Domestic Violence – Neglect or Mistreatment of a Child 273a; Willfully Inflicting Cruel or Inhuman Corporal Punishment to a Child 273d

Neglect or Mistreatment of a Child

Neglect or Mistreatment of a Child

A violation of section 273a of the California Penal Code occurs when a person does one or both of the following,

  1. Willfully causes or permits a child to suffer or inflicts on a child unjustifiable physical pain or mental suffering; or
  2. Willfully causes or permits the person or health of a child under one’s custody or care to be injured or endangered.

These related acts are based on a person’s activity (directly) or passively (indirectly) causing an injury or creating a condition where a child could be injured. The passive act or omission must be one where a child was exposed to a reasonably foreseeable risk. This offense does not apply to unborn children.

Permitting a child to be placed in a hazardous environment is sufficient alone to violate this offense, there need not be any actual physical injury.

Neglect or Mistreatment of a Child

If the offense is committed under circumstances likely to produce death or serious injury punishment can be either as a felony or misdemeanor with a county jail sentence up to a year, or a prison commitment of 2, 4, or 6 years.1  In all other cases a violation of the offense is a misdemeanor.2

If the act which constitutes a violation of section 273a(a) involves female genital mutilation, then there is an additional 1 year added to any prison commitment.3

To be willful the act or omission must be purposeful, or with knowledge of the consequences. Commission of the indirect or passive portion of the statute requires the failure to prevent injury to be the result of criminal negligence. Thus, if there is no evidence that the defendant directly inflicted the injury to the child, proof of criminal negligence is required

A violation of section 272a(b) as a misdemeanor can be committed by a parent who is, “. . . engaging in serious domestic violence against the other parent while aware that his or her child is at the scene,” and as a result the child suffered emotional distress.

Custody or care is a factual question that can be shown by substantial evidence that a person was entrusted with the actual care or custody of a child irrespective of any specific agreement with the child’s main caretaker. Caretakers need not be exclusively parents, guardians, or babysitters, anyone entrusted with that responsibility will qualify for purposes of this offense. Nor is it necessary that a person has explicitly accepted that responsibility, the circumstances are sufficient to demonstrate a care or custodial relationship existed.

Willfully Inflicting Cruel or Inhuman Corporal Punishment

A violation of section 273d of the California Penal Code occurs when a person willfully inflicts cruel or inhuman corporal punishment, or an injury resulting in a traumatic condition to a child; if it is a felony there is a sentence consisting of a prison commitment 2, 4, or 6 Years; or as a misdemeanor a sentence of up to one year in a county jail, or a fine up to $6000, or both.4  If a person has a prior conviction for this offense then there is a 4 year additional prison commitment, however no additional prison term may be imposed where a person has remain free of custody for 10 years.5

Willfully means in the context of this offense the act is not deliberately intended to cause a traumatic condition, only to inflict a cruel or inhuman corporal punishment or injury.

1 Section 273a(a) of the California Penal Code
2 Section 273a(b) of the California Penal Code
3 Section 273.4(a) of the California Penal Code
4 Section 273d(a) of the California Penal Code
5 Section 273d(c) of the California Penal Code