Child Endangerment

September 29, 2014

Corporal Punishment of Illinois Children: Child Abuse or Parent’s Prerogative?

by Law Offices of David L. Freidberg, P.C.

The recent indictment of Minnesota Viking’s running back Adrian Peterson on charges of child abuse, which stemmed from his admission that he disciplined his young son with a switch, is raising questions over just what constitutes corporal punishment, and when it crosses the line from discipline to child abuse.

Chicago Spanking Laws

Under Illinois law, it is considered child abuse if a parent “inflicts excessive corporal punishment” upon his or her child. The use of the qualifier “excessive” makes clear that a Chicago parent is allowed to use corporal punishment when disciplining his or her child. But the law fails to define what pushes the corporal punishment, which may include spanking, hitting, pinching, slapping, or any other type of action with the intent of inflicting pain, from permissible to excessive.

The Illinois courts have dealt with the issue of corporal punishment at various times, consistently ruling that “parental rights of discipline are limited by a standard of reasonableness.” But they cite no examples of what constitutes unreasonableness.

How, then, is a parent to know whether discipline of a child will result in criminal charges? Unfortunately, they cannot, since there is no clear cut answer. What is reasonable today may be unreasonable tomorrow, depending on society’s changing views of corporal punishment. It can even vary depending on the type of punishment inflicted, the region, and the terms that are used to describe the punishment.

Cases such as these highlight the importance of obtaining experienced legal counsel. The sole basis of whether a parent’s physical discipline of his or her child qualifies as excessive under the law comes down to a reasonableness standard.

Defending against child abuse charges that stem from corporal punishment requires the ability to not only thoroughly examine all the circumstances to make a case for reasonableness, but also the ability to make a jury understand why the parent believed his or her method of discipline was reasonable. It also requires an examination of medical evidence regarding any alleged injuries, as well as photographs taken following the incident.

Whether the punishment is reasonable will rest in part on the severity of the discipline and whether it caused any injury. That requires a careful examination of any photographic evidence and testimony from qualified medical experts on the lasting impact, if any, from the discipline.

Photographs taken immediately after the incident may show red marks or other visible evidence of the physical discipline. But any type of physical contact can leave an imprint. Instead, the real question is whether that imprint remained, or whether it faded away shortly after the incident occurred. Physical marks that disappear shortly after the discipline would disprove excessive use of corporal punishment. If there are no follow-up photographs, medical testimony from David L. Freidberg’s team of medical experts could help jurors understand that an “injury” that looks bad in a poorly taken photograph actually faded away in an hour or two.

Eyewitness testimony is also important in disproving the excessive nature of the discipline. For example, if the child was running around playing like normal shortly after the punishment, as opposed to limping, that would go toward disproving that the punishment was excessive. Continue reading

July 13, 2014

Cook County Mother Convicted of Criminal Neglect in Death of Son

by Law Offices of David L. Freidberg, P.C.

A Berwyn woman was convicted in May of three felony counts of criminal neglect in the 2011 death of her 14-year-old son, who was disabled. She had originally been charged with child endangerment, but those charges were dropped.

The son, who had been found in the front yard of the family home after paramedics were summoned, died of pneumonia. His mother said she was treating him for an illness with antibiotics intended for animals. Police reported that the woman’s house was filthy, overrun with animals (some reportedly dead), and had no running water or working appliances. The woman and her mother, who also lived in the home, denied that the home was unlivable.

Criminal Neglect of Disabled in Illinois

Because of their vulnerability, Illinois law provides special protection to the disabled by making criminal neglect of the disabled a separate offense. In Illinois, the caregiver of a disabled person may be charged with criminal neglect if it can be proved that he or she knowingly:

Acted in a manner that caused the person’s life to be endangered, his health to be injured, or a pre-existing condition to deteriorate;
Failed to perform acts he knew, or reasonably should have known, were necessary to maintain the disabled person’s life or health;
Abandoned the person;
Physically abused, harassed, intimidated or interfered with the person’s personal liberty; or
Exposed the person to willful deprivation.

