviors and actions. What was considered acceptable parental corporal punishment decades ago could be considered child abuse today. So, what is considered child abuse today?
What is the child abuse law in Florida?
Florida’s child abuse statute is §827.03(2)(c), which makes it a third degree felony punishable by up to five (5) years. There are also other laws related to similar conduct, such as aggravated child abuse, child neglect and contributing to the delinquency of a minor, however, we’ll keep our discussion limited to child abuse only.
Under Florida State §827.03(b), there are three ways to commit child abuse:
- intentionally inflict physical or mental injury upon a child,
- commit an intentional act that could reasonably be expected to result in physical or mental injury to a child, or
- actively encourage a person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child.
So, under Florida law, you do not have to physically touch a child or cause an actual injury to be convicted of child abuse. Consider these examples of what could be considered child abuse.
- Committing a violent act in front of a child
- Why? Because all it takes is the intentional infliction of mental injury. If the State can prove a mental injury (i.e. a psychologists testimony that the child is now suffering from a mental disorder, like PTSD) and that you intended to inflict the mental injury (i.e. you intended to commit the act in front of the child to cause trauma), you could be convicted of child abuse without touching the child or causing any physical injury.
- Encouraging your 16 year old child on in a neighborhood fight,
- Why? All it takes is a few words of encouragement to a child to be charged with child abuse. For example, “Go ahead and hit him,” or “Go ahead and juggle those knives, I dare you.”
- Injuring your child during a tackle football game
- Why? If the State believed you intended the act (i.e. the tackling), and a reasonable person would have expected an injury to result (i.e. due to the vast difference in size and weight between the child and the parent), the State could charge you with child abuse.
Child is defined as a person under the age of 18.
What is considered child abuse in Florida?
So what kinds of acts are considered child abuse in Florida? Basically, if a police officer believes that an act is child abuse, they will make an arrest. If a prosecutor agrees, they will proceed with prosecution. If a judge agrees, as a matter of law, the case can get to a jury. Then it would be up to a jury to decide. You may be able to use corporal punishment as a defense. In other words, if you spank your child on the bottom and then get arrested for child abuse, you would be able to argue to the jury that this was not child abuse, but corporal punishment by a parent as discipline for the child.
Kicking a child while they are lying on the ground has been held to not be reasonable corporal punishment. Also, whipping a child with a belt to the extent that it causes welts and bruises has also been held to be child abuse.
What isn’t considered child abuse in Florida?
There isn’t a whole lot of guidance on what is not considered child abuse by Florida courts, however, reasonable physical discipline is not child abuse. Spankings on the buttocks that do not cause bruises or welts would probably not fall under the child abuse statute and would be ripe for a criminal lawyer to file a motion to dismiss the charges.
However, for the most part, whether a parent’s act is child abuse or not is going to be up to a jury after trial. A person can raise the defense of parental discipline and argue that the act was reasonable physical discipline for misbehavior under the circumstances. This defense applies to a parent or a person acting in the parent’s place. This defense can be raised even if there is physical injury. However, it would be up to the jury to determine whether the act was reasonable. So, the more severe the injury, the less likely a jury would be to find that the discipline was reasonable.
Jeremy Lasnetski, managing partner at Shorstein, Lasnetski, & Gihon is a Florida Bar Board Certified Criminal Trial Lawyer and has been practicing criminal law in Jacksonville for over 16 years. Mr. Lasnetski received his Bachelor of Arts degree with honors from the University of Florida in 1997 and went on to obtain a law degree and an M.B.A. from the University of Florida in 2001.
After graduation, Mr. Lasnetski accepted a position as a prosecutor at the State Attorney’s Office in Jacksonville. During the next 6 1/2 years as a prosecutor, Mr. Lasnetski tried more than 50 criminal trials, including more than 40 felony trials. He was promoted in 2007 to Division Chief of the Repeat Offender Unit. Mr. Lasnetski was also a full time member of the Homicide Prosecution Team. In 2008, Mr. Lasnetski formed the Law Office of Shorstein & Lasnetski and began defending citizens in criminal court. He represents clients in both State and Federal criminal courts.