Articles Posted in Child Endangerment

Published on:

child-1437361According to an article in the MetroWest Daily News, a Holliston man was recently arrested for slapping his four year old son. The article states that the defendnt was on a supervised visit with his two children – the alleged victim and his older brother, who is seven years old. During the visit, the defendant reportedly slapped the four year old in the head because he refused to stay in his time out. The child apparently fell backwards as a result and hit his head on a doorframe, which caused a lump to form on his head. After this occurred, the defendant spoke with the children’s mother and relayed what had happened. As a result of the incident, the defendant was arrested for assault and battery causing injury to a child under fourteen.

For a jury to convict the defendant of assault and battery causing injury to a child under fourteen under G. L. c. 265, § 13J, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the alleged victim was under fourteen years of age; (2) that the defendant touched the person of the alleged victim, without having any right or excuse for doing so; (3) that the defendant intended to touch the alleged victim – in other words, that the defendant touched his son deliberately rather than accidentally; and (4) that the alleged victim suffered bodily injury.

A second way in which a person may be guilty of an assault and battery under the statute is if the person engaged in reckless rather than intentional conduct. In order to prove that the defendant is guilty under a theory of reckless conduct, the Commonwealth must prove three things beyond a reasonable doubt: (1) that the alleged victim was under fourteen years of age; (2) that the defendant intentionally engaged in actions which caused bodily injury to the alleged victim; and (3) that the defendant’s actions amounted to reckless conduct.

Under either theory, bodily injury is defined as a substantial impairment of the physical condition, including: a burn, a fracture of any bone, a subdural hematoma, any injury to any internal organ, any injury which occurs as the result of repeated harm to any bodily function or organ including human skin, and/or any physical condition which substantially imperils a child’s health or welfare. Continue reading →

Published on:

sad-snot-nosed-kid-1062449-mAccording to an article in the MetroWest Daily News, a Framingham man, was arrested after physically disciplining his son. The child, who is seven years old, bit one his teachers at his school. Following the incident, the defendant, the child’s father, reportedly destroyed the child’s video game system. The child’s mother tried to intervene and prevent the defendant from breaking the system. When she did so, however, the defendant reportedly hit her and shoved her away. He then reportedly hit his son and kicked him twice in his buttocks. Approximately two hours after the alleged incident, the defendant presented himself at the police station. While there, he acknowledged that he had hit his son twice in the rear, but denied kicking him. As a result of the incident, the defendant was charged with (1) assault and battery with a dangerous weapon (shod foot); (2) assault and battery on a child; (3) domestic assault and battery; and (4) malicious destruction of property over $250.

Despite the fact that the defendant was charged with these offenses, he does appear to have a legitimate defense. In relation to the charges in which the defendant’s son is the alleged victim, the defendant can argue that he was simply using reasonable physical force to discipline his child. While the Massachusetts legislature does not specifically allow for the use of physical discipline by a parent, Massachusetts case law alludes to the ability of a parent, or one acting in position of a parent, to use physical force to discipline a child. For example, in Commonwealth v. Rubeck, the Supreme Judicial Court appears to recognize the parental right to discipline as a legitimate defense to the use of physical force against a child as long as the physical force is for the specific purpose of discipline, is conducted in a controlled manner rather than the result of an emotional outburst, and does not result in bruising or significant injury. Given the fact that it is undeniably inappropriate for a seven year old child to bite a teacher, the defendant can argue that he was within his rights to put his hands on his child for the purpose of disciplining him. Continue reading →

Published on:

camera-monitoring-488734-mAccording to an article in the MetroWest Daily News, a German au pair who has been charged with assaulting the three year old boy that she cared for has filed a criminal complaint against the child’s father. The au pair was reportedly caught on camera shoving the boy to the floor. The camera recorded both audio and video footage and it appears that the defendant was unaware that any sort of recording device had been put in place to monitor her.

The article indicates that the child’s father had had some concerns regarding the care that the defendant was providing. He then set up a “nanny cam” to record her activity within the home. The appearance of the recording device is not entirely clear – the article does not indicate whether the camera was in plain view and/or whether it was obviously a recording device. Regardless of the appearance of the device, however, it is undisputed that the father did not tell the defendant about the camera and/or that it was recording both audio and visual surveillance. After installing the device, the father apparently watched the footage and observed the incident in which the defendant appears to have shoved the child. Specifically, the video reportedly shows the boy in a living area of the home. the defendant can be heard off camera telling the child to take off his clothes and put his pajamas on so that he can go to bed. Several minutes later, the defendant reportedly enters the room and knocks the child to the floor. He immediately begins crying. the defendant then appears to leave the room but comes back shortly thereafter, sits on the floor with the boy, and tries to comfort him.