The caregiver cannot be charged if she made a good faith effort to provide for the disabled person’s needs, but was unable to provide that care through no fault of her own.

Criminal neglect is a Class 3 felony, unless the neglect resulted in the disabled person’s death, in which case it is a Class 2 felony. If prison time is imposed, it may be anywhere from three to 14 years.

Defense Against Cook County Charge of Criminal Neglect

Defending against charges of criminal neglect of the disabled is a sensitive area. The vulnerable in our society need extra protection, since they either lack the physical or mental capacity to care for themselves. But caring for the disabled can be overwhelming, particularly in the case of the Berwyn mother: she was a single parent raising three other children while simultaneously taking care of her elderly mother.

While being overwhelmed does not excuse failing to provide for a disabled person’s basic needs, it also does not paint a portrait of someone coldly indifferent to the needs of the person in her care. In the case of the Berwyn mother, there were additional factors that likely led to the jury’s decision, namely the home being full of living and dead animals. But for others, the overwhelming task and lack of services could offer mitigating circumstances that could either sway a jury to acquit or cause a judge to impose little to no prison time.

It is a complete defense to criminal neglect of the disabled if the caregiver can show that she tried to provide for the disabled person’s needs but, through no fault of her own, was unable to meet those needs. Illinois consistently ranks in the bottom five in national surveys for access to disability services, meaning well-intentioned caregivers could find themselves suddenly overwhelmed with no place to turn for help.

Other factors that may show that the caregiver was not at fault for failure to provide services could include:

Lack of health insurance, or health insurance that does not cover the disabled person’s needs;
Lack of income to provide for medical needs not covered by health insurance, or;
Documented attempts to acquire services from social service agencies.

June 11, 2014

Skokie Toddler Left in Car – Child Endangerment?

by Law Offices of David L. Freidberg, P.C.

It is a phenomenon that we have seen repeatedly in news stories across the country in recent months: parents leaving their young children unattended in the car while they go shopping or to a job interview. And now a Skokie, Illinois woman has been charged with child endangerment for leaving her toddler in the car while she went to work, a misdemeanor under Illinois law.

Illinois Child Endangerment

Under Illinois law, an individual commits the crime of child endangerment if she knowingly causes the child’s life or health to be endangered, or causes the child to be placed in circumstances where his life or health would be endangered. Child endangerment is a Class A misdemeanor, which is punishable by less than one year in jail and up to a $2,500 fine.

There is a rebuttable presumption that a child under the age of six is unattended if left in a motor vehicle for more than 10 minutes, and that his life or health was put in danger. A rebuttable presumption means that the trier of fact (either the judge or jury) may assume that the child was left unattended, but the defendant can provide evidence to rebut that presumption.

Children left in cars is common, and most parents are unaware that Illinois has laws against leaving children unattended in motor vehicles. In some cases, there is no neglect at all. Call it a momentary lapse in judgment, or in some cases even an unfortunate accident.

Defense of Child Endangerment

Of course, there are cases of truly neglectful parents who place their child’s life and health in danger – parents who go off drinking, doing drugs or gambling. But for others, like the ones mentioned above, it is an accident, or a choosing of the lesser of two evils. What type of defense is there against these charges? Defense of both of these types of incidents involves looking at the specific facts of the case to determine if the parent knew that he was leaving the child alone and if he did in fact leave the child alone.

For the parent who forgets that their child was in the car, the charge of child endangerment rests on the word “knowingly”. If the parent can prove that he did not realize he had left his child in the car, then he cannot have knowingly placed the child’s life or health in danger.

For the parent who leaves the child for a short time, defense would hinge on whether the child was truly unattended. Illinois law states that for purposes of leaving a child unattended, the child must have been out of sight of the adult. For instance, if the parent ran in to the bank, could he see the car and the child at all times, perhaps through a window or a door? Did the parent have the ability to see or hear the child from inside the building, perhaps through the use of a monitor left in the car that was able to be seen or heard through the parent’s cell phone? If the parent could prove that he was, in fact, ‘tending to’ the child, then he cannot be charged with child endangerment. Continue reading