Under G. L. c. 272, § 99, it is a crime to record a person’s voice without obtaining his or her permission. As a result, the defendant applied for a criminal complaint against the father, accusing him of violating the wiretapping statute. The defendant’s lawyer is also seeking to have the video excluded from evidence at the trial. Continue reading →

Published on:

police-cruiser-1066864-mAccording to an article in the MetroWest Daily News, a seventeen-year-old boy from Sudbury was charged with enticing a child under the age of sixteen. The article states that a resident from Skyview Lane called the police around 3:30pm this past Wednesday. The caller stated that a person in a car had made statements to two twelve-year-old boys and allegedly tried to get them to enter the vehicle. The caller then provided a description of the car, which was broadcast to other officers in the area. Officers responding to the scene then stopped a vehicle that matched the caller’s description. The two boys identified the driver as the person that had tried to get them into his car.   Police subsequently arrested the driver, whose name is not being released due to his age. The police also searched the vehicle and reportedly found items that supported the allegations. The teen was arraigned in Framingham juvenile court on the charge of enticing a child under the age of sixteen under G. L. c. 265, § 26C.

To prove that the teen is guilty of enticement of a child under the age of sixteen, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the alleged victim(s) were under the age of sixteen, or that the teen believed to be under the age of sixteen; (2) that the teen enticed the alleged victims to enter his vehicle; and (3) that the teen did so with the intent that he (or another person) would commit one or more of the following offenses:

  • Indecent assault and battery on a child under the age of 14, on a person with an intellectual disability, or on a person 14 years or older;
  • Rape of a child under 16 with force or abuse of a child under the age of 16;
  • Assault on a child under 16 with intent to commit rape;
  • Inducing a minor to become a prostitute;
  • Open and gross lewdness;
  • Disseminating matter harmful to a minor;
  • Disseminating or possessing to disseminate obscene matter;
  • Posing or exhibiting a child under 18 in a state of nudity or sexual conduct;
  • Knowingly purchasing or possessing visual material of a child under 18 in sexual conduct;
  • Unnatural and lascivious acts with a child under 16;
  • Accosting or annoying a person of the opposite sex;
  • Common nightwalker or streetwalker;
  • Disorderly conduct;
  • Disturbing the peace;
  • Indecent exposure;
  • Keeping a noisy and disorderly house;
  • Lewd, wanton and lascivious conduct;
  • Engaging in sexual conduct for a fee;
  • Paying or procuring for sexual conduct with a child under 14.

Continue reading →

Published on:

alcohol.jpgThe Springfield Republican recently published an article about the arrest of a man this past Friday by the Holyoke Police Department. The man is a bus driver who transports students in Holyoke. At the time of his DUI arrest last friday he was driving children to their homes as a part of his afternoon duties. According to police he was not driving a yellow school bus, but rather a maroon van.

Trouble for the man started when a school employee noticed alcohol on his breath. The school employee called the police and the police eventually found the man and arrested him on charges of DUI (commonly referred in Massachusetts as OUI or Operating Under the Influence) The police also charged the man with Child Endangerment because school children were in his van when he allegedly drove under the influence.

Child endangerment while operating under the influence is a very serious charge that enhances the potential penalties above and beyond the average first offense DUI. If the man goes to trial and loses, or pleas out to this offense he will not be eligible for a continuation of the case without a finding. (a common way for a first offender to enter a plea deal while not actually being found guilty) The statute concerning child endangerment forbids any attempt by the court to continue the case without a finding. Also if he is convicted he will face a license loss of 1 year as opposed to most first offenders who usually face no more than 90 days of suspension.

Of course the article is very vague and leaves the reader guessing as to the strength of the case against the man. First and foremost whether or not the child endangerment charges can proceed against the man depends on the age of the children he was driving. Only children aged 14 or younger satisfy the requirement of the statue. If the children were older high school students the child endangerment portion of the case could very well be thrown out on a motion to dismiss prior to the case ever reaching trial.

The article mentions that the man took a breathalyzer test, but declines to tell the reader which kind of breathalyzer test, or the score he had on the test. Massachusetts police officers usually have two kinds of breathalyzer tests at their disposal. Roadside hand held breathalyzer tests are often used in the field, but the results of such tests are generally not admissible in court. If the man took the portable breath test, but declined the breath test at the station there may not be any breath test evidence that woudl be admissible against him at trial.

Also the report is silent on whether or not he took any roadside field sobriety tests, or if he did take them how well he performed on them. Even if the man refused to take the field sobriety tests the Commonwealth will not be able to inform the jury of that information at his trial. (for a detailed discussion of why field sobriety test refusal cannot be used against a defendant at trial read Commonwealth v. McGrail)

Continue reading →